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Gangadhar Choudhury Vs. Syed Sajid Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 80 of 1972
Judge
Reported inAIR1973Ori124
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 47 - Order 21, Rule 23
AppellantGangadhar Choudhury
RespondentSyed Sajid Ali
Appellant AdvocateL.K. Dasgupta and ;S.K. Dey, Advs.
Respondent AdvocateR. Ch. Mohanty and ;J.P. Das, Advs.
DispositionAppeal allowed
Cases Referred(Shiva Narayan Lal Choudhury v. Naravan Prasad). The
Excerpt:
.....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 be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........and permitted the judgment-debtor to file his objection in the meantime. on 8-5-1972 the judgment-debtor filed his objection petition and also apetition to stay delivery of possession till the disposal of his objection petition. the learned munsif heard the matter on that day and by his order dated 10-5-1972 he dismissed the objection petition of the judgment-debtor on the ground that the said objection was barred by the principles of constructive res judicata. the aforesaid order of the munsif has been confirmed by the impugned order of the appellate court and hence this appeal by the judgment-debtor.3. a preliminary objection challenging the maintainability of this appeal has been raised by mr. mohanty, the learned counsel for the respondent, on the ground that the order passed by the.....
Judgment:

S. Acharya, J.

1. The judgment-debtor In Execution Case No. 25/72 has preferred this appeal against the decision dated 29-7-1972 of the Subordinate Judge Cuttack passed in Miscellaneous Appeal No. 44/72 confirming the decision dated 10-5-1972 of the First Munsif. Cuttack, in Execution Case No. 25/72.

2. The decree-holder filed the above-mentioned execution case to execute an order passed in House Rent Control Case No, 54/68. Notice under Order 21, Rule 22. Civil P. C. was issued to the judgment-debtor (appellant herein) which was received back on 12-4-1972 after personal service on the judgment-debtor. On that date the appellant-judgment-debtor did not appear in Court The decree-holder filed a petition for police help on that date. That petition was allowed and a letter was issued to the Superintendent of Police. Cuttack in that connection and the case was fixed to 8-5-1972 expecting in the meantime a reply from the Superintendent of Police to the above effect. In the meantime, on 25-4-1972, reply from the Superintendant of Police in the affirmative was received and the Court ordered that reply to be put up on 8-5-1972, i.e. on the next date fixed for the case. Before that date the decree-holder on 5-5-1972 filed requisites for issue of the writ of delivery of possession praying therein to advance the date of execution to that date. He also prayed by another petition that the bailiff be authorised to break open the lock on the house, if necessary, at the time of the execution of the writ of delivery of possession. On that day (5-5-1972) the judgment-debtor appeared in Court and filed a petition for time enabling him to file his objection to the execution of the decree. The Court ordered the above matters to be called on 8-5-1972 and permitted the judgment-debtor to file his objection in the meantime. On 8-5-1972 the judgment-debtor filed his objection petition and also apetition to stay delivery of possession till the disposal of his objection petition. The learned Munsif heard the matter on that day and by his order dated 10-5-1972 he dismissed the objection petition of the judgment-debtor on the ground that the said objection was barred by the principles of constructive res judicata. The aforesaid order of the Munsif has been confirmed by the impugned order of the appellate Court and hence this appeal by the judgment-debtor.

3. A preliminary objection challenging the maintainability of this appeal has been raised by Mr. Mohanty, the learned counsel for the respondent, on the ground that the order passed by the executing Court on 10-5-1972 is not a decree under Section 2(2) of the Civil P. C. and the said order does not come under Order 43. Civil P. C., and accordingly the first appeal in the Court below was not maintainable and consequently this Miscellaneous Appeal does not lie. Mr. Dasgupta, the learned counsel for the appellant, very seriously contends that the order passed by the learned Munsif on 10-5-1972 amounts to a decree and so the first appeal in the Court below was and this Miscellaneous Appeal in this Court is maintainable in law.

4. On the above rival contentions of the parties, at first, it has to be decided whether the first appeal in the Court below was maintainable or not.

5. The decision of this Court reported in ILR (1965) Cut 828. (Radha Pankaj Das v. Upendranath Panda) cited by Mr. Mohanty in support of his preliminary objection does not apply to the present case as the execution case pertaining to the reported decision was dismissed for default and as expressly provided under Clause (b) of Section 2(2), Civil P. C. any order of dismissal for default though covered under Section 47. Civil P. C. would not, amount to a decree. In the present case undisputedly the order in question is neither under Clause (a) or Clause (b) of Section 2(2). Civil P. C., and so the said reported decision is of no avail or effect for the present case.

