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Damodar Pandurang Thakore Vs. the Trustees of the Port of Bombay - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 626 of 1970
Judge
Reported in(1979)81BOMLR197; 1978MhLJ425
AppellantDamodar Pandurang Thakore
RespondentThe Trustees of the Port of Bombay
Excerpt:
.....with the provisions of any law for the time being in force. it is difficult to exclude the code of civil procedure of 1908 from the purview of the 'law' referred to in this proviso. rule 155 thus being inconsistent with order xxi, rule 11(2) and (3) of the code of civil (procedure, shall have to be held as ultra wires of the rule-making powers of the high court proceedings will be governed by order xxi, rule 11 and the court not having directed to furnishing of such copy of the decree, application for execution cannot be held not maintainable.;arunachala v. muthusadativa [1950] a.i.r. mad. 261, followed.;satyendra nath v. bibhutl bhuson [1963] a.i.r. cal. 104, distinguished.;l.e. works v. asstt. commr. sales tax [1968] s.c. 448, maxwell on interpretation of statutes, p. 321,..........appearing for the respondent, on the other hand, contends that under order xxi, rule 11(5) of the code of civil procedure, decree-holder is not required to enclose decree or its copy along with the execution petition, unless the court so directs. rule 155 requiring the decree-holder to do so is invalid being inconsistent with order xxi, rule 11 of the code of civil procedure which also governs the proceedings in the city civil court like other civil proceedings in any other court, and alternatively, he contends that the rule is directory and filing of the copy before actual execution of warrant amounts to substantial compliance therewith. these rival contentions naturally necessitate examining the validity of rule 155.5. chapter xv of the rules provides for execution of decrees and.....
Judgment:

V.S. Deshpande, J.

1. Appellant No. 1-original defendant No. 1-was the lessee of the plot belonging to, the Port Trust of Bombay-the respondent original plaintiff, since 1936, while appellant No, 2-defendant No. 2, is an assignee of the lease rights therein. Good many structures are raised by the lessees on this plot and sub-let to several others. On August 23, 1952 the Port Trust terminated the lease and filed Suit No. 2122 of 1953 for possession of the plot in the City Civil Court on October 5, 1953. The dispute, however, was settled out of the Court, and the suit was allowed to be dismissed for default on July 18, 1957. The Port Trust then instituted another Suit No. 1044 of 1963 on March 25, 1963 for possession, recovery of arrears of rent and taxes. This dispute also was settled and decree in terms of a consent memo was passed on March 15, 1966. This consent decree amongst others required the defendants (1) to pay enhanced rent at Rs. 465 per month instead of Rs. 100 per month from August 1, 1965, (2) to pay municipal taxes, and (3) to carry out certain repairs, and (4) to execute lease deed on the standard form and entitled the plaintiff to recover possession and execute the decree in the event of breach of any one of these terms.

2. On January 17, 1968 Port Trust initiated execution proceedings for possession against defendants alleging breach of Clauses (b), (c), (d) and (e) of the consent terms. It is not in dispute that the decree was not drawn up by this time and consequently no copy of the decree was enclosed with the execution application as required under Rule 155 of the Bombay City Civil and Sessions Courts Rules, 1948, hereinafter referred to as 'the Rules'. The Court directed issue of warrant of possession on April 1, 1968 without notice to the defendants, as the application was made before expiry of the period of two years in terms of Order XXI, Rule 22. The Bailiff proceeded to execute the same on July 26, 1968 when persons in actual possession of the structures on the plot obstructed. Decree was drawn up in the meanwhile on April 18, 1968 and a copy thereof was filed before the warrant was actually issued.

3. On August 21, 1968 defendants took out a chamber summons challenging the validity of the very proceedings both on the ground of absence of decree or its copy on record, and of defendants not being responsible for the breach, and as such there being no breach. The executing Court over-ruled these objections. This First Appeal is preferred by the judgment-debtors against this order dated October 6, 1970. This appeal is referred to the division Bench, as at the hearing before the single Judge (myself), it was found that the appeal involved a question as to the validity of Rule 155 itself.

4. Mr. Pendse, the learned advocate appearing for the appellants, contends that execution application was not maintainable at all as it was not accompanied by the decree or a copy thereof, as required by Rule 155, and every order passed including the process issued by the Court is void. Mr. Daji, the learned advocate appearing for the respondent, on the other hand, contends that under Order XXI, Rule 11(5) of the Code of Civil Procedure, decree-holder is not required to enclose decree or its copy along with the execution petition, unless the Court so directs. Rule 155 requiring the decree-holder to do so is invalid being inconsistent with Order XXI, Rule 11 of the Code of Civil Procedure which also governs the proceedings in the City Civil Court like other civil proceedings in any other Court, and alternatively, he contends that the rule is directory and filing of the copy before actual execution of warrant amounts to substantial compliance therewith. These rival contentions naturally necessitate examining the validity of Rule 155.

5. Chapter XV of the Rules provides for execution of decrees and orders. Rule 154 requires what additional particulars should such application for execution contain, in addition to what is provided under Order XXI, Rule 11(2). Then follows Rule 155 which reads as follows:

Copy of decree to accompany. In all cases the application shall be accompanied by a duly certified copy of the decree or order, or by the original.

Order XXI, Rule 11(2) of the Code of Civil Procedure indicates what are the essential requirements of any execution petition. This sub-rule does not include any reference to decree or a copy thereof. Sub-rule (3) then reads as follows;

The Court to which an application is made under Sub-rule (2) may require the applicant to produce a certified copy of the decree.

6. It is clear that while Rule 155 makes it obligatory to enclose original decree or a copy thereof with the execution application, Sub-rule (2) of Order XXI, Rule 11 does not make it so obligatory and Sub-rule (3) on the other hand requires him to so file a copy only if the Court in its discretion directs him to do so. Thus while in one case, Court cannot take any action till either the decree or its copy is enclosed with the application or filed later, decree can be even fully executed without it in the other case. There is obvious and patent inconsistency in between the mandates of the two provisions, and it is necessary to find which of the two can prevail and be said to be- effective. There is not much substance in the contention of Mr. Pendse that no inconsistency arises merely because under the one, enclosing of the copy is made obligatory, while under the other, it is left to the discretion of the Court.

7. Rule 155 is one of the Rules framed by the High Court, in exercise of the powers under Section 224 of the Government of India Act of 1935. This section corresponds to the existing Article 227 of the Constitution, while Section 224(1)(6) of the Government of India Act empowered the High Court 'to make and issue general rules and prescribe forms for regulating the practice and procedure of such courts', i.e. which are subject to its appellate jurisdiction, the proviso to this sub-section, amongst others, required that such Rules should not be inconsistent with the provisions of any law for the time being in force. It is difficult to exclude the Code of Civil Procedure of 1908 from the purview of the 'Law' referred to in this proviso, as faintly suggested by Mr. Pendse. Rule 155 thus being inconsistent with Order XXI, Rule 11(2) and (3) of the Code of Civil Procedure, shall have to be held as invalid and ultra vires of the rule-making powers of the High Court. Proceedings will be governed by Order XXI, Rule 11 and the Court not having directed to furnishing of such a copy of the decree, application for execution cannot be held not maintainable. We are fortified in this view of ours by the judgment in Arunachala v. Muthusadasiva : AIR1950Mad261 . In this case the Madras High Court was confronted with almost identical question, Rule 142 framed under the Civil Procedure Code of 1882 required the decree-holder to enclose- a copy of the decree with the execution application in the same manner as the impugned Rule 155 requires in the present case. At the relevant time 1882 Code was repealed and proceedings were governed by 1908 Code. A question arose if enclosing of copy of the decree with the execution application was still necessary when under the provisions of Rule 11(5) of Order XXI of the existing Code, it was not, till the Court so directs. This at once raised the question of the validity of Rule 142 itself. Section 157 of the Code of Civil Procedure, 1908 only saved such rules framed under the repealed Code of 1882, as were not inconsistent with the provisions of the Code of 1908. The learned Judge found, firstly, that Rule 142 requiring the decree-holder to enclose a certified copy of the decree along with the application, was inconsistent with Rules 11(2) and 11(5) which do not so require him to do till the Court so directs. The learned Judges further held that Rule 142 was ineffective and invalid and could not prevail over Order XXI, Rule 11. Both under Section 157 of the Code and s- 224 of the Government of India Act, rules, inconsistent with the rules in the schedule of the Code, cannot, prevail and be valid. That the question of inconsistency in Madras case (Arunachala v. Muthusadasiva) arose in a slightly different context is not relevant. The ratio of this case directly applies to the situation arising in the present case,

