1. This is a petition on behalf of the judgment-debtors against an order of the Additional Subordinate Judge. Berhampur, disallowing their contention that the appeal as a whole had abated. The sole question thus for consideration in this case is whether Rule 12 of Order 22 of the Code of Civil Procedure applies to appeals arising out of proceedings in execution of a decree or order.
2. The facts leading up to this application, shortly stated, are these: Plaintiffs Jambeswar Dutta, Subal Dutta and Dasarathi Dutta obtained a joint decree for recovery of possession of the suit land on April 5, 1941 in O. S. No. 208 of 1939 of the Court of the Munsif, Berhampur, against the present petitioners. Opposite Parties 3 and 4 are the sons of Jambeswar Dutta, plaintiff No. 1, since dead. Opposite party No. 5 is the son of Subal Dutta, plaintiff No. 2 who is also dead. Pursuant to this decree, execution was levied in the court of the Munsif of Berhampur which was numbered as O. E. P. No. 121 of 1952; which was filed by one Lakshman Patnaik who was arrayed as opposite party No. 2 on the ground that he holds a power of attorney on behalf of the decree-holders and as such is competem to file the execution case.
The learned Munsif dismissed the execution case on January 8, 1953 holding that Lakshman Patnaik had not the necessary power since he did not file the same in the execution proceedings. Against thisorder plaintiff No. 3, Dasarathi Dutta, carried anappeal along with the aforesiad Lakshman Patnaik which was numbered as Misc. Appeal No. 12 of 1953 of the Court of the District Judge of Ganjam. This appeal was eventually dismissed for non-prosecution on September 28, 1954. Against this order a Civil Revision was carried to this Court which was numbered as C. R. No. 4 of 1955. The rule in that case was made absolute by this Court on January 25, 1957.
It appeared that during the pendency of that Civil Revision in this Court, it stood dismissed as against Bhabagrahi Dutta, a minor son of Subal Dutta, plaintiff No. 2, by order No. 16 dated December 6, 1956. It was contended in this court that so far as Bhabagrahi is concerned, the order of the District Judge has thus become final. Accordingly whatever order is passed in that application will not affect the rights and liabilities of Bhabagrahi Dutta. Consequently while disposing of this application it was stated:
'I would accordingly, set aside the order of the learned District Judge and restore the appeal to its file. As I have stated earlier, it would not affect the rights and liabilities, if any, of opposite party No. 10 Bhabagrahi Dutta, minor; since the result of the dismissal of this petition against him would be that the order of the executing court as far as he is concerned is made final.'
3. After the disposal of the Civil Revision No. 4 of 1955 when the matter went back to the lower appellate court, the appeal was heard by the Additional Subordinate Judge, Berhampur, who by his order dated March 20, 1958 set aside the order of the Munsif and remanded the case to the Court below under Section 151 of the Code of Civil Procedure for disposal of the execution case. During the argument it was urged before the lower appellate Court that the appeal as whole had abated since it had abated against one of the decree-holders, Bhabagrahi Dutta. The Additional Subordinate Judge appears to have thought that Order 22, Rule 12 of the Code of Civil Procedure applies with equal force to the appeals as to the execution proceedings. Accordingly in his opinion Rules 3, 4 and 8 of Order 22 would have application to appeals. In this view of the matter he came to the conclusion that the appeal had not abated as a whole.
4. Mr. G. K. Misra, learned Counsel on behalf of the petitioners now contended that Rule 12 of Order 22 does not apply to appeals arising Out of proceedings in execution whether of a decree or an order. The only rule of order 22 that applies to such appeals is Rule 11. There was some conflict of opinion as to the applicability of Rule 12 of Order 22 to appeals against orders passed in execution proceedings. It is now well settled that although rule 12 applies to execution proceedings and as such the operation of Rules 3, 4, and 8 of order 22 is excluded from these proceedings, yet so far as appeals arising out of execution proceedings are concerned. Rule 12 of that Order has no application. Since Rule 11 applies to such appeals the operation of Rules 3, 4 ana 8 is not excluded.
Before proceeding any further I would like to state as to what exactly was intended by Rules 11 and 12 of the Code. Rule 11 lays down that in the application of order 22 to appeals, so far as they may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal. This explanation was necessary because of the fact that appeal was a continuation of the suit. No word of limitation however, was put whereas Rule 12 clearly stated that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.
5. It appears that the Patna High Court has taken one view whereas the Calcutta, Bombay, Madras, Allahabad, Lahore, Nagpur and Assam High Courts take another view. The matter came up before the Patna High Court in a Bench of three Judges in the case of Mohammad Taqi v. Fateh Bahadur Singh, AIR 1929 Pat 565 (F.B.); where the majority view was that Order 22 Rule 12 applies to appeals arising out of execution orders whereas the minority view in that case was that the Civil Procedure Code has laid down different procedures for suits, executions as well as for appeals. Rules 3, 4 and 8 of Order 22 apply to suits by their own force whereas Rule 11 of Order 22 applies to appeals.
Rules 3, 4 and 8 do not however apply to proceedings in execution as contemplated by Chapter 2 and Order 21 of the Code. Accordingly the minority view was since no distinction has been drawn in the Code between appeals arising out of execution proceedings and appeals generally and as the provision of Rule 11 is without qualification or exception, Rules 3, 4 and 8 apply to appeals in execution proceedings. The majority of Judges while taking the above view, Mr. Justice Kulwant Sahay made it clear that there was no decided decision on the point at the time their Lordships proceeded to deliver the judgment. The only case available on that date was a Lahore Case reported in Mir Khan v. Sharfu Punnun, AIR 1923 Lah 560 and the learned Judges naturally relied upon that decision.
This Lahore decision has subsequently been overruled by the Lahore High Court itself in a later decision of that Court by a Full Bench reported in Ajudhia Pershad Ram Pershad v. Sham Sunder, AIR 1947 Lah 13. In that case they also dissented from the Patna view in AIR 1929 Pat 565 (FB). In the case of Laxmi Narayan Singh v. Dipen Rai, AIR 1950 Pat 290 their Lordships of the Patna High Court after a discussion of all their earlier decisions took the view that the proceedings to set aside a sale under Order 21, Rule 90 are proceedings in execution within the meaning of order 22, Rule 12 and hence an appeal in a proceeding for setting aside a sale on the ground of fraud does not abate.
Doubtless an appeal against an order made in execution proceedings is not a proceeding in execution of a decree or order. Therefore Rule 12 of Order 22 does not apply to such appeals. They are subject to the same rules in regard to abatment as any other appeals (vide Raja of Kalahasti v. P. Jagannadha Rayanimgar, AIR 1932 Mad 574). Thus the Madras High Court in the case of Subbavarapu Gangunaidu v. Murru Muttenna, AIR 1934 Mad 664 (1) held that an application to bring on record the legal representative of a deceased respondent, in an appeal from an order in execution proceedings, is governed by Article 177 of the Limitation Act.
In the case of Trimbak Narhar v. Gopal Narayan, AIR 1947 Bom 480, a Division Bench of the Bombay High Court held that the provisions of Rule 12 apply to proceedings in execution properly so called, that is to say, the execution proceedings in the original court which is concerned with executing decrees, and the said provisions cannot be extended to appeals arising from such proceedings. To such appeals the provisions of Rule 11 apply, with the result that they are subject to all the provisions of Order 22 including Rules 3, 4 and 8. A similar view was taken by the Allahabad High Court in Changa Mal v. Ram Dulare Lal, AIR 1933 All 388, by the East Punjab High Court in Ahsen Elahi v. Mehr Elahi, AIR 1950 E P 302, by the Calcutta High Court in Bishnu Bijay v. Chandra Bijay, (S) AIR 1955 Cal 281 and the Assam High Court in Balaram Karmakar v. Subodh Chandra, AIR 1956 Assam 9. Nagpur High Court had also taken the same view in Madhaorao Narayanrao v. Baliram Narayan, AIR 1938 Nag 502.
6. Thus the ratio decidendi of all these decisions of the High Courts o Assam, Bombay, East Punjab, Madras, Allahabad, Lahore and Nagpur is a that an appeal against an order made in execution proceedings is not itself a proceeding in executionof a decree or order. Rule 12 does not apply toappeals against orders made in execution proceedingsand such appeals are subject to the same rules inregard to abatement as any other appeals. On aplain reading of order 22, Rule 12 of the Code ofCivil Procedure, Rules 3, 4 and 8 are excluded in itsapplication to proceedings in execution of a decreeor order whereas legislature did not contemplate anysuch exclusion us far as Rule 11 of that order is concerned. Accordingly, Rules 3, 4 and 8 would applyto Rule 11. The appeals against an order passedin proceedings in execution of a decree or orderdoes not stand in any other footing than the appealsgenerally provided for under Order 41 of the Codeof Civil Procedure.
7. All the decisions referred to by me in the previous paragraph had referred to the case in AIR 1929 Pat 565 (F. B). That decision, however, did not meet with any approval by the above High Courts. Thus, in this view of the Law, the judgment of the learned Additional Subordinate Judge cannot be maintained and the application is bound to succeed.
8. In the result, I would hold that the entire appeal had abated. In that event, I would set aside the judgment of the learned Additional Subordinate Judge and confirm that of the learned Munsif. Since there was no appearance on behalf of the opposite parties, there will be no order for costs.
9. Rule is made absolute.