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Shesh Kumar Pradhan Sheshdeo Vs. Keshbo S/O Narayan Aghariya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 253 of 1976
Judge
Reported inAIR1980MP166
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 99 to 103; General Clauses Act, 1897 - Sections 6; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(2)
AppellantShesh Kumar Pradhan Sheshdeo
RespondentKeshbo S/O Narayan Aghariya and ors.
Appellant AdvocateS.C. Pandey, Adv.
Respondent AdvocateB.K. Pandey and ;P.P. Naolekar, Advs.
DispositionRevision dismissed
Cases ReferredKeshavlal v. Mohanlal
Excerpt:
.....the enlarged right cannot be availed of unless the change in law is clearly retrospective and in terms applies to orders previously made. the new rule 101 can at best apply to pending applications or applications filed after the commencement of the amending act......to regular suit. -- any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property but, subject to the result of such suit (if any), the order shall be conclusive.' the relevant new rules after the amendment of the code are rule 99 to 103 of order 21 and they are as under:'99. dispossession by decree-holder or purchaser. -- (1) where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, or where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the court complaining of such dispossession.(2) where.....
Judgment:

G.P. Singh, J.

1.The facts giving rise to this revision are that the applicant obtained a money decree in Civil Suit No. 55-B of 1968 against the non-applicants Nos. 6 and 7 and, in execution of the said decree, purchased in the auction sale Survey Nos. 577 and 145. The non-applicants Nos. 1 to 5 made an application under Order 21, Rule 100, Civil P. C., that they were prior purchasers of the said lands for consideration and that they were entitled to be placed in possession. The application was dismissed by the Executing Court on 25th Jan. 1977 before the commencement of the Civil P. C. (Amendment) Act, 1976 which came into force on 1st Feb. 1977. The non-applicants Nos. 1 to 5 then brought a suit under Order 21, Rule 103 of the Code as it stood before the amendment for establishing their right to possession. This suit was filed on 10th March 1977. The applicant raised an objection to the maintainability of the suit in the light of the amendments introduced in the Code by the amending Act 1976. The objection was tried as a preliminary issue and was decided against the applicant on 17th Nov. 1978 by the Civil Judge, Class II, Sarangarh. It is against this order that this revision was filed. The revision came up for hearing before a learned single Judge (J.S. Verma, J.) who, having regard to the general importance of the question involved, directed that the revision be referred to a larger Bench. This is how the revision has come up before us.

2. To appreciate the question raised in this revision, it is first necessary to refer to the relevant provisions of the Code as it stood before its amendment by the amending Act, 1976. The material provisions are Rules 100 to 103 of Order 21, which read as follows:

'100. Dispossession by decree-holder or purchaser, -- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

101. Bona fide claimant to be restored to possession.--Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.

102. Rules not applicable to transferee lite pendente.--Nothing in Rule 99 to 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

103. Orders conclusive subject to regular suit. -- Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property but, subject to the result of such suit (if any), the order shall be conclusive.' The relevant new rules after the amendment of the Code are Rule 99 to 103 of Order 21 and they are as under:

'99. Dispossession by decree-holder or purchaser. -- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, or where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

100. Order to be passed upon application complaining of dispossession. --Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination, --

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

101. Question to be determined. --All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

102. Rules not applicable to transferee pendente lite. -- Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Explanation. -- In this rule, 'transfer' includes a transfer by operation of law.

103. Orders to be treated as decrees. -- Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.'

3. A perusal of the old and the new rules would go to show that under the old rules there was no specific power conferred on the Executing Court to finally decide the questions of right, title or interest in the property in dispute as is now conferred by the new Rule 101. All that the Court was directed to determine under the old Rule 101 was whether the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor and in case it was found that he was in bona fide possession on his own account, the Court was required to direct that he be put into possession. Against an order made under the old Rule 101 whether the claim was allowed or dismissed by the Executing Court no party had any right of appeal. The party aggrieved, however, had a right to file a suit conferred on him by the old Rule 103 and subject to the result of the suit the order passed under the old Rule 101 was conclusive. The scheme of the new rules as disclosed by the new Rule 101 and 103 is that the Executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the Executing Court has the force and effect and is subject to the same condition as to appeal as if it were a decree and a suit is not maintainable to challenge the order.

4. The other provision to be taken notice of is Section 97 of the amending Act 1976 which in so far as relevant reads as under:

'97 (1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897, --

X X X X(q) the provisions of Rule 31, 32, 48-A, 57 to 59, 90 and 97 to 103 of Order 21 of the First Sch. as amended or, as the case may be, substituted or inserted by Section 72 of this Act shall not apply to or affect --

(i) any attachment subsisting immediately before the commencement of the said Section 72, or

(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said Section 72 had not come into force;

X X X X X X X(3) Save as otherwise provided in Sub-section (2), the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, no-withstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement,'

5. The argument of the learned counsel for the applicant is that Clause (q) (') of Sub-section (2) of Section 97 of the amending Act makes the provisions of the Code as amended inapplicable only to a suit instituted before the commencement of the amending Act under the old Rule 103 and, therefore, a suit instituted after commencement of the amending Act is not maintainable as it is governed by the Code as amended. In this connection reference is made to Sub-section (3) of Section 97 which save as otherwise provided in Sub-section (2) makes the provisions of the Principal Act as amended applicable to every suit, proceeding, appeal or application, pending at the commencement of the amending Act or instituted or filed thereafter, notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. The learned counsel further argues that the non-applicants Nos. 1 to 5 instead of instituting the suit should have filed an appeal under the new Rule 103 treating the order of the executing Court as a decree.

