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Bhagwat Pershad Tannumal Vs. Abdul Basit Abdul Khaliq - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal No. 126-D of 1960
Judge
Reported inAIR1962P& H379
ActsPunjab Relief of Indebtedness Act - Sections 35; Code of Civil Procedure (CPC), 1908 - Sections 2(2), 47, 60 and 60(1) - Order 21, Rule 66 - Order 41, Rule 2
AppellantBhagwat Pershad Tannumal
RespondentAbdul Basit Abdul Khaliq
Cases ReferredIn Daryao v. State of U. P.
Excerpt:
.....be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........court of 27th of september 1960 has given rise to two execution first appeals, one by the judgment-debtor bhagwat parshad (e. f. a. no. 126-d of 1960) and the other by the auction-purchaser shiv devi (e. f. a. no. 129-d of 1960). the auction-purchaser, who is represented by mr. narula, having withdrawn the appeal before arguments we are left only with e. f. a. no. 126-d of 1960 for disposal.(2) the decree-holder respondent abdul basit obtained two money decrees against bhagwat parshad appellant on 12th of january 1953 on the basis of loans, one for rs. 8,000/- and the other for rs. 5,448/- with costs.(3) the first execution application was filed by abdul basit on 10th of march 1953 and the house of the judgment-debtor appellant in naiwara, chawari bazar, delhi, was attached. in the.....
Judgment:

(1) The sale in execution proceedings of the suit property consisting of house on 17th of January 1959 and its confirmation by the executing Court of 27th of September 1960 has given rise to two Execution First Appeals, one by the judgment-debtor Bhagwat Parshad (E. F. A. No. 126-D of 1960) and the other by the auction-purchaser Shiv Devi (E. F. A. No. 129-D of 1960). The auction-purchaser, who is represented by Mr. Narula, having withdrawn the appeal before arguments we are left only with E. F. A. No. 126-D of 1960 for disposal.

(2) The decree-holder respondent Abdul Basit obtained two money decrees against Bhagwat Parshad appellant on 12th of January 1953 on the basis of loans, one for Rs. 8,000/- and the other for Rs. 5,448/- with costs.

(3) The first execution application was filed by Abdul Basit on 10th of March 1953 and the house of the judgment-debtor appellant in Naiwara, Chawari Bazar, Delhi, was attached. In the application filed under Order 21, Rule 66, the decree-holder applied for settlement, of terms of the proclamations; the value of property was stated to be Rs. 16,500/- and the boundaries of the house to be sold were also mentioned. Before the date of sale the judgment-debtor made an application for grant of time to enable him to sell his property by negotiations. The executing Court acceded to the prayer of the judgment-debtor who, however, failed to bring about a private sale. It was then ordered that the sale should take place on the 15th March, 1954.

Before the date of sale the judgment-debtor filed a declaratory suit and gained further time thereby. Another order for sale was made on 5th of November 1955 and the date of auction was fixed for 5th of December 1955. This time sale could not take place as the proclamation had not been issued. The auction was next fixed for 22nd of August 1956 but the judgment-debtor made an application under Section 60 of the Code of Civil Procedure on 16th of July 1956 that the house was exempt from attachment because the Punjab Relief of Indebtedness Act had been extended to Delhi on 8th of June 1956 and under Section 35 thereof one main residential house of the judgment-debtor was immune from attachment. This application, however, was dismissed by the executing Court on 17th of August 1956 on the ground that the relief afforded by the Punjab Act could not be availed of by the judgment-debtor because his house had been attached before 8th June 1956 when the Act was made applicable to Delhi. An appeal was filed to the High Court and an interim order of stay of sale fixed for 26th of August 1956 was obtained. The Executive First Appeal was dismissed by a Motion Bench of the High Court on 20th of November 1956.

