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Anandrao Kesheorao Pande Vs. Krishnaji Baliram Dhapadkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 454 of 1962
Judge
Reported inAIR1964Bom232; (1963)65BOMLR417; ILR1963Bom99
ActsMadhya Pradesh Temporary Postponement of Execution of decrees Act, 1956 - Sections 3, 3(1) and 3(3); Code of Civil Procedure (CPC), 1908 - Sections 47 and 141 - Order 9, Rules 8 and 9 - Order 21 - Order 43, Rule 1; Uttar Pradesh Temporary Postponement of Execution of Decrees Act - Sections 3; Madras Agriculturists Relief Act - Sections 23; C.P. Money-lenders Act - Sections 11
AppellantAnandrao Kesheorao Pande
RespondentKrishnaji Baliram Dhapadkar
Appellant AdvocateG.J. Ghate and ;S.K. Deshpande, Advs.
Respondent AdvocateM.N. Chandurkar, Adv.
Excerpt:
madhya pradesh temporary postponement of execution of decrees act (m.p. v of 1s56), section 3 - civil procedure code (act v of 1908), order ix, order xliii, rule 1(c), order xxi; sections 141, 47--proceedings initiated under section 3(1) of m.p. act v of 1956 whether in nature of execution proceedings--applicability of order ix of code to such proceedings.;the proceedings initiated by a judgment-debtor under section 3(1) of the madhya pradesh temporary postponement of execution of decrees act, 1956, are not in the nature of execution proceedings but are in substance, independent original proceedings undertaken by the judgment-debtor for assertion of substantive rights and to such proceedings, the provisions of order ix of the civil procedure code, 1908, apply.;har narain v. mathura..........was dismissed partly on the ground that an application under order 9, rule 9 of the code of civil procedure was not maintainable and partly for the reason that there was no sufficient cause for the absence of the petitioner on the 21st of december 1961. on the 27th of september 1962 the fresh application was also dismissed for the obviously inconsistent reason that order 9, rule 9 would govern applications filed under section 3 of the act and as the petitioner had not preferred an appeal against the older dated 14th february 1962, the fresh application under section 3 was not maintainable. it is against this order that the present revision application has been filed.2. the main question, which arises in this revision application is whether the provisions contained in order 9 of.....
Judgment:

1. This revisional application arises out of proceedings which were initialed by the petitioner (judgment-debtor) under Section 3 of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956 (M. P. Act No. V of 1956), which will hereinafter be referred to as the Act. On the 16th of June, 1960, the respondent filed a darkhast to execute the decree, which he had obtained against the petitioner for the refund of earnest money. On the 22nd of July, 1960, the petitioner filed an application for stay of execution of the decree under Section 3 (1) of the Act, which reads thus:

'All proceedings in execution of any decree for money, or proceedings for making final any preliminary decree for foreclosure or sale, or proceedings in execution of any final decree for sale, passed by a Civil Court on the basis of a liability incurred before this Act comes into force, in which a Judgment-debtor or defendant, as the case may be is on the date this Act comes into, force, an agriculturist, shall be stayed against such judgment-debtor or defendant, on an application made by him in this behalf during the period this Act remains in force.'

On 21st of December, 1961, the application was dismissed for default, as the petitioner was absent. After the application was so dismissed, the petitioner adopted two different but parallel proceedings, one of them being an application for the restoration of the application which was dismissed for default and the other being the institution of a similar but fresh application The fresh application was filed on the 4th of January, 1962, whereas the application for restoration was filed on the 12th of January, 1962. On the 14th of February, 1962, the application for restoration was dismissed partly on the ground that an application under Order 9, Rule 9 of the Code of Civil Procedure was not maintainable and partly for the reason that there was no sufficient cause for the absence of the petitioner on the 21st of December 1961. On the 27th of September 1962 the fresh application was also dismissed for the obviously inconsistent reason that Order 9, Rule 9 would govern applications filed under Section 3 of the Act and as the petitioner had not preferred an appeal against the older dated 14th February 1962, the fresh application under Section 3 was not maintainable. It is against this order that the present revision application has been filed.

2. The main question, which arises in this revision application is whether the provisions contained in Order 9 of the Code of Civil Procedure would apply to applications which are filed under Section 3 (1) of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956. If the proceedings initiated by an application filed under Section 3 of the Act are in the nature of execution proceedings, then it is indisputable that the provisions of Order 9 will not be attracted. On the other hand, if the proceedings, which a judgment-debtor takes under Section 3 of the Act, are not in the nature of execution proceedings, but are in the nature of substantive original proceedings, then it would be equally clear that the provisions of Order 9 would apply to the proceedings.

