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Nanda Kishore Moharana Vs. Mahabir Prasad Lath - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 100 of 1977
Judge
Reported inAIR1978Ori129; 44(1977)CLT505
ActsCode of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(2); General Clauses Act, 1897 - Sections 6; Code of Civil Procedure (CPC) , 1908 - Sections 47; Limitation Act, 1963 - Schedule - Article 136; Orissa House Rent Control Act, 1968 - Sections 5 and 15
AppellantNanda Kishore Moharana
RespondentMahabir Prasad Lath
Appellant AdvocateR.N. Sinha, Adv.
Respondent AdvocateM. Jain, Adv.
DispositionAppeal dismissed
Cases Referred(M. R. Malhotra v. State
Excerpt:
.....not governed by the words 'of any civil court' appearing in that article, the word 'decree' with the prefix 'any' in that article will engulf within it all decrees of the civil courts as well as other orders which under any special enactment are to be deemed as decrees, the word 'deemed' is used in statute books generally to create a legal fiction by which one thing has to be considered as something else as per the mandate of the deeming provision in any act......that being so, that order once passed has all the legal texture, attributes and sanctity of a decree passed by the civil court, and hence application for the execution of the same must be filed within 12 years as prescribed for applications for execution of decrees under article 136 of the limitation act. the words 'any decree' in article 136, in my opinion, are not governed by the words 'of any civil court' appearing in that article, the word 'decree' with the prefix 'any' in that article will engulf within it all decrees of the civil courts as well as other orders which under any special enactment are to be deemed as decrees, the word 'deemed' is used in statute books generally to create a legal fiction by which one thing has to be considered as something else as per the mandate.....
Judgment:

S. Acharya, J.

1. This appeal has been preferred against the order passed in Misc. Appeal No. 13/3/2 of 1975/76/77 confirming an order dated 23-6-75 passed by the Munsif, Sambalpur in Misc, Case No, 19/75, which is a proceeding Under Section 47, C. P. C. arising out of the Execution Case No. 34/72. The respondent Sn this appeal filed that Execution Case for the execution of the order passed in H, R. C, Case No, 32/62, The appellant herein opposed the execution of the said order and on that objection Misc. Case No. 19/75 was registered. The executing court, however, dismissed the said objection. Being aggrieved by the said order the appellant preferred Misc. Appeal No. 13/3/2 of 1975/76/77 before the District Judge, Sambalpur on 4-7-75, The said appeal also was dismissed by the Additional District Judge, Sambalpur. The appellant has preferred this appeal against the said appellate order.

2. Mr. Jain, the learned counsel for the respondent, at the outset challenged the maintainability of this appeal on the ground that by the amendment of the Code of Civil Procedure in the year 1976, orders passed Under Section 47, C. P. C. would not be deemed to be decree under the Civil Procedure Code, and so the appellant could not prefer this appeal against the order of the court below determining a question Under Section 47, C.P.C.

The said contention was advanced without noticing the provisions of Section 97 (2) of the Civil Procedure Amendment Act, 1976 (Act 104 of 1976) (hereinafter referred to as the 'Amendment Act'), and Section 6 of the General Clauses Act (Central) (Act X of 1897). Clause (a) of Sub-sec, (2) of Section 97 of the Amendment Act provides as follows:--

'97. (1) xx xx xx (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,--

(a) The amendment made to Clause (2) of Section 2 of the principal Act by Section 3 of the Act shall not affect any appeal against the determination of any such question as is referred to in Section 47 and every such appeal shall be dealt with as if the said Section 3 had not come into force;'

From the above quoted provision in the Amendment Act it is quite evident that even in spite of the amendment made to the definition of the word 'decree' in Clause (2) of Section 2 of the Civil Procedure Code, this appeal is maintainable against the order of the court below determining a question Under Section 47 of the Code.

Apart from the said provision In the Amendment Act, Section 6(c) of the General Clauses Act (Central) (Act X of 1897) provides as follows :--

'6. Effect of repeal -- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not -

(a) xx xx xx(b) xx xx xx (c) Affect any right, privilege, obligation or liability acquired, ac-crued or incurred under any enactment so repealed; or, (d) xx xx xx(e) xx xx xxxx xx xx '

The provisions of Section 6 (c) of the General Clauses Act are not in any way affected, rather the said provisions are protected by Section 97(2) of the Amendment Act, Un-disputedly the appellant's appeal in the court below was maintainable as at that time the Amendment Act had not been enacted. The appellant had a right of appeal against the order passed in the saidappeal determining a question Under Section 47, C. P, C. agitated before that court. That right of appeal Is not affected by the coming into force of the Amendment Act, as is evident from the provisions of Section 97 (2) (a) of the Amendment Act and Section 6 of the General Clauses Act. Accordingly, this appeal Is maintainable. There-fore, the above-mentioned preliminary objection is overruled.

3. The only ground on which the execution of the final order passed in H. R. C. case No. 32/62 is opposed is that the said application for execution is barred by limitation as it was presented beyond the time prescribed under the Limitation Act.

