Skip to content


Jai Bhagwan Vs. Om Prakash and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 1372 of 1965
Judge
Reported inAIR1969P& H308
ActsCode of Civil Procedure (CPC), 1908 - Sections 2, 2(2), 47, 96, 115, 144 and 149 - Order 41, Rule 1; Court-fees Act, 1870 - Sections 28; Limitation Act, 1963 - Shedule - Article 116
AppellantJai Bhagwan
RespondentOm Prakash and ors.
Appellant Advocate N.C. Jain, Adv.
Respondent Advocate Ram Rang, Adv.
Cases ReferredMadhavrao Narayanrao v. Ram Krishna Govind Bhanu
Excerpt:
.....or order appealed from was actually attached with the application under section 149 of the code of civil procedure, it would be a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits, rather than to throw out the appeal on this ground. though they do not say so in terms, they appear to have applied the definition of 'good faith' as contained in the general clauses act, to the effect that 'a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. ' but the indian limitation act contains its own definition of good faith to the effect that 'nothing shall be deemed to be done in good faith which is not done with due care..........or order appealed from was actually attached with the application under section 149 of the code of civil procedure, it would be a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits, rather than to throw out the appeal on this ground. the question of court-fee is by and large a matter between the state and the court, though of course the incompetency of the appeal on the ground of absence of or inadequacy of court-fee stamp is always open to the litigant to urge.'in that case, it would be noticed, that an application under section 149 of the code of civil procedure had been made attaching the deficiency in the amount of court-fee to be affixed on the copy of the order appealed from,.....
Judgment:

1. A preliminary objection has been raised by the learned Counsel for respondent Om Prakash, action-purchaser, that this execution second appeal should be dismissed on the ground that it had been filed beyond limitation. The submission was that the appeal had been filed on 12th of July, 1965, which was the last date of limitation, but on that date the certified copy of the appellate judgment given by the learned Senior Subordinate Judge, Karnal, had not been stamped with proper court-fee. It bore a Court-fee stamp of Rs. 1.25 Paise only, while in fact Court-fee Stamps of Rs. 2,65 P. should have been affixed thereon. Similarly, the certified copy of the judgment of the trial Court also had been insufficiently stamped. This deficiency, when pointed out by the office, was made good after limitation, on 28th July, 1965. It was conceded by the learned Counsel for the appellant that the facts stated in the preliminary objection were correct. He, however, contended that the appeal should not be dismissed on that ground.

2. The objection raised by the learned Counsel for the respondent finds support from a number of judicial decisions. The first one to which reference was made was Shahadat v. Hukam Singh, AIR 1924 Lah 401, where it was held by Scott-Smith, j.---

'Having regard to Sections 4 and 28 of the Court-fees Act there is no legal appeal filed if the order appealed against is not properly stamped. A counsel when filing an appeal ought to see that all the documents which require stamp are properly stamped. He cannot shelter himself, behind his clerk, and if his clerk has been guilty of any carelessness he is responsible for that.'

This decision was followed by Din Muhammad, J., in Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2). Then Bhide, J., in Har Narain v. Jai Gopal 1937-39 Pun LR 502, placed reliance on it. A Division Bench of the Lahore High Court approved of it in Balwant Singh v. Jagjit Singh AIR 1947 Lah 210. Then again, D. K. Mahajan, J., in Custodian, Evacuee Property, Punjab, 298, placed reliance on it and on the subsequent decision in AIR 1935 Lah 124 (2).

As against these rulings, learned Counsel for the appellant relied on the decision of I. D. Dua, C. J., in Custodian of Evacuee Property v. Rameshwar Dayal, 1968-70 Pun LR (Delhi Section) 7 = (AIR 1968 Delhi 183) where it was observed-

'When the deficient amount of Court-fee to be affixed on the copy of the decree or order appealed from was actually attached with the application under Section 149 of the Code of Civil Procedure, it would be a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits, rather than to throw out the appeal on this ground. The question of Court-fee is by and large a matter between the State and the Court, though of course the incompetency of the appeal on the ground of absence of or inadequacy of Court-fee Stamp is always open to the litigant to urge.'

In that case, it would be noticed, that an application under Section 149 of the Code of Civil Procedure had been made attaching the deficiency in the amount of Court-fee to be affixed on the copy of the order appealed from, and under those circumstances it was held by the learned Chief Justice that the Court below should have granted that application. No such application had been made in the instant case when making up the deficiency in the Court-fee. Besides, that authority was based on a Full Bench decision of the Lahore High Court in Jagat Ram v. Misar Kharaiti Ram, AIR 1938 Lah 361 (FB), where it was held-

'The discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act.'

