1. This is an application filed under Section 115 C. P. C. to revise the order dated 21-6-1972 passed by the learned Subordinate Judge. Vishakhapatnam in an unregistered E. A. of 1972 (G. R. N 1610/23-2-1972 1610/23-2-1972 ) in F. P. 127 of 1971 in O. S. 55 of 1965 on his file
2. The petitioner filed the above application under Order 21 Rule 52 C. P. C. praying the lower Court that the court may be pleased to investigate into the claim of the petitioner and raise the attachment to the extent of the individual half share of the petitioner. In the petition it has been alleged that the petitioner and the 2nd respondent are the joint owners and are in joint possession of a Cinema theatre known as Prabhat talkies at Vishakapatnam, that the second respondent is not the absolute owner and is not exclusively intitled to the entire property that the petitioner is entitled to and is in possession of his undivided half share in the property, that the petitioner came to know that he first respondent had obtained a money decree against the second respondent on the basis of a partnership business in O. S. 55 of 1965 on the file of Subordinate Judge's Court, and in execution thereof got attached the said cinema theatre on 25th August, 1965, that the said attachment is not valid and binding on the petitioner so far as his share is concerned, that the first respondent got a proclamation of a sale , for the entire property, without excluding the petitioner's half share, made and it is therefore illegal and cannot bind the petitioner, that the petitioner came to know about the attachment recently when he came to the court in connection with other matters and hence the petition could not be filed earlier as the petitioner was not aware of the alleged attachment or proclamation till he was informed about the same in the Court, that as the sale is posted to 8-3-1972 this petition was filed for stay of further proceedings, including sale etc. The petition was dated 14-2-1972, but actually it appears to have been filed on 23-3-1972 in the Court. From the endorsement on the petition we find the following :--
Returned. 1. the petitioner should file documents, if any, to show that he has got title and possession by the date of attachment.
2. The date of attachment may be noted.
Time 7 days.
Represented on 6-3-1972 :--
1. It is submitted that the petitioner filed similar application of claim and the same is pending in the High Court. The High Court was pleased to grant stay of the very same property in C. R. P. No. 1402 of 1971. which is pending and the records of the petitioner are with the High Court advocate and as such they could not be filed now.
2. The petitioner came to know of the sale of the property a week before filing the petition
Returned on 14-3-1972 :--
1. Objection dated 3-3-1972 should complied with properly.
Returned on 21-3-192 :--
The petitioner could not file the documents for the present as they are with the High Court advocate. 2. The subject-matter of the property was attached on 3-12-1965.
The date attachment furnished is not correct. Correct date should be given.
Represented : 3-4-1972.
The property was attached before judgment on 3-12-1965 on I. A. No. 313 of 1965 as was noted by the office.
Returned : 19-4-1972
The date of attachment furnished is not correct. Correct date should be furnished.
Represented on 14-6-1972.
The date of attachment known to the petitioner is submitted by the petitioner 23-6-1972.
Petitioner prays the Court to investigate into the claim and raise the attachment to the extent he got title and possession by the date of attachment. But it is represented that the documents are with the High Court advocate.
Rejected as it is belated one. ............. .............. ................. ............. ............
3. The certified copies of the order and decree furnished by the lower Court mention in the cause-title portion that the application came up for hearing in the presence of Sri. P. V. Satyanarayana advocate for the petitioner . But the order of the learned Sub-ordinate Judge is a very short one 'rejected as it is a belated one.' From the endorsement of representation dated 14-6-1972, the petitioner stated that the date of submitted by him already. It does not appear from the record that any opportunity was given to the petitioner to explain the delay, if the lower Court had considered that there was any delay in filing the application. It is this order which is now sought to be revised herein.
4. Mr. C. Sadasiva Reddy, learned counsel for the petitioner urged before me that the order of the lower Court amounts to a failure to exercise jurisdiction or at any rate the lower Court acted in the exercise of its jurisdiction illegally or with material irregularity. He invites my attention to the wording if Order 21, Rule 58, C. P. C. which is as follows :--
'Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects as if he was a party to the suit; Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed .'