6. Mr. Dasgupta, in opposing the abovementioned preliminary objection of Mr. Mohanty, very seriously urges that the decision of the learned Munsif dismissing the objection raised by the appellant-judgment-debtor has conclusively determined the rights of the parties with regard to the questions raised by the iudgment-debtor in his objection petition, and has also conclusively determined the liabilities of the iudgment-debtor as to the execution discharge or satisfaction of the decree in question, and that being so, the Munsif's said order amounts to a decree within the meaning of Section 2(2). Civil P. C. In sup-port of his above contention Mr. Dasgupta relies on the Full Bench decision of the Madras High Court reported in AIR 1951 Mad 56, (M. Desikachariar v. Rama-chandra Reddier), which Mr. Mohanty cited in support of his preliminary objection. Subba Rao, J. delivering the judgment of the Full Bench in this case, on a consideration of the provisions of Section 47, Section 2(2) and Section 96. Civil P. C., holds as follows:--

'It is apparent from the aforesaid provisions that an appeal from an order would lie only if the following three conditions are complied with:--

(1) the order must relate to execution, discharge or satisfaction of the decree between the parties to the suit;

(2) it shall conclusively determine the rights of the parties with regard to all or any of the matters in controversy;

(3) such conclusive determination of the rights is with reference to the Court in which such rights are decided.'

7. His Lordship in course of the discussion of the above matter observes 3

'No doubt, the definition of 'decree' in Section 2, lends support to an argument that if an order is covered by Section 47. Civil P. C. it will be deemed to be a decree for the purpose of an appeal. But if this construction be accepted it will make every order made in execution proceedings, whether interlocutory or otherwise, appealable, and the result would be that the execution proceedings would be arrested at every step. An order refusing an adjournment, an order issuing or refusing to issue notice or an order granting or refusing process for the examination of witnesses and many other such orders would be subjected to a right of appeal. I cannot accept such a construction unless the words used in the section are clear and unambiguous. When a formal expression of an adjudication in a suit would be a decree only if it conclusively determines the rights of the parties. I do not see any principle by which an order under Section 47. Civil P. C., should be a decree without complying with that necessary condition. Orders under Section 47, Civil P. C. have been brought in under the extended meaning of the decree as they otherwise would not be covered by the main definition as the said orders are not made in a suit. But to attain the status of a decree such orders must possess the characteristics of a decree as defined in the main part of the section.'

From the above it is clear that the expression 'the determination of any question within Section 47' occurring in the second sentence of Section 2(2) of the Civil P. C. is used ejusdem generis with the phrase 'conclusively determines the rights of the parties with regard to all or any of the matters in controversy' occur-ring in the first sentence thereof. The same view on this particular question has been expressed in the Full Bench decisions reported in AIR 1943 Lah 140 (FB), (Bharat National Bank v. Bhagwan Singh);' (1897) ILR 24 Cal 725 (FB). (Jogodishury Debea v. Kailash Chandra Lahiry) and the Division Bench decision reported in AIR 1924 Pat 683. (Shiva Narayan Lal Choudhury v. Naravan Prasad). The law on this aspect of the matter is not contested by the counsel appearing for both the parties and this aspect of the matter is mentioned in this paragraph only for a proper appreciation of the law on this topic.

8. In my opinion the order passed by the Munsif satisfies all the above-mentioned three conditions laid down by Subba Rao, J. in the aforesaid Full Bench decision. The order in the present case was passed in the execution proceeding on the objection petition filed by the judgment-debtor objecting to the execution of the decree. In text and effect it undoubtedly relates to execution, discharge or satisfaction of the decree between the parties to the suit. This satisfies the first abovementioned condition laid down in the said Madras decision.

By this order the learned Munsif has finally and conclusively put an end to the rights of the judgment-debtor to oppose the execution of the decree. The decree-holder now will proceed to take delivery of possession and the judgment-debtor cannot have any further opportunity to raise any objection against the same. The objections to the execution of the decree raised by the judgment-debtor cannot also be agitated anywhere, either in this execution proceeding or in any other forum. Thus the judgment-debtor's right to oppose the execution of the decree has been finally and conclusively determined by the said order. The Court by the said order has also in effect finally adjudicated the right of the decree holder to execute the decree, and if the order is allowed to stand the judgment-debtor can have no further opportunity anywhere to question the right of the decree-holder to execute the decree. All these clearly show that the order has conclusively determined the rights of the parties with regard to this particular question in controversy between the parties. Moreover, the matter which has been decided by the said order cannot any longer be agitated in any manner or form either in the executing Court or in any other forum. So the said decision has become final and conclusive for all intents and purposes. Accordingly the second and the third conditions laid down in the Madras decision are also satisfied.

Thus all the three conditions laid down in the aforesaid Madras decision are satisfied and on this considerationI hold that the order passed by the Munsif amounts to a decree within the meaning of Section 2(2). Civil P. C.

