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Gangadhar Dhanjishet Marwadi and Supdusing Daulatsing Patil Vs. Balwant Kashirao Deshmukh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal Nos. 32 and 33 of 1938
Judge
Reported inAIR1940Bom210; (1940)42BOMLR367
AppellantGangadhar Dhanjishet Marwadi and Supdusing Daulatsing Patil
RespondentBalwant Kashirao Deshmukh
DispositionAppeal dismissed
Excerpt:
.....order xxi, rule 93, section 47, 144-decree-execution-sale-setting aside of sale-refund of purchase money-auction purchaser-order to refund-appeal.;no appeal lies against an order passed under order xxi, rule 93, of the civil procedure code, 1908.;such an order does not fall either under section 47 or section 144 of the code, so as to attract the right of appeal.;maganlal v. doshi mulji (1901) i.l.r. 25 bom. 631 : s.c. 3 bom. l.r. 255, bai mani v. ranchodlal (1922) 25 bom. l.r. 147, prosunno coomar sanyal v. kasi das sanyal (1892) l.r. 19 i.a. 166 and jai berham v. kedar nath marwari (1922) l.r. 49 i.a. 351 : s.c. 25 bom. l.r. 643 referred to. - - that being so, if we merely take the language of the definition, it seems perfectly clear that the order of the subordinate judge directing..........the assignee, i.e. deshmukh, whichever was found on enquiry to be liable to make the payment. the auction-purchaser applied to get his money back from, deshmukh, but the court held that deshmukh was not liable to pay on the ground that supdu, the judgment-creditor, must be held to have received the money. accordingly an order for payment was made against the latter.2. from these orders appeals and revision applications were presented both by supdu and by the auction-purchaser. they were heard by mr. justice wassoodew who held that no appeal lay from the orders of the lower court, but dealing with the matter in revision he confirmed the lower court's orders on the merits.3. letters patent appeal no. 32 of 1938 is brought by the auction-purchaser, and letters patent appeal no. 33 of 1938.....
Judgment:

Broomfield, J.

1. These are two companion Letters Patent appeals in a case decided by Mr. Justice Wassoodew. The material facts are briefly as follows :-One Supdu obtained a decree in a mortgage suit in execution of which some property belonging to the judgment-debtor was brought to sale in April, 1932, and purchased by one Gangadhar Marwadi. The decree was assigned to Supdu's pleader Deshmukh, but there was a dispute between them as to whether the assignment affected the whole decree. In June, 1932, Supdu appointed another pleader Bendre to represent him, and on October 7, 1932, Deshmukh applied, to have his name substituted for that of the decree-holder in the execution proceedings, but this application was not prosecuted and no order was passed on it. In the meanwhile the judgment-debtor had made an application to set aside the sale. This application was dismissed by the trial Court on December 16, 1932, and it was ordered that the purchase-money should be paid to the plaintiff, i.e. the decree-holder, or to his pleader Deshmukh. The money was actually paid to the pleader on January 6, 1933. The judgment-debtor appealed against the order confirming the sale, and the High Court allowed his appeal on January 18, 1935, and set aside the sale. The trial Court was directed to take proceedings under Rule 93 of Order XXI and to order payment of the purchase-money to the purchaser either from the judgment-creditor or the assignee, i.e. Deshmukh, whichever was found on enquiry to be liable to make the payment. The auction-purchaser applied to get his money back from, Deshmukh, but the Court held that Deshmukh was not liable to pay on the ground that Supdu, the judgment-creditor, must be held to have received the money. Accordingly an order for payment was made against the latter.

2. From these orders appeals and revision applications were presented both by Supdu and by the auction-purchaser. They were heard by Mr. Justice Wassoodew who held that no appeal lay from the orders of the lower Court, but dealing with the matter in revision he confirmed the lower Court's orders on the merits.

3. Letters Patent Appeal No. 32 of 1938 is brought by the auction-purchaser, and Letters Patent Appeal No. 33 of 1938 by the decree-holder Supdu, The question which arises in the Letters Patent appeals is whether Mr. Justice Wassoodew was right in holding that no appeal lay to the High Court from the orders of the Subordinate Judge. If he was right in that finding, that disposes of the matter. There is no appeal from the orders passed on the revision applications.

4. We have heard this preliminary point argued and we are of opinion that Mr. Justice Wassoodew's view on this point is correct and that the orders in question were not appealable.