8. Mr. Pendse relied strongly on the judgment of the Calcutta High Court in the case of Satyendra Nath v. Bibhuti Bhusan : AIR1963Cal104 , and cases referred to therein. Rule 10 of the chap. XVII of the Original Side of the said High Court did require the decree-holder to enclose a copy of the decree with his execution application. There the Court was required to consider how far the said R, 10 could over-ride Order XXI, Rule 11. The division Bench did hold that Rule 10 would prevail over Order XXI, Rule 11 and without the certified copy of the decree, the application for execution was not maintainable. The division Bench went a step further and held that no application for execution could be maintainable till the decree itself is duly drawn in terms of the said Original Side Rules. Ratio of this case, no doubt, apparently supports Mr. Pendse's contention. This case, however, is distinguishable and reasons are indicated in the said judgment itself. These Original Side Rules are framed under Section 129 of the Code of Civil Procedure. Rule-making powers under either of Sections 122, 129 of Code of Civil Procedure and that under Section 224 of the Government of- India Act are not identical in extent nor are they subjected to the same restrictions. Section 121 of the Code requires the rules in the schedule thereof to be treated as part of the Code itself. Section 122 of the Code empowers the High Court to annul, amend or add to the said Rules or make other rules to regulate its own procedure or that of its subordinate Courts. Section 128, however, restricts such powers so as to ensure that no rule so framed is inconsistent with any rule in the schedule. Question of any implied annulment or amendment does not arise here. Rule-making power under Section 129 is restricted to regulating its procedure on the Original Side. Though no such rule can be inconsistent with the Letters patent or the Act of which it is a creature, the section does not require such rules to be consistent with the rules in the schedule. Proviso to Sub-section (1) of Section 224 of the Government of India Act, on the other hand, prevents the High Court from making any rule, inconsistent with any law for the time being in force which law necessarily includes the Rules under the schedule of Code of Civil Procedure such as Order XXI, Rule 11. This distinction is noted and emphasised by Mookerjee J., speaking for the Court, and this really forms the basis of the ratio of the case and this is how Rule 10 therein was found to have over-riding effect. Reliance thereon by Mr. Pendse is thus misconceived.

9. On our holding the rule to be invalid, it is really unnecessary to examine if the rule is mandatory or directory. Had it been necessary to so decide, we would have no hesitation in declaring it to be directory. There is no inflexible rule, as suggested by Mr. Pendse, that procedural rules are always mandatory. That is not what the passage at p. 321 of Maxwell On Interpretation of Statutes, purports to indicate on which reliance was placed by him. In the case of L.E. Works v. Asstt. Commr. Sales Tax : [1968]1SCR505 , the Supreme Court has held to the contrary. It all depends on the object and subject-matter of the provision. Reference to the decree or its copy becomes necessary only to ascertain how the dispute is adjudicated and what relief is awarded thereunder. But decree can never be the sole source of this information. This can be ascertained even by reference to records specially when Court passing the decree happens to be executing Court also. Drawing up of a decree under Order XX is exclusively the function of the Court, The successful litigant liable to be affected by the omission or delay is left with no initiative or any part to play, in this process. Such provision invariably is held to be directory. The assumption of such a rule being mandatory in Calcutta cases is based on the scheme of the said Rules.

10. Mr. Pendse then contends that the question of initiating any proceedings for execution of any decree can never arise, unless the decree sought to be executed itself is drawn up and brought into existence. The proceedings so initiated and orders passed thereon, according to Mr. Pendse, are all invalid and inoperative. Apparently the contention is impressive and attractive and again finds support in Satyendra Nath's case ' (supra). Close examination of the definition of the 'decree', the provision in regard to its drawing up, and the requirements of any execution petition, would expose the untenability of this contention. The word 'decree' under Section 2(2) of the Code means

the formal expression of an adjudication which, ... conclusively determines the rights of the parties. ...

In other words it is the judgment that contains substantively such adjudication from which the same, in the abstract, is extracted in the decree. Order XX, Rule 1 requires the Court to announce a date on which the judgment is to be pronounced to enable the parties to remain present, while framing of the decree in terms of Rule 6 does not so require. The uncertainty of its timings renders their presence impossible. Rule 7 requires the date of the judgment to be the date of the decree without regard to on what date actually it is drawn up. Fictionally thus the decree de facto comes into existence with the pronouncement of the judgment itself, adjudicating the rights and drawing up of decree is just a formal matter intended to be an almost ministerial part of the process, for ready reference in certain contingencies. Sub-rule (1) of Rule 11 of Order XXI even enables the decree-holder to apply for execution of the money-decree orally, while the decree is being passed, while the judgment-debtor still happens to be within the precincts of the Court. The words 'at the time of passing of the decree' in the context obviously has reference to the act of pronouncing the judgment, including its operative part thereof which is subsequently incorporated in the decree when alone the judgment-debtor can be expected to be within the precincts of the Court. These words are out of tune with the process of drawing up of the decree.

