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Muralidhar Bhattar Vs. Mahendranath Das and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa
Decided On
Reported inAIR1949Ori73
AppellantMuralidhar Bhattar
RespondentMahendranath Das and ors.
Cases ReferredWasudeo v. Haralal
Excerpt:
.....gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the auction-purchaser too was made a party to the proceeding, started at the instance of the judgment-debtor as his success would involve cancellation of the auction sale, in this view, he was entitled to be heard and was rightly made a party. it is clear from the repeated pronouncements of their lordships of the judicial committee that in the matter whether an appeal lies, the stress is to be laid upon the nature of the order complained against and not upon the circumstance as to who the party is that wants to appeal against it. as soon as this condition is satisfied, the fact that any person other than the party has also been impleaded does not change its nature and character. ..or their..........as to the mode of execution of decrees, passed in favour of several decree-holders.3. the auction-purchaser (the respondent in this appeal) went up in appeal to the district judge, who set aside the order of the executing court, and upheld the sale. the main contention, that had been advanced before him, was that the order of the executing court, being one under section 151, civil p.c., was not appealable. overruling this contention, the learned district. judge held that, howsoever the petition might have been worded, the objection, raised, was one under section 47, civil p.c. in this view, he held the appeal as competent. on the merits, he came to the conclusion that the provisions of order 21, rule 15 of the code had not been violated as the application, for execution, had.....
Judgment:

Ray, C.J.

1. This is an appeal by the judgment-debtors, against an order of the District Judge, setting aside that of an Executing Court, who purporting to act under Section 151, Civil P.C., set aside the sale, held in execution of a decree for rent. The question, whether it was a rent decree, pure and simple, or a money-decree, does not arise in the case.

2. The facts, shortly stated, are that a decree for Rs. 668-8-3 was passed against the judgment-debtors, for arrears of rent due in respect of a tenure. Execution was taken out, and the tenure was sold to the highest bidder being the respondent in this appeal. Two petitions were filed in the Executing Court, one by Muralidhar Bhattar, purporting to be one under Order 21, Rule 89, Civil P.C., and the other by Gopi Kissan Bhattar under Order 21, Rule 9. While these petitions were lying un-disposed of, Muralidhar filed a second application labelling it as one under Section 151, Civil P.C., seeking the relief of setting aside the sale, on the ground that the application for execution had been made on behalf of only one or two decree-holders. The Executing Court (Revenue Officer), vested with the powers of trying rent suits under the Orissa Tenancy Act, held that there was abuse of process of Court in putting the tenure to sale in an execution proceeding, which was not maintainable, having contravened the provisions of the Code of Civil Procedure as to the mode of execution of decrees, passed in favour of several decree-holders.

3. The auction-purchaser (the respondent in this appeal) went up in appeal to the District Judge, who set aside the order of the Executing Court, and upheld the sale. The main contention, that had been advanced before him, was that the order of the Executing Court, being one under Section 151, Civil P.C., was not appealable. Overruling this contention, the learned District. Judge held that, howsoever the petition might have been worded, the objection, raised, was one under Section 47, Civil P.C. In this view, he held the appeal as competent. On the merits, he came to the conclusion that the provisions of Order 21, Rule 15 of the Code had not been violated as the application, for execution, had been made on behalf of both the decree-holders, related as they were as mother and son. Another objection, such as the one, that has been advanced before us, namely, that the oral application for execution was not made at the time the decree was passed and hence was incompetent, had never been raised before him.

4. The judgment-debtors have come up in Second Appeal against the order of the District Judge. The main contention, which kept us engaged for two days or a little more than that, was that the appeal, before the District Judge at the instance of the auction-purchaser, was incompetent. The question, therefore, that arises for consideration is whether this contention is sound. It has not been disputed before us that the question that arose out of the petition of objection, filed in execution case, was one falling under Section 47 of the Code. It should be made clear, at the outset, that the sale was not sought to be set aside on the grounds 'mentioned in Order 21, Rule 90, as the petition, purporting to be under Order 21, Rule 90, has never been heard and decided. If the sale was set aside, it was set aside on the ground that the execution case was, not maintainable not haying been initiated in the manner prescribed under the Civil Procedure Code. In such circumstances, the question was one which arose between the decree-holders and the judgment-debtors, who were parties to the suit. The auction-purchaser too was made a party to the proceeding, started at the instance of the judgment-debtor as his success would involve cancellation of the auction sale, In this view, he was entitled to be heard and was rightly made a party. It is not disputed that the order, passed by the Executing Court, was appealable either at the instance of the decree-holders or at the instance of the judgment, debtors. The bone of contention is that it is not appealable at the instance of the auction-purchaser. Long series of authorities have been cited by the learned Counsel, appearing on both sides. After due consideration of them, we are decidedly of opinion that the question of appealability of the order, which amounts to a decree, being an order under Section 47 of the Code, is not affected by the fact that the appeal is lodged by the auction-purchaser, assuming that he is not only not a party to the suit but is not a representative of either of the parties. The large number of authorities, in which this has been decided, are based on the case of Prosunno Kumar v. Kali Das reported in 19 cal. 683. The judgment of their Lord-snips of the Privy Council was delivered by Lord Macnaghten, who observed:

Mr. Doyne, who appeared for the appellants admitted that the question at issue was one relating to the execution, discharge or satisfaction of the decree. But he argued with much ingenuity that the suit was not barred by the provisions of Section 244, because the question concerned the auction-purchasers as much as any body, and therefore, as he contended, it could not properly be described as a question arising between parties to the suit in which the decree was passed. At the same time he admitted that he was unable to produce any authority for his contention and he also admitted that it was the common practice to make the auction-purchaser a party to an application for setting aside an execution sale. * * * It is of the utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible. Their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of Section 244 and that, when a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser, who is no party to the suit, is interested in the result has never been held a bar to the application of the section.5. As exception to the applicability of this decision has been taken on the ground of the peculiarity of the facts of the case, I shall have to point out that the question that engaged the attention of their Lordships was whether a suit brought by a judgment-debtor against an auction purchaser on a ground which had been or could have been a subject of adjudication under Section 47 of the Code was barred. As has been sufficiently indicated from the passages, quoted above, their Lordships came definitely to the conclusion that the question, at issue, fell under the provisions of Section 47 of the Code and, therefore, the section was a bar to the suit. It should be noted, that the decree holder was not a party to that suit. This decision was reaffirmed by their Lordships in the case of Ganapathy Muddaliar v. Krishnamachariar reported in A.I.R. 1917 P.C. 121. I would invite attention to the last but one paragraph of their Lordships' judgment. It is clear from the repeated pronouncements of their Lordships of the Judicial Committee that in the matter whether an appeal lies, the stress is to be laid upon the nature of the order complained against and not upon the circumstance as to who the party is that wants to appeal against it. It is always to be examined whether the question at issue is one which relates to execution, discharge or satisfaction of the decree arising as between parties to the suit or their representatives. As soon as this condition is satisfied, the fact that any person other than the party has also been impleaded does not change its nature and character. It has to be kept in view that an order under Section 47 of the Code is a decree from which not only first appeal but also second appeal lies. If the auction, purchaser has any right to prefer an appeal against such an order, it is not because he is either a party to the suit or a representative of any of the parties but because he has been impleaded as a party to the proceeding and the order passed therein binds him. His right of appeal arises because he is made bound by the decree.

6. To accede to the contention of the appellant would amount to splitting up the subject-matter into two, one being the question arising as between parties and the other being the question between either of the parties and the auction-purchaser. It is the decision of the Privy Council that they cannot be divided into two different orders. So far as the present case is concerned, if such splitting up is permissible, assuming that it is so, there will be a complete answer to the contention of the appellant and that is in this way, namely, that the order, as far as it was binding against the auction-purchaser, was one as if passed in a proceeding for setting aside a sale and against such an order he has, at least, one chance of appeal. The controversy in this Court turns round the incompetency of the auction-purchaser's first appeal and not second appeal. I should, however, make it clear that I am not deciding this case on this latter ground; but on the ground that a second appeal lies against such an order even at the instance of an auction-purchaser.