The authority of this Full Bench decision seems to have been shaken by the decision of the Supreme Court in Madhavrao Narayanrao v. Ram Krishna Govind Bhanu, AIR 1958 SC 767, where it was observed-

'Both the Courts below have viewed the controversy under Section 14 of the Limitation Act, as if it was for the defendant to show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that Court. In our opinion, both the Courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of 'good faith' as contained in the General Clauses Act, to the effect that 'A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.' But the Indian Limitation Act contains its own definition of good faith to the effect that 'nothing shall be deemed to be done in good faith which is not done with due care and attention'-(Section 2(7)).'

3. Faced with this difficulty, learned Counsel for the appellant submitted that no appeal lay against the order of the learned Senior Subordinate Judge in the instant case and this appeal should be treated as an application for revision. There is no merit in this submission. It was merely to overcome the preliminary objection raised by the learned Counsel for the respondent that the Counsel for the appellant made that submission after having himself filed an execution second appeal against the impugned order in this Court. It is undisputed that if the impugned order was not appealable Court, then the Court-fee Stamps affixed on the copies of the judgments of the appellate and trial Courts would be quite sufficient. In order to appreciate this submission it would be necessary to give a few facts which resulted in the filing of this appeal.

On 29th of May, 1959, Lal Singh obtained a money decree against Jai Bhagwan appllant for Rs. 500/-. In execution of that decree a shop in Panipat town, district Karnal, alleged by the decree-holder to belong to the judgment-debtor, was attached. The same was then auctioned for Rs. 4,500/- in favour of Om Prakash respondent No. 1. This auction sale was confirmed on 29th of December, 1960. During the execution proceedings Daulat Ram and others, relations of the judgment-debtor, filed objections under Order 21, Rule 58, Civil Procedure Code, to the effect that 3/4th of the shop belonged to them and the judgment-debtor was the owner of the remaining 1/4th only. These objections were dismissed on 5th of October, 1960. Daulat Ram and others then filed a suit under Order 21, Rule 63, Civil Procedure Code, on 6th January, 1962, the suit was decreed and it was held that the judgment-debtor owned only 1/4th share in the shop and the same was, therefore, not attachable and saleable.

On 15th of January, 1962, Om Prakash filed an application under Section 144 and 151, Civil Procedure Code, praying that the auction price paid by him be refunded to him. Notice of the application was given to the judgment-debtor and the objectors, namely Daulat Ram and others. On 16th of April, 1962, a compromise was effected between the parties and it was decided that 3/4th of the auction price (Rs. 4,500/-), i.e., Rs. 3,375/-, be returned to Om Prakash while out of the balance of Rs. 1.125/- the decree of Lal Singh for Rs. 500/- be satisfied. It was further agreed that in lieu of Rs. 1,125/- paid by Om Prakash, he was to remain owner of 1/4th of the shop. It might be mentioned that in the proceedings which led to compromise, Jai Bhagwan Judgment-debtor though served, did not appear.

On 12th of June. 1963, the judgment-debtor filed an application under Section 47, 114, 144 and 151 and Order 21, Rule 91, Civil Procedure Code, praying that the balance of the auction-money after payment of the decretal amount, i.e. Rs. 4,000/-, be paid to him on a number of grounds that were mentioned in that application. The same was dismissed by the trial Court on 1st of February, 1964, and that decision was subsequently affirmed in appeal on 22nd of February, 1965. Against the latter, the present execution second appeal was filed by judgment-debtor Jai Bhagwan in this Court on 12th of July, 1965.

It would thus be seen that the application of the appellant which gave rise to the present execution second appeal was filed both under Sections 47 and 144, Civil Procedure Code. The matter in dispute related to the execution, discharge and satisfaction of the decree and was between the parties to the suit. It was contended by the learned Counsel for the appellant that the auction-purchaser was not a party to the suit which ended in the decree. This objection overlooks the fact that an Explanation was added to Section 47, Civil Procedure Code, in 1956, according to which, for the purpose of that section, a plaintiff whose suit had been dismissed, a defendant against whom a suit had been dismissed and a purchaser at a sale in execution of the decree were parties to the suit. The appellant had himself filed an application under Section 47 and 144, Civil Procedure Code. The order passed on that application by the learned Senior Subordinate Judge would be covered by the definition of 'decree' given in Section 2(2) of the Code of Civil Procedure, where it was mentioned that a decree would be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, Civil Procedure Code.

I would, therefore, hold that an appeal was competent against the order of the learned Senior Subordinate Judge, dated 22nd of February, 1965. Since that order was appealable, no revision application was competent against it under Section 115, Civil Procedure Code, which in terms lays down that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto.

4. In view of the number of authorities quoted above, I am constrained to dismiss this appeal on the ground that it was barred by limitation, inasmuch as the deficiency in Court-fee Stamps affixed on the certified copies of the judgments of the two Courts below was made good beyond limitation. In the circumstances of this case, however, I leave the parties to bear their own costs.

5. HGP/D.V.C.

6. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //