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Sodhi Lal Singh Vs. Tara Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 882 of 1950
Judge
Reported inAIR1952P& H118
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48 - Order 21, Rule 57
AppellantSodhi Lal Singh
RespondentTara Chand
Appellant Advocate S.D. Bahri, Adv.
Respondent Advocate Shamair Chand, Adv.
DispositionAppeal dismissed
Excerpt:
.....a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....were filed by the judgment-debtor's wife against the intended sale. on the 26th october 1945 the decree-holder's mukhtar was present in court, but the order of the court was that the application be consigned to the record room. an appeal was taken by the decree-holder against this order and the case was remanded for proceedings in accordance with law.3. on the 16th april 1948 the decree-holder made an application for revival of the previous proceedings. in view of the order of the appellate court it does not seem to have been necessary to do so, but he did, and the question that has been raised is that this application was a fresh application for execution and not merely an application for revival of the proceedings. whichever way one may look at this matter, it cannot be said that the.....
Judgment:

Kapur, J.

1. This judgment will dispose of two second appeals, Execution Second Appeals Nos. 882 and 883 of 1950.

2. The point for determination in both the appeals is the same. Two decrees were passed against Sodhi Lal Singh, one for Rs. 3,888/- on the 31st May 1933 and the other for Rs. 2,968/-on the 22nd July 1936. Executions were taken out and lastly in 1945 the land of the judgment-debtor was attached and papers were sent to the Collector for execution. They were pending before the Collector up to October 1945 and then they were sent back to the executing Court because, so I am told, some objections were filed by the judgment-debtor's wife against the intended sale. On the 26th October 1945 the decree-holder's Mukhtar was present in Court, but the order of the Court was that the application be consigned to the Record Room. An appeal was taken by the decree-holder against this order and the case was remanded for proceedings in accordance with law.

3. On the 16th April 1948 the decree-holder made an application for revival of the previous proceedings. In view of the order of the appellate Court it does not seem to have been necessary to do so, but he did, and the question that has been raised is that this application was a fresh application for execution and not merely an application for revival of the proceedings. Whichever way one may look at this matter, it cannot be said that the previous execution application had come to an end. Whether the proceedings were taken because of the remand by the appellate Court or they were taken on the application which was made by the decree-holder for revival it appears to me that it cannot be said that it was a fresh application made twelve years after the decree had been passed and therefore barred by Section 48 of the Civil Procedure Code. Under Rule 57 of Order XXI (21) the Court has the power to dismiss an application for execution because of the decree-holder's default. In this case no default has been shown. On the other hand the Mukhtar of the decree-holder was present when the order was passed for consigning the case to the Record Room. It has been pointed out more than once that this practice is not warranted by law. It is not open to the Courts to consign the applications for execution to the Record Room merely because they think that they should be so consigned. The law gives the power to the Court only under Rule 57 of Order XXI (21). I am therefore of the opinion that the District Judge has rightly held that the application was not barred by Section 48 of the Code of Civil Procedure. I accordingly dismiss these appeals with costs.


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