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Sham Mohan Lal Vs. Jai Gopal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtDelhi High Court
Decided On
Case NumberEx. Second Appeal No. 371 D of 1965, from order of Addl. Dist. J., Delhi. D/- 21-7-1965
Judge
Reported inAIR1968Delhi104
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 47, 96, 100, 101 and 115 - Order 21, Rules 64, 66 and 90; ;Code of Civil Procedure (CPC) (Amendment) Act, 1956
AppellantSham Mohan Lal
RespondentJai Gopal and anr.
Appellant Advocate G.S. Vohra, Adv
Respondent Advocate Balbir Singh, Adv.
Cases ReferredRamalingaswami v. Venkataswami
Excerpt:
.....the decisions of the court's below having done substantial justice between the parties, this court should decline interference on revision as well. thereafter gauri shanker again took out execution on 28-1-1959 when the decree was partly satisfied and the execution application dismissed on 19-11-1960 as partly dismissed. this observation seems prima facie to be justified and indeed it finds some support from the attitude adopted by the appellant in this court as well......a charge on the said house. kanwar gopal having nto compiled with the terms of this decree, jai gopal decree-holder , took out execution thereof and made an application under order 21, rule 66, code of civil procedure. in reply to this application, sham mohan lal, (present appellant) put in this reply denying the charge of the decree-holder on the property in dispute. he also alleged that this property had been auctioned in court-auction and purchased by him for rs. 11,500 and that it was specifically mentioned in the sale certificate issued to him that there was no lien on the property. the decree-holder according to this reply, could proceed against the personal property of the judgment-debtor. it was apparently also averred that the decree-holder had in his prior application sought.....
Judgment:

(1) Arguments in this appeal were first heard in November 1966, when it was adjourned so as to enable the parties to come to amicable settlement. The respondent's learned counsel had, it may be pointed out, taken strong objection to the competency of the appeal and has also urged that the decisions of the court's below having done substantial justice between the parties, this court should decline interference on revision as well. After some time, I was informed that there was little prospect of an agreed solution. The appeal was thus directed to be set down for re-hearing. It is in these circumstances that this appeal has now been fully heard. The respondents' counsel has, however, nto appeared on this occasion and, thereforee, has nto addressed any arguments despite the case being on the board.

(2) Turning to the facts, Jai Gopal (respondent in this court) secured a decree against Kanwar Gopal for the recovery of Rs. 1,200 with interest at 12 per cent per annum from 19-12-1957 till payment. This decree was obtained in suit No. 454 of 1956. It may be pointed out that this was a decree passed on an arbitration award. It was also provided therein that if the judgment-debtor paid the amount due with interest at the rate of 6 per cent per annum by 20-2-1957, the decree would be treated as discharged. It is also observed in the orders of the courts below that a house belonging to Kanwar Gopal defendant-judgment-debtor had been attached before judgment and the amount recoverable by Jai Gopal was a charge on the said house. Kanwar Gopal having nto compiled with the terms of this decree, Jai Gopal decree-holder , took out execution thereof and made an application under Order 21, Rule 66, Code of Civil Procedure. In reply to this application, Sham Mohan Lal, (present appellant) put in this reply denying the charge of the decree-holder on the property in dispute. He also alleged that this property had been auctioned in court-auction and purchased by him for Rs. 11,500 and that it was specifically mentioned in the sale certificate issued to him that there was no lien on the property. The decree-holder according to this reply, could proceed against the personal property of the judgment-debtor. It was apparently also averred that the decree-holder had in his prior application sought participation in rateable distribution. These pleas gave rise to the solitary issue which was in the following terms:

'Is the property nto liable to be sold in execution of the decree?'

Thereafter, Sham Mohan Lal presented antoher application under Section 151, code of Civil Procedure, alleging that the property in dispute had been attached under orders of the court in suit No. 457 of 1953 Gauri Shankar v. Kanwar Gopal judgment-debtor had been served with a prohibitory order restraining him from alienating or creating any lien on this property and that thereafter Gauri Shankar had moved an application on 14-11-1956 alleging that Kanwar Gopal was trying to sell the property in dispute and, thereforee, he should be restrained from alienating this property.