11. This explains why Sub-rule (2) of Rule 11 does not make enclosing of a copy of the decree an essential part of the application for execution as against several such requirements enumerated in Clauses (a) to (j) of the said sub-rule and why Sub-rule (J) leaves its production to the discretion of the Court. In other words, Order XXI, Rule 11 or any other rule thereof does not contemplate drawing up of the decree, as a condition precedent, for initiation of the execution proceedings. Mr. Pendse has not been able to draw our attention to any provision to this effect. Legislature does not seem to have made initiation of execution application dependant on the drawing up of the decree over which decree-holder does not have any control. This is just in keeping with the well-settled principle that omission or failure on the part of the Court machinery should not adversely affect the course of justice.

12. Satyendra Nath's case relied on by Mr. Pendse undoubtedly lays down that execution application is not maintainable till the decree is actually drawn up. But this view again is founded on the specific provisions of Original Side Rules of the said High Court referred to therein under which operation of Rules 1 to 8 of Order XX of Code of Civil Procedure is made inapplicable and the successful litigant has to make an application within the prescribed period and furnish draft of the decree and take some more steps before the decree is drawn up. Provisions of the Code of Civil Procedure thus permits the successful litigant to proceed with execution proceedings without waiting for the drawing up of the decree. The ratio of Rajeshwar Rai v. Shankar Rai : AIR1962Pat398 , supports this view of ours.

The ratio of Calcutta case can have no application when drawing up of a decree, as here, is exclusively the function of the Court.

13. Mr. Pendse drew our attention to the language of Order XLI, Rule 1 requiring the appellant to enclose a copy of the decree with appeal memo and to the case of Shakuntala Devi v. Kuntal Kumari : [1969]1SCR1006 indicating how mandatory the provision is and how appeal is liable to be incompetent in the absence of such a copy. The same process of drawing up of the decree, so contends Mr. Pendse, cannot be a mere formality for one purpose and of so much substance for the other, under the same Code, when the enclosing of its copy goes to serve the same purpose, i.e. ready reference. The explanation for this distinction appears to lie in the two Courts being different. When Court executing the decree happens to be the same, that passed it, its records can be readily available for reference without much difficulty. Enclosing its copy is not dispensed with when the decree is to be sent for execution to another Court. The copy of decree is made indispensable presumably for the same reason that records cannot be available for ready reference in other Court.

14. Mr. Pendse also contends that the Legislature could not have contemplated permitting the decree-holder to proceed with the execution, on the pronouncement of judgment when, without the copy of the decree, the judgment-debtor cannot avail of the statutory remedy of appeal effectively to get the same stayed. It is, however, incorrect to assume that judgment-debtor is left without remedy to get the execution stayed. Order XLI, Rule 5(2) empowers the Court passing the decree, itself to so stay execution proceedings on a case to that effect being made out. Secondly, notwithstanding the enclosing of the decree with appeal memo being held to be indispensible the appellate Court is not powerless to entertain defective appeal, without the copy of the decree, and extend the required interim reliefs and accept the copy thereafter, and even condone the delay in case of need. In fact, Section 12 of the Limitation Act permits the litigant excluding such time from the period of prescribed limitation as is required to obtain copies which includes the time taken for drawing up of a decree. Reference to the judgment of the Supreme Court in the case of Jagat Dhish v. Jawahar Lal : [1961]2SCR918 will be sufficient in this context in which order admitting the appeal even when the decree was not drawn up was held to be valid. Under 6. XX, Rule 6A of the New Code of Civil Procedure of 1976, appeal and execution applications are declared to be good even before the drawing of decree. This only makes explicit what was almost implicit under the repealed Code.

15. We accordingly over-rule the contention of Mr. Pendse either that without enclosing a copy of the decree along with the application for execution, the application was not maintainable or that in the absence of the drawing of the decree, no application for execution could have been initiated at all.

16.[The rest of the judgment is not material to this report.]


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