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Nityananda Kanango Vs. Sm. Pala Dei - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 68 of 1949
Judge
Reported inAIR1952Ori120; 18(1952)CLT1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 21, Rules 58, 95, 97 and 100
AppellantNityananda Kanango
RespondentSm. Pala Dei
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateH.C. Mukherji and ;H.S. Rao, Advs.
DispositionRevision allowed
Cases ReferredTribeni Prasad Singh v. Ramasray Prasad
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....jagannadhadas, c. j. 1. this revision comes before us as a pull bench on a reference under rule 4, chapter v of the rules of this high court. under the said rule, taken with rule 2, the point or points on which the bench making the reference differed from a decision of a former division bench should be statedthe order of reference is not specific as to what is the exact point which is referred to us. but there can be no doubt, on a perusal of the said order that wnat was intended to be referred to us, is the question 'whether the ruling of the patna high court in 2 cut l t 49, has been correctly decided.' it is on that footing that we deal with this reference. 2. the subject-matter of this revision is an eight-anna-share in touzi no. 2861, which has been constituted into the separate.....
Judgment:

Jagannadhadas, C. J.

1. This revision comes before us as a Pull Bench on a reference under Rule 4, Chapter V of the Rules of this High Court. Under the said rule, taken with Rule 2, the point or points on which the Bench making the reference differed from a decision of a former Division Bench should be statedThe order of reference is not specific as to what is the exact point which is referred to us. But there can be no doubt, on a perusal of the said order that wnat was intended to be referred to us, is the question 'whether the ruling of the Patna High Court in 2 Cut L T 49, has been correctly decided.' It is on that footing that we deal with this reference.

2. The subject-matter of this revision is an eight-anna-share in Touzi No. 2861, which has been constituted into the separate Touzi No. 8856. The father of the petitioner before us took a mortgage of this Touzi from the then owner thereof Bayed Abdui Quyyam and another on 31-12-1930. (It may be noted that the Court below states that the mortgaged property is an eight-anna-share in Touzi No. 6866; but it is specifically admitted before us by the lawyers on both sides, on a reference to the documents exhibited, that what was mortgaged, is an eight-anna-share in the parent Touzi No. 2861 which constitutes the full sixteen annas share of the separated Touzi No. 8856.) A suit on the said mortgage was instituted on 30-6-1943 which resulted in a final decree, in favour of the petitioner. The decree was put in execution and the mortgaged property was purchased by the decree-holder himself on 28-6-1948. The sale was confirmed on 30-7-1948. The decree-holder-purchaser thereupon applied on 17-11-1948 for delivery of possession and a warrant for delivery was issued under Order 21, Rule 95, fixing 22-12-1948 for its return. Before the warrant was taken out by the process-server to effect the delivery, the opposite party before us, one Srimati Pala Devi, came up with an application purporting to be one under Section 151 of the Civil P. C., for recalling the writ of delivery from the Nazarat. Her case is that the mortgagors had lost interest in the property mortgaged before the suit on the mortgage was instituted and that she is now in possession of the property sought to be delivered and that she not being a party to the decree is not bound by it. Her contention, therefore, is that her possession cannot be disturbed under the decree and that the writ of delivery should be consequently recalled. As appears to be supported by the documents which she has filed, one Sadhu Charan Mohapatra purchased the entire Touzi No. 8856 on 21-4-1943, in certificate proceedings taken by Government against the original mortgagors. That sale was confirmed on 5-7-1943. The said Sadhu Charan Mohapatra in his turn, sold the Touzi to the opposite party Srimati Pala Devi on 3-1-1945. It is her case that her vendor, since the date of his purchase, and she herself after her purchase from him, have been continuously in possession of Touzi No. 8856 by realising rents from the tenants and in other ways. Evidence of such possession has also been given in the Court below. Admittedly Sadhu Charan Mohapatra, whose purchase, if the case of the opposite party is accepted, was prior to the date of the plaint in the mortgage-suit, was not made a party to that suit, nor has he or the opposite party Pala Devi been impleaded as a party at any stage of the suit or of the execution proceedings.