In pursuance thereof, an injunction restraining him from alienating the property in dispute was issued by the court and ultimately a decree was passed in favor of Gauri Shankar for Rs. 8,039 with costs. Gauri Shankar decree-holder, later took out execution of that decree and attached this very house on 22-1-1957, with the result that when the award in favor of Jai Gopal, the present decree-holder, was given, the property in question was already under attachment under orders of the court in execution proceedings of the decree in the suit Gauri Shankar v. Kanwar Gopal . In these circumstances, the subsequent attachment was void under Section 64, Civil Procedure Code. It has further been alleged by Sham Mohan Lal that Jai Gopal had applied in the court of Shri Dev Raj Saini for rateable distribution in the execution proceedings in Gauri Shanker v. Kanwar Gopal but the same was rejected on 19-11-1960, with the result that the said order operates as rest judicata. This application was resisted by Jai Gopal, according to whom Sham Mohan Lal and no right to present this application after closing his evidence in the proceedings initiated by the prior application. On the pleadings of the parties, the following issues were framed:

1. Whether the property in dispute was under attachment in suit No. 457 of 1953? If so to what effect?

2. Whether the decree-holder presented any application for rateable distribution in the court of Shri Ved Parkash Subordinate Judge? If so, what was the result of that application and to what effect?

3. Is the present application under Section 151, C. P. C. nto maintainable?

On issue No. 1 Shri P. L. Singala held that after attachment before judgment in Gauri Shanker's suit, a decree was passed for the recovery of Rs. 8,039 execution of which was sued out on 14-1-1957 and the court issued warrants for attachment of btoh moveable and immovable property. Ultimately as a result of compromise, the execution application was dismissed on 27-3-1958 but attachment was reserved. Thereafter Gauri Shanker again took out execution on 28-1-1959 when the decree was partly satisfied and the execution application dismissed on 19-11-1960 as partly dismissed. Jai Gopal had also applied for rateable distribution in those proceedings but he was nto paid anything. The learned Subordinate Judge on these facts observed that though the property was under attachment in suit No. 457 of 1953, the order of reserving the attached was illegal in law, with the result that the house should again have been attached. The existing attachment was, thereforee, of no effect and the present decree- holder was entitled to get the house in dispute sold in execution of this of his decree. Under issue No.2, the court proceeded to observe that the application for rateable distribution by the decree -holder did nto estop him form now praying that the property in dispute be sold because there could be no estoppel against statute. On issues No. 3, the court has observed that the proper remedy for Shri Sham Mohan Lal was to apply under Order Vi, Rule 17, Code of Civil Procedure, and nto under Section 151 with the result that the present application could nto be maintained. On this basis, the property was held liable to attachment in execution of the decree of the present decree-holder and the objections were dismissed.

(3) On appeal by Sham Mohan Lal, the learned Additional District Judge affirmed the order of Shri P. L. Singla and observed in the end that the appellant Sham Mohan Lal had sought to amend his application after six years and his game appeared to be to prolong the proceedings as much as possible so that Jai Gopal who had only a petty amount to recover gets fed up with the litigation and relinquishes his claim. Sham Mohan Lal, according to the learned Additional District Judge, is real brtoher-in-law of Kanwar Gopal and the two appear to he in league to defeat the Jai Gopal. The application for amendment was considered to be mala fide and disallowed.

(4) On second appeal, Shri G. S. Vohra, learned counsel for Sham Mohan Lal, has very strongly argued that the two courts below have seriously erred in law in disallowing his objections. According to the learned, counsel, the attachment was in subsistence and the appellant was entitled to resist Jai Gopal's claim to proceed against the property in question. Accordingly to him, the courts below have assumed certain facts which are incorrect and are nto found on any evidence on the record. When confronted with the objection to the competency of the appeal, the appellant's counsel has relied on section 47, code of Civil Procedure, and has submitted that the appellant, as an auction-purchaser, is a representative of the judgment-debtor. In support of this submission, he has relied on the following decisions: --

Kailash Chandra v. Gopal Chandra, Air 1926 Cal 798, in which it was held that the term 'representatives' in section 47 must include persons who by assignment from a party or by operation of law have succeeded to the interest of that party in the decree, and quoad that interest are bound by the decree. I may point out that in that case, the auction-purchaser was also the decree-holder who had applied for delivery of possession under Order 21, Rule 95, Civil Procedure Code, and the question arose whether against the order of the executing court he was entitled to prefer an appeal. Obviously, that decision does nto directly cover the present case.

Chanan Singh v. Waryam Singh, Air 1947 Lah 175, in which a Single Judge of the Lahore High Court observed that the word 'representative' in section 47 has been used in a much wider sense than the expression 'legal representative' and it includes all persons on whom the interests of a defendant has devolved and who, to the extent of that interest, is bound by the decree. The transferee of the defendant's interest pendente lite was held to be included in this definition. The facts of that case are also materially different from those which concern us. Abdul Ghaffar Khan v. Ishtiaq Ali, , where again it was observed that the word 'representative' in section 47 has a much wider meaning and it includes nto only a legal representative but any representative-in-interest who is bound by the decree. Even the facts of this case are far from similar to those which confront me in the present case.