3. Mr. Ghate, who appears on behalf of the petitioner, contends that Order 9, Rule 9 of the Code of Civil Procedure has no application to the proceedings initiated by the judgment-debtor under Section 3 (1) of the Act, because, the proceedings which Section 3 contemplates are in form and Sub-stance execution proceedings and it is settled law that the provisions contained in Order 9 do not apply to execution proceedings. Now, what is provided by Section 3 (1) of the Act is that proceedings in execution of certain decrees shall be stayed if the decree is passed by a Civil Court on the basis of a liability which is incurred before the date on which the Act came into force, and if the judgment-debtor is an agriculturist. It seems to the difficult to take the view that the proceedings contemplated by Section 3 of the Act are in substance execution proceedings. By the application, which a judgment-debtor files under Section 3, he raises a contention that by reason of independent and substantive rights, which are conferred by the Act. the executing Court loses its jurisdiction for a temporary period to execute a lawful decree or order. The application, in the first place, though called an application for stay of execution, does not concern itself with any one of the reliefs which a judgment-debtor may legitimately obtain under Order 21 of the Code of Civil Procedure which deals with 'execution of decrees and orders'. The Court is required to deal with the application as if it is a substantive proceeding because to be able to deal with the contentions raised by the judgment debtor in his application, it is necessary for the Court to raise fresh issues with regard to the status of the judgment-debtor, the nature of the decree and with regard to the time when the liability which has merged in the decree, was incurred. In other words, the proceeding initiated by the judgment-debtor by an application under Section 3 of the Act, is more in the nature of a suit than in the nature of an ancillary application such as an execution proceeding is. What the Legislature has done by enacting Section 3 is to counter special rights on a special class of persons with regard to decrees of a special description. In the enforcement of such rights, considerations which primarily weigh with an executing Court are out of place and such substantive applications are required to be dealt with as a trial Court would deal with a suit. It is not disputed, and indeed it is clear, that an application contemplated by Section 3 of the Act, will not attract the provisions of any of the procedural rules which are contained in Order 21 of the Code of Civil Procedure. In my opinion, therefore, the proceedings which were initiated by the petitioner under Section 3 (1) of the Act on the 22nd of July, 1960, are not in the nature of execution proceedings, their true nature being that by resorting to them a substantive right-is sought to he exercised and a substantive relief is attempted to be obtained by the judgment-debtor.

4. Mr. Ghate contends that a clue to the nature of the proceedings undertaken by the judgment-debtor under Section 3 (1) of the Act is afforded by the very nature of the relief which the judgment-debtor is enabled to seek, namely, stay of execution of the decree or order. The argument is that the judgment-debtor can apply for stay of execution only if the decree-holder files an application for execution and that, therefore, the former application should be deemed to be a part of the latter application. A clear answer to Mr. Ghate's contention is provided by Sub-section (3) of Section 3 of the Act which says that any judgment-debtor or defendant who is an agriculturist, may, notwithstanding that no proceedings of the nature referred to in Sub-section (1) are pending against him. make an application for stay under that sub-section. The provisions of Sub-section (3), in a sense, also throw a useful light on the true nature of the proceedings contemplated by Sub-section (1). If by virtue of the provisions contained in Sub-section (3) of Section 3, an application for stay of execution can be filed even if no execution proceedings are pending, then it would be difficult to take the view that every application filed under Sub-section (1) must be deemed to have been filed during the pendency of execution proceedings.