Before the appeal was dismissed Chief Justice Bhandari had modified the stay order by directing that the sale may take place but its confirmation should be withheld till the decision of the Motion Bench. In pursuance of this order, a proclamation for sale of the property on 23rd November, 1956 was made on 29th of October 1956. The judgment-debtor applied a few days earlier on 16th of November 1956 that the proclamation was defective as it had omitted some of the essential details. Though these objections were dismissed, some other creditors of the judgment-debtor had stepped in. At the instance of the creditors, the sale remained stayed for some time and was ultimately fixed for 12th of April 1958. The sale however remained stayed and the decree-holder had to move an application that the property should be, sold as there was no longer any subsisting order of stay. The Court gave notice to the judgment-debtor on 19th of September 1958 to appear on 8th of October 1958. The order for sale of the suit property on 17th January 1959 was made by the Court on 13th of November 1958. The proclamation was drawn up on 8th of December, 1958. The judgment-debtor made still one more effort to have the sale stayed by an application which he moved on 8th of January 1959 in which adjustment of the decree was pleaded. The prayer for stay was refused.

(4) On 17th of January 1959, there were six or seven bidders, the highest being the second respondent Shiv Devi in whose favour the auction was closed for Rs. 21,000/-. Objections were, of course, preferred by the judgment-debtor and strangely enough also by the auction-purchaser who was mainly concerned with the allegation made by the judgment-debtor that she had colluded with the decree-holder. Both sets of objections having been dismissed by the executing Court on 27th of September 1960, the judgment-debtor and also the auction-purchaser preferred two separate appeals but, as I have already mentioned above, the auction-purchaser has withdrawn the appeal which she filed through Mr. Narula.

(5) The appeal preferred by the judgment-debtor has been very ably and fully argued by both the learned counsel. Mr. Bhagwat Dayal has contended that the suit property being the main residential house of the judgment-debtor is immune from attachment. It has been urged that in a recent judgment of this Court delivered by Chief Justice Khosla and Falshaw J. in Smt. Durga Devi v. Smt. Naraini Devi, L. P. A. No. 7-D of 1958 D/- 23-2-1961 (Punj) it was held that the relief afforded by the extension of the Punjab Relief of Indebtedness Act by addition of clause (ccc) to Section 60(1) of the Code of Civil Procedure applies even to sales where attachment had been made before the extension of the Act to Delhi on 8th of June 1956. Although this ground was not taken up in the memorandum of appeal, a prayer was made in subsequent application moved by Mr. Yogeshwar Dayal on 23rd of September 1961 that the appellant may be permitted to urge it. Even if the application for incorporation of the additional grounds of appeal is unacceptable, there is ample scope under rule 2 of Order 41 of the Code of Civil Procedure for the appellate Court to deal with this matter as in deciding the appeal it is not 'confined to the grounds of objection set forth in the memorandum of appeal' provided, of course, that sufficient opportunity has been given to the contesting party about this additional ground. Admittedly, the respondent had adequate notice of the grounds now urged by Mr. Bhagwat Dayal and I would, therefore, proceeded to deal with them.

(6) It is the contention of the appellant's counsel that the order of the executing Court or 17th of August 1956 and its subsequent affirmation by the High Court, which dismissed the appeal in limine concerned a matter of an interlocutory nature and the judgment-debtor is not debarred by the rule of res judicata to agitate it again. Reliance has been placed on a Full Bench decision of the Lahore High Court of Tek Chand, Bhide and Beckett JJ. in Barkat Ram v. S. Bhagwan Singh, AIR 1943 Lah 140, and especially on the observations of Tek Chand J. that every order passed in execution proceedings is not a decree within the meaning of Section 2(2). It was held in this Full Bench decision that where an interlocutory order overrules the please of want of jurisdiction and limitation it would not constitute a decree to make it appealable. According to the submission of Mr. Bhagwat Dayal the order passed by the executing Court that the relief under Section 35 of the Punjab Relief of Indebtedness Act was not available in the instant case the attachment having taken place before its extension to Delhi on 8th of June 1956, related to jurisdiction alone and could not possibly amount to a decree within the meaning possibly amount to a decree within the meaning of sub-section (2) of Section 2 of the Code or Civil Procedure. The observations of Chief Justice Ram Lall in a Division Bench judgment of this Court in Barkat Ram v. Bhagwan Singh, AIR 1949 EP 222, lend some support to this proposition. It was held therein that an to this proposition. It was held therein that an order can be a decree only if it conclusively determines the rights of the parties and not when it merely determines an incidental question.

