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Atal Singh and ors. Vs. Kesho Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 1776 of 1973
Judge
Reported inAIR1981All116
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantAtal Singh and ors.
RespondentKesho Ram
Advocates:R.N. Singh and ;K.P. Singh, Advs.
DispositionAppeal partly allowed
Excerpt:
.....section 47 of code of civil procedure, 1908 - executing court rejected application for execution - decree holder not entitled to relief claimed - matter relates to execution, discharge or satisfaction of decree - order appealable as decree - remanding case to executing court for fresh hearing not justified. - - it may be mentioned here that by an amendment made by the allahabad high court in order xxi, rule 32 (3) the words 'one year' had been substituted by the words 'three months' and it was also provided that this period could be extended by the court for good cause. , 1971, and for his failure to take steps in pursuance of the notice issued by the court. it observed that after finding that the decree-holder had shown proper and sufficient cause for his failure to attend the court..........made on behalf of the decree-holder and pass an order that this appeal should be treated as a civil appeal against an order under section 47 of the civil p. c. and should be registered as such. this appeal has, therefore, been registered as a civil appeal.'8. thereafter the appellate court went into the merits of the appeal and it held that the executing court was not justified in rejecting the restoration application filed by the decree-holder. it observed that after finding that the decree-holder had shown proper and sufficient cause for his failure to attend the court on 23rd jan., 1971 as also for his failure to take steps in pursuance of the court notice sent to him (the finding with which the appellate court fully agree) the restoration application filed by the decree-holder.....
Judgment:

H.N. Seth, J.

1. This appeal by judgment-debtor is directed against the appellate order dated 14th Aug., 1973 passed by the Additional District Judge, Muzaffarnagar.

2. Briefly stated, the facts giving rise to the present appeal are that Kisho Ram (respondent in this appeal) filed Suit No. 106 of 1967 against Kapoor Singh and others for a permanent injunction restraining them from interfering with his possession over certain agricultural plots. The suit was decreed on 22nd Dec., 1967. The decree-holder presented an execution application under Order XXI, Rule 32 of the Civil P. C. with the allegation that the judgment-debtor had disobeyed the decree for injunction and had misappropriated decree-holder's crops standing on certain plots. The judgment-debtor filed objections to the prayer made in the laid application which were rejected by the executing Court vide its order dated 28th Aug., 1969. The executing Court directed that the properties, detailed at the foot of the execution application, belonging to the judgment-debtor be attached and that the attachment was to remain in force for a period of one year. The court further ordered that the file be put up for further orders after a year. It may be mentioned here that by an amendment made by the Allahabad High Court in Order XXI, Rule 32 (3) the words 'one year' had been substituted by the words 'three months' and it was also provided that this period could be extended by the court for good cause. The order passed by the executing court directing that the attachment of the property was to remain in force for a period of one year had thus been passed in ignorance of the amendment made by the Allahabad High Court in Order XXI, Rule 32 (3) of the Code of Civil Procedure and was not fully in a con-lonance with the said provision.

3. The properties belonging to the judgment-debtor were in pursuance of the order dated 28th August, 1969 actually attached on 16th Oct., 1969 and, as stated above, this attachment was to continue to remain in force for one year from the date of attachment.

4. In the meantime, the defendant filed an appeal against the original decree which appeal was dismissed by the District Judge on 6th Feb., 1970. The defendant then came up in second appeal before this Court and this Court, by an order dated 3rd Mar., 1970 directed that the operation of the order of the trial court was to remain stayed in the meanwhile. Eventually the second appeal was dismissed by this Court on 12th Jan., 1971.

5. In the period of one year from the date of attachment which had expired on 16th Oct., 1970 the execution application, as had already been ordered by the executing court, was put up for orders on 26th Nov., 1970. It was found that the decree-holder had not taken any step for prosecuting the execution application further and his Counsel reported that he had no instructions in the case. The court accordingly ordered that notices be sent to the decree-holder for taking further steps for prosecuting the execution case. When the process-server went to serve the notice issued by the court on the decree-holder on 5th Jan., 1971, he was informed by Sri Ram Saran brother of decree-holder's wife, that the decree-holder had gone to Allahabad in connection with pairvy (advocacy) of the second appeal and that he would inform the decree-holder about the notice on his return from Allahabad. The execution application was put up for further orders on 23rd Jan., 1971. The decree-holder was not present in court on that date as he had, by that time, not returned from Allahabad. The executing court, however, took the view that service of notice on decree-holders' wife's brother was sufficient and struck off the execution case for default.