3. On the application made by the opposite party in the lower Court for a recall of the warrant of delivery, notice was given to the decree-holder-purchaser and both parties were directed to adduce evidence. The decree-holder-purchaser did not file any written objection. But from the course of the proceedings in the Courts below, he appears merely to have demurred to the jurisdiction of the Court in entertaining the objection and making an inquiry at that stage. The records of the Court below show that he did not cross-examine the sole witness examined on behalf of the objector-opposite party and did not adduce any evidence oral or documentary on his own side. The Court below relying on the case in 'Krishna. Chandra v. Rajendra Narayan', 2 Cut L T 49., overruled the objection as to jurisdiction and held. on the merits mat the objector had obtained a title which was unaffected by the mortgage-decree ana was in independent possession. It accordingly recalled the writ of delivery issued by it previously.

4. The contention of the petitioner before us is that a person in the position of the opposite party can come in only under Order 21, Rule 100 of the Civil P. C., after he is dispossessed and not before it, and that the Court's jurisdiction to make a summary inquiry into title and possession of such a person arises only after the dispossession. It is urged that neither the objector, nor the Court at the instance of the objector, is entitled to anticipate what may later happen and compel the. decree-holder to submit to an inquiry of the kind at that stage. The answer of the opposite party is that the Court has such jurisdiction.

5. At this stage, it may be noticed that the learned Counsel for the opposite party has taken, a preliminary objection to the maintainability of this revision on the ground that the application made by his client in the Court below would come in under Order 21, Rule 58 (as amended by the Patna High Court in 1938) and that the remedy of the decree-holder-purchaser is by regular suit under Order 21, Rule 63, and not by way of revision. The answer to this argument, by the petitioner, is that the application of the opposite party does not at all fail within the scope of Order 21, Rule 58 as amended. This preliminary objection therefore in substance raises the point whether the power of the Court to entertain the application in question, can be supported with reference to Order 21, Rule 58 as amended, and that question also is one which has to be decided on the merits. The question, therefore, for consideration would be whether the course adopted by the Court below is one that can be supported either with reference to Section 151 of the Civil P. C., or Order 21, Rule 58 of the Civil P. C., as amended or other provisions of the Code.

6. Before dealing with the case-law on the matter, it may be convenient to refer to the relevant provisions and the scheme of the Civil P.C. The Code provides for delivery of possession by summary process, not only where the decree itself is for possession, but also where immovable property is purchased in execution. See Order 21, Rules 35, 36, 95 and 96. On the other hand, to safeguard against the interests of persons not parties to the decree, being affected by process issued under authority of the Court, the Code also provides for intervention of such third parties in two stages: (1) While the execution is pending, i.e., under Order 21, Rule 58 and (2) after the possession of the third party is actually disturbed under Order 21, Rule 100. When the objector intervenes at the appropriate stage and avails himself of the summary remedy for obtaining an investigation of his title or possession, the Code invests the summary decision of the Court with finality as between the parties in relation to the property in, question, subject to a right of suit by the aggrieved party. In order to secure that this finality should, be achieved with expedition, the Limitation Act has provided a short period of one year for the institution of such a suit under Articles 11 and 11-A of Schedule 1 thereto. It is to be noticed that the facility for obtaining a summary decision on a disputed question of title and possession has been provided, so far as delivery proceedings are concerned not merely to the third partywho alleges that he is not bound, by the decree, out also to the decree-holder or auction-purchaser who finds his attempt to obtain delivery resisted by a third-party. The decree-holder or auction-purchaser can come in under Rule 97, when he meets with resistance or obstruction in obtaining possession, while the third party can come in under Rule 100, if by delivery proceedings he is dispossessed. But neither the decree-holder nor the auction-purchaser nor the third party, are bound to see the summary remedy and may well go straight to a Court with a regular suit, haying the benefit of the ordinary period of limitation. But if the one or the other avails himself of the summaryremedy provided, he subjects himseif or the party, as the case may be (according to the nature of the order) to the finality of the order and to the shorter period of limitation for challenging that finality by a regular suit. Thus, it will be seen that the main purpose of all the relevant provisions above noticed in this behalf, is not merely to give jurisdiction to the Court at the execution stage or at the delivery stage to go into the questions of title or possession, at the instance of a party, whose interest may be affected thereby, a jurisdiction which it would not otherwise have had, but -- what is equally important -- to invest the summary decision of the executing Court on such occasions with expeditious finality. The Privy Council and the High Courts have repeatedly pointed out that these provisions as well as Section 47, C.P.C., are beneficient provisions intended tosecure speed and finality for various questions that may legitimately arise between the decree-holder and third parties or decree-holder and judgment-debtor, and decided by the executing Court. See'Prosanno Kumar v. Kalidas', 19 Cal 683 (PC) at p. 689; 'Amir Chand v. Harihar Prasad Singh', 30 Mad L J 238 (PC); 'Kailash Chandra v. Gopal Chandra', 53 Cal 781 (FB); 'Vedavasia Aiyar v. Madura Hindu Sabha Nidhi Co.', 45 Mad L J 478 and 'Adhar Singh v. Sheo Prasad', 24 All 209. It is prima facie in the light of this scheme of the Civil P.C., that the question under consideration in this reference has to be decided.