Mr. D. D. Chawla, on the other hand, seeks support from a Full Bench decision also of Tek Chand, Bhide and Beckett, JJ. in Gauri v. Ude, AIR 1942 Lah 153, for his submission that an objection under Section 60(1)(c) to the sale of the property falls within the purview of Section 47 and will, therefore, have to be decided by the executing Court. The amplitude of the scope of Section 47 of the Code of Civil Procedure is apparent as all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of a decree are determinable by the executing Court and not in a separate suit. The substantial question for adjudication before the executing Court was whether the house of the judgment-debtor was immune from attachment and sale, being residential. This question was never decided on merits as the executing Court found that the provisions of the Act were inapplicable. In retrospect, his decision may appear to be erroneous being opposed to the latest pronouncement of this Court given by a Letters Patent Bench in L. P. A. No. 7-D of 1958 (Punj); all the same it held the field and more so when a Letters Patent Appeal against it was dismissed in limine. The position of Mr. Bhagwat Dayal is that the mere word 'dismissed' does not rule out his contention that the Bench may have made this order as no appeal was competent, the order of the executing Court being of an interlocutory nature. In Daryao v. State of U. P., AIR 1961 SC 1457, Mr. Justice Gajendragadkar observed that if a writ petition is dismissed in limine and an order is pronounced in that behalf, the order of dismissal would operate as a bar only if the order was, so to say, a speaking order. A dismissal without assigning any reasons cannot be treated as a bar of res judicata.

(7) On a consideration of the arguments of the learned counsel advanced in support of their respective contentions, I am inclined to the view that the question whether the property of the judgment-debtor was protected from attachment and sale fell within the purview of Section 47 of the Code of Civil Procedure and its adjudication amounted to a decree. In the Full Bench case of AIR 1942 Lah 153 to which reference has been made, the question was whether objections under Section 60 of the Code of Civil Procedure were to be determined under Section 47 and the answer was returned in the affirmative. It is difficult to accede to the argument of Mr. Bhagwat Dayal, that the matter was one of jurisdiction only and fell within the scope of the rule laid down by the latter Full Bench in AIR 1943 Lah 140. The subsequent decisions of this Court between the parties must therefore result in the bar of res judicata. In reaching this conclusion I am not unmindful of the fact that the judgment-debtor would be entitled to a decision in his favour according to the latest judgment of his Court in L. P. A. No. 7-D of 1958, D/- 23-2-1961 (Punj). No redress, however, could be given to the judgment-debtor at this stage.

(8) Mr. Bhagwat Dayal then canvassed the proposition that the protection given by Section 60 of the Code of Civil Procedure by the extension of the relative provisions to the State of Delhi being a matter of public policy should be respected by the Courts. This argument may be a subject-matter of debate but considering that the identical question had been disposed of by the appropriate Courts in previous proceedings it is not legitimate to re-consider it on ground of public policy. It is well to mention at this stage that the judgment-debtor has made every conceivable effort to avoid the execution of the decrees against him passed as far back as 1953 and though he is entitled to raise defences which are permissible in law the interests of the decree-holder cannot be left out of reckoning. Even during the course of arguments Mr. Bhagwat Dayal was not prepared to bring forward any party who could give a bid higher than the one at which the auction was closed in favour of the second respondent. These observations would also dispose of the remaining contention of Mr. Bhagwat Dayal that there has been material irregularity in the publication and conduct of sale inasmuch as the full particulars were not mentioned in the proclamation which resulted in the sale now sought to be impugned. It is not denied that some of the earlier proclamations contained both the estimated value of the property and its boundaries, and the assertion that the property worth Rs. 40,000/- is being sold for nearly half the price appears to be somewhat wide of the mark when no purchaser is even now available to give a bid higher than Rs. 21,000/-.

(9) The numerous objections to the sale have been disposed of in the judgment of the executing Court and there is not much merit in them. The property which was eventually auctioned on 17th of January, 1959 has been on the anvil of the auctioneer on so many occasions and the judgment-debtor cannot be heard to say that irregularities had taken place in the sale. The sale does not appear to have resulted in any apparent loss and the only substantial ground on which argument was centred related to the saleability of the suit property. In the view which I have taken regarding the merits of this case it is not necessary to discuss whether this question could be raised at all in the present appeal on which aspect Mr. Chawla has addressed an elaborate argument.

(10) In the result, both the appeals must fail and are accordingly dismissed. I would, however, make no order as to costs.

(11) Appeals dismissed.


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