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Hasumatiben Vs. Ambalal Krishnalal Parikh - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 248 of 1980
Judge
Reported inAIR1982Guj324; (1982)2GLR346
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2) and 47; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 28(1), 29 and 29(3); Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantHasumatiben
RespondentAmbalal Krishnalal Parikh
Appellant Advocate P.B. Majmudar, Adv.
Respondent Advocate J.G. Shah, Adv.
Cases ReferredGandhi Gopaldas Gordhandas v. Bai Lalitabai Marghabhai
Excerpt:
civil - jurisdiction - sections 2 (2) and 47 of code of civil procedure, 1908, bombay rents, hotel and lodging house rates control act, 1947 and code of civil procedure (amendment) act, 1976 - appeal lies to district court against orders passed under provisions of act of 1947 - section 29 (3) empowers appellate authority to call for papers and records of any case to satisfy itself that decree passed according to law - powers contained in section 29 (3) are special in addition to those vested in high court - word 'proceeding' used in section 29 (3) also include execution proceedings. - - 200/- per month and it was also agreed that further negotiations would take place by which he would like to purchase the property to which the petitioner agreed. 5. before we deal with the problem we.....s.l. talati, j.1. the petitioner-original decree-holder of civil suit no. 1396 of 1975 has filed this petition under the following circumstances :-2. the petitioner obtained a decree in civil suit no. 1396 of 1975 and by that decree he became entitled to possession of the premises after 31-8-1978 because the tenant was granted time to vacate the suit premises up to 31-8-1978. the decree-holder thereafter filed an execution petition being execution petition no. 361 of 1978 in the court of small causes judge, vadodara. incidentally we may say that that was the court which had passed the original decree. the defendant raised a contention and his contention was that his original landlord pranjivan narottamdas expired and widow hasumatiben who had filed the execution petition had no right to.....
Judgment:

S.L. Talati, J.

1. The petitioner-original decree-holder of Civil Suit No. 1396 of 1975 has filed this petition under the following circumstances :-

2. The petitioner obtained a decree in Civil Suit No. 1396 of 1975 and by that decree he became entitled to possession of the premises after 31-8-1978 because the tenant was granted time to vacate the suit premises up to 31-8-1978. The decree-holder thereafter filed an execution petition being Execution Petition No. 361 of 1978 in the Court of Small Causes Judge, Vadodara. Incidentally we may say that that was the Court which had passed the original decree. The defendant raised a contention and his contention was that his original landlord Pranjivan Narottamdas expired and widow Hasumatiben who had filed the execution petition had no right to file the petition without obtaining succession certificate. The second contention which was of some importance was that he had called upon the widow to express condolences on the death of the deceased and at that time he expressed his difficulty and on request being made the petitioner agreed to continue him as a tenant on payment of Rs. 200/- per month and it was also agreed that further negotiations would take place by which he would like to purchase the property to which the petitioner agreed. The learned Judge of the Court of Small Causes, Vadodara by an order dated 31-7-1979 negatived the objections and an order was passed by which warrant for possession was issued. Being aggrieved by that order the defendant filed Civil Miscellaneous Appeal No. 137 of 1979 which was heard by the Second Extra Assistant Judge, Vadodara. The learned Judge came to the conclusion that Civil Miscellaneous Appeal was not maintainable and, therefore, an order was passed to the effect that the appeal may be converted into a revision application and thereafter Revision Application was to be heard. The petitioner challenged that order by filing this civil revision application. The contention, of the petitioner is that no civil revision application would lie to the District Court. The respondent appeared and raised a contention that the learned District Judge should have heard Civil Miscellaneous Appeal which was filed by him and that in fact appeal would lie from the order which was passed by the learned Judge of the Court of Small Causes, Vadodara.

3. The matter came up for hearing before my brother Judge D. H. Shukla, J. where the arguments were advanced on the question as to whether an appeal would lie or would not lie from an order which was passed in execution of a decree. This Court in a case reported in (1979) 20 Guj LR 711 (Mohan lal Maneklal Shah v. Bai Maniben) had decided that an appeal would not lie. However, there was another judgment of the Division Bench of Patna High Court reported in AIR 1979 Patna 308 (Parshava Properties Ltd v. A. K. Bose) in which it was held that an appeal would lie. There were other rulings of different High Courts expressing divergent views. It was, therefore, felt that this was a case of considerable importance and, there fore, it was required to be decided by a Division Bench and, therefore, by an order, dated 18-2-1981 the matter was referred to the Division Bench so that the Division Bench might decide this Civil Revision Application. That is how this matter has come up before us.

4. The first question which was argued at great length was as to whether after the amendment of Section 2(2) of the Civil P. C. an appeal would lie from an order passed under Section 47 of the Civil P. C. The learned advocate Sarvashri P. B. Mujmudar, V. J. Desai, C. K. Takwani, J. G. Shah, K. C. Shah, R. N. Shah and P, V. Nanavati argued the matter before us at great length. The learned advocate Shri J. G. Shah assisted by Miss D. T. Shah argued the matter on behalf of the respondent, while the other advocates supported the learned advocate Shri P. B. Majmudar who had originally filed the peti tion and this being a matter of importance they had intervened.

5. Before we deal with the problem we would like to refer to certain rulings to which reference was made by both the parties.

6. The learned advocate Shri J. G. Shah mainly relied upon a case Parshava Properties Ltd. v. A. K. Bose reported in AIR 1979 Patna 308. In that case it was held that whenever the adjudication in question conclusively determines the right of the parties with regard to all or any of the matters in controversy and the determination is in respect of a controversy in a suit, it must be considered to be a decree within the meaning of Section 2(2). of the Civil R.C. It was also held that the word 'suit' occurring in Section 2(2) of the Civil P. C. must be construed in its wider meaning as including proceedings which are continuation of the suit in the eye of law, the determination in a proceeding, such as an appeal from or execution of the decree would be a determination in the suit, so as to amount to a decree within Section 2(2). In order to further canvass this argument reliance was placed on certain other rulings which are also required to be referred to.

7. The first case to which reference was made is a case of Sadashiv Ganpatrao v. Vitthaldas Nanchand reported in (1896) ILR 20 Born 198, where it was held that applications for execution of the decree are proceedings in thesuit. A vakalatnama remains in force until all proceedings in the suit are ended. In a case of Virupakshappa v. Shidappa reported in (1901) ILR 26 Bom 109 it was held that Section 462 (old), (new Order XXXII, Rule 7) of the Civil Procedure Code applies to a compromise of execution proceedings. In a case Arunachallam Chetty v. Ramanadhan Chetty reported in (1905) ELR 29 Mad 309 it was held as under:-

'The provisions of Section 462 (old) of the Civil P. C. apply to compromise after decree; and no adjustment by compromise of a decree by the guardian of a minor can be certified under Section 258 of the Civil P. C. when the guardian had not applied for leave to enter into the compromise under S. 462 of the Code.'

In a case Muthalakkammal v. Narappa Reddiar reported in (1933) ILR 56 Mad 430: (AIR 1933 Mad 456) (FB) it was held that Order XXXII, Rule 7, of the first Schedule of the Civil P. C. (Act V of 1908) applies to execution proceedings. In a case Dokku Bhushayya v. Katragadda Ramakrishnayya reported in : [1963]2SCR499 after having referred to the above rulings it was observed as under:-

'The next limitation is that the protection is only during the pendency of the suit. When does a suit come to an end? It has been held that for the purpose of the said rule an execution proceeding is a continuation of a suit.'