7. The only stronghold, resorted to by the appellant as against these two decisions of their Lordships of the Privy Council, is the decision in the case of Maganlal Mulji v. Doshi Mulji Bhaichand reported in 25 Bom. 631. In this reliance is placed upon a passage from the judgment of Sir Lawrence Jenkins explaining what was decided in Prosunno Kumar Sanyal's case 19 cal. 683. The passage reads:

The opponent in support of his objection relies on the judgment of the Privy Council in Prosunno Koomar v. Kali Das 19 Cal. 683. There is a tendency to suppose that this decision has struck out of the section the words 'arising between the parties to the suit...or their representatives', so that it is important to see what precisely was decided there.

Their Lordships stated with approval that the result of the decisions was that 'when a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser who is no party to the suit is interested in the result has never been held to be a bar to the application of the section'. It is clear, therefore, that their Lordships did not hold the auction-purchaser to be a party or a representative: they merely held that his interest in the result did not prevent the question being one between parties. This is made even wore apparent by the cases to which their Lordships refer: Kuriyali v. Mayan 7 Mad. 255 and Sakharam v. Damodar 9 Bom. 468.

Now here the question is simply between the judgment-debtor and the purchaser of his interest in the land: and can it be said that the auction-purchaser is the representative of a party? Certainly not of the decree-holder: therefore he can only claim to be a representative of the judgment-debtor. I doubt whether he can claim this character, but assuming, for the sake of argument, he can, it would not aid him; for in our opinion the section does not cover a question between a party to the suit and his representative. Therefore, we have not the necessary basis for the application of Section 244, and as a consequence we hold no appeal lies, because it is only so far as an order under Section 310A comes under Section 244 (c) that it is appealable.

8. His Lordship Sir L. Jenkins did not in this observation try to mangle the decision of their Lordships of the Privy Council. He simply considered its applicability to the case before him. Before him the case was that the decree-holder and the judgment-debtor bad, as between them, selves, satisfied the decree out of the Court and the judgment-debtor filed an application for setting aside the sale on the ground that the decretal dues and the costs ancillary to the execution had been satisfied. According to the decision of that case, this application was properly one under Section 310A of the old Code, corresponding to Order 21, Rule 89. As against an order passed on such application, auction-purchaser claimed the right to appeal. The question clearly was held not to be one falling under Section 244 corresponding to Section 47 of the Code. After being so held, his. Lordship said that the question confined as it was between the judgment-debtor and the auction-purchaser and not being a question that could arise between the parties to the suit, the auction-purchaser could not claim a right of appeal on the strength of the Privy Council decision in Prosunno Kumar Sanayal's case 19 cal. 683. This, his Lordship, did so, is very clear from this passage which I should like to re-quote:

It is clear, therefore, that their Lordships did not hold the auction-purchaser to be a party or a representative--they merely held that he is interested in the result has never been held a bar to the application of the section, the question being one between the parties.9. If this decision is sought to be relied upon by Mr. M.s. Rao to mean that according to Sir Jenkins, as soon as the auction-purchaser becomes interested in an order, it ceases to be one under Section 47 of the Code, he is completely mistaken. This decision, therefore, does not support the appellant's contention.

10. Following the aforesaid Privy Council decision their Lordships of the Calcutta High Court, in the case of Hiralal v. Chundra Kanto reported in 26 Cal. 539, have held that the question of right to a second appeal does not turn upon who may happen to be the appellant, but upon whether or not the case is one within Section 244 of the Code. In that case it was the auction-purchaser, who has preferred the second appeal. The question was considered to be one falling within the purview of Section 47 of the Code. The appeal arose out of an application made by the judgment-debtor against the decree, holder and the third party, auction-purchaser, had also been impleaded as a party. This, in fact, is a case directly in point. This case has been followed in several cases of the Calcutta High Court and I do not find any necessity to refer to them in detail.

