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Krishnaji Ramchandra Koshti Vs. Bhikchand Ramkaran Marwadi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 207 of 1939
Judge
Reported in(1941)43BOMLR719
AppellantKrishnaji Ramchandra Koshti
RespondentBhikchand Ramkaran Marwadi
DispositionAppeal dismissed
Excerpt:
.....proceedings--application to join party to darkhast--whether application falls under order xxii, rule 10--wlhether second appeal lies from an order refusing such application.;order xxii, rule 10, of the civil procedure code, 1908, applies to execution proceedings. an order made under that rule is appealable under the provisions of order xliii, rule 1, sub-clause (1), but no second appeal lies from an order passed in appeal in virtue of section 104, clause (2), of the civil procedure code.;muthiah chettiar v. govindoss krishnadoss (1921) i.l.r. 44 mad. 919, f.b. and midnapore zamindari co. ld. v. naresh narain roy (1911) i.l.r. 39 cal. 220, followed.;virupakshappa v. sidappa and basappa (1901) i.l.r. 26 bom. 109, s.c. 3 bom. l.r. 565. srinivasa v. pratapa simha [1926] ..........execution proceedings after a decree has been passed. the question whether the provisions of this rule apply to execution proceedings, is one not free from doubt and there have been conflicting rulings of the different high courts on the point. our attention has not been drawn to any decision of our own high court on this question. rule 12 of order xii says that 'nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.' it would seem to follow from this express reference to rules 3, 4 and 8, that the remaining rules of this order including rules 10 would apply to proceedings in execution. sir dinshah mulla in his commentary on the code, 10th edn., page 850, says that the provisions of order xxii apply to execution proceedings except rules 3, 4 and 8. the.....
Judgment:

N.J. Wadia, J.

1. This appeal arises out of an application made by the appellant in execution proceedings which had been started by him to execute a mortgage decree obtained by him in suit No. 136 of 1923. The property involved in the suit had been mortgaged to the appellant-plaintiff by one Narayan Ramji on April 15, 1916. Subsequent to this the same property was mortgaged by Narayan to the respondent Bhikchand Ramkaran Marwadi on June 7, 1917. In 1921 Bhikchand filed a suit on his mortgage and obtained a mortgage decree on August 17, 1922, and in the course of the execution proceedings on that decree he himself purchased the property on March 3, 1931, the sale being confirmed on May 25, 1931. In the meanwhile the plaintiff filed his suit, No. 136 of 1923, and obtained a decree on August 4, 1923. To this suit Bhikchand had not been joined as a party. The plaintiff filed darkhasts in 1927 and 1930, but these were not prosecuted. Finally darkhast No. 360 of 1931, from which this appeal arises, was filed by him on March 21, 1931, prior to the confirmation of the sale of title property to Bhikchand. On April 5, 1933, the Court of Wards on behalf of the plaintiff applied in darkhast No. 450 of 1931 to add Bhikchand as a party. The learned trial Judge rejected the application holding that it could not be made under Order XXII, Rule 10, of the Code of Civil Procedure, 1908, upon which the applicant relied, because in his view that rule did not apply to execution proceedings. He also held that Bhikchand being a purchaser at a Court sale was. not the legal representative of the judgment-debtor. Against this order there was an appeal to the District Judge of Ahmednagar who dismissed it, and the applicant has come in second appeal.

2. A preliminary objection has been raised by Mr. Dharap for the respondent that no second appeal lies. His contention is that the appellant's application to add Bhikchand as a party to the darkhast is an application under Order XXII, Rule 10, and against an order made under that rule an appeal lies under the provisions of Order XLIII, Rule 1, Sub-clause (1), and under the provisions of Section 104, Clause (2), of the Code of Civil Procedure, no second appeal lies from any order passed in appeal under Order XLIII, Rule 1. The question therefore is whether the provisions of Order XXII, Rule 10, applied to the present application which was one made in the course of execution proceedings. For the appellant it is contended that Order XXII, Rule 10, does not apply to execution proceedings. In support of that contention reliance is placed on the language of the rule itself which is as follows:

