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Kikkar Singh Vs. Daddahoor Co-operative Agricultural Service Society and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 607 and Civil Misc. No. 5406 of 1972
Judge
Reported inAIR1974P& H299
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 and 151 - Order XLVII, Rule 1; Limitation Act, 1963 - Sections 5 and 14 - Schedule - Article 181; Code of Criminal Procedure (CrPC) , 1898
AppellantKikkar Singh
RespondentDaddahoor Co-operative Agricultural Service Society and anr.
Cases Referred and Noor Mohammad v. Sulaiman Khan
Excerpt:
.....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. - execution was taken out by the society against both its judgment-debtors through shri shivdarshan kumar, advocate, barnala who, on the 18th of july, 1970, volunteered a statement in each of the two execution proceedings that the decree sought..........was led by the judgment-debtors. exercising its inherent powers under section 151 of the code of civil procedure the executing court accepted both the applications and restored the two execution proceedings after giving a finding that the statements made by shri shivdarshan kumar on the 18th of july, 1970, were shown to be factually incorrect and that the justice of the case was on the side of the society. the order of the executing court in each of the two cases is dated the 1st of april, 1971. each of the two judgment-debtors filed an appeal which was dismissed by shri nirpinder singh, additional district judge, barnala on the 19th of april, 1972, holding-(a) that an order under section 151 of the code of civil procedure was not appealable in view of the pronouncement of their.....
Judgment:
ORDER

1. The facts giving rise to Civil Revision Applications Nos. 607 and 608 which I am disposing of by this judgment are these. The Deddahoor Co-operative Agricultural Service Society, which figures as the respondent in each of them and is hereinafter referred to as the Society, obtained two decrees, one for Rs. 6,237.24 against Kikar Singh, the petitioner in Civil Revision Application No. 607 of 1972, and the other for Rs. 3,848.05 against Pawittar Singh (son of the said Kikar Singh) who has filed the other application. Execution was taken out by the Society against both its judgment-debtors through Shri Shivdarshan Kumar, Advocate, Barnala who, on the 18th of July, 1970, volunteered a statement in each of the two execution proceedings that the decree sought to be executed therein had been fully satisfied. In pursuance of the statements both the application were dismissed 'in full satisfaction'.

On the 13th of August, 1970, Shri Shivdarshan Kumar, Advocate, made tow separate applications for restoration of the execution proceedings on the ground that his statements dated the 18th of July, 1970, were erroneous and had been made on information imparted to him by some 'unauthorised person'. The judgment-debtors resisted the applications on the following grounds:

(a) The Court had no jurisdiction to revive execution proceedings and the applications were, therefore, not maintainable in law.

(b) Baldev Singh, Secretary of the Society, owed a debt of Rs. 9,300/- to Kikar Singh, judgment-debtor. The two of them arrived at a settlement that Baldev Singh would have the decretal amounts adjusted against the debt owed by him and have the execution proceedings filed in full satisfaction of the two decrees. It was in pursuance of that settlement that Baldev Singh actually instructed the counsel for the Society to have the execution proceedings filed for the reason that the decrees had been satisfied in full.

The Executing Court allowed the parties opportunity to produce their evidence in relation to the matters in controversy. On behalf of the Society only certified copies of the statements of Shri Shivdarshan Kumar dated the 18th of July, 1970, and the orders passed by the Court on that date were produced before its case was closed. No evidence was led by the judgment-debtors.

Exercising its inherent powers under Section 151 of the Code of Civil Procedure the executing Court accepted both the applications and restored the two execution proceedings after giving a finding that the statements made by Shri Shivdarshan Kumar on the 18th of July, 1970, were shown to be factually incorrect and that the justice of the case was on the side of the Society. The order of the executing Court in each of the two cases is dated the 1st of April, 1971.

Each of the two judgment-debtors filed an appeal which was dismissed by Shri Nirpinder Singh, Additional District Judge, Barnala on the 19th of April, 1972, holding-

(a) that an order under Section 151 of the Code of Civil Procedure was not appealable in view of the pronouncement of their Lordships of the Supreme Court in Keshardeo v. Radha Kishen, AIR 1953 SC 23,

(b) that the order under appeal could not be regarded as one having been made under Section 47 or Rule 1 of Order XI. VII of the Code of Civil Procedure.

(c) that the Executing Court could exercise its inherent powers under Section 151 of the Code of Civil Procedure even in cases where other provisions of the Code were applicable.

(d) that Rule 1 of Order XLVII of the Code of Civil Procedure had no application to the facts of the case, and

(e) that there had been no satisfaction of the decree passed in favour of the Society.

These civil revision applications have been filed by the two judgment-debtors against the orders dated the 1st of April, 1971, made by the Executing Court as also those passed on the 19th of April 1972, by the learned Additional District Judge.

2. Mr. Nehra has raised a preliminary objection that both the civil revision applications are time-barred in so far as they attack the orders of the trial Court passed on 1st of April, 1971. The objection has force. Article 181 of the Schedule to the Limitation Act, 1963, runs thus:

'Description of application Period of limitation Time from which period begins to run.

