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Mundyappu Hengsu Vs. Sampa Alvathi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal Nos. 58 and 71 of 1964
Judge
Reported inAIR1965Kant268; AIR1965Mys268; (1965)1MysLJ728
ActsCode of Civil Procedure (CPC), 1908 - Sections 47
AppellantMundyappu Hengsu
RespondentSampa Alvathi and ors.
Excerpt:
.....the discussion made by the munsiff and ultimately wound up his order with an observation that the munsiff would do well to bestow his thought to the many aspects of the matter pointed out by the district judge and make a suitable direction in lieu of the direction which he had already made......the sister should be sold next.(2) from this order made by the munsiff there was an appeal to the district judge who was of the view that the appeal was an incompetent appeal. he therefore dismissed the appeal. but having dismissed the appeal he proceeded to consider the appropriateness of the direction made by the munsiff. the district judge was of the view that the direction made by the munsiff was in the circumstances one which required to be reconsidered. he pointed out many infirmities in the discussion made by the munsiff and ultimately wound up his order with an observation that the munsiff would do well to bestow his thought to the many aspects of the matter pointed out by the district judge and make a suitable direction in lieu of the direction which he had already made.(3).....
Judgment:

(1) On May 25, 1945, a certain Aithappa Alva granted a mortgage to the decree-holder Pinto of three items of properties belonging to him for securing repayment of sum of Rs. 9,000/-. In the year 1948, under Exhibit B2 there was a settlement of one of the properties belonging to Aithappa in favour of his sister. After this settlement, Aithappa died and Pinto brought a suit for the recovery of the amount due 'under the mortgage against the legal representatives of Aithappa who were Aithappa's widow, his children and his sister. A decree was made in that suit and when Pinto wished to execute the decree and asked for a sale of the mortgaged properties the widow and children asked for an order that the property which was settled on the sister should be sold in the first instance. There was also a prayer by the sister that the other properties should be sold in the first instance. On these applications the Munsiff made an order that the properties of the widow and children should be sold in the first instance and the property settled on the sister should be sold next.

(2) From this order made by the Munsiff there was an appeal to the District Judge who was of the view that the appeal was an incompetent appeal. He therefore dismissed the appeal. But having dismissed the appeal he proceeded to consider the appropriateness of the direction made by the Munsiff. The district Judge was of the view that the direction made by the Munsiff was in the circumstances one which required to be reconsidered. He pointed out many infirmities in the discussion made by the Munsiff and ultimately wound up his order with an observation that the Munsiff would do well to bestow his thought to the many aspects of the matter pointed out by the District Judge and make a suitable direction in lieu of the direction which he had already made.

(3) Both sides were dissatisfied with the order made by the District Judge. The widow and her children who are the appellants in Second Appeal 71 of 1964 ask me to say that the direction made by the Munsiff that their properties should be sold in the first instance was an unsustainable and unsupportable direction. They ask for a direction in their second appeal that the properties settled on the sister should be sold in the first instance.

(4) The sister who is the appellant in Second Appeal No. 58 of 1964 quarrels with the order made by the District Judge who made observations almost amounting to a condemnation of the direction made by the Munsiff. The argument pressed on behalf of the sister on me was that the District Judge should not have proceeded to make any observations about the appropriateness or the correctness of the direction made by the Munsiff after having reached the conclusion that the appeal presented to him by the widow and children was an incompetent appeal.

(5) In regard to the appeal preferred by the sister it would be enough to state that that appeal is somewhat misconceived appeal, since the appeal preferred by the widow and children was dismissed by the District Judge as an incompetent appeal. But they are, in my opinion, quite justified in making the criticism that having dismissed the appeal in that way the District Judge was not in order in proceeding to make a criticism of the direction. The sister, in my opinion, is equally justified in asking me to say that once the District Judge came to the conclusion that the order made by the Munsiff was not appealable and that is what he stated in the course of his order there was no power or jurisdiction in the District Judge through the exercise of which he could sit in judgment over it.

(6) It seems to me that it is very strange for the District Judge, having dismissed the appeal, to proceed to make observations about the appropriateness of the direction made by the Munsiff. Second Appeal No. 58 of 1964 should, in my opinion, be dismissed with the elucidation that all that was said by the District Judge about the direction made by the Munsiff was in the circumstances irrelevant and has no utility by reason of the fact that after he dismissed the appeal the District Judge should not have proceeded to say anything more about the order which was in appeal before him.

(7) Turning to the appeal preferred by the widow and the children of the mortgagor, the first question which arises is whether the direction made by the Munsiff was one from which an appeal could be preferred. If it can be said that the order of the Munsiff involved an adjudication on a question relating to the execution, discharge or satisfaction of the decree between the parties or their representatives, and is therefore an order made under S. 47 of the Code of Civil Procedure, there could be no doubt that the order was one from which an appeal could be preferred to the District Judge. But, quite apart from the view taken by the District Judge that the order made by the Munsiff was an administrative order, Mr. Ullal appearing for the sister contended before me that, since there was no question between parties or their representatives and since there was no question relating to the execution, discharge or satisfaction of the decree, the direction made by the Munsiff was not a direction which fell within S. 47 of the Code

(8) It does not appear to me necessary to express any opinion on the question whether, as contended by Mr. Ullal and as found by the District Judge, the direction made by the Munsiff was an administrative direction and did not involve a question relating in the execution, discharge or satisfaction of the decree. It seems to me that this appeal can be decided on the shorter ground that the direction made by the Munsiff did not involve, even if there was any question relating to the execution, discharge or satisfaction of the decree, any question between the parties or their representatives within the meaning of S. 47.

(9) Section 47 makes all questions arising between the parties to the suit in which the decree was passed, or their representatives, relating to the execution, discharge or satisfaction of the decree, determinable by the Court executing the decree and not by a separate suit. Its meaning is to my mind quite clear. What it says is that before a question could be determined by the Court executing the decree, that should be a question between the parties to the suit or their representatives in addition to the question being one relating to the execution, discharge or satisfaction of the decree. No question can be a question arising between the parties or their representatives within the meaning of that section, unless that question is between one party and another, or between one party and the representative of the another party, or between the representatives of one party and representatives of the other. A question which arises is not a question between the parties or their representatives within the meaning of the expression occurring in S. 47.

(10) That, that is the correct view to take was what was pointed out by a Full Bench of the High Court of Madras in Bagyalakshmi v. Bappu Aiyar, AIR 1946 Mad 90 and with that elucidation of the law I respectfully agree. There was, as Mr. Deshpande contended, a somewhat different view taken by that High Court on an earlier occasion Vedaviasa Aiyar v. Madura Hindu Labha Nidhi Co. Ltd., 45 Mad LJ 478 : (AIR 1924 Mad 365). But if I may say so with great respect, it seems to me that in the latter Full Bench there is, what I consider, an accurate statement of the law.

(11) The view that I take was also the view expressed by the Punjab High Court in Sansar Chand v. Shyam Lal, .

(12) In the view that I take, the direction made by the District Judge, even if it was not an administrative direction but a direction made in the exercise of judicial power, did not involve any question between the parties or their representatives, in which event alone the question would be for determination by the executing Court making an appeal possible from the adjudication.

(13) So it follows that the appeal before the District Judge was an incompetent appeal, although I reach that conclusion on a ground different from that on which that view was taken by the District Judge.

(14) The result is that Second Appeal No. 71 of 1964 must be dismissed.

(15) In the circumstances I make no order as to costs either in the one appeal or in the other.

(16) Appeal dismissed.


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