1. The applicants in this case are a firm and they sued a certain person on a promissory note and obtained a decree for Rs. 1,900 odd. Thereafter they took out execution and applied for the sale of certain property which had been attached before judgment. An objection under Order 21, Rule 58, Civil P.C., was made by the sons of the judgment-debtor and certain other relatives of his. On the application of the parties the matter was referred to arbitration and in due course an award was submitted to the Court. An objection to the award was made on behalf of the decree-holders, but it was dismissed by the Court and the award was confirmed. Two points have been taken before us by learned Counsel for the applicants. One is that the Court had no jurisdiction to refer the matter to arbitration and acted ultra vires, and the other is that the award is invalid for the reason that the judgment-debtor himself, who had been impleaded in the proceedings under Order 21, Rule 58, Civil P.C., was not a party to the agreement to refer the matter to arbitration.
2. As regards the first point, learned Counsel contends that Schedule 2, Civil P.C., does not apply to proceedings in execution and, therefore the Court had no jurisdiction to refer the dispute to arbitration; the award is consequently invalid and the order of confirmation is bad. On behalf of the opposite party it is pleaded that a proceeding under Order 21, Rule 58, Civil P.C., is not a proceeding in execution at all; but if it be held to be such, then learned Counsel contends that, although Schedule 2 does not apply in terms, yet it is rendered applicable by the provision of Section 141, Civil P.C. As regards the question whether the trial of an objection under Order 21, Rule 58, is a proceeding in execution, learned Counsel for the opposite party contends that it is not a matter which relates to the execution, discharge or satisfaction of a decree. He relies upon Sheonandan Chowdhury v. Debi Lal Chowdhury 1923 2 Pat 372, and Diljan Mihha Bibi v. Hemanta Kumar Roy 29 IC 395. In the Patna case the Court hold that an application under Order 21, Rule 100, was not an application in execution of a decree, but was an original matter in the nature of a suit; and after discussing the Privy Council case of Thakur Prasad v. Fakir Ullah (1895) 17 All 106, (to which we shall have occasion to refer later on) the Court held that Order 9, Rule 4, Civil P.C., would apply by force of Section 141 to a proceeding under Order 21, Rule 100. The learned Judges held that the Privy Council case above referred to was an authority for the proposition that Order 9, Rule 4, would apply by force of Section 141 to original matters in the nature of suits. Similarly in Diljan Mihha Bibi v. Hemanta Kumar Roy 29 I C 395 a Bench of the Calcutta High Court held that an application for setting aside a sale under Order 21, Rule 90, Civil P.C., was not an application for execution; it was a miscellaneous proceeding in the nature of an original proceeding in which the auction-purchaser was the principal interested party. The learned Judges accordingly held that where an application for setting aside an execution sale under Order 21, Rule 90, had been dismissed for default and an application for restoration was made, Order 9, Rule 9, Civil P.C., was applicable.
3. In Hari Charan Ghose v. Manmatha Nath Sen 1914 41 Cal 1 , which was decided a year previously to the above mentioned case a Bench of the same High Court held that Order 9, Rule 13, Civil P.C., was not applicable to a proceeding under Rules 100 and 101 of Order 21. This case was referred to in Diljan Mihha Bibi v. Hemanta Kumar Roy 29 I C 395, but the learned Judges, seem to have distinguished it partly on the ground that it merely laid down the proposition that all the provisions of Order 9 were not applicable to proceedings in execution and partly on the ground that in that case there was no necessity in the interests of justice that Order 9, Rule 13, should be applied because the order was not conclusive but was subject to the right of a person aggrieved to institute a suit. In our opinion an objection under Order 21, Rule 58, creating as it does a dispute between the decree-holder and a person claiming property which the decree-holder seeks to put to sale as being the property of his judgment-debtor, is a matter relating to the execution, discharge or satisfaction of a decree and is a proceeding in execution. The next point to determine is whether Schedule 2, Civil P.C., is applicable by virtue of Section 141 to such a proceeding. In Thakur Prasad v. Fakir Ullah (1895) 17 All 106, an application for execution of a decree had been struck off on the decree-holder's own petition and thereafter a second application was made within the period of limitation. Their Lordships of the Privy Council held that, although the petition for execution had been withdrawn without leave to apply again having been expressly granted by the Court, the petitioner's right to renew his petition within due time remained; the provisions of Section 373 (which corresponds to Order 23, Rule 1, of the present Code) which could only have applied through the effect of Section 647 (i. e., Section 141 of the present Code), had not been rendered applicable thereby to petitions for execution. At p. 111 their Lordships observe as follows:
It is not suggested that Section 373, Civil P.C., would of its own force apply to execution proceedings. The suggestion is that it has applied by force of Section 647. But the whole of Ch. 19, of the Code consisting of 121 sections is devoted to the procedure in executions and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships and so forth and do not include executions.