5. It is the contention of Mr. Sadasiva Reddy that the Court can reject the application on the ground of delay, only if the proviso to Rule 58 of Order 21 C. P. C. is attracted, i.e. the court must be satisfied on the evidence or otherwise that the claim or objection was 'designedly or unnecessarily delayed.' According to the learned counsel it is not a subjective satisfaction of the lower Court by a mere perusal of the petition that is required under this provision. According to him the Court must give an opportunity to the petitioner to satisfy the Court that it was no designedly or unnecessarily delayed. Without giving that opportunity the Court cannot, by its own accord is contemplated by the legislature is a designed delay or a delay which is not necessary in the circumstances. In this particular case, the learned counsel says that the lower Court has not given such an opportunity to the petitioner on the representation endorsement made by the counsel on the petition. The order appears to have been passed in the chamber's in the manner it did. In any event, the learned counsel says that the order does not satisfy the requirement of law and that he lower Court has not stated that it was designedly or unnecessarily delayed. It is merely dismissed as belated one and that is not a sufficient requirement acceding to him. He also further contends that the dismissal of an application under Rule 58 of Order 21, C. P. C. on the ground of mere delay is not permissible and that the lower Court's order requires interference.
6. On the other hand the learned counsel for the respondent contends that it cannot be said that the order was passed in chambers, as the cause title in the order shows that it came up for hearing in the presence of the counsel for the petitioner and therefore he must have been heard. Secondly he urges that it is not necessary for the lower Court to state that it was designedly or unnecessarily delayed if it dismissed it as a belated one. Thirdly he contends that this is an order in a claim petition under Order 21, Rule 58, C. P. C. it is not necessary for this Court to interfere in a revision under Section 115, C. P. C. The learned counsel for both sides have cited some authorised and I will consider them presently.
7. From the wording of the proviso to Rule of Order 21, C. P. C. it appears to me that the Court cannot dismiss the application as a belated one, unless it gives an opportunity to the petitioner to explain or satisfy the Court that the delay, if any, is not a designed one or a necessary one. In order to arrive at this conclusion it is not enough for the Court to merely look into the petition, the endoresement of return and the endoresement of representation. The petitioner should be given an opportunity to show cause by adducing some evidence or otherwise that he has not designedly. wantonly or intentionally delayed filing the application under Order 21, Rule 58, C. P. C. He may also explain and satisfy the Court that it was a delay, which was unavoidable and necessary in the circumstances of the case. In case, the Court intends to proceed under the proviso to Rule 58 of Order 21. It is incumbent upon the Court to not only give an opportunity to the petition to satisfy the requirement but also to indicate in its order that it has given sufficient opportunity and that it was satisfied that inspite of the opportunity being given to the petitioner that the application was 'designedly or unnecessarily delayed'. Without following the procedure if the petition is merely dismissed on the ground that it is belated one and the order ex facie does not show that such an opportunity was given, it cannot be held that it is a proper disposal of the application under Order 21, Rule 58 and it would be a case where the court has failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of its jurisdiction. It is no doubt true that in a case where there is alternative remedy by way of a suit available to a party, the Court should not ordinarily interfere with such orders. That is not an absolute and inflexible rule as laid down in many decisions. There may be exceptional cases in which this court may be satisfied lower Court has acted illegally and with material irregularity in the exercise of its jurisdiction thereby warranting interference under Section 115 C. P. C. In this connection I may refer to the Full Bench decision of the Allahabad High Court in Leela v. Mahinde. AIR 1931 All 632 (FB), wherefrom the following passage may be extracted :--
'Section 115 is not doubt discretionary and therefore it is open to the High Court to decline to interfere in particular cases. As a matter of practice it may be consider that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit upon to the applicant. The remedy by way of a separate suit would involve a protracted litigation through several courts and is not always a convenient remedy when more effective and speedy remedy is available. There is no justification for restricting the power conferred upon the High Court under Section 115 by laying down that no revision should be entertained when a remedy by suit lies. Each case must be considered on its own merits and if the Court below has acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interest of the justice, there is no reason why we should drive the applicant to a more circutious remedy by way of a separate suit.'
