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Ram Pratap and anr. Vs. Mohan Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revision No. 311 of 1963
Judge
Reported inAIR1967All161
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 33, Rules 7, 8 and 15
AppellantRam Pratap and anr.
RespondentMohan Lal and anr.
Advocates:K.B. Verma, Adv.
DispositionApplication allowed
Excerpt:
.....with as plaint of a suit if the deficiency in court fee is made good forthwith or is made good within the time allowed by the court, otherwise no further action can be taken on the pauper application made in accordance withorder xxxiii, rule 2 c......till the disposal of the application. this order was passed on the date of the presentation of the pauper application (12-10-1961).3. the pauper application was allowed on 4-7-1962 and on 13-7-1962 the decree-holder, mohan lal, moved an application that on account of there being no stay order the execution of the mortgage decree may proceed. this application was eventually allowed and the sale was confirmed on 6-8-1962.4. on 7-7-1962 the decree-holder defendant, moved an application for disappearing the plaintiffs-applicants and this application was allowed under order dated 25th august, 1962, and the permission already granted to sue as pauper was withdrawn.5. on 6-12-1962 the applicants moved the civil judge for setting aside the order confirming the sale. in fact, the request made was.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is a revision under Section 115, C. P. C. by Ram Pratap and another against the order dated 23-2-1963 of the Civil Judge of Gorakhpur dismissing their application, in substance, for setting aside the order confirming the sale.

2. After obtaining a final decree under Order XXXIV, Rule 5, C. P. C. for the recovery of the mortgage money by the sale of the mortgaged property Mohan Lal, decree-holder-opposite party No. 1, applied for execution of the decree. The decree was against Uma Shanker, opposite party No. 2, father of the present applicants. The property was auctioned on 18-12-1961 and was purchased by the decree-holder himself. On 12-10-1961 the applicants moved an application for permission to sue as pauper to obtain a declaration that the decree already obtained was void and the property in dispute was not liable to sale in execution of that decree. At the same time, an application was made to restrain the decree-holder, who was the defendant in that suit, from proceeding with the auction sale. However, the Civil Judge passed an order that the confirmation of the sale shall be stayed till the disposal of the application. This order was passed on the date of the presentation of the pauper application (12-10-1961).

3. The pauper application was allowed on 4-7-1962 and on 13-7-1962 the decree-holder, Mohan Lal, moved an application that on account of there being no stay order the execution of the mortgage decree may proceed. This application was eventually allowed and the sale was confirmed on 6-8-1962.

4. On 7-7-1962 the decree-holder defendant, moved an application for disappearing the plaintiffs-applicants and this application was allowed under order dated 25th August, 1962, and the permission already granted to sue as pauper was withdrawn.

5. On 6-12-1962 the applicants moved the Civil Judge for setting aside the order confirming the sale. In fact, the request made was that the execution proceedings be recalled and set aside with costs. The Civil Judge has rejected the application and in an earlier sentence mentioned that the application was misconceived and liable to be rejected.

6. 'Misconceived' means that an application though not maintainable has been moved. Consequently, if it is found that the present application was maintainable it would mean that the Civil Judge failed to exercise jurisdiction which was vested in him, and in the circumstances the High Court can in exercise of the revisional jurisdiction pass a suitable order. The revisional jurisdiction can also be exercised under Clause (c) of Section 115, C. P.C. as the confirmation of the sale would be in disregard of the stay order passed by the same court in another proceeding, though by the predecessor of the Presiding Officer who ordered the confirmation of sale. For so long as a stay order is in existence no action in disregard thereof can be taken and the passing of an order in disregard of the stay order shall amount to breach of the provisions of the law. The scope of Clause (c) of Section 115, C. P. C. was considered by the Supreme Court in Jagdish Prasad v. Ganga Prasad, AIR 1959 SC 492 and it was held that the revisional jurisdiction could be exercised under Clause (c) of Section 115, C. P. C. if there was breach of the provisions of the law.

7. To put it differently, if the stay order continued to be in force after the permission to sue as pauper was granted, the sale in execution of the mortgage decree in favour of the decree-holder could not be confirmed and this Court can in exercise of the revisional jurisdiction set aside the order illegally confirming the sale, and thereby restore the conditions as they would have been had the stay order been respected. The material point for consideration, therefore, is if the stay order dated 12-10-1961 continued in force even after permission to sue as pauper was granted.

8. Order XXXIII C. P. C. governs suits by paupers. A suit can be instituted by a pauper subject to the provisions of Order XXXIII C. P. C. Contents of the application are detailed in Rule 2. The application for permission to sue as pauper has to contain all the particulars of a plaint along with other particulars to justify the grant of permission to sue as pauper. Rules 3 and 4 of Order XXXIII govern the presentation and the action to be taken by the court at the time of the presentation of the pauper application. Rule 5 entitles the court to reject the pauper application in circumstances detailed therein. Unless the pauper application is rejected a regular hearing has to take place before granting or refusing the permission to sue as pauper. Where no permission to sue as papuper is granted, me application can, subject to Rule 15, be proceeded with as plaint of a suit if the deficiency in court fee is made good forthwith or is made good within the time allowed by the court, otherwise no further action can be taken on the pauper application made in accordance withOrder XXXIII, Rule 2 C. P. C. But if the permission is granted i.e., the application for permission to sue as pauper is granted, the application is numbered and registered and is mere-after deemed the plaint in the suit and the suit proceeded with in accordance with the provisions of Order XXXIII, Rule 8 C. P. C.

9. Ordinarily an application stands disposed of after it has been allowed or dismissed. But in view of the wording of Order XXXIII, Rule 8 C. P. C., in the eye of law the application remains pending though it shall be deemed the plaint in the suit. Further action has to be taken on the application made under O. XXXIII, Rule 2 C. P. C. even though the application has been granted as provided in Order XXXIII, Rule 8 C. P. C. The application though allowed is numbered and registered and deemed the plaint in the suit. The word 'deemed' is of significance. If the application is in fact the plaint in the suit no question of its being deemed the plaint in the suit shall arise. The word 'deemed' makes it clear that a thing is not what, in the eye of law, it is supposed to be. If the thing is in fact what it is taken to be no question of supposition arises. The words 'shall be deemed the plaint in the suit' used in Order XXXIII, Rule 8 C. P. C. thus make it clear that the application as contemplated by Order XXXIII, Rule 2 C. P. C. continues to be an application but in the eye of law, or one may say, in the fiction of law is taken as the plaint in the suit. Similar inference can also be drawn from the meaning of the term 'deemed to be' as contained in Words and Phrases Judicially Defined, by Roland Burrows 1943 Ed. as below.

'Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that .......... particular thing, nevertheless .............. it isto be deemed to be that thing.'

10. To sum up, the application for permission to sue as pauper even though granted, remained pending and though it was an application it was, after the grant of permission to sue as pauper, to be deemed the plaint in the suit. The application was not in fact the plaint in the suit but it was in the eye of law, to be treated as such. When the application remained pending even after the grant of permission to sue as pauper, the stay order which was to remain in force till the disposal of the application continued to be effective. When the applications was still pending, the sale could not be confirmed on 6-8-1962. The order being illegal could be set aside by the Civil Judge suo motu or on an application made by the aggrieved party. This Court can, therefore, restore the conditions as they were before the confirmation of the sale.

11. The revision is hereby allowed and the impugned order and also the order dated 6-8-1962 confirming the sale are set aside. Any amount deposited by the decree-holder to obtain the confirmation of the sale since after makingthe application on 13-7-1962 shall be refundedto him. Costs on parties. Injunction order isvacated.


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