6. It is true that Clause (q) (ii) of Sub-section (2) of Section 97 of the Amending Act is in terms restricted to a pending suit under the old Rule 103, but, in our opinion, from this alone it cannot be held that Sub-section (2) does not preserve the right to institute a suit under the old Rule 103 if the suit had not been instituted before the commencement of the Amending Act. The specific savings made in Clauses (a) to (zb) are 'without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,' as is specifically stated in the opening words of Sub-section (2) of Section 97. It is well settled that the enumeration of specific matters 'without prejudice to the generality' of a particular provision does not restrict the general application of that provision to the matters enumerated because the words 'without prejudice' have the effect of preserving the full effect of the general provision and also because the rule of ejusdem generis has no inverse application. See Chertsey Urban District Council v. Mixnam's Properties Ltd. (1964) 2 All ER 627 (HL) pp. 630, 631, S. K. Singh v. V. V. Giri AIR 1970 SC 2097 at p. 2112; Therefore, if the right to institute a suit under the old Rule 103 had arisen before the commencement of the Amending Act it would be preserved under Section 6 of the General Clauses Act read with Sub-section (2) of Section 97 even though it is not covered by Clause (q) of that sub-section. When the application made by the non-applicants Nos. 1 to 5 under the old Rule 100 was rejected under the old Rule 101, a right accrued to them to challenge the order rejecting their application under the old Rule 103. This right and the remedy for giving effect to this right by filing a suit under the old Rule 103 continued to be operative by force of Clauses (c) and (e) of Section 6 of the General Clauses Act read with Sub-section (2) of Section 97 of the Amending Act. The argument of the learned counsel that Sub-section (3) of Section 97 has the effect of taking away the right cannot also be accepted for the simple reason that this subsection opens with the words 'save as otherwise provided in Sub-section (2)', These words are not limited to the savings contained in Clauses (a) to (zb) of Sub-section (2), but also embrace the rights and remedies saved by the words 'without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897' as they occur in that sub-section. Putting it differently the preservation of rights and remedies under Section 6 of the General Clauses Act is also an otherwise provision made by Sub-section (2) which is saved by the opening words of Sub-section (3). The learned counsel for the applicant submits that the non-applicants 1 to 5 should have filed an appeal under the new Rule 103 read with Sub-section (3) of Section 97 of the Amending Act is also untenable. The new Rule 103 makes an adjudication under the new Rule 100 equivalent to a decree for the reason that the scope of enquiry is enlarged by the new Rule 101 and the executing Court has been given power to decide questions relating to right, title and interest in the property concerned. The order which the non-applicants 1 to 5 challenged in the suit in the instant case is an order made under the old Rule 101 when the scope of enquiry was limited. There is no provision in the Amending Act which enables us to read such an order as one made under the new Rule 100 so as to make it appealable under the new Rule 103, which is in terms applicable only to an order made under the new Rule 100. The general principle applicable to the right of appeal against an order is that it arises in accordance with the law in force at the time of institution of the legal proceeding in which the order is passed. However, if the right is enlarged by a change in law before the passing of the order the enlarged right can also be availed of. But if the change in law enlarging the right of appeal takes place after the passing of the order, the enlarged right cannot be availed of unless the change in law is clearly retrospective and in terms applies to orders previously made. Moti Ram v. Suraj Bhan, AIR 1960 SC 655 at p. 657; Keshavlal v. Mohanlal, AIR 1968 SC 1336. These principles support the contention that the new Rule 103 does not confer any right of appeal in respect of orders made under the old Rule 101 before the commencement of the Amending Act. Further, the application of the new Rule 103 to orders previously made under the old Rule 101 would bring in another complication. What would happen in those cases where the order under the old Rule 101 was made at such a time that the period of limitation for filing an appeal had expired before the Amending Act came into force? The Amending Act does not provide for any extension of limitation for filing an appeal in such cases. It will thus lead to great hardship if the construction contended for by the learned counsel for the applicant is accepted, for, in such cases, the person whose application is dismissed under the old Rule 101 would neither be able to file a suit nor to go up in appeal. In our opinion, had it been intended that the benefit of the new Rule 103 should be given to an order previously made under the old Rule 101, the Amending Act would have said so specifically. The provision in the new Rule 101 that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit has no application to an application made under the old Rule 100 which had already been disposed of under the old Rule 101 before the commencement of the Amending Act. The new Rule 101 can at best apply to pending applications or applications filed after the commencement of the Amending Act. For these reasons, we are of the opinion that the suit instituted by the non-applicants 1 to 5 was competent under the old Rule 103.

7. The revision is dismissed but without any order as to costs.


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