6. The decree-holder claims that on his return from Allahabad on 2nd Feb., 1971 his brother-in-law Ram Saran informed him about the notice issued by the court. Thereupon he went to the court, made enquiries and came to know that his execution application had been struck off on 23rd Jan., 1971 for want of prosecution. He accordingly filed an application on 20th Feb., 1971 praying that the order dated 23rd Jan., 1971 be recalled and the execution case be restored to its original number. The executing court accepted the decree-holder's case that he had sufficient cause for not appealing before the court of 23rd Jan., 1971, and for his failure to take steps in pursuance of the notice issued by the court. It, however, dismissed the restoration application mainly on the ground that the decree-holder ought to have applied for sale of the attached property immediately after three months of the date of attachmeat or within reasonable time thereafter. It further observed that no doubt the decree-holder had been misled by the order passed by the court that attachment of the property was to remain in force for one year, but then the decree-holder had not made any application for sate of the attached property even after one year and that there was no evidence on the record to show that interference with decree-holder's possession over the plots in question was still continuing. Accordingly, the instant case was not a fit case in which the inherent powers of the court could be exercised to restore the execution application particularly because ignorance of law was no excuse and also because the decree-holder was partially to be blamed inasmuch as be did not apply for sale of the property within reasonable time after three months of the attachment of judgment-debtor's properties. iB the result, the executing court passed an order dated 11th Jan., 1972 to the following effect :

'I, therefore, reject this application for restoration of the execution case. In the peculiar circumstances of the case the parties shall bear their own costs in these proceedings.'

7. Aggrieved, the decree-holder went up in appeal before the Additional District Judge, Muzaffarnagar. Before the appellate court the judgment-debtor raised a preliminary objection regarding maintainability of the appeal which was directed against the order dated 11th Jan., 1972. It was contended on behalf of the judgment-debtor that the order refusing to restore the execution proceedings had not been made under the provisions of Order IX of the Civil P. C. The order was passed under Section 151 of the Civil P. C. and, as such, it was not appealable. The decree-holder, however, contended that as the order striking off the execution case related to the execution, discharge or satisfaction of the decree, it should be deemed to be an order passed under Section 47 of the Civil P. C. and, as such, ft would be appealable according to the law as it then stood. The appellate Court accepted the contention raised on behalf of thedecree-holder and made the following observation :--

'I agree with the above contention made on behalf of the decree-holder and pass an order that this appeal should be treated as a Civil Appeal against an order under Section 47 of the Civil P. C. and should be registered as such. This appeal has, therefore, been registered as a Civil Appeal.'

8. Thereafter the appellate court went into the merits of the appeal and it held that the executing court was not justified in rejecting the restoration application filed by the decree-holder. It observed that after finding that the decree-holder had shown proper and sufficient cause for his failure to attend the court on 23rd Jan., 1971 as also for his failure to take steps in pursuance of the court notice sent to him (the finding with which the appellate court fully agree) the restoration application filed by the decree-holder should have been allowed. According to the appellate court the order passed by the executing court itself shows that it was inclined to allow the restoration application but then it took into consideration certain other factors which led it to reject the restoration application. The tenor of the order was such that it did not clearly indicate whether the restoration application had been rejected on the ground that there was no sufficient justification for restoring the case or on the ground that on merits the application deserved to be rejected. The appellate court took the view that as the executing court was disposing of decree-holder's application for setting aside the ex parte order dismissing the execution case for default, it should have, as soon as it found that there was sufficient ground for absence of the decree-holder for appearing before the court on 23rd Jan. 1971 first of all restored the case to its original number and then should have proceeded with the case on merits and thereafter if, after hearing the parties on merits, it was of opinion that the decree-holder was not entitled to further execution of the decree it might have passed an order rejecting the execution application. The appellate court, without expressing any opinion on the merits of the question as to whether the decree-holder was entitled to any relief in the execution case initiated by him, allowed the appeal, set aside the order passed by the executing court refusing to recall it order dated 23rd Jan., 1971 and directed that the execution case be restored to its original number and that it be proceeded with in accordance with law.

9. Aggrieved, the judgment-debtors have come up in second appeal before this Court.

10. Sri Singh learned counsel appearing for the appellants contended that an order passed on an application for restoring execution application dismissed for non-prosecution is not an order relating to execution, discharge or satisfaction of a decree. It does not fall within the purview of Section 47 of the Civil P. C. Such an order is made in exercise of powers under Section 151 of the Code of Civil Procedure and it is, as such, not appealable. The appellate court, therefore, had no jurisdiction to interfere with that order. In support of his submission that an order made on an application praying for restoration of an execution case dismissed for default is not an order of the nature contemplated by Section 47 of the Civil P. C. and, as such, the order is not appealable, learned counsel for the appellants relied Upon the decisions of Keshardeo Chamria v. Radha Kishan (AIR 1953 SC 23) and Gopilal v. Sitaram (AIR 1968 Madh Pra 196). In Keshardeo Chamria's case the Supreme Court had occasion to consider the question whether an order passed on an application praying for restoration of an execution case, which had been dismissed for non-prosecution, to its original number, is an order relating to execution, discharge or satisfaction of a decree falling within the ambit of Section 47 of the Civil P. C, The Supreme Court observed thus :--

'The order of restoration of the execution case passed under Section 151 by the executing court did not come within the purview of Section 47 of the Civil P. C. and as such was not appealable. The proceedings that commenced with the decree-holder's application for restoration of the execution and terminated with the order of revival could in no sense be said to relate to the determination of any question concerning the execution, discharge or satisfaction of the decree. Such proceedings were in their nature collateral to the execution and were independent of it.'

