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Smt. Bimala Nepak Vs. Budhulal Sahoo - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 722 of 1980
Judge
Reported inAIR1985Ori278
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 58; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97
AppellantSmt. Bimala Nepak
RespondentBudhulal Sahoo
Appellant AdvocateR.K. Mohapatra, ;A.N. Misra and ;N.N. Nanda, Advs.
Respondent AdvocateP.K. Misra, ;J.P. Misra and ;L. Mohapatra, Advs.
DispositionPetition dismissed
Cases ReferredKwality Restaurant v. Trilochan Singh Deo
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in the said order this court took notice of the change in the position of law brought about by amendment of order 21, rule 58, civil procedure code under the amendment act of 1976. the discussion regarding this aspect of the matter is contained in paragraph 5 of the order which reads as follows :5. there is, however, another hurdle in the path of success for the petitioner......of this court and came to bold that the application under order 21, rule 58, civil procedure code filed by the petitioner is not maintainable. 4. admittedly, the property involved in the execution proceeding has not been attached at any stage. in fact the question of attachment does not arise since the execution proceeding is in respect of an order of eviction passed under the orissa house rent control act. the position is uncontroverted that after the amendment of the provision under order 21 rule 58, civil procedure code in 1976, attachment of the property in question is a condition precedent for its applicability. hence it is beyond doubt that the present application under order 21, rule 58 filed after the enforcement of the amending act is not maintainable. 5. one other.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. This revision petition is directed against the order dt. 4-8-1980 by the Munsif, Bargarh rejecting the petitioner's application under Order 21, Rule 58, Civil Procedure Code.

2. Budhulal Sahoo, the predecessor-in-interest of opposite party, Purusottam Sahoo, filed a House Rent Control Proceeding (H.R.C. Case No. 1/1969) for eviction of the tenant, Bhimsen Mohanty and the order of eviction of the tenant was passed in the said suit. The order of eviction was put to execution in Execution Case No. 23/1972 in the Court of the Munsif, Bargarh. In the schedule to the execution petition the house in question was described as 'House standing on plot No. 750 AD.01/2 decimal bounded by the Uma Talkies Road in the East, North-House of Brusabhanu Panda, South House of Kunjabehari Nepak, the father-in-law of judgment-debtor.' The Execution Case was filed by the present opposite party, then a minor, through his next friend Chhotelal Sahu. In the said case the petitioner who is none eke than the mother-in-law of the judgment-debtor, Bhimsen Mohanty, filed an application dt. 27-4-1977 under Order 21, Rule 58, Civil Procedure Code stating inter alia that the land on which the house in question stands forms a part of the land out of Basti Khasada Plot No. 750 which was purchased by her and, it is a part of her house. She prayed that her claim should be investigated and the Execution Case for delivery of possession be dismissed. This petition which was numbered as Misc. Case No. 42/1977 was rejected by the Court by its order dt. 5-5-1977.

3. Against the aforesaid order of the Executing Court the present petitioner filed Civil Revision No. 262/1977 in this Court which was disposed of by order dt. 14-5-1979 wherein this Court allowed the Revision, vacated the impugned order and remitted the matter to the Executing Court for fresh consideration. In the said order this Court took notice of the change in the position of law brought about by amendment of Order 21, Rule 58, Civil Procedure Code under the Amendment Act of 1976. The discussion regarding this aspect of the matter is contained in paragraph 5 of the order which reads as follows : --

'5. There is, however, another hurdle in the path of success for the petitioner. Order 21, R. 58 of the Code of Civil Procedure as amended by the Amending Act of 1976 postulates attachment as providing the cause of action. In the event of attachment, claim is available to be raised. The Patna amendment which had been adopted in this Court to that Rule had extended the scope of Rule 58. It has to be considered whether the Patna amendment with the extended ambit is still available in view of the clear provision in the Amending Act that State amendments and amendments of the Orders made by the different High Courts which are not consistent with the Amending Act would automatically stand wiped out. This aspect of the matter must also be examined by the Executing Court.'

The Executing Court considered the matter in pursuance to the direction of this Court and came to bold that the application under Order 21, Rule 58, Civil Procedure Code filed by the petitioner is not maintainable.

4. Admittedly, the property involved in the execution proceeding has not been attached at any stage. In fact the question of attachment does not arise since the execution proceeding is in respect of an order of eviction passed under the Orissa House Rent Control Act. The position is uncontroverted that after the amendment of the provision under Order 21 Rule 58, Civil Procedure Code in 1976, attachment of the property in question is a condition precedent for its applicability. Hence it is beyond doubt that the present application under Order 21, Rule 58 filed after the enforcement of the Amending Act is not maintainable.

5. One other question that remains for consideration is whether the Patna Amendment to Order 21, Rule 58, Civil Procedure Code which was adopted by this Court prior to amendment is still available to be considered or it stands wiped out in view of Section 97 of the Amending Act. It may be mentioned here that under the Patna Amendment adopted in this State an application under Order 21, Rule 58, Civil Procedure Code could be filed in respect of any property under execution irrespective of the fact whether it was under attachment or not. Section 97(1) of the Amending Act expressly provides that any State Amendment which is inconsistent to the provision of the Code as amended by the Amending Act shall stand wiped out on enforcement of the amendment. In view of this provision it is clear that the Patna amendment made applicable to this State no longer subsists after the Amending Act of 1976 to the Civil Procedure Code. In fact the said amendment has been deleted in view of the Amending Act. Thus the trial Court was right in holding that the petition under Order 21, Rule 58, Civil Procedure Code filed by the petitioner is not maintainable.

The view taken by me finds support from the decision of this Court in the case of Kwality Restaurant v. Trilochan Singh Deo, reported in (1979) 1 Cut WR 147.

6. In view of the aforesaid discussion, the Civil Revision is devoid of merit and the same is dismissed. But in the circumstances of the case, there will be no order for costs of this proceeding.


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