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Thotada Sanna Thippiah Vs. K.S. Palaiah - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberS.A. No. 74 of 1961
Judge
Reported inAIR1964Kant54; AIR1964Mys54; (1963)2MysLJ147
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 47 and 144 - Order 21, Rules 72, 90, 92 and 93 - Order 43, Rule 1
AppellantThotada Sanna Thippiah
RespondentK.S. Palaiah
Appellant AdvocateB.S. Putta Siddiah, Adv.
Respondent AdvocateChinnappa and ;K.R. Gopivallabha Iyengar, Advs.
Excerpt:
.....of the child expansion of anganawadi centres selection of anganawadi workers - guidelines procedure composition of selection committee modification of selection committee-government order statement of objections filed on behalf of the state government, government sought to bring about a variation to the composition of the selection committees-selection of large number of anganawadi centres by the committees constituted in terms of government order - notification to that effect challenge as to validity of government orders held, firstly that the notification is not in consonance with the scheme as notified by the central government under the icds; that it is at variance and works at cross purposes and therefore it is bad. secondly, that when the scheme is sought to be..........in the court of the munsif at chitaldurg is a 'decree' as denned in section 2(a) of the code of civil procedure and consequently executable. 2. in ex. no. 405/54, the appellant's properties were sold. he applied to the court under rule 90 of order 21 civil procedure code to set aside the sale. the sale was set aside but the judgment-debtor was directed to pay solatium to the auction-purchaser at the rate of 5% on the amount of the purchase price. the judgment-debtor unsuccessfully went up in appeal against that order. that order is being executed now. the question is whether that order is a 'decree' and as such executable. 3. 'decree' is defined under section 2(2) of the civil procedure code thus:- 'the formal expression of an adjudicationwhich, so far as regards the court expressing.....
Judgment:

1. The only question for consideration is whether the order passed in Ex. 405/54 in the Court of the Munsif at Chitaldurg is a 'decree' as denned in Section 2(a) of the Code of Civil Procedure and consequently executable.

2. In Ex. No. 405/54, the appellant's properties were sold. He applied to the Court under Rule 90 of Order 21 Civil Procedure Code to set aside the sale. The sale was set aside but the judgment-debtor was directed to pay solatium to the auction-purchaser at the rate of 5% on the amount of the purchase price. The judgment-debtor unsuccessfully went up in appeal against that order. That order is being executed now. The question is whether that order is a 'decree' and as such executable.

3. 'Decree' is defined under Section 2(2) of the Civil Procedure Code thus:-

'The formal expression of an adjudicationwhich, so far as regards the Court expressing it,conclusively determines the rights of the partieswith regard to all or any of the matters in contraverse in the suit and may be either preliminaryor final. It shall be deemed to include the rejec-tion of a plaint and the determination of any ques-tion within Section 47 or Section 144, but shallnot include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) an order o dismissal for default ......'

Prima facie, the order passed in Ex. 405/54 is an order coming within the scope of Section 47 of the Civil Procedure Code. But the appellant contends that, it cannot be considered as a 'decree' as the order in question was appealable under Order 43 Civil Procedure Code and in fact it was appealed against. To elaborate his contention, according to him, the order in question is made appealable under Order 43, Rule i (j), and therefore, it is taken out of the ambit of Section 2(2). Clause (j) of Order 43, Rule 1 (j) says:

'an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing, to set aside a sale.'

According to Sri Puttasiddiah, the order in question falls under Rule 92 of Order 21. Is thiscontention correct? The order with which we are concerned is not the order setting aside the Bale but the order that granted solatium to the auction-purchaser. Such an order cannot come within the scope of Rule 92 of Order 21. It is an order falling under Rule 93 of the said order. No doubt, Rule 93 speaks of 'grant of interest', whereas in the present case what the Court purported to grant to the auction-purchaser was solatium. There is no provision for granting solatium as such when a sale is set aside under Rule 90. Every order directing the repayment of the purchase-money with or without interest can be made only under Rule 93.

In the instant case, the executing Court had directed the payment of the purchase-money with 5% of solatium. Whether the Court was right in passing that order or not is not a question that can be gone into now. Nor can we go into the question whether it is a valid order. That order has become final. Undoubtedly it is not an order under Rule 92. Therefore, it is not appealable under Order 43, Rule 1 (j). As mentioned earlier it is an order falling under Section 47 Civil Procedure Code. That means it is executable. The fact that an appeal in fact had been filed against the order granting solatium is an irrelevant circumstance. The appellant erred in not bringing to the notice of the appellate Court that the appeal was not maintainable.

4. Now that I have come to the conclusion that the order in question should be deemed to have been made under Rule 93 of Order 21, there is no difficulty in arriving at the conclusion that the said order amounts to a 'decree' under Section 2(2) of Civil Procedure Code, and therefore, the same is executable. In this connection, reliance can be placed on the decision of the Madras High Court in Venkataramana Murthi v. Sundara Ramiah AIR 1919 Mad 894.

5. In the result, this appeal fails and thesame is dismissed with costs.

6. Appeal dismissed.


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