A reference was also made to a case Garikapati Veeraya v. N. Subbiah Choudbry reported in : [1957]1SCR488 where it was observed that the legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an instrinsic unity and are to be regarded as one legal proceeding. In a case Abdul Gani Suniar v. Reception Committee of the 48th Indian National Congress reported in (1936) ILR 60 Bom 645 : (AIR 1936 Born 250) it was held that a suit is an original proceeding between a plaintiff and a defendant. The term 'Plaintiff' includes every person asking any relief against any other person by any form of proceeding, whether the same be taken by cause, action, suit, petition, motion, summons or otherwise. The term 'defendant' includes every person served with any writ of summons or process, or served with notice of, or entitled to attend any proceedings. It was a case where there was a dispute between a timber merchant and the reception committee of the 48th Indian National Congress which was held in Bombay in October, 1934. The dispute was referred to the sole arbitration of S. D. Prabhavalkar, an Engineer who gave his award on February 2, 1935. The award was filed in Court in accordance with the provisions of the Indian Arbitration Act. Thereafter the question arose as to whether the proceedings could be taken against the reception committee and it became necessary to amend the title of the petition. An application was presented under Order 1, Rule 8 of the Civil P. C. and the contention was raised that such a petition under 0. 1, R. 8 of the Civil P. C. could not be given in the proceedings which were taken under the Indian Arbitration Act. It, therefore, became necessary to examine the meaning of the word 'suit'. Justice Wadia referred to Wharton's Law Lexicon, and it was observed that the word 'suit' was not defined in the Civil Procedure Code and it is also not defined in. the General Clauses Act. After referring to Wharton's Law Lexicon it was observed that the suit would include action and action would mean a civil proceeding commenced by a writ or in such other manner as may be prescribed by Rules of Court. A case of Hurro Chunder Roy Choudhry v. Shoorodhonee Debia was referred to wherein Peacock C. observed as under :.-

'The word 'suit' does not necessarily mean an action, nor do the words cause of action and 'defendant' necessarily mean cause upon which an action has been brought, in the ordinary restricted sense of the words. Any proceeding in a Court of Justice to enforce a demand is a suit; the person who applies to the Court is a suitor for relief; the person who defends himself against the enforcement of the relief sought is a defendant; and the claim, if recoverable, is a cause of action.'

It was also observed as under :-

'There is authority for the view that the term 'suit' has not a narrow significance, but is a very comprehensive one, and that it applies to all contentious proceedings in a Civil Court in which the rights of parties are in question and in which the Court is asked to determine them.'

The real crux of the problem is as to whether the order passed under Section 47 of the Civil P. C. could be considered a decree after the amendment of Section 2(2) of the Civil P. C. We have no doubt in our mind that an appeal is a continuation of a suit. We have also no doubt in our mind that an execution proceeding is continuation of a proceeding which originally started after presentation of a plaint as a suit. In order to arrive at a correct conclusion it would be necessary first to reproduce Section 2(2) of the Civil P. C. as it stood before the amendment and after the amendment also. Section 2(2) of the Civil P. C. before the amendment ran as under:-

'2. In this Act, unless there is anything repugnant in the subject or context,-

(1) xx xx xx xx xx

(2) 'decree' means the formal expression of an adjudication which, so far as regards the Court 'pressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation- A decree is preliminary when further proceedings have to be taker before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'

It was urged that an order passed under Section 47 if conclusively determines the rights of the parties it would be a decree within the meaning of Section 2(2) of the Civil P.C. even after the amendment. It was submitted that though formerly it was provided that it shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 and now because of the amendment the only words, taken out are 'Section 47', therefore, the deeming provision is only taken out and it was submitted that if one can come to a conclusion without the aid of the deeming provision that the question is conclusively determined between the parties and an order is passed in a civil proceedings by a Civil Court it must be held to be a decree. We may mention here that the amendment came into force on 1-2-1977 and Civil Miscellaneous Appeal came to be filed in the year 1979. Therefore, this is a case which has arisen after the amendment of the Civil Procedure Code. This Court in Mohanlal Maneklal Shah v. Bai Maniben reported in (1979) 20 Guj LR 711 came to the conclusion that if any order passed by an executing Court prior to the coming into force of the amending Act of Civil Procedure Code in 1976, was subjected to an appeal and if such an appeal was pending on 1-2-1977 when the amending Act came into force, such appeal was saved under Section 97 of the amending Act but the appeals instituted for the first time after 1-2-1977 challenging the orders of the executing Courts passed even before 1-2-1977 could not be entertained on the dates on which such appeals came to be filed after 1-2-1977. Thus on the date of the institution of any appeal after 1-2-1977 there would be no order of any executing Court, which would remain clothed with the deeming effect of a 'decree', as such a deeming effect had stood withdrawn on 1-2-1977 when the amending Art came into force, and consequently no appeal could be filed after 1-2-1977 against any order passed by the executing Court, whether such an order was passed before or after 1-2-1977. The same view has been taken by the other High Courts and we may refer to some of the judgments referred by the learned advocate Shri Majmudar.