7. Admittedly, the application made by the objector to the lower Court does not in terms fall within Order 21, Rule 100, because that enables the objector to come in, only after dispossession and the Court to investigate only on an application by the objector after dispossession. The main attempt on behalf of the respondent before us, has been to support the maintainability of the application by the objector and the power of the Court to inquire into the objections, at that stageon the ground of exercise of assumed anticipatory jurisdiction referred to in 2 Cut L T 49. One main difficulty in upholding any such jurisdiction with reference to the situation of the kind raisedis, as to the effect of order passed by the executing Court on such an application. Would it be subject to the same finality as that provided in Order 21, Rule 103 and subject to the same short period of limitation as in Article 11-A of the Limitation Act? It is extremely difficult to see how the finality and limitation which depend entirely on specific statutory provisions can be imported into the effect of such an order which in terms does not fall within the wording of those provisions. Accordingly, an anomalous situation would arise,if contrary to the scheme and policy of the Code, an executing Court (which is not normally concerned with such questions) is to take up its time in investigation of questions of title and possession at the instance of third-party objector, and its decision still leaves the whole question open to a dilatory challenge in a regular suit by the defeated party.

8. It has been suggested in the course of the arguments that such an application by the third party-objector to the delivery proceedings may well fail within the scope of Order 21, Rule 95 and Rule 96. But it is to be noticed that Rules 95 and 96 come in as the last of the group of rules under the general heading 'Sale generally', while investigation of title and possession of a third-party-objector at his instance, or at the instance of the decree-holder or auction-purchaser, comes in under a group of rules headed 'resistance to the delivery of possession to the decree-holder or purchaser.' Rules 95 and 96 are merely ancillary to the provisions for sale in execution and are intended to provide that a person who purchases a property in court-auction, gets not mereiy the title to the interest of the judgment-debtor in the property, out the further advantage of getting possession summarily by a cheap application without having to go in for a suit, a provision intended to facilitate court-auction-purchases and incidentally to secure better prices at execution sales. The third-party-objector does not at all come into the picture at that stage and can have no right at the time to compel the decree-holder or the auction-purchaser to submit to an investigation, into his title or possession. This is quite apart, from any jurisdiction that the Court may have either suo motu or at the instance of the decree-holder, to satisfy itself whether the warrant of delivery that it is asked to issue, under those provisions would be patently a futility. Whether or not, the executing court in issuing a delivery warrant under Order 21, Rules 95 and 98 discharges merely a ministerial function or a judicial function and if so, what are the limits thereof, are matters which do not arise for our consideration in this reference and we propose to say nothing about it. But the course adopted by the Court in the present case, cannot be justified by reference to the power of the Court, if any, under Rules 95 and 96 since what is asked for is the recall of a warrant of delivery already issued and an investigation of title and possession of the third-party not suo motu by the Court, but at the instance of the objector and against the protest of the decree-holder-purchaser. A consideration, therefore, of the provisions of the scheme of the Civil Procedure Code appears to us, to militate against the view that has been adopted by the Bench in 2 Cut L T 49. It has now to be seen how the matter rests on the authority of decided cases.