In this view of the matter even though an order passed by the executing court rejecting the execution application may fall within the purview of Section 47 of the Civil P. C. as a matter relating to execution, discharge or satisfaction of a decree and may, as such, be appealable but then an order passed on an application refusing to restore an execution application dismissed for non-prosecution cannot be said to relate to execution, discharge or satisfaction of a decree fellingwithin the purview of Section 47 of the Civil P. C. Since such an order is made in exercise of powers under Section 151 and is not covered by any provision of Order XLI Rule 1 of the Civil P. C., no appeal would lie against such an order.

11. The question that, however, arises for consideration in this case is as to what is the true nature of the order dated 11 th Jan., 1972 ostensibly rejecting decree-holder's application for recalling the order dated 23rd Jan., 1971 by which the application for execution made by the decree-holder bad been dismissed for non-prosecution, If the real nature of the order dated 11th Jan, 1972 passed by the executing court is what it ostensibly purports to be, namely, that it is an order rejecting an application, for restoration of an execution case dismissed for default, no appeal lay against it and the order passed by the Additional District judge in appeal, which is the subject-matter of this second appeal, would be without jurisdiction and will have to be set aside.

12. Normally, while considering an application for recalling an order dismissing a case for non-prosecution, what the court has to see is as to whether there was sufficient cause for the applicant for not prosecuting the same. In case the court comes to the conclusion that there was sufficient cause which prevented the applicant from prosecuting the case, the court has, subject to such conditions as it likes to impose, restore the case to its original number. At this stage the court is not concerned with the merit of the case. The merit of the case is to be considered by the court only after the case had been restored to its original number. A careful scrutiny of the order dated 11th Jan., 1972 passed by the executing court, however, goes to show that the executing court eventually came to the conclusion that there was sufficient cause for the decree-holder's non-appearance and failure to prosecute the execution case on 23rd Jan., 1971. Thereafter the court went into the merits of the execution application itself and found that no relief could, in the circumstances of the case, be granted to the decree-holder. In substance the court has done what it, in accordance with its finding that there was sufficient cause for decree-holder's failure to appear and prosecute the case on 23rd Jan., 1971, ought to have done. After recording a finding that there was sufficient cause for decree-holder's failure to appear and prosecute the case on the date fixed, it had proceeded to decide the ease itself onmerit. The action taken by the court, in substance, amounts to the application for re-calling the order dated 23rd Jan., 1971 being allowed and thereafter the main execution case being disposed of by it on merits. In the circumstances even though the order passed by the executing court on 11th Jan., 1972 eventually states that the application for restoration of the execution case is being rejected, the order in substance amounts to allowing the application for restoration of the execution case and dismissal of the execution case on merits. The real import of the order passed by the executing court, therefore, was that the executing court had rejected the decree-holder's application for executing the decree not on the ground of non-prosecution but on the ground that in the circumstances of the case the decree-holder was not entitled to the relief claimed in that application. Rejection of an execution application on the ground that the decree-holder is no more entitled to execute the same undoubtedly is a matter relating to execution, discharge or satisfaction of a decree which falls within the purview of Section 47 of the Civil P. C. Such an order was in accordance with the law as it stood at the relevant time, appealable as a decree. I am, therefore, unable to accept the submission made on behalf of the appellants that the order dated 11th Jan., 1972 passed by the executing court was not appealable and could not be interfered with by the Additional District Judge.

13. However, as I have come to the conclusion that the executing court had, in sub-stance allowed the application for recalling an order dismissing the execution case for default and had disposed of the execution case itself on merits, there was no point in the appellate court in setting aside the order passed by the executing court and directing it to rehear the parties on the merits of the execution application. The executing court had already expressed its opinion on the merits of the execution application and it was for the appellate court to apply its mind to the merits of the case and to decide whether in the circumstances the decree-holder was entitled to the relief claimed in the execution application or not. Accordingly, while holding that an appeal against the order dated 11th Jan., 1972 lay to the District Judge, the District Judge was not justified in remanding the case to the executing court for fresh hearing as directed by him in his order dated 14th Aug., 1973.

14. In the result, the appeal is allowed in part. The order dated 14th Aug., (973 pass-ed by the Additional District Judge, Muzaffarnagar, is set aside and he is directed to proceed to decide the appeal filed by the decree-holder, treating it to be an appeal against an order rejecting the decree-holder's execution application, on merits and in accordance with law. In the circumstances, I direct the parties to bear their own costs in this appeal.


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