In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

3. The marginal note to the rule shows that it deals with the 'Procedure in case of assignment before final order in suit.' It is argued that the words 'during the pendency of a suit' clearly indicate that the rule could not apply to execution proceedings after a decree has been passed. The question whether the provisions of this rule apply to execution proceedings, is one not free from doubt and there have been conflicting rulings of the different High Courts on the point. Our attention has not been drawn to any decision of our own High Court on this question. Rule 12 of Order XII says that 'nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.' It would seem to follow from this express reference to Rules 3, 4 and 8, that the remaining rules of this Order including Rules 10 would apply to proceedings in execution. Sir Dinshah Mulla in his Commentary on the Code, 10th edn., page 850, says that the provisions of Order XXII apply to execution proceedings except Rules 3, 4 and 8. The fact that the rule refers to 'an assignment, creation or devolution of any interest during the pendency of a suit' would not necessarily mean that it could not apply to execution proceedings. Applications in execution are proceedings in the suit as was held in Virupakshappa v. Shidappa and Basappa (1901) I.L. JR. 26 Bom. 109 and in that sense the assignment, creation or devolution of any interest during the pendency of execution proceedings could be said to be during the pendency of the suit. The question whether Order XXII, Rule 10, applies to execution proceedings was considered by a full bench of the Madras High Court in Muthiah Chettiar v. Gavinddoss Krishnadoss (1921) I.L.R.44 Mad. 919.F.B. and the view taken by the majority of the full bench was that it did apply. Wallis C.J. in dealing with the contention that Order XXII, Rule 10, did not apply to execution proceedings said (p. 923):

Generally, an application for execution is a proceeding in a suit, as held in Virupakshappa v. Shidappa and Basappa (1901) I.L. JR. 26 Bom. 109 and Shaik Davud Rowther v. Paramasami Pillai : (1916)31MLJ207 and I think that the present Code has been drafted on this basis. It expressly provides by Order XXII, Rule 12, that nothing in Rules 3, 4 and 8 of that Order, which provide for abatements, shall apply to execution, and in Order XXIII, Rule 4, that nothing in that Order shall apply to execution, while it contains no such provision in Order XXXII, as to minors or persons of unsound mind which must none the less be equally applicable to execution.

A further objection has been taken that an application in execution cannot be an application during the pendency of a suit, within the meaning of Order XXII, Rule 10, but, if for the purposes of the Order applications in execution are applications in suits, they must in my opinion equally for the purposes of the Order be applications during the pendency of suit.

4. The decision in Muthiah Chettiar v. Govinddoss Krishnadoss however was not rested upon this conclusion. In a subsequent decision of the Madras High Court in Srinivasa v. Pratapa Simha [1926] A.I.R. Mad. 244. a division bench of the Madras High Court held that Order XXII, Rule 10, applied only to pending suits. In Mayankutti v. Biyyathumma [1927] A.I.R. Mad. 824. which was a decision of a single Judge, the question again arose whether Order XXII, Rule 10, applied to proceedings subsequent to a decree, and it was held following the decision in Srinivasa v. Pratapa Simha that Order XXII, Rules 10, would not apply to post-decree proceedings. The decision of the full bench in Muthiah Chettiar's case was referred. to but was not followed on the ground that the decision of the case rested on other grounds and not on the view that Order XXII, Rule 10, applied to execution proceedings. In Midnapore Zamindari Co. Ld. v. Naresh Narain Roy (1911) I.L.R. 39 Cal. 220. a division bench of the Calcutta High Court also expressed the opinion that the provisions of Order XXII, Rule 12, would seem to imply, by the principle of exclusion, that all the rules of that Order, except Rules 3, 4 and 8, are applicable to proceedings in execution of a decree or order, and that Rules 10 was therefore so applicable. But this was a mere expression of opinion, the actual decision being based on the view that the proceedings in that case, which were proceedings for assessment of mesne profits after a decree had been obtained in a suit) for the recovery of possession of immoveable property were proceedings in continuation of the original suit, and the case was therefore treated as a case of devolution of interest by sale during the pendency of the litigation.

5. I am with respect of opinion that the view expressed by the majority of the full bench in Muthiah Chettiar v. Govindoss Krishnadoss and by the Calcutta High Court in Midnapore Zamindari Co. Ld v. Naresh Narain Roy that Order XXII, Rules 10; applies to execution proceedings, is correct. It is difficult to, reconcile the opposite view with the provisions of Rules 12 of the Order. If the Legislature had intended that Rules 10 should not apply to execution proceedings, that rule would have been mentioned in Rules 12 along with Rules 3, 4 and 8. It was argued that the language of Rules 10 itself precluded, its application to execution proceedings since it referred to suits. But there is a similar reference to suits in Rules 1, 2, 7 and 9 of the Order and it is not contended that these rules also do not apply to execution proceedings. The appellant's application must therefore be treated as an application made under Order XXII, Rules 10, and that being so, no second appeal lies. The appeal must therefore be dismissed with costs.