8. In a case Mohan Das v. Kamla Devi reported in AIR 1978 Raj 127 it was held that the definition of 'decree having been amended by omitting the words 'S. 47 or' as a result of the Amending Act 1976, any order passed under Section 47, C. P. C. which otherwise treated as decree is no more a decree and as such the first appeal and the second appeal which were provided earlier against the orders passed under Section 47 are no more there. In a case Mohammad Khan v. State Bank of Travancore reported in : AIR1978Ker201 , the Full Bench considered the. effect of the amendment and it was observed that the express omission of orders under Section 47 of the Civil Procedure Code from the definition of decree in Section 2(2) has rendered orders under Section 47 not appealable since the commencement of the Code of Civil Procedure Amendment Act 104 of 1976. In Pratap Narain Agarwal v. Ram Narain Agarwal reported in : AIR1980All42 the Full Bench came to the conclusion that an order passed on an objection filed under Section 47 after the amendment of 1976 does not amount to a decree and is not appealable. In a case Chulurarn v. Bhagatram reported in AIR 1980 Madh Pra 16 it was held that the amendment brought about in Section 2(2) of C. P. C. by which the determination of any question under Section 47 does not now amount to a decree, cannot be construed to take away a vested right of appeal in pending executions. Thus in that case the effect of the amendment in pending executions was only considered.

9. Now in view of the divergent views expressed by different High Courts, the question was allowed to be argued at length and we have come to the conclusion for the reasons that will follow that after the Code of Civil Procedure (Amendment) Act, 1976 came into force on 14-1-1977, an order passed under Section 47 of the Civil Procedure Code would not be appealable. In a case of 0065/1979 : AIR1979Pat308 (supra) a distinction was tried to be made by which the Court came to the conclusion that so far as the interlocutory orders which were passed under Section 47 of the Civil P. C. were concerned no appeal could lie. However, the Court was of the opinion that so far as the orders conclusively determined the rights of the parties, the appeal would lie. At this stage it is also necessary to refer to Section 47 of the Civil P. C. which stood before the amendment and which stands now after the amendment.

10. Section 47 of the Civil. P. C. before the amendment:-

'47. (l) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not 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 a proceeding and may, if necessary, order payment of any additional court-fees.

(3) Where a question arises as to whether, any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation- For the purposes of this section, a 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.'

11. Section 47 of the C. P. C. after the amendment:- '47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) Omitted by Amendment Act, 1976.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation I : For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II: (a) For the purposes of this section, a purchaser of property at a sale in exercise of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within ,the meaning of this section.'

There is no manner of doubt that a suit in 9 Civil Court starts on the presentation of a plaint. In a case of Diwan Brothers v. Central Bank of India, Bombay reported in : AIR1976SC1503 , the definition of the word 'decree' was considered. The essential conditions were laid down as under:-

'(i) that the adjudication must be given in a suit;

(ii) that the suit must start with a plaint and culminate in a decree; and

(iii) that the adjudication must be formal and final and must be given by a civil or revenue Court.'