4. In Bharat Indu v. Asghar Ali Khan 1923 45 All 148, a Bench of this Court, following Hari Charan Ghose v. Manmatha Nath Sen 1914 41 Cal 1, held that Order 9, Civil P.C., does not apply to a case where an application for execution is dismissed for default. In Bachan Lal v. Amar Singh 1935 All 125, the representatives of a decree-holder took out execution. The judgment-debtors objected and ultimately the matter was referred to arbitration. Meanwhile a third person sued the representatives of the decree-holder on a promissory note and attached the decree before judgment. Subsequently he made an objection impugning the arbitration proceedings and the award. A learned Single Judge of this Court held that an execution proceeding is not a suit and therefore Schedule 2 does not entitle the parties to an execution proceeding to file an application for a reference to arbitration; the arbitration proceedings were therefore invalid and the Court was not entitled to enforce the award. In Hari Charan Ghose v. Manmatha Nath Sen 1914 41 Cal 1 to which reference has already been made, the Court in discussing Section 141 observed at p. 4 as follows:
This section (i e. Section 141) reproduces with modifications Section 647 of the previous Code, but in Section 647 there was an explanation in these terms: 'This section does not apply to applications for the execution of decrees which are proceedings in suit-that explanation has been omitted and it has been argued before us that this omission is an indication that the legislature in passing the present Code intended that Section 141 should have a wider operation than Section 647. There is a certain amount of force in this argument, but it overlooks the history of this section and the case law. At one time there was a considerable divergence of opinion as to whether Section 647 applied to execution proceedings and it was in consequence of this that by Act 6 of 1892 this explanation was introduced into the section of the Code of 1882. But after this alteration in the law the Privy Council by a case, Thakur Prasad v. Fakir Ullah (1895) 17 All 106, decided on Section 647 as it stood before the explanation was added, that the section did not apply to execution proceedings. The purpose of the legislature in omitting that explanation was to do away with that which was shown to be unnecessary by the Privy Council decision and to rely upon the terms of the section as interpreted by the Privy Council. So it was that the explanation came to be omitted. This may have been an unfortunate way of proceeding because it involves some knowledge of the history of Section 647 and of the decision on that section to appreciate the effect of this change; but this is how the matter was dealt with by the legislature. The result is that Section 141 does not make applicable to proceedings in execution all the procedure provided by the Code....
5. In T. Wang v. Sona Wangdi 1925 52 Cal 559, a Bench of the Calcutta High Court held that a Court was not competent to refer to arbitration a dispute between a judgment-debtor and his decree-holder, and the award was therefore invalid and unenforceable. The learned Judges observe at p. 563 as follows:
Nothing has been shown to us to persuade us to hold that there is any speciality in Schedule 2, which makes it applicable to questions arising in the execution of decree.... As has been explained in Hari Charan Ghose v. Manmatha Nath Sen 1914 41 Cal 1 the law is the same as it was under Section 647 of the Code of 1882 which expressly excluded execution proceedings from those to which provisions relating to suits were extended. The view that the special procedures in suits do not apply to execution of decrees is based on the supposition that Order 21, relating to executions, is self contained and exhaustive as to the special subject with which it deals.
6. The case in Sattar-un-nissa v. Muhammad Rahulla (1905) 8 AC 263, supports the contention of the learned Counsel for the opposite party. After discussing the Privy Council case in Thakur Prasad v. Fakir Ullah (1895) 17 All 106, the learned Judges observed that:
There does not appear to be anything unsuitable to apply Ch. 37 (which is equivalent to Schedule 2 of the present Code) to proceedings in execution of decrees and we are not prepared to accept this view.
7. On a careful consideration of the view expressed by their Lordships of the Privy Council in Thakur Prasad v. Fakir Ullah (1895) 17 All 106, we are of opinion that an objection under Order 21, Rule 58, Civil P.C., cannot be held to be an 'original matter' as contemplated by their Lordships. We think that it is a proceeding in execution and we hold on the authority of the above-mentioned case that the provisions of Schedule 2 are not applicable. It is obvious that Schedule 2 does not apply of its own force and in our opinion it is not rendered applicable under the provisions of Section 141. The above being our view, it is not necessary for us to deal with the other plea which has been argued by learned Counsel for the applicants. We accordingly allow this application with costs and set aside the order of the Court below confirming the award, and we direct that the objection under Order 21, Rule 58, be tried according to law.