6.We have been asked to treat this appeal as a revision application. But as the power to add the name of any person upon whom any interest has devolved as a party to the proceedings is one within the discretion of the Court, we see no reason to allow the application to be argued as an application in revision.

Wassoodew, J.

7. I agree in holding that Order XXII, Rule 10, of the Civil Procedure Code, applies to execution proceedings. In terms that rule lays down the procedure in cases of assignment, creation or devolution of any interest 'during the pendency of a suit.' That expression has given rise to a conflict of opinion among the different High Courts: see Goodall v. The Mussoorie Bank, Limited (1887) I.L.R. 10 All. 97. Midnapore Zamindari Co. Ld. v. Naresh Narain Roy (1911) I.L.R. 39 Cal. 220. Musammat Gulab Kuer v. Syed Mahamed Zaffar Hassan Khan (1921) 6 P. L.J. 358 and Muthiah Chettiar v. Govinddoss Krishnadoss (1921) I.L.R. 44 Mad. 919F.B. It is contended that the expression 'during the pendency of a suit' in Rule 10 implies the interval between the filing of the plaint and the passing of the final decree, and that therefore the Legislature contemplated that the rule would apply to an application made before the decree or final order in the suit. There is no reported decision of this Court on the application of that rule. It has been held in a series of decisions of this. Court and other Courts,--see Virupakshappa v. Shidappa and Basappa (1901) I.L.R. 26 Bom. 109 and Shaik Davud Rowther v. Paramasami Pillai : (1916)31MLJ207 . that an application in execution is a proceeding in a suit, or, in other words, execution is a continuation of the suit. If that view is correct, an application in execution would necessarily be an application 'during the pendency of the suit.' It has been urged that the contrary view is supported by the marginal note to the rule which says that it relates to the 'procedure in case of assignment before final order in suit.' But the marginal note cannot be used to limit the construction of the provisions of the statute and it does not form part of it. The other provisions of Order XXII show, as my learned brother has pointed out, that the Legislature drafted those provisions on the basis that the execution was a continuation of the suit. Rule 1 of Order XXII as regards abatement necessarily applies to execution proceedings, and it has not been suggested that it does not. Wherever the application of the rules as to abatement to execution proceedings was considered objectionable, the Legislature has said so. That affords an explanation for the existence of Rules 12 of Order XXII which excludes the operation of Rules 3, 4 and 8 of Order XXII to execution proceedings. Whenever the Legislature intended that certain rules of the Code which in terms apply to suits should not apply to execution proceedings, it has been expressly so provided. See Order XXIII, Rule 4.

8.But the principal contention of the appellant is that inasmuch as the executing Court could pass orders upon the application in question under Section 47 of the Code, because that section confers jurisdiction to deal with questions as to representation, the application itself is referable to the provisions of that section. That section does not lay down the procedure by which an assignee of an interest of a party to a decree could be added as a party to the execution proceedings, although it confers jurisdiction on the Court to decide his representative character. There are several rules in Order XXII which confer jurisdiction to decide questions relating to the representative character of persons sought to be joined or already joined as parties. Rules 2, 3 and 4 deal with cases of devolution of interest on the death of a party to a suit. Rule 5 expressly confers power on the Court to determine the question as to legal representation. Rule 7 deals with the case of creation of interest on husband on marriage. The Legislature however considered it essential to lay down the procedure for adding persons as parties acquiring interest by other modes of assignment by framing Rule 10. That was done for obvious reasons. Before the jurisdiction as to the determination of representation can be exercised every party has to follow the preliminary procedure of bringing the person whose representative character is to be determined before the Court. For that purpose rules laying down the procedure will be necessary. In the absence of any specific provisions in the Code to that effect relating to execution a party will be driven to invoke the inherent powers of the Court under Section 151. That may lead to difficulty, and in my opinion a strict construction of Rule 10 may result in hardship. I think that consideration would justify the application of the rule to execution proceedings. If therefore an application to bring an assignee on the record in execution proceedings is an application in continuation of the suit and therefore during the pendency thereof, the application would fall under the provisions of Order XXII, Rule 10. Consequently, I agree with the order proposed.


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