The question as to what is the meaning of the word 'suit' is not required to be considered in this matter because this is not a matter which started by filing any proceeding in any other manner. A plaint was filed in Small Causes Court and there was a suit which was numbered as Civil Suit No. 1396 of 1975. Now that, therefore, the Small Causes Court had before it a civil suit which adjudicated upon it and that adjudication was final and, therefore, the Small Causes Court passed a decree within the meaning of Section 2(2) of the Civil P. C. That decree was put into execution and in that execution proceeding an objection was taken and that objection was that the decree-holder had accepted the judgment-debtor as a tenant and, therefore, the decree became inexecutable. Now therefore, this was a clear case where an order came to be passed in an execution proceeding and under Section 47 of the Civil P. C. when analysed all questions which relate to the execution, discharge or satisfaction of the decree are required to be determined by the Court executing the decree and not by a separate suit and, therefore, the learned Judge of the Small Causes Court decided the questions which arose between the parties to the suit and passed an order by which he issued a warrant for possession, Now it was an order which was contemplated under Section 47 of the Civil P. C. Before the amendment of the Civil P. C. by the amending Act, 1976 the execution Court had a power to treat a proceeding under S. 47 as a suit or a suit as a proceeding and that Power was especially given to the Court under S. 47(2) of the Civil P. C. By amendment of the Code of Civil Procedure in 1976 Clause (2) of Section 47 is omitted. Now that, therefore, the Court has no power left to convert a proceeding into a suit and, therefore, the question was required to be determined As per amended Section 47 of the Civil P. C. Now at this stage it is necessary to see the whole scheme of the amendment of the Civil P. C, in, regard to the execution proceedings. Firstly Section 2(2) of the Civil P. C. was amended and by that amendment if by any deeming provision, an order under Section 47, C. P. C. could be construed as a decree that deeming provision was deleted. Now that, therefore, any order passed under Section 47 of the Civil P. C. cannot be considered as a decree by any deeming provision. After that amendment the powers of the executing Court to convert a proceeding into a suit under Section 47(2) of the C. P. C. were taken away. Now that, therefore, there remained a simple definition of the word 'decree' in Section 2(2) without the deeming provision which included an order under Section 47 of the Civil P. C. Therefore, an effort was made to argue that an execution proceeding being a continuation of a suit and if the rights of the parties are conclusively determined in any of the matters in controversy, the order passed under Section 47 of the Civil P. C. must be construed as a decree though the deeming provision is taken away. If we accept such a proposition, an absurd result would follow. The Civil Procedure Code contemplates one decree and there cannot be two decrees passed under the provisions contained in the Civil Procedure Code. An appeal is a continuation of a suit. In appeal, the appellate Court passes an appellate decree but that merges with the original decree. Therefore, what is done in appeal is that either original decree is modified, confirmed or varied or reversed and the result thereafter follows is that there remains one decree which could be executed. Now that, therefore, in appeal a decree could be passed and that decree changes the original decree and as a result so far as the executing Court is concerned, there is only one decree which could be executed. Now if the executing Court which has no power under the Civil Procedure Code to go behind the decree, passes a decree which can neither affirm, vary, modify or reverse the original decree, it could pass only a new decree and the result would be that there would be two decrees and such an absurdity was never contemplated when the Code of Civil Procedure was amended it, 1976. This is clear from further provisions made by the Amending Act. It may be useful to refer to Section 99 of the Civil P. C. which runs as under --

'99. No decree shah be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity w any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court :

Provided that nothing in this section shall apply to non-joinder of a necessary party.' Thereafter by the amending Act, 076, Section 99-A is added which runs as under:-

'99-A. Without prejudice to the generality of the provisions of Section 99, no order under Section 47 shall be reversed or substantially varied, on account of any error defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.'

Now so far as Section 99 is concerned, it starts with the words 'no decree shall be reversed' ... ... . . In Section 99-A reference is made to orders passed under Section 47. Now both these sections appear in Part VU of the Civil P. C. and Part VII refers to appeals. It, therefore, could be suggested that there could be orders under Section 47 also which could be challenged in appeal. Now that, therefore, those orders are provided in Order XLIII, Rule 1 (i) (j) and (ja) of the Civil P. C. They are the rules where appeal is provided from orders passed under O. XXI and they are as under:-

'Appeals from orders.

(1) An appeal shall lie from the following orders under the provisions of Section 104, namely:-

(i) an order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;

(ja) an order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI,

Provided that an order on the original application, that is to say the application referred to in sub-rule (1) of Rule 105 of that order is appealable.'

Now these are the only orders against which the appeals are provided and as the appeals against these orders are provided we find that Section 99-A is placed in Chapter VII with heading 'appeals'. We may here also mention that before the amendment certain orders which were passed under the provisions contained in Order XXI could be challenged by way of a suit. That resulted in prolonged litigation. The Parliament, therefore, found that instead of driving the parties to separate suits, the objections could be treated as suits and whenever the Parliament so desired specific mention has been made and that could be found in 0. XXI, Rr. 46-H, 58 (4) and 103 of the Civil P. C. Rules 46-H, 58 (4) and 103 of Order XXI run as under :-

'46-H. An order made under Rule 46-B, Rule 46-C or Rule 46-B shall be appealable as a decree. '

'58 (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.'