9. In 2 Cut L T 49, there was no discussion as to the relevant provisions of the Code, The course adopted by the executing Court in recalling the writ of delivery of possession already issued under Section 151, Civil P. C., was supported with the following observations:

'The Court, however, merely anticipated a situation which would afterwards arise on the application that presumably would be made by the petitioner under Rule 97 and it has not been shown that in consequence of that course having been taken, the petitioner suffered any disadvantage.'

The learned Judges, if I may say so with respect, have not noticed the anomalous position which the order of Court in such circumstances, creates contrary to the policy of the Act. Further, what exactly is the nature & scope of the anticipatory jurisdiction of a Court has not been considered in that case and has not been sufficiently canvassed even before us. We do not therefore propose to consider it. But it is permissible to remark that if there is anything like anticipatory jurisdiction in Courts at all, it is hazardous to invoke and rely upon such an indefinite and slippery ground of jurisdiction and to justify the same by reference to the provisions of Section 151 of the Civil P. C. It has been brought, to our notice that as against the order in 2 Cut L T 49, there was an application by the decree-holder for leave to appeal to the Privy Council, and that that application was rejected. This appears from 'Krishna Chandra V. Rajendra Narayan', AIR (23) 1936 Pat 465. A perusal of that decision however does not show that in refusing the leave, the Bench committed itself to any approval of the correctness of the decision in 2 Cut L T 49, but proceeded merely on the ground that the order against which leave was sought, was not a 'final' order passed on appeal. Justice Wort, who was a party to the case in AIR (23) 1936 Pat 465, had previously given a decision in 'Daroga Prasad v. Bhagwati Prasad', AIR (22) 1935 Pat 253, sitting as a single Judge on the question now under consideration. There, his Lordship specifically ruled that a third-party-objector cannot invoke the jurisdiction of the executing Court before there has been dispossession and made the following observations:

'There is no jurisdiction in the Judge to determine in the form of an anticipatory application, a matter of this, kind, it is only when the person is dispossessed, that an application of this kind can come before the Judge and he certainly could not make such an order as he has done under Order 21, Rule 100.'

Thus, apart from the fact, that the case in 2 Cut L T 49, is the decision of a Bench it can be seen that the opinion on this matter of the learned Judges of the Patna High Court is not uniform. In support of the alleged anticipatory jurisdiction, a case in 'Raj Kishore Prasad Narain Singh v. Saligram Prasad', AIR (21) 1934 Pat 215, has also been cited to us. In that case a decree was obtained against one Rambujhawan on a mortgage bond. In the suit on that mortgage, the petitioners were impleaded on account of the fact that subsequent to the date of that mortgage, the petitioners had obtained an Ijara of the mortgage-property and were put in possession thereof, under circumstances, which it is unnecessary to notice for the present purpose. The decree-holder in the mortgage suit got the mortgaged property sold, subject to this encumbrance in favour of the petitioner. He became the auction-purchaser and applied for delivery of possession and delivery was ordered under Order 21, Rule 95, without notice to the petitioner. The petitioner, thereupon, came up with an objection that since he was already in possession, and since the decree-holder's purchase was subject to his encumbrance, the warrant of delivery should have been issued not under Order 21, Rule 95, but under Order 21, Rule 96. That application was relected. The learned Judge in AIR (21) 1934 Pat 215, set aside that order in revision with the following observations :

'The effect of the order passed by the Court below, if put into execution, will be to eject the petitioner who is in possession and whose possession is not on behalf of the judgment-debtor subsequent to any attachment of the property.'

This passage is relied upon as supporting the exercise of anticipatory jurisdiction. But it may be seen that the objector in this case is not a third-party, but was himself a party to the decree. It may well be that an application by him objecting not to the delivery itself but to the nature of the delivery that the decree-holder was attempting to get, falls within Section 47 of the Civil P. C. Hence this case cannot be taken as an authority for the exercise of anticipatory jurisdiction. The only other case that has been brought to our notice on behalf of the respondent is the decisionof a single Judge in 'Po Seik Maung v. U. Nandia', AIR (12) 1920 Rang 374. There is no discussion therein of the question, except a brief remark that under the circumstances of that case, there was nothing wrong in the Court anticipating the objection and ordering an investigation under Order 21, Rule 97.