8. This decision has also been followed by the Gujarat High Court in B. D. Shroff v. Govindbhai. : AIR1963Guj117 . I may also, in this connection, refer to a decision of their Lordships of the Supreme Court in M. K. P. Chettiar v. A. P. Pillai, : (1970)2SCC290 where their Lordships say that an error of law in the decision however gross, it may be, the High Court could not interfere under Section 115, C. P. C., specially where there was no procedural error. I, therefore, think that where there is a procedural error, as in this case, it is certainly open to the High Court to interfere in cases of this type.
9. If an application filed under Order 21, Rule 58, is disposed of in chambers, without giving an opportunity to the petitioner to show causes, why it is not designedly or unnecessarily delayed, a Division Bench of the Allahabad High Court in Rajeshwari Bibi v. B. Hari Ram, AIR 1933 All 751, consisting of their Lordships Gulsiman C. J. and Young J. held as follows :--
'But it seems to us that a court cannot come to the conclusion whether there has been an unnecessary delay without considering any explanation that might be offer on behalf of the objector, this cannot be known until the objector or his counsel has been heard and given an opportunity to explain the delay. We are of opinion, that in the absence of any opportunity having been given to the objector or their counsel to explain the delay, the Court below acted with material irregularity in dismissing the objections summarily on the supposed ground that there was an unnecessary delay. We accordingly allow this decision (revision) set aside the order of the court below and send that the case back to the court below to determine, after hearing the parties, whether there was any unnecessary delay or not, and if none, then to dispose of the objection on the merit.'
10. This decision was followed by another Bench in Baraty Mian v. Ram Adhin, AIR 1937 Oudh 268, wherein also an order was passed in chambers as in the present case. In two cases decided by Madras High Court in an order passed an application under Order 21, Rule 58, without considering the question of possession, which is necessary in such an application, the High Court interfered with those orders: see the decision of Madhavan Nair J, in Appasamy v. N. Balakrishna AIR 1925 Mad 586 and the decisions of Sankaran Nair J, in Rangamal v. Sevugan Chetti , 28 Mad LJ 327 = (AIR 1916 Mad 19) . It may also be stated in this connection that there Lordships of Supreme Courts have held in 'Sawai Singhai v. Union of India, : 1SCR988 that the scope of enquiry under Order 21, Rule 58 C. P. C. is very limited and is confined to the question of possession as they are connected, while the suit brought under Order 21, Rule 63 C. P. C. would be concerned not only with the question of possession but also with the question of title.' In another decision in Radha Kishan v. Firm J, Prasad S. Prasad, AIR 1966 Raj 219 Jagat Narayan J, interfered with an order passed by the lower Court, which rejected a document as inadmissible. In Smt. Saida Begum v. Sabir Ali : AIR1962All9 the Allahabad High Court interfered with an order to release a property, wherein the petititioner has not shown his interest therein. In Abdul Rahmani v. Fatima Bee, : AIR1960AP492 . Manikannaiah J, has interfered with an order on an application, which was rejected as not in proper form. In Agarwal Pathsala v. Karim Bux, : AIR1969All139 the lower Court after issuing a notice in an application under Order 21, Rule 58, dismissed it on the ground that it was designedly and unnecessarily delayed, without recording any evidence and without applying his mind as to what would mean by that expression, S. N. Singh J, interfered with that decision and set it aside.