' 131. To any Court for the exercise of its powers of revision under the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1898 Ninety days. The date of the decree or order or sentence sought to be revised.

No exceptions are provided and all applications for the exercise of powers of revision conferred on any Court by the Code of Civil Procedure must be filed within 90 days of the date of the decree or order sought to be revised. The two applications before me were filed on the 15th of May, 1972, I. E; 13 1/2 months after the Executing Court restored the execution proceedings. The time bar enacted by Article 131 thus clearly comes into operation. In order to meet it, applications have been filed on behalf of the judgment-debtors under Sections 5 and 14 of the Limitation Act with the prayers that the delay in filing the applications for revision of the orders of the Executing Court be condoned. It appears to me, however, that there is no justification for acceptance of the prayers. Even if it could be said that the judgment-debtors instituted their appeals in the District Court under the bona fide belief that the orders of the Executing Court passed on the 1st of April, 1971, were appealable, they have to give explanation for every day's delay after their appeals were dismissed and no such explanation is forthcoming. All the same I have gone through the endorsements made on the certified copies of the orders passed in appeal and find that they were delivered to the judgment-debtors on the 26th of April, 1972, whereafter they could have engaged counsel and filed the applications for revision of the orders of the Executing Court in a few days, certainly within 10 days, without putting themselves of their counsel to any inconvenience, so that if this Court had been moved in the first week of May, 1972, much could be said in favour of the judgment-debtors on the question of limitation. As it is, they did not choose to file the applications before me any earlier than the 15th of May, 1972, and there is in any case no cause for condonation of the delay after the 7th of May, 1972.

3. In this situation Mr. Bindra, learned Counsel for the judgment-debtors, contends that the orders passed by the Executing Court on the 1st of April, 1971, should be regarded as having been passed under Section 47 or under Rule 1 of Order XLVII of the Code of Civil Procedure and, therefore, to be orders from which appeals lay to the District Court at Barnala whose finding that the appeals were incompetent must be reversed. The contention is without substance. The orders passed by the Executing Court on the 1st of April, 1971, cannot be regarded as having been passed under Section 47 of the Code of Civil Procedure as they do not fall within the ambit of that section. in turning down a similar contention their Lordships observed in Keshardeo's case AIR 1953 SC 23(supra):

'It is plain that the High Court had no jurisdiction in the exercise of its appellate jurisdiction to reverse this decision. In the remand order itself, it was held that it was difficult to say that the order by itself amounted to a final determination of any question relating to execution discharge or satisfaction of a decree and that being so, it did not fall within the ambit of Section 47, Civil Procedure Code. We are in entire agreement with this observation. The proceedings that commenced with the decree-holder's application for restoration of the execution and terminated with the order of revival can in no sense be said to relate to the determination of any question concerning the execution, discharge or satisfaction of the decree. Such proceedings are in their nature collateral to the execution and are independent of it. In support of his contention that an order made under Section 151 may in certain circumstances be appealable. Mr. Daphtary placed reliance on two single Judge judgments of the Madras High Court and on a Bench decision of Oudh, (Vide Akshia Pillai v. Govindarajulu Chetty, AIR 1924 Mad 778; Govinda Padayachi v, Velu Murugiah Chettiar, AIR 1933 mad 399 and Noor Mohammad v. Sulaiman Khan, AIR 1943 Oudh 35). In all these cases execution sale had been set aside by the Court in exercise of inherent powers and it was held that such orders were appealable. The ratio of the decision in the first Madras case is by no means very clear and the reasoning is somewhat dubious. In the other two cases the orders were held appealable on the ground that they fell within the ambit of Section 47, Civil Procedure Code, read with Section 151. It is unnecessary to examine the correctness of these decisions as they have no bearing on the point before us, there being no analogy between an order setting aside an execution sale and an order setting aside the dismissal of an application.'

4. Nor can it be said with any plausibility that the orders restoring execution proceedings could be regarded as having been passed under Rule 1 of Order XLVII of the Code of Civil Procedure. For one thing, the Court did not so much as refer to the provisions of that rule. For another, no findings such as would indicate that the Court had come to the conclusion that the requirements of that rule were fulfilled were given by it. And for still another, no prayer was made on behalf of the Society for action under the provisions of that rule nor were any allegations of fact made by it from which it could be inferred that relief was being sought under those provisions.

5. In view of what I have said above it must be held that no appeal lay from the orders passed by the Executing Court on the 1st of April, 1971, and the only remedy open to the judgment-debtors against them was to have them revised by this Court. The finding of the learned Additional District Judge that the appeals instituted in the District Court were incompetent is, therefore, affirmed.

6. As I have held the two revision applications to be time-barred, their merits cannot be considered and they must be dismissed without the legality of the orders of the Executing Court restoring the execution proceedings being gone into. Ordered accordingly. The parties shall bear their own costs in this Court.

7. Applications dismissed.


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