10. On the other side the following cases have been cited, and require to be noticed. 'Jagannath Brijraj v. Khaja Paisuddin', AIR (22) 1936 Nag 212; 'Sobha Ram v. Tursi Ram', AIR (11) 1924 All 495; 'Milkhi Ram v. Basant Singh', AIR (18) 1831 Lah 686 and 'Kiron Soshi Dasi v. Official Assignee of Calcutta', AIR (20) 1933 Cal 246.

11. Of these the case in 'Jagannath Brijraj v. Khaja Faisuddin', AIR (22) 1935 Nag 212, which is a decision of a single Judge is the direct case and contains a discussion of the question at issue. In that case the decree-holder who had obtained a decree for possession of certain immovable property obtained a delivery warrant. Before he made any attempt to get the warrant executed, he came with another application alleging that he anticipated resistance and trouble and asked for a special process-server and police help. Meanwhile, a third-party came up, with an application claiming that he was in possession and prayed that the warrant is not to be executed until his objection is inquired into and decided. The objector's application was rejected and it was held by the Court that since there was in fact no resistance or obstruction to the delivery of possession and no complaint from the objector on that footing, nor any dispossession of the third-party-objector, the Court had no jurisdiction to start an inquiry on the application of the latter and determine the rights of the objectors. The learned Judge observed as follows:

''If the view taken is that the executing Court can of its own motion or upon the application of prospective resister start upon an investigation into his title under Order 21, Rule 97, Civil P.C., I must respectfully record my emphatic dissent from that view, as being opposed not only to the plain language of the rule in question, but to the interpretation placed upon it by the majority of the High Courts.'

The learned Judge quoted with approval the following observations from 'Milkhi Ram v. Basant Singh', AIR (18) 1931 Lah 688:

'In my judgment, the Court cannot of its own motion make any investigation into any matter relating to resistance or obstruction to possession under Rule 97 or dispossession under Rule 100. While the remedy is optional, the person concerned must complain, before the Court can make an investigation, and the explicit language of Rule 103 makes it clear to my mind that the order under Rule 98, 99 or 101 becomes conclusive only after such an investigation as follows on an application under Rule 97 or Rule 100. If there is no application there can be no investigation and therefore there can be no order.'

The decisions in AIR (11) 1924 All 495 and AIR (20) 1933 Cal 246, though they do not cover the exact point raised in the case before us, have a substantial bearing on the question and support the contention of the petitioner before us. In AIR (11) 1924 All 495, the question for consideration arose in the following circumstances. There was a decree for sale on the foot of a mortgage. In execution of that decree, the property was put up for sale and purchased by the decree-holder. He thereupon filed an application for delivery under Order 21, Rule 95 impleading certain persons by name Tursi and Chhedu, the sons of the judgment-debtors on record, alleging that those impleaded persons were in possession of the property on behalf of their respective fathers. On notice,the sons appeared and raised the objection that they were in possession of the property on their own account and in their own right and mat their lathers had no interest in the property. The executing Court thereupon made an inquiry and come to the conclusion that the sons were in possession on their own account and not on behalf of the judgment-debtors and dismissed the application. More than one year after the date of this order, the decree-holder brought a regular suit for recovery of possession of the property Doth against the fathers and the sons and the objection raised was that the suit was barred under Article 11-A of the Limitation Act. The question that arose for consideration was whether the order of the executing Court upholding the title of the sons and rejecting the application for delivery was one under Order 21, Rule 99, so as to attract the limitation under Article 11-A of the Limitation Act. The Full Bench, by a majority decided that the order in question cannot be said to be one under Order 21, Rule 99, and that the period of limitation provided by Article 11-A of the Limitation Act is not applicable. While Mr. Justice Mukherjee who was in the minority, held that the order in the circumstances, must be taken to be one under Order 21, Rule 99, and that therefore the one year period of limitation applied to the suit. It is to be noticed, however, that in this case, the question as to whether the Court had the power to embark on such an inquiry in anticipation of resistance, either at the instance of the auction-purchaser or of a third-party-objector did not arise for decision. The factum of the existence of an order, consequent on an inquiry made at that stage, was taken and the only matter on which the learned Judges differed was whether Rule 99 of Order 21 applied only when there was resistance or obstruction, on the spot, in the course of the attempt to execute the delivery warrant or whether the facts of the particular case could be said to constitute resistance, even without there being an attempt on the spot so as to bring the case within the said rule. According to the learned Judge who was in the minority the word 'resistance' has an import different from the word 'obstruction' and there could be resistance to delivery of possession without there being the necessity for the auction-purchaser going to the spot and therefore the order in question could come under Order 21, Rule 99. According to the majority view of the other two learned Judges, there could be no question of any order under Rule 99 until there was in fact resistance or obstruction on the spot and a complaint by the decree-holder or purchaser following on it. The majority therefore held that the order in question before them was merely one under Order 21, Rule 95 and not under Order 21, Rule 99 and that to such an order Article 11-A of the Limitation Act did not apply. The majority were inclined to hold that such an inquiry could be made under Order 21, Rule 95, though they were not prepared to hold that such an order carries with it the finality provided by Order 21, Rule 103 or attracts the limitation of Article 11-A of the Limitation Act. As will be seen presently, this view of the majority has been very strongly criticised by Chief Justice Rankin in AIR (20) 1933 Cal 246. But in any case It is worth while noticing that on the facts of the case in AIR (11) 1924 All 495, it is the decree-holder that virtually invited the inquiry by impleading the prospective objectors to his application under Order 21, Rule 95 for delivery. This case is, therefore, no authority for saying that the prospective objector can intervene, of his own accord, at that stage, and compel the decree-holder to face the inquiry. The decision in this case, however, shows clearly the anomaly arising from the executing Court embarking on an inquiry into title andpossession of a third-party at that stage and the consequent difficult questions as to the effect of the order and the limitation for a regular suit.