'103. Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.'

Now, therefore, it was clear that the orders contemplated to be appealable as decrees were in fact not decrees but by deeming fiction it was declared that they will be treated as decrees. Now that, therefore, if we read the scheme as a whole it would appear that the deeming provisions of all orders under Section 47 of the Civil P. C. which could be read as decrees under the provisions of Section 2(2) of the Civil P. C. were omitted. As a corollary by amendment Section 47(2) of the Civil P. C. was omitted and thereafter certain orders were made appealable as orders and certain orders though they were orders were by deeming fiction made appealable as decrees. Therefore, a complete machinery was provided in order to meet with the exigencies of the removal of the deeming provision of an order under Section 47 from the definition of a decree as provided in Section 2(2) of the Code of Civil Procedure.

12. The learned advocate Shri J. G. Shah submitted that there could be a case where a contention could be taken in the executing Court that the decree is a nullity and the Court may come to one or the other conclusion. It may declare that decree to be a nullity or it may come to the conclusion that the decree was not a nullity. According to the submissions made, that was a question which was determined between the parties and, therefore, if no appeal is provided no remedy would be left. That is not the correct situation. If the decree which is not a nullity and it is declared by the executing Court to be a nullity and the executing Court refuses to execute the decree on the ground that it is a nullity it would be a case of failure to exercise jurisdiction. If it was a case where a decree in fact was a nullity the second suit is not barred. The parties, therefore, are not left without any remedy, the reason is that the executing Court by passing such an order does not conclusively decide the rights of the parties and the remedy is clearly open. We may here in passing refer to the question as to whether the Parliament could validly determine by the amendment that certain orders would be considered as decrees and would be appealable as such and certain orders would be orders and they would be appealable under Order LXIII of the Civil P. C. and certain orders would not be appealable at all. If one goes through the whole scheme one could clearly see that there is an intelligible classification and if such a classification is made one cannot argue that this classification is hit by Article 14 of the Constitution of India. The learned advocate Shri J. G. submit any such argument. We have only made this reference because such a reference has been made in 0065/1979 : AIR1979Pat308 (supra). We may here say that in the case of 0065/1979 : AIR1979Pat308 (supra) the definiton of the word 'order' occurring in S. 2(14) of the Civil P. C. is not referred and the definition is as under :-

' ' order' means the formal expression of any decision of a Civil Court which is not a decree.'

Now that, therefore, decision of a Civil Court expressed in a formal manner is an order if it is not a decree. The learned advocate Shri 1. G. Shah submitted that if one comes to the conclusion that an order under Section 47 is a decree within the meaning of Section 2(2) of the Code, even after the amendment this definition of the word 66 order' would not help the petitioner. We have already come to the conclusion that an order passed under Section 47 of the Code is an order which was deemed to be a decree within Section 2(2) of the Code before the amendment and which is now deemed to be a decree for the purpose of Order XXI, Rules 46-H, 58 (4) and 103 of the Civil P.C. For all other purposes they are not deemed to be decrees and, therefore, they are orders. We, therefore, with respect cannot agree with the propositions laid down in the case of AIR 1979 Patna 308 (supra) that an order passed under Section 47 of the Civil P. C. is covered by the first part of the definition of the word 'decree' contained in Section 2(2) of the Civil P. C. We are of the view that an order passed under Section 47 of the Civil P. C. was not covered by the definition of the word 'decree' given in first part of Section 2(2) of the Civil P. C. even before the amendment of Section 2(2) of the Civil P. C. In the circumstances the Parliament had in fact made a deeming provision and realising that unless such a deeming provision was made, an order passed under Section 2(2) of the Civil P. C. would not become a decree they made that order to be a decree. That deeming provision is now taken out by the amendment and we have referred to the scheme of the Amending Act and it clearly appears to us that the Parliament clearly intended that the orders passed under Section 47 of the Civil P. C. are not required to be made appealable as decrees and they made further provisions in 0. XXI, wherever it was thought fit, that the orders passed should be made appealable as decrees. We have in our judgment referred to the definition of the word 'order' contained in Section 2(14) of the C. P. C. and also considered the effect of the omission of Section 47(2) of the C. P. C. and the added provision of Section 99-A of the Civil P. G All these provisions were not considered in the judgment reported in AIR 1979 Patna 308 (supra). We have, therefore, disagreed with the views expressed in that ruling. We, therefore, hold that when executing Court passes an order under Section 47 of the Civil P. C., it is an order which is not appealable as a decree unless it is expressly provided for in other provisions of the Civil P. C. In this particular case the order which is passed is an order against which no appeal lies and, therefore, the contention raised by the respondent fails.