9. In the Division Bench decision reported in AIR 1924 Pat 683 Sir Dawson Miller. C. J. holds :--

'The questions for determination there referred to must be those which the parties are asking the Court to decide as to their rights or liabilities, and not merely interlocutory questions of procedure which incidentally arise for determination in the course of the proceedings. When the rights or liabilities of the parties as to the execution, discharge or satisfaction of the decree are determined by the order, then in my opinion, the order is appealable as a decree within the definition of Section 2.'

In the present case the liabilities of the judgment-debtor as to the execution, discharge or satisfaction of the decree under execution have in effect been conclusively and finally determined by the said order, and the judgment-debtor is left with no remedy in this matter. On this consideration also the order in question amounts to a decree within the meaning of Section 2(2). Civil P. C.

10. Mr. Mohanty, the learned counsel for the respondent, cited the decision reported in AIR 1943 Lah 140 (FB) in support of the preliminary objection raised by him. Two of the three Hon'ble Judges constituting the Full Bench in that case, on a discussion of the Full Bench decision of the Calcutta High Court reported in (1897) ILR 24 Cal 725 (FB) and the abovementioned Patna decision reported in AIR 1924 Pat 683, and on the peculiar and particular facts of the case, held as follows:--

'Applying these tests, it cannot be said that so much of the judgment of this Court as held that the pleas of want of jurisdiction and limitation could not be allowed to be raised at that late stage is tantamount to a 'decree'. An order rejecting an application to raise a new plea or to amend or alter the pleas already filed can by no stretch of imagination, be said to be a 'determination of the rights of the parties', even if it be assumed that a finding on the plea itself, if properly raised and determined, might be 'deemed' to be a decree'.

The learned judges, while holding as above, have accepted the view taken in the Full Bench decision of five judges of the Calcutta High Court reported in (1897) ILR 24 Cal 725 (FB) wherein it has been observed as follows:--

'An order in execution proceedings can come under Section 244 when it determines some question relating to the rights and liabilities of parties with re-ference to the relief granted by the decree; not when, as in this case, it determines merely an incidental question as to whether the proceedings are to be conducted in a certain way. I may add that the language of Section 244 which enacts that certain questions shall be determined 'by an order of the Court executing the decree and not by a separate, suit' clearly indicates that the questions contemplated by the section must be of a nature such that it is possible to suppose that but for the section they could have formed the subject of determination by a separate suit. But a question of an incidental character can never come under that discription, and an order determining such a question cannot therefore, be a decree as defined in Section 2.'

(Section 244 referred to above was the provision in the old C. P. C. corresponding to Section 47 of the present Code.)

The two Hon'ble Judges holding the majority view in the Lahore decision have also accepted with approval the above-quoted view of Sir Dawson Miller. C. J. expressed in the above-mentioned Patna decision (AIR 1924 Pet 683), and I have, with respect, followed that view in arriving at my above conclusion in this matter. Moreover, the view taken in the aforesaid Full Bench decision of the Calcutta High Court. (1897) ILR 24 Cal 725 (FB) quoted above, which as stated above has also been accepted by the Lahore Full Bench, squarely supports my view. The facts on which the Lahore Full Bench arrived at the particular decision quoted above are entirely different from the facts and circumstances in which the order in question came to be passed by the Munsif in the present case. I also do not find anything specific in the Lahore decision which is in conflict with the view taken and the conclusion arrived at by me in this case.

11. I do not consider it necessary to deal with and discuss all the other decisions cited by Mr. Mohanty, as those decisions either are not apt or do not apply in all force to the present case, and in some cases the question on which the decision is made is not identical with the point for determination in the present case. As the order in question fully satisfied all the tests laid down by Subba Rao, J. in the abovementioned Full Bench decision of the Madras High Court. (AIR 1951 Mad 56 (FB)), and I get full support for my view and conclusion from the Full Bench decision of five Judges reported in (1897) ILR 24 Cal 725 (FB) and also from the verymuch relied upon Division Bench decision of the Patna High Court reported in AIR 1924 Pat 683. I do not feel any hesitation to hold that the aforesaid order of the Munsif amounts to a decree within the meaning of Section 2(2), Civil P. C. That being so, that order is appealable under Section 96. Civil P. C. Accordingly the first appeal in the court below was and this Miscellaneous Second Appeal in this Court is maintainable under Sections 96 and 100, Civil P. C. respectively. I do not therefore, see any merit in the abovementioned preliminary objection taken by the learned counsel for the respondent

12. Turning to the merit of this appeal it is to be examined if on the facts and circumstances of this case the objection filed by the judgment debtor on 8-5-1972 can be said to be barred by the principle of constructive res judicata, as decided by the courts below. In this case notice under Order 21, Rule 22, Civil P. C. was served on the judgment-debtor, but he did not appear in court on 12-4-1972, the date on which he was required to show cause as to why the decree should not be executed against him. The order passed by the executing Court on 12-4-1972 is as follows:

'S. R. of notice under Order 21, Rule 22. Civil P. C. back after personal service. Dr. Hr. files service affidavit and prays in a petition for police help as per reasons stated therein.