12. The case in 'Kiron Soshi Dasi v. Official Asignee, Calcutta', AIR (20) 1933 Cal 246 : 60 Cal 8 contains a vigorous cirticism of the view taken by the majority Judges in 'Sobha Ram v. Tursi Ram', AIR (11) 1924 All 495, in so far as they were inclined to hold that there could be an inquiry into the title of a third-party at the stage of issuing a warrant under Order 21, Rule 95. As has been already stated, it is unnecessary for the purpose of our present case to come to any conclusion whether, on a question that may arise under Order 21, Rule 95, the one view or the other is right. But this decision which is on facts, almost similar to that in AIR (11) 1924 All 495, comes to the conclusion that an order of the executing Court purporting to go into the question of title and possession of a third-party even at the instance of the decree-holder himself when making an application under Order 21, Rule 95, for a warrant of delivery, is not valid and that limitation under Article 11-A cannot apply to such an order. Thus, a review of the above cases, which are all that have been brought to our notice as having any bearing on the question before us, shows that except the cases in 2 Cut LT 49 and AIR (12) 1925 Rang 374, there is no case at all, which supports the exercise of any such anticipatory jurisdiction to inquiry into the question of title of a third-party prospective-obstructor, on an application by him, before he has in fact been dispossessed, though there is some conflict of view as to whether such an inquiry can be made at the instance of the decree-holder himself at the stage when he applies for a delivery warrant under Order 21 Rule 95 of the Civil P.C., and what the effect of that order is. The case in 'Krishna Ballav v. Sashimukhi Bose', ILR (1949) 1 Cut 781 at p. 785, has also been brought to our notice to show that, in the analogous situation which would have given rise to a claim case, it has been laid down by my Lord the then Chief Justice that:

'No Court is bound to proceed with sale at the bidding of the decree-holder when, either through proper or improper channel, it comes to know-that the property sought to be attached and sold does not belong to the judgment-debtor'.

and that

'in consideration of the provision of Section 60 and Order 21, Rules 11, 13 and 14 of the Code of Civil Procedure, the Court has also to be satisfied in putting the property to attachment and sale that it belongs to the judgment-debtor.'