13. The next contention which is required to be considered is the contention raised by the learned advocate Shri P. B. Majmudar for the petitioner. His submission is that even revision application would not lie to the District Court. His submission was that once a decree is passed the relationship between the partie as landlord and tenant comes to an end and, therefore, revision application, if any, is required to be filed under Section 115 of the Civil P. C. and that is to be filed in the High Court. The District Court had no power to entertain any revision application. This argument cannot be accepted in view of the clear provision contained in Section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Bombay Rent Act'). Section 29(3) reads as under:-

'29. (3) Where no appeal lies under this section from a decree or order in any suit or proceeding in Greater Bombay the bench of two judges specified in Clause (a) of subsection (1) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and the bench or Court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge shall pass such order with respect thereto as it or he thinks fit.'

It is not in dispute that, an appeal would lie to the District Court against the orders passed under the provisions of the Bombay Rent Act and which are appealable by that Act to the District Court. In respect of the matters where the right of an appeal has been taken away, the legislature, obviously realizing that in some cases an injustice may be done by a trial Court and in order that a trying judge may not act arbitrarily or capriciously, has under sub-section (3) conferred a power on the appellate authority to call for the papers and records of any case with a view to satisfy itself that the decree or the order has been made according to law. When this provision meaning thereby Section 29(3) of the Bombay Rent Act was enacted the legislature was aware of the extent of the supervisory powers of the High Court contained in Section 115 of the Civil P. C. and Article 226 of the Constitution of India and the legislature has deliberately made this provision in order to subserve its intention stated aforesaid. The powers contained in sub-section (3) of Section 29 are special in addition to those vested in the High Court. The powers contained in sub-section (3) of Section 29, therefore, should be exercised having regard to the aforesaid manifest intention of the legislature. If one looks at the Bombay Rents, Hotel and Lodging House Rates Control Rules one would clearly realise that the word 'proceeding' used in Section 29(3) of the Bombay Rent Act would also include execution proceedings. The learned advocate Shri Majmudar tried to urge that the word 'proceding' used in Section 29(3) should be construed in such a way as to mean 'proceeding' in the original suit only. Such a construction cannot be given in view of a clear provision contained in Section 29(3) of the Bombay Rent Act and this intention becomes clear when one reads Rule 5 (3) of the Bombay Rents, Hotel and Lodging House Rates Control Rules. The Division Bench of this Court in the case of Gandhi Gopaldas Gordhandas v. Bai Lalitabai Marghabhai reported in : AIR1971Guj270 has held that the execution proceedings arising out of the decree passed after the coming into operation of the Bombay Rent Act are included in the expression 'proceeding' used in sub-section (1) of Section 28. Therefore original execution proceedings for, recovery of possession between a landlord and tenant are governed by Section 28(1). Special provisions were made in Section 29 of the Bombay Rent Act both in regard to appeal and also in regard to revision. Therefore, in our view revision would lie under Section 29(3) of the Bombay Rent Act and it would lie in the Court of the District Judge. In view of this conclusion the order passed by the learned Second Extra Assistant Judge, Vadodara to convert the appeal into the revision application, was absolutely justified and we are in complete agreement with that order.

14. In view of the above findings the revision application filed by the petitioner, fails and is dismissed.

15. The District Judge, Vadodara now would decide the revision application on merits and in accordance with law. As the matter has become sufficiently old we direct that this matter may be given priority and may be decided as early as practicable and if possible within a period of three months.

16. Looking to the facts and circumstances of the case there will be no order as to costs.

17. Revision dismissed.


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