5. Dealing with the matter, first of all, apart from authority, the orders were passed admittedly under Rule 93 of Order XXI which applies in terms to the case and which provides that

Where a sale of immoveable property is set aside under Rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.' No appeal from an order under this rule is provided by the Code itself. Therefore, there can be no appeal unless the order in question can be brought within the definition of a decree in Section 2 of the Code. According to that definition a decree may be either a conclusive adjudication of the rights of the parties with regard to any matter in controversy in the suit, or the rejection of a plaint, or the determination of a question within Section 47 or Section 144 of the Code. The only matter in dispute in the present case is whether the purchase-money, which the auction-purchaser is undoubtedly entitled to receive back, is to be paid to him by the decree-holder or the decree-holder's pleader. That being so, if we merely take the language of the definition, it seems perfectly clear that the order of the Subordinate Judge directing the judgment-creditor to pay the money does not in any way determine the rights of the parties with regard to any matter in controversy in the suit. Obviously we are not concerned with any question of the rejection of a plaint.

6. Section 47 provides that

All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

7. The question here is between the judgment-creditor and his pleader on the one hand and the auction-purchaser on the other, the only point in dispute being, as I have said, whether the auction-purchaser is to get his money from one person or the other. Prima facie, then, it is difficult to see how that can be regarded as a matter which in any way relates to the execution, discharge or satisfaction of the decree. Moreover, as the judgment-debtor is not in any way concerned, there is not, on the face of it, any question arising between the parties to the suit in which the decree was passed.

8. As regards Section 144, that is a Section which deals with certain applications for restitution, and it provides that

Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed.

The Section does not in terms say that the person entitled to apply must be a party to the decree, but that seems to be the natural construction of the language used, and unless we are to hold that the word ' party' is loosely used to mean any person entitled to restitution, the Section cannot be said to apply at all appropriately to the case of an auction-purchaser. There is clearly no reason why Section 144 should apply to the case of an auction-purchaser, because his case is expressly dealt with by Rule 93 of Order XXI.

9. So that, apart from the cases, it would appear that the orders in question were passed under Rule 93, that they were not decrees, and that they did not determine any matters within Section 47 or Section 144.

10. A number of cases have been cited to us in the argument, but on the whole we can find nothing in them which alters the view we are disposed to take on the construction of the language of the Code. There is no case, so far as we can see, which supports Mr. Thakor's contention that the orders of the Subordinate Judge were decrees under the first part of the definition in Section 2, that is to say, that they conclusively determine the rights of the parties with regard to any matter in controversy in the suit. As regards Section 47, there has been some conflict of authority between different High Courts as to whether an auction-purchaser can be regarded as a party or a representative of a party within the meaning of this Section. But so far as Bombay is concerned, there can be no doubt that the view which is binding upon us is that an auction-purchaser is neither a party within the meaning of that Section, nor does he represent either the judgment-creditor or the judgment-debtor. There are numerous cases on the point, and I need only refer to Maganlal v. Doshi Mulji I.L.R. (1901) 5 Bom. 631 : 3 Bom. L.R. 255 and Bai Mani v. Ranchodlal (1922) 25 Bom. L.R. 147. Mr. Thakore cited Prosunno Coomar Sanyal v. Kasi Das Sanyal , in which their Lordships of the Privy Council expressed their gratification that the Courts in India had not placed any narrow construction on the language of Section 244, that is the Section of the old Code corresponding to the present Section 47, and had taken the view that (p. 169) ' .. .when a question has arisen as to the execution, discharge, or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser, who is no party to the suit, is interested in the result has never been held a bar to the application of the Section. ' Assuming that this case is an authority for holding that Section 47 should be construed in a liberal manner, it affords little or no assistance to Mr. Thakor's argument in the present case. I f you have a question arising between the parties to the suit in which the decree was passed, Section 47 will apply in terms, and that being so, there is no reason why the fact that a third party, the purchaser, is also interested in the decision of the question should prevent the operation of the Section. In the present case, as I have already mentioned, no question arises between the parties to the suit at all. The judgment-debtor is not in any way interested, and the only question which has been decided in these proceedings is whether the judgment-creditor or his pleader is bound to refund the money to the auction-purchaser. Those being the facts, there appears to be no reason whatever for holding that Section 47 can be applied to the case.

11. That leaves Section 144, and in that connection reference has been made to certain cases of the Privy Council. There is, first of all, Maharaj Bahadur Singh v. Forbes . In that case an execution sale had been set aside by the District Judge who directed that the purchase-money should be repaid to the auction-purchaser with interest. There was an appeal to the High Court and a further appeal to the Privy Council, the only point in both appeals being whether the auction-purchaser was entitled to interest on his money or not. The High Court dealt with it as a case under Section 144. The Privy Council in their judgment held that the case was governed by the terms of Rule 93 of Order XXI, and they did not think it necessary to decide the question whether Section 144 also applied to the case. If any objection had been taken as to the competence of the appeal to the High Court, it might have been necessary to consider whether Section 144 applied as well as Rule 93. But no such question was raised. The most that can be said about this case, therefore, is that it is an instance in which an order passed on the application of an auction-purchaser awarding him his purchase-money and interest was treated by the High Court as an appealable order. The case cannot be regarded as an authority for holding either (1) that the case did in fact come under Section 144, a matter which the Privy Council expressly left open, or (2) that if it did not come under Section 144, an appeal lay to the High Court from the order under Rule 93.