11. The question, similar to the one under consideration, arose in the Patna High Court, in the case of Bhagabat Narain Singh v. Mahadeo Prasad, reported in 21 Pat. 233 corresponding to A.I.R. 1942 Pat. 244. It was held, in that case, by Fazl Ali J. (as he then was) that the provisions of Section 47 prohibited not only a suit between a party or his representative against auction-purchaser at a sale in execution of the decree, the object of which is to determine the question which properly arises between the par. ties or their representatives and relates to execution, discharge or satisfaction of the decree. The Privy Council case of Prosunno Kumar Sanyal 19 Cal. 683 was also sought to be distinguished before his Lordship and he observed:

At first sight there might appear to be some substance in this contention but in my judgment to accept this contention would be to restrict unduly the scope of Section 47, Civil P.C. This view may be supported by referring to the Full Bench decision of the Allahabad High Court in Basti Ram v. Fatu 8 All. 146. In that case a judgment-debtor had sued the auction-purchaser to recover certain property which was a tenant's right in land and wag by law not saleable in execution of a decree; but it was held that the question involved in the suit was one of the nature referred to in Section 244 as determinable only by the order of the Court executing the decree and that the suit was therefore not maintainable.

* * * *The case was decided upon the principle that the provisions of Section 244, Civil P.C., prohibit not only a suit between parties and their representatives, but also a suit by a party or his representatives against a purchaser at a sale in execution of a decree, the object of which is to determine a question which properly arises between the parties or their representatives, and relates to the execution, discharge or satisfaction of the decree.

12. Besides, certain equitable considerations also apply with great force against the contention urged by the appellant. According to him, the auction-purchaser could neither prefer an appeal against an order, setting aside the sale, under circumstances as in this case, nor maintain a separate suit. As pointed out by their Lordships of the Privy Council, it is a common practice that in proceedings for setting aside a sale, be it on whatsoever grounds, the auction-purchaser is generally impleaded and he is bound by the order passed. If this order is wrong, here is an aggrieved party who goes without a forum to redress the wrong, if any. This can never be the object of the law or rule of procedure.