11. The learned counsel appearing for the respondent relied upon three decisions of Madras High Court. In Kuppusamy Pillai v. Alwar Chettiar. AIR 1935 Mad 89 it was held by Beasley C. J., that interference under Sec. 115 shall not bring about injustice. I do not think that interference in this case would bring about any injustice at all. In Venkataratnam v. Ranga Nayakamma, ILR 41 Mad 985 = (AIR 1919 Mad 738) a Full Bench of the Madras High Court has considered the following questions :--
(1) Where a Court purports to make an order under the proviso to Rule 58, Order XXI, that is to say, an order refusing to investigate, thus such an order come within the mischief of order XXI, Rule 63, and the Article 11 of the Limitation Act (2) Is Exhibit V an order covered by Article 11 of the Limitation Act? The Full Bench answered those questions in the affirmative. It may be seen in this case, the first order passed on the application as follows :-- 'As this petition was filed late this claim is ordered to be notified to be intending bidder.' A fresh petition was put in before the same Judge and he passed another order as follows :-- 'The allegations of the Zamindarini will be notified to the bidders with the remark that the Zamindarini did not take steps for her claim being enquired into during the last ten months.' The question that arose in that case was whether those were final necessitating a suit to be filed under Order 21, Rule 63 C. P. C. within the period provided by Article 11, of the Limitation Act. It is no doubt true that in that case there Lordships approved to decisions in Narasimha Chetty v. Vijiapala Nainer 2 Mad LW 206 = (AIR 1916 Mad 443) and Ponnuswami Pillai v. Sabu Ammal 31 MLJ 247. In the first decision it was held --- 'Order 21, Rule 63 of the Code of Civil Procedure 1908 is much wider in its scope than the corresponding Section 283 of the Code of 1882, and unlike the latter section covers cases in which there have no investigation.'
12. In the second case it was held 'the language of Article 11 in the new Act is more comprehensive than that of the previous Act and has been construed in this court as covering orders after full investigation as well as orders passed on default'
13. The ratio decided of the above Full Bench decision is that even orders passed without investigation on the ground of delay amount to final orders coming within the purview of Article 11 of the Limitation Act. There Lordships were not concerned in that case with question, which now arises here viz; whether it was an order passed in accordance with the proviso under Rule 58 of Order 21 C. P. C. or not. It does not appear that that point was ever mooted, agitated or decided. I do not therefore, think that the decision of the Full Bench would come to the rescue of the respondent in any way. The third decision relied upon by Ramachandra Rao, learned counsel for the respondent is the one of Andhra Pradesh High Court in Sawnley Mian v. Zabunissa, (1957) 1 An WR 261. In that decision Kummarayya J., (as he then was) observed that 'where justice has been done to the parties, it is not proper to interfere with the findings of the lower Court on the mere ground that the suit tried on regular side was of a small cause nature .' I do not think that decision has any application here on the facts of this case.
14. In view of the above authorities considered by me, I am of opinion that in a case under a proviso Rule 58 of Order 21, it is incumbent upon the Court to give an opportunity to the petitioner to show cause how it was not designedly or unnecessarily delayed and after taking such evidence thereon, which the petitioner may adduce, it must come to the conclusion, before it arrives at a decision under the proviso that it was designedly or unnecessarily delayed. The court cannot pass an order of dismissal on the ground of belatedness or delay casually or as a matter of course. It cannot be said that such an opportunity to the party is an empty formality. It is one thing to say that an opportunity has been given and the court has not been satisfied while it is a different thing to say that the court can reject an application even without giving such an opportunity. In the present case since I am satisfied that the requirements of the proviso have not been properly applied or satisfied by the Court this a matter in which interference is call for.
15. The petitioner's counsel no doubt argued that the mere use of the word that it is a belated one is not sufficient and the court must exactly use the words that it is designedly or unnecessarily delayed. In my opinion it is not the form, but the substance that matters. In any event, the court must be satisfied that it was not designedly or unnecessarily delayed.
16. In these circumstances I set aside the order of the Lower Court and remand the application to the lower court for consideration on merits after giving an opportunity to the petitioner as well as the respondent, in the light of the observations in this order. There will be no order as to costs.
17. Order accordingly.