Petition is allowed. Issue letter to the S. P. for rendering police help fixing 8-5-1972 for return.'

The sole question for consideration is whether the above order is in accordance with the express terms and provisions of Order 21, Rule 23. Civil P. C. If the said order passed on 12-4-1972 satisfies the scope and ambit of the order contemplated and provided under Order 21, Rule 23. Civil P. C. then the objection filed by the judgment debtor on 8-5-1972 would be barred by the principles of constructive res judicata. But on the other hand if the aforesaid order is not in strict accordance with the provisions and requirement of Order 21, Rule 23. Civil P. C. then in that case the said objection cannot be hit by the principle of constructive res judicata. So the wordings and language of the order have to be strictly and properly construed, as a valuable right of the iudgment debtor is determined, seriously affected and finally concluded on the construction of that order. A strict construction of the order is desirable in view of the consequences envisaged under the law.

13. The above-quoted order passed by the executing Court on 12-4-1972,in my opinion, cannot be said to be an order strictly within the scope, ambit and provisions of Rule 23 of Order 21. The first paragraph of Rule 23 of Order 21 provides that if the person to whom notice is issued under Rule 22 does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed. In the present case the Munsiff by his order dated 12-4-1972 did not order the decree to be executed, as is quite evident from the order quoted above. There is nothing therein specifically to the above effect. I am of the view that so long an order expressly directing the decree to be executed, as specifically provided in Rule 23 is not passed, the right of the judgment debtor to prefer any objection to the execution of the decree is not barred or affected in any way.

14. On 12-4-1972 the decree holder, after proving service of notice on the judgment debtor, prayed by a petition that he be given police help at the time of the execution of the decree. The court allowed the aforesaid, petition, and directed that a letter be issued to the Superintendent of Police requesting him to render police help at the time of the execution of the decree. There is absolutely nothing in the order of that date from which it can be said that the court on that date actually ordered the decree to be executed. On the contrary, on the aforesaid petition filed on that date by the decree holder, the court merely directed the said letter to be issued to the Superintendent of Police, and fixed the case to be taken up again on 8-5-1972. The counsel for both the parties agree that the case was fixed to 8-5-1972 on the expectation that a reply from the Superintendent of Police would be received by that date to the above effect. The reply from the Superintendent of Police was received in the court on 25-4-1972. and it was ordered to be nut up on the date fixed i.e. 8-5-1972. In the meanwhile, on 5-5-1972 the decree holder appeared in court, filed the requisites for the issue of the writ of delivery of possession, and prayed for advancing the date of execution. On that date the judgment debtor, the appellant herein, also appeared in court and filed a petition praying for time to enable him to show cause why the decree should not be executed against him. The court did not pass any order on the abovementioned petition filed by the decree-holder. But the petition filed by the judgment debtor, as it appears from the last sentence of the order dated 5-5-1972, was allowed, as the court enabled the judgment debtor to file his objection petition by thedate of hearing i.e.. 8-5-1972. On 8-5-1972 the judgment debtor actually filed his objection petition showing cause as to why the decree should not be executed against him. By another petition he also prayed that the issue of writ of delivery of possession be stayed till the disposal of his objection petition. His aforesaid objection petition was heard on that date, end by the order in question dated 10-5-1972 it was dismissed on the ground that the same was barred by the principle of constructive res judicata. From the above facts, appearing from the relevant orders passed by the Munsif, it is quite evident that the learned Munsif did not pass any order in the specific terms of and in strict accordance with the provisions of Rule 23 of Order 21 Civil P C. either on 12-4-1972 or on any other subsequent day thereto. As stated above I am of the opinion that so long as an order under Rule 23 of Order 21 is not passed as specifically provided in the said Rule, the judgment debtor cannot be prevented from preferring his objection to the execution of the decree against him. So the objection preferred by the judgment debtor on 8-5-1972 was not barred by the principle of constructive res judicata. On the above consideration I hold that the objection filed by the judgment debtor on 8-5-1972 was one under Sub-rule (2) of Rule 23 of Order 21. On the above view of the matter the court was legally not justified is dismissing the said objection petition on the ground that the same was barred by the principle of constructive res judicata.

15. On the aforesaid discussions and considerations I allow the appeal with costs, set aside the orders passed by the courts below, and direct that the said objection petition filed by the judgment debtor on 8-5-1972 be considered and disposed of on merit.

The case records relating to Execution Case No. 25/72 be sent back immediately to the court of the Munsiff who is in seisin of that Execution Case, and he shall deal with and dispose of the matter in accordance with law and the above directions.


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