13. Mr. M.S. Rao has invited our attention to several cases, which, according to him, are directly contradictory to Hiralal v. Chundra Kanto 26 cal. 539, and the cases that followed it. The first case that he cited was Uma Kanta v. Dino Nath 28 cal. 4. In that case the application for setting aside the sale was grounded upon fraud, irregularity and illegality in the conduct of sale, Fraud, at that time, was not mentioned to be one of the grounds for setting aside the sale under the provisions corresponding to Order 21, Rule 90. Whenever any sale was challenged on the ground of fraud, it was always considered to be a question relating to execution, satisfaction or discharge of the decree aristing between parties to the suit. In Umakanta v. Dina Nath 28 cal. 4 though fraud had been alleged in the petition, no evidence was adduced to establish fraud nor any reference to fraud was made in the order disposing of the matter. Their Lordships of the Calcutta High Court said that the precedent of Hiralal v. Chundra Kanta 26 cal. 539 could not govern the case before them as the element of fraud, that could take the case into the purview of Section 244 (Section 47 of the New Code) was absent. It is wrong to say, relying upon this case, that the authority of Hiralal v. Chundra Kanto 26 cal. 539 was in any way shaken. The two other cases that were very strongly relied upon were, Azam Khan v. Umedali Moral Chand : AIR1925Cal1223 and Surendranath v. Lakshman Chandra A.I.R. 1926 cal. 213. In the first mentioned case there are some observations which lend support to Mr. Rao's contention but this is completely nullified when we look to the latter case, namely, Surendranath v. Lakshman Chandra A.I.R. 1926 cal. 213. Both the cases arose out of an application under Section 173, Ben. Ten. Act. The facts were similar, namely, that one of the judgment-debtors got the tenure purchased at auction in execution of a rent decree in the name of a benamdar. It was the other judgment-debtor who started a proceeding for setting aside the sale against the auction-purchaser and not impleading the decree-holder on the ground that. the sale was in violation of the provisions of Section 173, Ben. Ten. Act. Virtually, it was a question between two judgment debtors, one appearing through a benamdar and another appearing for himself. The question too cannot be said to be one within the purview of Section 47 of the Code. In the latter case, as I have already said, the appeal filed by the auction purchaser was held incompetent simply on the ground that no appeal lay against an order under Section 173, Ben. Ten. Act. The importance of this remark stands out in bold relief when we see that Suhrawardy J. was common in both the cases. In the first mentioned case, the observations were to the effect that in some cases the question under Section 173, Ben. Ten. Act, might be covered by Section 47 of the Code, that is to say, the opinion, if any was not required to be given on the facts of the case but was incidental in its nature. This cannot be accepted as, an authority inferentially. In my view, these cases do not go so far as to support the appellant's contentions. He also relied upon Yagnasami Ayyar v. Chidambara Natha A.I.R. 1921 Mad. 81. This case too does not help him. As pointed out by my learned brother, at the time of the argument, that on the facts that was a case between judgment debtors and auction-purchaser and the question was one which could not arise between judgment-debtors and decree-holders. This, in fact, is the distinguishing feature in every case, cited by Mr. Rao. One of the decisions which he professed strongly supported his contentions was the case of Wasudeo v. Haralal reported in 8 N.L.R. 177. The passage occurring at p. 178 makes it sufficiently clear to me that his Lordship did not, in fact, mean what he said in the earlier part of his judgment. The only paragraph at p. 178 with which his Lordship closes the judgment is meant to lay down the proposition authoritatively. Keeping that in mind, the rest of the judgment cannot be safely relied upon. With all respect, I should decline to follow that decision, particularly it being a decision of a single Judge, In that view of the matter, this point of law as to incompetency of the auction-purchaser's-appeal in the lower appellate Court must be decided against the appellant, that is, the appeal by the auction-purchaser in the first appellate Court was competent.

14. Mr. Rao then challenges the correctness of the learned lower appellate Court's decision on merits and besides he raises a point which had never been raised in the Courts below. One of his points is that the oral application for execution of the decree could not have been made and no execution proceeding could have been based thereon, few days subsequent to the passing of the decree. Section 198A, Orissa Tenancy Act, provides for oral application of execution of a decree at the time when the decree is passed. Determination of the correctness of this argument involves investigation into facts. As the point had never been raised in any of the Courts below, we have not got before us the materials necessary for coming to a final decision on the point.

15. The next contention which has been dealt with by the lower appellate Court centres round his finding that the application for execution was on behalf of both the decree-holders. His contention of law that execution at the instance of one of several decree-holders, unless made for the benefit of all the decree-holders, will not lie, is a sound one, subject to what Mr. Mohapatra contends that the fact that the application was made on behalf of the decree-holders can be substantiated or the defect, if any, can be made good by the other decree-holders coming into execution case and either giving their express or implied assent to the proceeding. Whether the application was made by one or all the decree-holders, and whether being filed by one it was on behalf of all and whether all the decree-holders appealed subsequently and gave consent to the execution as originally started by one of them are to be investigated in the Executing Court and we have not materials before us to come to any finding.

16. In this view of the matter, while disagreeing with the contention of law, raised by the appellant, we must allow the appeal and remit the case to the Executing Court to investigate the facts, necessary to decide the validity of the execution proceedings, in view of the contentions, raised by the parties.

17. The appeal is therefore, allowed but the appellant will not be entitled to costs as he has failed in his main contention.

Panigrahi J.

18. I agree.


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