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Purshottam Bhagwant Sulakhe and ors. Vs. Suryakant Gopal Sulakhe - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 28 of 1975 in F.A. No. 741 of 1974
Judge
Reported inAIR1978Bom303
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 and 144 - Order 21, Rule 2 and 2(3); Code of Civil Procedure (CPC), 1882 - Sections 257A
AppellantPurshottam Bhagwant Sulakhe and ors.
RespondentSuryakant Gopal Sulakhe
Appellant AdvocateJ.R. Lalit, Adv.
Respondent AdvocateK.Y. Mandlik, Adv.
Excerpt:
a) a decree was meant for payment of money and the judgment-debtor voluntarily sold his house to decree-holder - further, on reversal of the decree in appeal, the judgment-debtor applied under section 144 of the civil procedure code, 1908, for possession of the house - the court held that in the said situation, though the sale was for the satisfaction of the debt due under the decree, the applicant was not entitled to possession, as the house was not the subject matter of the suit or the decree and the sale was not a direct consequence of the decree.;b) the court ruled that an application for restitution, that was filed under section 144 of the civil procedure code, 1978, was an application for execution of the decree - it further ruled that the competent court entertaining such..........to the interpretation of section 144 of the civil p. c. and order 21, rule 2 thereof. in special civil suit no. 103 of 1946 the court of the civil judge, senior division, sholapur, passed a decree on 29-2-1960 against suryakant, hereinafter referred to as the applicant, and several other defendants. the decree was for payment of rs. 74,449-13-8 with 6 per cent interest as also for possession of the property by partition. the defendants were made liable for payment for the satisfaction of the said decree, jointly and severally. this decree has been modified by this court on 9-10-1967 in first appeal no. 278 of 1960. as a result thereof the defendant ceased to be liable to pay any money to the plaintiff. we are informed at the bar that an appeal against the judgment of this court dated.....
Judgment:

Deshpande, J.

1. This Letters Patent appeal by the original decree-holders raises some question of importance as to the interpretation of Section 144 of the Civil P. C. and Order 21, Rule 2 thereof. In Special Civil Suit No. 103 of 1946 the Court of the Civil Judge, Senior Division, Sholapur, passed a decree on 29-2-1960 against Suryakant, hereinafter referred to as the applicant, and several other defendants. The decree was for payment of Rs. 74,449-13-8 with 6 per cent interest as also for possession of the property by partition. The defendants were made liable for payment for the satisfaction of the said decree, jointly and severally. This decree has been modified by this Court on 9-10-1967 in First Appeal No. 278 of 1960. As a result thereof the defendant ceased to be liable to pay any money to the plaintiff. We are informed at the Bar that an appeal against the judgment of this Court dated 9-10-1967 is still pending in the Supreme Court.

2. In the meanwhile, the decree-holder started execution proceedings against the judgment-debtors. Properties of some judgment-debtors appear to have been attached in an attempt to put the same to sale. No process, however, appears to have been issued against Suryakant for any relief whatsoever in the said execution proceedings till, at any rate, 28th Oct., 1962. On that date Suryakant executed a registered sale-deed of his house property for a consideration of Rs. 4,000/-. Recital in the sale-deed indicates that the sale consideration was not paid in cash but was agreed to be adjusted towards the monetary liability under the decree in Suit No. 103 of 1946. Suryakant also claims to have paid a sum of Rs. 2,500/- in cash in addition towards the decretal dues, at the time when the said sale-deed was executed.

3. After the judgment of this High Court on 9-10-1967, Suryakant filed an application under Section 144 of the Civil P.C. being Miscellaneous Application No. 244 of 1970 giving rise to the present Letters Patent Appeal. He prayed for return of his house to him, which he had sold earlier on 20-10-1962 for satisfaction of the part of the decretal dues and of Rs. 2,500 paid by him. In the alternative he also sought permission of the Court to convert the said application into a suit which was permissible under Section 47(2) of the Civil P. C., as it then stood.

4. Notice of this application appears to have been given to the decree-holders including of his prayer to permit this application to be converted into a suit. The decree-holder, however, did not choose to remain present at this preliminary stage. At a later stage he appeared and filed a written statement contending, inter alia, that such an application was not maintainable under Section 144 of the Civil P. C. It is also pleaded that the sale of the property by the applicant Suryakant was a part of the settlement reached between him and the decree-holder under which he was exempted from the liability under the decree any further.

5. By his order dated 20th June, 1974, the Second Joint Civil Judge, Senior Division, Sholapur, directed the decree-holder to deliver possession of the property, i.e. house of the applicant judgment-debtor. The learned Judge further held that the alleged payment of Rs. 2,500/- by the applicant to the decree-holder was not proved. The applicant also was held entitled to reconveyance as also cash amount of Rupees 2,200/- towards the mesne profits and further compensation at the rate of Rs. 30/- per month till the delivery of possession by the decree-holder to him.

6. Decree-holder challenged the validity of this order in First Appeal No. 741 of 1974. The same, however, was summarily dismissed on 28th Nov., 1974. This Letters Patent Appeal is directed against this summary dismissal.