This view, it, is said supports the contention that in the analogous situation that arises when a decree-holder applies for delivery of possession under Order 21, Rule 95 the Court has suo motu the duty to satisfy itself that the property sought to be delivered is in the possession of the judgment-debtor. The cases in 'Shamu Patter v Abdul Kadir' 35 Mad 607 (PC) and 'Gordhandas v. Ishwaribhai', AIR (29) 1942 Bom 306 and 'Sukhraj Roy v. Keshab Mohan', AIR (29) 1942 Pat 262 have also been cited before us to show that the Court has the power and the duty to deride matters. If necessary, suo motu, that go to the root of its jurisdiction. As I have already stated it is unnecessary to go into this aspect of the matter, which may arise under Order 21 Rule 95 of the Civil P.C. for the derision of the question involved in this case. But it is quite clear that such power. If it exists has to be very sparingly exercised and in exceptional circumstances. It appears to me therefore, that the course adopted by the Court below in this case, on the application of the prospective obstructer to make an inquiry into thequestion of title against the objection or the decree-holder is one that is not permissible under the provisions of Order 21 of the Civil P. C.

13. As regards the argument based on Section 151, C.P.C., it is unnecessary for the purpose of this case to go into any elaborate consideration of the scope of the powers of the Court under Section 151 of the C. P. C. We have been shown no authority forsaying, except the case in 2 Cut L T 49, whose correctness is under consideration, that Section 151 can be invoked in situations such as that which has arisen in the present case. The well-known judgment of Justice Woodroffe in the leading case in 'Hukum Chand v. Kamalanand Singh', 33 Cal 927 indicates succinctly the limits of the application of the powers of the Court under Section 151 of the C. P. C. In a later case in 'Sasi Bhusan v. Radha Nath', 20 Cal L J 433 at p. 439, his Lordship Justice Sir Ashutosh Mukherjee further explained the position in the following terms:

'The principles which regulate the exercise of inherent powers by a Court were explained in the case of 'Hukum Chand v. Kamalanand Singh, in 33 Cal 927. It was pointed out that the Code of Civil Procedure binds all Courts so far as it goes; but the code is not exhaustive and in matters with which it does not deal, the Court will exercise its inherent power to do that justice between the parties which is warranted under the circumstances and which the necessities of the case require. On any point specifically dealt with by the Code, the Court cannot disregard the letter of the enactment according to its true construction, though, as the legislature cannot anticipate and make express provision to cover all possible contingencies, it is the duty of a Judge to apply the provisions of the law not only to what appears to be regulated expressly thereby, but also to all cases to which a just application of them may be made and which appears to be comprehended either within the express sense of the law or within the consequences that may be gathered from it.'

This last portion of the above quotation is no doubt a canon for the liberal construction of a statutory provision which deals with a certain situation. But it seems to me equally to imply that in relation to a situation which has been specifically contemplated and provided for by the Code, the exercise of an inherent power by way of a supposed anticipatory jurisdiction to deal with that situation under Section 151 of the Civil P. C. is not permissible, unless any such exercise of the inherent power is sanctioned by a course of settled practice of Courts relating to that clan of situations. The Code by Section 47 thereof and by the provisions in Order 21, Rule 95 and Rule 103, provides in specific terms for the situations that might usually arise when in the course of execution and delivery proceedings interests of bona fide third parties are affected and resistance or dispossession results. It appears to me that the Code having so specifically provided for that situation, there is no room for invoking any inherent jurisdiction by way of anticipation in those circumstances. It would be contrary to the scheme of the Code to permit a summary inquiry into the title or possession of the third-party under conditions which do not invest the order thereon with a finality subject to a very short period of limitation for a regular suit and thereby to allow the time of the executing Court to be unnecessarily taken up by inquiries into questions of title and possession, which do not have that effect. It has also been suggested in the course of the argument that the exercise of the power to inquire in the circumstances of the kind that have arisen in the case 2 Cut L T 49, can be supported on theground that it tends to prevent abuse of process or helps to shorten litigation. I am unable to see how these considerations can be applied in such a case. So far as the question of shortening of litigation is concerned, I am not see how it matters to the objector whether he comes forward after dispossession or before. For him, the time which is occupied for the inquiry would be the same, whether he is permitted to come in at an earlier stage or in the regular course after dispossession. Nor can I see how the insistence of the decree-holder to obtain a warrant of delivery and proceed with it without submitting to a prior investigation of the objections of the prospective objector can amount to abuse of the process of Court. The insistence of a party before the Court, on the procedure permitted to him by the law, does not normally amount to abuse of process of Court, unless there are serious reasons to think that in the circumstances of a particular case, it amounts to harrassing vexation and oppression. It has also been suggested that the issue of delivery warrant without investigation of the third party's objection, when such an objection is raised in anticipation, may lead to breaches of peace at the time when the attempt to take delivery on the spot is made. But it is only to prevent such a contingency that Order 21, Rule 58 has been amended by the Patna Rules so as to give ample scope for a bona fide third party to intervene at a very much earlier stage during the pendency of the execution itself. When a third party has not chosen to avail himself of that facility, at that stage, it is no hardship to him that he is asked to wait till after dispossession, while on the other hand, it may be a serious hardship to the decree-holder to be asked to face an inquiry at a stage when the order thereupon may not have the effect which is given to it under the terms of Order 21, Rule 103, if the inquiry results in his favour.