12. In Jai Berham v. Kedar Nath Marwari the facts were that property had been sold in execution of a decree and the purchaser was in possession. The sate was confirmed by the High Court but set aside on appeal by the Privy Council. There was then an application by the judgment-debtor to recover possession of the property and the auction-purchaser objected that his possession should not be disturbed until repayment of the money paid by him which had been used to satisfy the creditors of the judgment-debtor. The Privy Council applied Section 144 and observed in the course of their judgment (p, 355) :-

It is the duty of the Court under Section 144 of the Civil Procedure Code to ' place the parties in the position which they would have occupied, but for such decree or such parti thereof as has been varied or reversed.' Nor indeed does this duty or jurisdiction arise merely under the said Section. It is inherent in the general jurisdiction, of the Court to act rightly arid fairly according to the circumstances towards all parties involved.

13. According to Mr. Thakor this case is an authority for holding that Section 144 will apply in a case like the present. It is, however, clear that it is distinguishable on the facts. There was in that case an application by the judgment-debtor for recovery of possession, that is to say, there was an application by a party, and the case came in terms within the ambit of Section 144. It by no means follows that an application by the auction-purchaser, that is to say, an application of the kind contemplated by Rule 93 of Order XXI, would have been held to come under Section 144 if there had been no application by the judgment-debtor at all. On this ground the Privy Council case has been distinguished in Ma Tok v. Maung Mo Hnaung I.L.R. (1925) Ran. 251, where it was pointed out that the decision did not touch the point whether an auction-purchaser is a party within the meaning of Section 144 who could himself move the Court. Another point to be noted in connection with this Privy Council case is that their Lordships relied also on the inherent power to grant restitution under Section 151 of the Code, and in Sir Dinshah Mulla's Commentary, page 415 of the. 10th edition, the case is cited as being simply an authority for the) proposition that where an application for restitution does not come strictly within the purview of Section 144, the Court may entertain the application under the inherent power conferred upon it by Section 151. On that point there is no room for dispute. But if the orders of the Subordinate Judge in this case were to be taken to have been made under Section 151, no appeal would lie from those orders. I may mention that in Land Acquisition Officer, Salsette v. Mulji Haridas (1931) 34 Bom. L.R. 379. Mr Justice Baker said that Section 144 refers only to parties to the suit, relying upon the Privy Council case of Raghubar Singh v. Jai India Bahadur Singh (1919) L.R. 46 IndAp 228 : 22 Bom. L.R. 521 where Lord Phillimore observed with reference to Section s 47 and 144 that these Section s apply only to the parties or the representatives of the original parties, and do not apply to sureties.

14. On behalf of the appellant we were referred to some cases, e.g. Sita Ram v. Janki Ram I.L.R. (1922) All. 266 and Kali Kishore Deb Sarkar v. Guru Prosad Sukul I.L.R. (1897) Cal. 99 in which it has been held that an appeal lies from orders passed under Rule 71 of Order XXI. That rule provides as follows :-

Any deficiency of price which may happen on a re-sale by reason of the purchaser's default, and all expenses attending such re-sale, shall be certified to the Court or to the Collector or subordinate of the Collector, as the case may be,... and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

Gangadas Dayabhai v. Bai Suraj I.L.R. (1911) 36 Bom. 329 : S.C. 14 Bom. L.R. 250 was also cited. In that case an order had been made under Rule 71 and there was an appeal to the District Court and a second appeal to the High Court, but the question of the competency of the appeal was not raised. Orders under Rule 71 have been held to be appealable apparently on the ground that they come under Section 47. It is not easy to see how that can be so in view of the Bombay rulings that the auction-purchaser is neither a party nor a representative of a party within the meaning of that Section. It is not necessary for us to determine in this case whether in the case of an order under Rule 71 of Order XXI an appeal lies or not. There is no ruling of this Court in which it has been so held, at any rate, expressly. Assuming that an appeal does lie from such orders, the two rules are by no means in identical terms, and it is not at all clear that there is any such analogy between them as would make it follow that if there is an appeal in one case, there must also be in the other.

15. For these reasons we hold that Mr. Justice Wassoodew's decision on this point is correct.

16. The appeals are dismissed with costs. Costs to be paid to respondent No. 1 in each case.


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