7. Mr. J.R. Lalit, the learned Advocate appearing for the appellants, contends that the sale-deed cannot be said to have been executed by the applicant in favour of the decree-holder in execution of the decree to warrant restitution under Section 144 of the Civil P. C. He, secondly, contended that such execution of a sale-deed at the most may amount to adjustment of the decree within the meaning of Order 21, Rule 2 of the Civil P. C. No such adjustment can be recognized in the absence of any certification thereof under Order 21, Rule 2 of the Civil P. C.

8. There appears to us to be substance in each one of these contentions of Mr. Lalit. Coming to the recitals of the sale-deed, the same go to show that the judgment-debtor Suryakant had agreed to pay the sum of Rs. 4,000/- and instead of paying the said amount in cash he agreed for the adjustment thereof against the decree-holder's dues outstanding against him under Suit No. 103 of 1946. That is what is expressly stated in the sale-deed itself. This is thus not delivery of the house property to the decree-holder in satisfaction of the decree, but is expressly a sale of the property for the sum of Rs. 4,000/- which sale consideration was agreed between the parties to be adjusted against the decretal dues. What is required to be emphasised is that not house but its then price of Rs. 4,000/- is agreed to be adjusted against the decretal dues. Now, Section 144 has no doubt been widely construed. It has been held that not only the property that had expressly been the subject-matter of the decree modified or varied in appeal, that should be restituted under Section 144 of the Civil P. C., but everything should be restored to the judgment-debtor that has been lost to him 'directly in consequence of that decree', though not through proceedings under it. This provision is based on the well-settled principle that act of the Court should not cause any damage to the litigant. However, the consequences contemplated must necessarily be direct, and not indirect or remote. The question that falls for consideration in the present case is whether sale of the house by the judgment-debtor to the decree-holder in the above circumstances can be said to be the direct consequence of the decree We are unable to hold that such a sale of the house by the judgment-debtor is the direct consequence of the decree. As stated earlier, the decree contemplated payment of money by the judgment-debtor to the decree-holder. It did not contemplate delivery of the property in dispute to the decree-holder. The transaction entered into on the date of sale was one of sale of the house by the judgment-debtor to the decree-holder. What was contemplated to be paid by the judgment-debtor to the decree-holder was the cash towards part payment of the decree. The mere circumstance that the house was sold by the judgment-debtor to the decree-holder rather than sell it to somebody else and pay the sale proceeds thereof after collecting the same from the purchaser to the decree-holder, cannot enable us to treat the sale transaction as a direct consequence of the said decree. The simple test would be; could the judgment-debtor have claimed restitution of the house by impeaching the sale, had the sale of the house been effected to any third party, and not to the decree-holder himself? Answer must be emphatically in the negative. The maximum that the judgment-debtor could have claimed by way of restitution is the amount of Rs. 4,000/-, and not invalidation of the sale and return of the property conveyed by him under the said sale-deed. The learned Judge obviously misconceived the scope of Section 144 as also the nature of the transaction, while directing the return of the property to the decree-holder in exercise of the powers under Section 144 of the Civil P. C.

9. Mr. Mandlik, the learned Advocate appearing for the respondent, contends that even such a sale should be construed to be a direct consequence of the decree. In support of his contention Mr. Mandlik relied on the judgment of the Lahore High Court in Narain Singh v. Bachan Singh, AIR 1927 Lah 37, and three judgments of the Allahabad High Court reported in Surya Datt V. Jamna Datt AIR 1920 All 190. Sheodihal Sahu v. Bhawani ILR (1907) All 348 and Robert Skinner v. James Skinner : AIR1943All202 . He also relied on the judgment of the Travancore-Cochin High Court in Ouseph Ouseph v. Minister of Food, AIR 1951 TravCo 226, It will be noticed that in each one of these cases restitution was claimed of the property that was directly the subject-matter of the suit and the decree Thus in the case of Ouseph Ouseph v. Minister of Food (supra) the decree-holder succeeded in getting possession of the property without the intervention of the Court, after the trial Court decreed his suit declaring his right to the property in dispute as also decreed his claim for injunction restraining the defendant from remaining in possession of the property. The defendant tried to get back possession of the same property on the allegation that he lost the possession, after the trial Court had passed the decree, which was reversed by the District Court and the High Court in appeal and second appeal respectively. In the cape of Narain Singh v. Bachan Singh (supra) judgment-debtors were seeking to get back possession of half of the property which the plaintiff had succeeded in taking possession without the intervention of the Court, after the trial Judge has decreed his suit. The application of the judgment-debtor for the restitution of the property after reversal of the said decree in appeal, was found to be maintainable. In each of the three Allahabad cases, the defendants were claiming back possession of the property after reversal of the trial Court's decree in appeal, which was lost to them, after the trial Judge had decreed the suit. In each of these cases the Court was impressed with the circumstance, that restitution was being claimed with regard to the property, which was the subject-matter of the suit directly. It is not necessary for us to consider in the present case whether provisions of Section 144 of the Civil P. C. will be attracted even when the defendant loses possession of the property without any intervention by the Court. Suffice it to observe that the cases relied on are distinguishable in that the property of which the defendants were seeking to get possession, was directly the subject-matter of the suit. The house in the present case admittedly was not the subject-matter of the suit or decree. The house was sold independently of any provision of the decree, voluntarily by the judgment-debtor, though the same was sold for the purposes of satisfying the debt which was undoubtedly due under the decree. 10. Mr. Lalit drew our attention to another judgment of the Lahore High Court in the case of Niadar Mal v. Rattan Lal, reported in AIR 1927 Lah 625. In view of our having found earlier that Narain Singh's case AIR 1927 Lah 37 is distinguishable, we do not think it necessary to refer to the case of Niadar Mal. We do, however, feel that the ratio of Niadar Mal's case appears to us to be somewhat irreconcilable with the ratio of Narain Singh's case, though the judgment seems to have been delivered by the same Judge sitting with some other learned Judge of the same High Court.