14. This leads us to a consideration of the scope of Order 21, Rule 59 as amended by the Patna Rules. It is urged that Rule 58 as amended permits a claim to be preferred ('sic' to any property, the subject-matter of the execution) proceedings 'on the ground that the applicant has an interest therein which is not bound under the decree', and that the Court thereupon should proceed to investigate the claim. It is urged that a property continues to be the subject-matter of execution proceedings until delivery has in fact been effected and that therefore a claim may be preferred at any time before delivery is effected, and that the Court is bound to investigate that claim. If this contention is correct, it would follow that a third-party objector can intervene before actual delivery and this may be sufficient authority for the course adopted by the lower Court in this case. This contention is based on the assumption that execution proceedings continue till actual delivery of the property to the Court-auction-purchaser, it is, however, now well settled by the Full Bench decision in 'Tribeni Prasad Singh v. Ramasray Prasad', 10 Pat. 670: AIR (18) 1931 Pat 241, that upon the sale of property and on the entering up of the satisfaction of the decree, the execution is at an end and that delivery proceedings in pursuance of the auction-sale are not part of execution. Some reliance has been placed in the course of arguments before us on certain rules and forms in the General Rules and Circular Orders of the High Court to show that orders in delivery proceedings are noted as part of the execution proceedings; but the practice in this behalf authorised by the circular orders for registry and statistical purposes cannot be any guide for the construction of a rule in the Civil P. C., which must be understood harmoniously with the concept of execution proceedings asdecided by the Full Bench above noted, it is interesting to notice in, this connection, that the amendment of Order 21, Rule 68 was connected withand arose out of the amendment of Order 39, Rule 1, Order39, Rule 1, as amended, provided that

'an injunction to restrain a sale or confirmationof a sale, or to restrain delivery of possession,shall not be granted except in a case where theapplicant cannot lawfully prefer and could notlawfully have preferred a claim to the property,or objection to the sale, or to the attachmentpreceding it, before the Court executing thedecree'.

Simultaneously with this restriction on the power of the Court to grant an injunction restraining execution sales or delivery proceedings, it was thought only lair to provide that third-parties having a legitimate and bona fide objection or claim should be allowed to come in at a sufficiently earlier stage with their claim or objection irrespective of the nature of the decree, and Order 21, Rule 58 was accordingly amended to bring about this result. A consideration, therefore, of both these amendments, i.e. of Order 39, Rule 1, proviso and Order 21, Rule 58 together,would further emphasize the position that claims or objections under Order 21, Rule 58 as amended were con-templated only before the occasion for sale arose and when the execution was still pending. This is also a clear reason for holding that Order 21, Rule 58 cannot be availed of by a person in the position of the Opp. Party before us.

15. It would, therefore, follow in our opinion, that the Court below was wrong in entertaining the application in this case, by the prospective third-party objector, to inquire into his title and possession and to recall the delivery warrant and was wrong in proceeding to inquire into the same and thereby virtually compelling the decree-holder to submit to such an inquiry, it also follows that, in our view, the decision in 2 Cut L T, 49, on which the lower Court relied, is erroneous and, with great respect to the learned Judges therein, it can no longer be followed within the jurisdiction of this Court.

16. In the result, the Civil Revision must be allowed with costs. It is superfluous to add that the findings given by the Court below on the merits of the enquiry stand vacated, and the relevant questions will have to be decided afresh when the appropriate occasion for it arises. Hearing fee is assessed at two gold mohars.

Panigrahi, J.

17. I agree.

Narasimham, J.

18. I agree.


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