5. Mr. Chandurkar, who appears on behalf of the respoudent-decree-holder, has drawn my attention to three decisions of the high Courts of Allahabad. Madras and Nagpur, which would lend support to the view, which I have indicated above. The first of these decisions is reported in Har Na-rain Lal v. Mathura Prasad : AIR1940All329 in which a question of construction of provisions similar to those contained in the present Act arose before a Full Bench of the Allahabad High Court. An Act called the U P Temporary Postponement of Execution of Decrees Act, was passed in the United Provinces and Section 3 (1) of that Act is, for the present purposes, worded in the same terms as Section 3 of the Madhya PradeshAct. It was held in that case that an order passedof an application under Section 3 of the U. P. Actwas an order which tell under Section 47 of theCode of Civil Procedure and, therefore, an appealwould lie against the order. The importance ofthe decision consists not so such in the findingthat the order fell under Section 47 of the Code,but the importance rather is that the applicationcould not be treated as an application in thenature of execution proceedings. In Viswanadhamv. Sokalachand Chunnilal AIR 1947 Mad 377, the question was whether the provisions of Order 9 would apply to petitions filedunder the Madras Agriculturists' Relief Act. Thejudgment-debtor tiled an application under Section23 of the Madras Agriculturists' Relief Act for Getting aside a sale on certain grounds mentionedin that section That application was dismissed fordefault and a question arose whether the provisions of Order 9 would apply to the application or whether those provisions were inapplicable by reasonof the application being in the nature of execution proceedings. It was held that the order bywhich the application under Section 23 was dismissed was truly an order under Order 9, Rule 8 of theCode of Civil Procedure and that, therefore, theprovisions contained in Order 9, Rule 9 mustapply to such an application The third decisionon which Mr. Chandurkar relies is reported inThandaram v. Kashiprasad .The view which was taken in that case was thatproceedings under Section 11 of the C. P. Moneylenders Act are not execution proceedings and thatthe provisions of Order 9 of the Code of Civil Procedure must apply to them. Mr. Ghate contendsthat the decisions of the High Courts of Madrasand Nagpur are distinguishable, because the Madras and Nagpur Acts contained a specific provisionthat orders passed under the relevant Sections shallbe deemed to he orders passed under Section 47 of the Civil Procedure Code. It is true that in theMadras and the Nagpur Codes, there are expressprovisions by which orders passed under the respective Sections were required to be treated asorders passed under Section 47 of the Code of Civil Procedure But it is important to bear inmind that the decision of the Madras High Courtdoes not turn on the question as to whether theorder was by fiction of law deemed to lie an orderunder Section 47 of the Code of Civil Procedure.As the learned Judge of the Madras High Courthas observed in his judgment, on a true construction of the order. It was an order passed procedurally under Order 9, Rule 8 and not under Section 47 of the Code of Civil Procedure . In sofar as the Nagpur decision is concerned, there areobservations in the judgment which clearly showthat the learned Judge took the view that theapplication was not in the nature of executionproceedings, quite apart from the provisions contained in Section 11 of the C. P. Money-lenders'Act by which orders passed under that sectionwere required to be treated as orders passed underSection 47 of the Code of Civil Procedure.

6. In my opinion, the proceedings initiated by a judgment-debtor under Section 3 (1) of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, are not in the nature of execution proceedings but are in substance, independent original proceedings undertaken by the judgment-debtor for assertion of substantive rights. To such proceedings, the provisions of Order 9 Rule 8 of the Code of Civil Procedure would apply by reason of the provisions contained in Section 141 of the Code which provides that the procedure provided in the Code with regard to suits shall be followed, as far as it can be made applicable, in all proceedings' in any Court of Civil jurisdiction. It is well-settled that what Section 141 contemplates is original proceedings and to all such original proceedings which fall under the section, the provisions of Order 9 must apply. In the result, therefore, the application which was filed by the petitioner on the 12th of January, 1962, for the restoration of the application tiled under Section 3 of the Act which was dismissed for default on the 21st December, 1961, must he held to be competent.

7. It the application for restoration was maintainable and it the application was dismissed both on the ground that it did not lie and that the petitioner had no sufficient cause to remain absent on the 21st of December, 1961, then the proper remedy for the petitioner to adopt was to file an appeal under Order 43, Rule 1 (c) of the Code of Civil Procedure and not to tile a fresh application for restoration as the, petitioner did on 24-1-1962, The present application, which is a fresh Application under Section 3 of the Act cannot be held to be maintainable for the reason that if a suit is dismissed for default and an application for setting aside the dismissal is itself dismissed, a fresh suit on the same cause of action would be barred under the provisions of Order 9, Rule 9 of the Code of Civil Procedure. As these provisions apply to applications also by reason of Section 141 of the Civil Procedure Code, a fresh application must he held to be barred if the earlier application for setting aside the dismissal for default is itself dismissed

8. Mr. Chandurkar has also urged that an application filed under Section 3 of the Act must be deemed to fall under Section 47 of the Code of Civil Procedure and that, therefore, an appeal will lie against an order passed on that application. It is unnecessary to decide the point as the question would have arisen only if the petitioner had preferred an appeal against the order by which his application under Section 3 of the Act was initially dismissed.

9. Mr. Ghate says that if the petitioner was now to file an appeal against the decision dated 14th February, 1962, it would be time barred. It is not for me to say whether, ii such an appeal is filed, the delay caused in filing the same could not be excused by reason of the fact that the petitioner was pursuing parallel proceedings under a mistaken belief and as the petitioner may have been misled by the decision given on the 14th of February, 1962, by the trial Court that the application under Order 9, Rule 9 was not maintainable.

10. For these reasons, the rule in this revision application will be discharged, but there will be no order as to costs

11. Rule discharged.


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