11. Mr. Lalit also tried to rely on the judgments in Sankara Sastri v. Varaprasad AIR 1948 Mad 12 and Doval Sarkar v. Tari Deshi : AIR1932Cal303 . These cases raised the question of the effect of the sale of the property in execution of the decree, when the amount of money involved in the decree was reduced, when the said decree was modified by the Appellate Court in appeal or revision. We do not think that these decisions can have any relevance to the point that arises before us for consideration.

12. The second contention also appears to us to be equally well founded.

Order 21, Rule 2 makes it obligatory both on the decree-holder and the judgment-debtor to certify payment or adjustment of the decree to the Executing Court and the Court is required to record the same accordingly. Sub-rule (3) of Rule 2 then is to the following effect:

'A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.'

This mandatory provision prohibits any executing Court from taking notice of any payment or adjustment of the decree that is not either effected through the Court or is not, at any rate, certified as required under Order 21, Rule 2. In all such cases it has been held that in the event of the judgment-debtor having in fact parted with money or property towards his decretal liability, he may not be able to rely on such satisfaction, but he may file a suit for recovery of the money or the property on the basis of the failure of consideration. Mr. Mandlik contends that the Court entertaining the application under Section 144 of the Civil P. C. cannot be said to be an Executing Court within the meaning of Sub-rule (3) of Rule 2 of Order 21. It is true that at one stage there was some controversy among the High Courts in India, as to whether proceedings under Section 144 of the Civil P. C. amount to execution proceedings, and whether an application for restitution under Section 144 is an application for execution of the decree. This conflict has now been resolved by the Supreme Court in the case of Mahijibhai v. Manibhai, : [1965]2SCR436 . If an application for restitution under Section 144 is an application for execution of a decree, the Court competent to entertain such application must also be deemed to be an Executing Court within the meaning of Order 21, Rule 2 (3). The mandatory prohibition conceived under Order 21, Rule 2 (3), therefore, is equally applicable to the Court granting relief for restitution to the judgment-debtor. The learned Civil Judge, Senior Division, was obviously in error in ignoring this provision presumably because his attention was not specifically drawn to it.

13. It is true that in the cases cited by Mr. Mandlik no notice of this provision is taken and relief has been granted to the judgment-debtor under Section 144 of the Civil P. C., even when the delivery of the property by the judgment-debtor to the decree-holder was not through the intervention of the Court, nor appears to have been certified as required by Order 21, Rule 2. True reason appears to be that both these High Courts never treated applications under Section 144 as applications in execution and the Courts dealing in applications under Section 144 were not considered by them to be Executing Court. As indicated earlier, it is only after the decision of the Supreme Court in Mahijibhai v. Manibhai (supra) that the Courts in India, in spite of their contrary rulings earlier, have started treating such applications as execution applications and Courts entertaining them as Executing Court, Another reason also appears to be that these cases have followed the ratio of judgment in Sheodihal Sahu v Bhawani ILR (1907) All 348. When the Court decided the said case, Civil P. C. of 1908 was not in force. Corresponding section to Order 21, Rule 2, i.e. Section 257A of the Civil P. C. of 1882, did not contemplate certification of settlement or adjustment of any decree other than the money decree. Each one of the cases relied on by Mr. Mandlik deal with the delivery of the immovable property without the intervention of the Court, and not with satisfaction of any monetary claim. This also accounts for not referring to the bar created by Order 21, Rule 2 prohibiting the Executing Court from recognising satisfaction of any decree without the intervention of the Court and without certification thereof as required thereunder.

14. Order of the trial Judge is thus liable to be set aside.

15. Mr. Mandlik then says that, at any rate, his prayer for converting the application into a suit should be considered. We do not propose to express any opinion ourselves on such prayer. We, however, direct the learned Judge of the first instance to consider the same, as Section 47, as it then stood, did permit such conversion. It will be for the trial Judge to consider if the amended Code of Civil Procedure has made any difference to the same or if there is any other impediment in considering the said prayer,

16. Appeal is accordingly allowed.

17. There will be no order as to costs in the circumstances of the case.

18. Appeal allowed.


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