4. Both the courts below have held that the final order passed in the House Rent Control case being a decree, the application for the execution of the said decree comes under Article 136 of the Limitation Act, and as the said application was filed within 12 years as prescribed under that Article, that application was in time, and it was not barred bv limitation.

The correctness of the above finding is again questioned in this appeal.

5. It is contended by Mr. Sinha, the learned counsel for the appellant, that as the order passed in the H. R. C. case is not actually a decree of the civil court but is merely deemed to be decree as per Section 15 of the Orissa House Rent Control Act, the application for the execution of the said order is governed by Article 137 of the Limitation Act, and so it should have been filed within 3 years of the passing of the said order as provided under that Article. Mr, Sinha contends that Article 136 of the Limitation Act applies only to applications for execution of the civil court decrees and not to orders which are deemed under some other; law to be decrees of other courts, and hence, according to Mr. Sinha, applications for execution of such orders shall be governed under Article 137 of the Limitation Act and not Article 136 of the said Act, and must be filed within 3 years of the passing of the said order as provided under Article 137 of the Limitation Act.

6. The order which Is sought to be executed In the executing court Is an order Under Section 7 of the Orissa House Rent Control Act (hereinafter referred to as the 'Act') directing the eviction of the respondent's tenant, i. e. the appellant, from the suit house. Section 15 of the Act provides that such an order of theController shall be deemed to be a decree and shall be executable as such in the court of the Munsif within the local limits of whose jurisdiction the house is situate. Though the said order is not actually a decree, Section 15 provides that the said order shall be deemed to be a decree and it shall be executable as such in the civil court mentioned in the said section. So, the application for execution of the said order, the connected proceedings in the civil court and the procedure and formalities for the actual execution of the said order must all be in accordance with the provisions laid down in tha Civil P. C. for the execution of decrees of the civil court. That being so, that order once passed has all the legal texture, attributes and sanctity of a decree passed by the civil court, and hence application for the execution of the same must be filed within 12 years as prescribed for applications for execution of decrees under Article 136 of the Limitation Act. The words 'any decree' in Article 136, in my opinion, are not governed by the words 'of any civil court' appearing In that Article, The word 'decree' with the prefix 'any' in that Article will engulf within it all decrees of the civil courts as well as other orders which under any special enactment are to be deemed as decrees, The word 'deemed' is used in statute books generally to create a legal fiction by which one thing has to be considered as something else as per the mandate of the deeming provision in any Act. The deeming provision is very often used to introduce artificial conception or to give artificial construction or meaning to a word or phrase, and by that the meaning of that word or phrase may be extended to something else which that word or phrase does not ordinarily connote or imply. Once the statute declares that something shall be treated as something else, when in reality it is not, it shall have to be treated as so during the entire course of the proceeding and for all intents and purposes. In the present case the statute enacts that the order Under Section 7 of the House Rent Control Act shall be deemed to be a decree; so the court ia obliged to treat that order as a decree for all intents and purposes.

In the Division Bench decision reported in AIR 1953 SC 244 (State of Bombay v. P. Vinayak) it has been observed (at! p. 246) :

'When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the courtsis entitled and bound to ascertain for what purposes and between what persons the statutory fiction Is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.'

(Portion underlined by me is relevant)* Lord Asquith In the classical judgment in East End Dwellings Co. Ltd v, Finsbury Borough Council reported in (1952) A. C, 109 has observed :--

'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ..... The statute says that you mustimagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollerles of that state of affairs.',

In the case reported in AIR 1958 All 492 (M. R. Malhotra v. State) it has been observed (at p, 498):

'The phrase 'shall be deemed' Is frequ-ently used in statutes when the legislature wants to confer a status or an attribute to a person or thing which is not intrinsically possessed by that person or thing on whom this conferment is made,

xx xx xx Whenever the word 'deemed' Is used in statute in relation to a person or thing, it implies that the legislature after due consideration exercised its judgment in conferring that status or attribute to a thing.'

On a consideration of the above authoritative pronouncements and the deeming provision in Section 15 of the Act I have no doubt that the order passed Under Section 7 of the Act has to be treated as a decree for all intents and purposes, and hence all legal consequences and incidents of a decree should be attached and attributed to it. That being so, the said order shall be governed for all intents and purposes by the law of the land applicable to decrees. So, the application lor the execution of that order shall come under Article 136 of the Limitation Act which is the only Article In the Limitation Act which in express terms prescribes the period of limitation for the execution of decrees, Article 137 of the Limitation Act is a residuary Article which applies to applications for which no period of limitation is provided elsewhere in the Schedule attached to the limitation Act, and this Article is not applicable to the applications for the execution of decrees, and hence is not applicable to applications for the execution of orders which under the law are deemed to be decrees.

On the above consideration I hold that the period of limitation for filing an application for the execution of an order of the House Rent Controller made Under Section 7 of the Act is governed by Article 136 of the Limitation Act, and not under Article 137 of the said Act.

7. Admittedly, Hie respondent levied execution of the order of eviction Under Section 7 of the Act within 12 years from the time it became enforceable, and accordingly the execution proceeding is not barred by limitation,

8. The execution proceeding is not challenged on any other ground.

9. Accordingly, the appeal is without any merit and it is dismissed with costs.


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