Gauri v. Ude, Air 1942 Lah 153 is a Full Bench decision which was called upon to answer the following question: -- 'If property is attached in execution proceedings and if the judgment-debtor has property to raise o the ground that the property is nto liable to attachment or sale, is he entitled to wait until sale has taken place and then have the sale set aside on the ground that the court has no jurisdiction to sell the property?'

Obviously, the decision of the Full Bench would have little to do with the question which I am called upon to decide on the preliminary objection in this case. It is undoubtedly true that Bhide J. did record the following observations in the course of his judgment:--

'The question whether an order for sale under O. 21, R. 66 (read with R. 64) is or is nto appealable would seem to depend upon whether it determines any rights or liabilities as between the decree-holder and the judgment-debtor. If it does, it would obviously fall under section 47 and be appealable as a decree 45 MLj 478 : AIR 1924 Mad 365. If the order determines, e.g. a question as regards the saleability if certain property, I do nto see why it should nto be appealable under section 47, Civil P. C., merely because it is passed in the course of the proceeding under O. 21, R. 66 relating to the proclamation of the sale.'

This, in my view merely paraphrases the provisions of section 47 without laying down anything helpful to the appellant before me. The last decision cited is Ramalingaswami v. Venkataswami, : AIR1950Mad296 . It was observed therein that if in settling the terms of the sale proclamation, the rights of the judgment-debtors inter se are affected by the order, then it would be a matter relating to the execution, discharge or satisfaction of the decree and the decision of the court would be open to appeal at the instance of the aggrieved party. Whether or nto this observation lays down a correct rule of law, it certainly does nto help the appellant, assuming the law so laid being correct, a question on which I express no opinion on the present occasion. The appellant's submission is, in my view, difficult to sustain. It is desirable to read section 47 of the Code which is in the following terms:-

47. Question to be determined by the court executing decree.

(1) All questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution,, discharge or satisfaction of the decree, shall be determined by the court executing the decree and nto by a separate suit.

(2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as proceeding and may, if necessary, order payment of any additional court-fees.

(3) Where a question arises as to whether any person in or is nto the representative of a party, such question shall, for the purpose of this section , be determined by the court. 'Explanation - For the purposes of this section , plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.'

The question is, can it be said that the parties to the present controversy were parties to the suit in which the decree now sought to be executed was passed? The Explanationn in its present form was substituted for the old Explanationn by the Amendment Act 66 of 1956 which came into force with effect from 2-12-1956. The decisions, thereforee, dealing with the question whether an auction-purchaser is or nto a party to the suit, have lost much of their importance. The question, however, arises whether this suit auction-purchaser in a prior litigation between the common judgment-debtor and third parties. The Explanationn in terms does nto seem to apply to such a case and at the bar no arguments have been addressed on that part of the case. As at present advised, thereforee I am inclined to hold that the present controversy is nto covered by section 47, Civil Procedure Code, and, thereforee, second appeal would nto be competent. It may be pointed out in this connection that no attempt has been made on behalf of the appellant to make out a case of his being represented by the judgment-debtor during the course of the suit proceedings in which respondent Jai Gopal obtained the decree which he is now seeking to execute.

(5) A request has been made by Shri Vohra that the present appeal may be treated as a revision. It is true that this court has full power to treat an appeal ass a revision and a revision as an appeal when there is no statutory or toher impediment in the way and when the interests of justice demand it. It, however, must nto be forgtoten that interference on revision has an element of discretion and even though there may be some legal infirmity in the order of the court below, this court may appropriately decline interference if it comes to the conclusion that the impugned order is substantially just and the exercise of the revisional powers is nto called for in the larger interests of substantial justice. It may be recalled that in the court of first instance, an application was made under section 151, Civil Procedure Code, seeking to amend the objection in response to ntoice under Order 21, Rule 66, of the Code. Btoh the courts below have held that the application for amendment under section 151 of the Code is nto maintainable. The learned Additional District Judge has gone to the length of observing that Shri Sham Mohan Lal's game seems to be to prolong the proceedings as much as possible so that Jai Gopal, who has only a petty amount to recover, gets fed up with the litigation and relinquishes his claim. This observation seems prima facie to be justified and indeed it finds some support from the attitude adopted by the appellant in this court as well.

(6) For the reasons foregoing, I do nto find any cogent ground being made out for interference on revision. In the final result, this appeal, treated as a revision, fails and is dismissed, leaving the parties to bear their own costs in this court.

(7) Appeal dismissed.


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