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Ghanshyamdas Vs. Gambhir Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Ex.Second Appeal No. 4 of 1961
Judge
Reported inAIR1965Raj155
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 47 and 115 - Order 21, Rules 11, 22, 23, 57, 66 and 90; Limitation Act, 1908 - Schedule - Article 182(5)
AppellantGhanshyamdas
RespondentGambhir Mal and ors.
Appellant Advocate B.N. Chandra, Adv.
Respondent Advocate P.C. Mathur, Adv.
DispositionAppeals dismissed
Cases ReferredMitha Lal v. Kapoor Chand
Excerpt:
- - in the application of 5-9-1948 which was filed in continuation of the application of 28-9-1947, the names of the decree-holders as well as judgment-debtors were given and the amount due against the judgment-debtors on that date was also given. in my opinion the principle laid down by their lordships of the privy council in annamalai chettiar's case, air 1945 p c 176 is equally applicable in a case like the present one where a learned judge interferes with an order of the executing court suo motu in exercise of the powers under section 115 civil p......against this order in the court of district judge who allowed it. ghanshyam das has filed s. b. civil execution second appeal no. 4/61 against that order. 12. himmat ram decree-holder auction-purchaser applied for possession over one-half of churapara house which was sold in his favour on 18-7-1955 and the sale of which had been confirmed. this application was rejected by the executing court on the same ground on which its order dated 4-4-1958 referred to above was based. the decree-holders preferred civil appeal no. 40/59 in the court of district judge, jodhpur, against this order. this appeal was allowed. s. b. civil execution second appeal no. 5/61 has been preferred by ghanshyam das judgment-debtor against that order. 13. taking appeal no. 5/61 first, it is clear that the order of.....
Judgment:

Jagat Narayan, J.

1. These are two connected execution second appeals, by one of the judgment-debtors named Ghanshyam Das, arising out of the execution of a decree for money passed by the Sudder Adalat of the then State of Jaisalmer on 27-12-45.

2. No codified law was in force in that Shite but justice was administered in accordance with the principles underlying the laws which were in force in British India. Under notification No. 925/1554-G/46 dated 1st March 1946 the Code of Civil Procedure and some other Acts in force in British India were adopted 'with due adaptation to local conditions in regard to the constitution and power of the Courts and such recognised customs or old practice as is not immoral or is opposed to public policy'. One of the modes for executing a money decree which was in vogue in that State was that on the application of the decree-holder for execution, immovable property of the judgment-debtor was attached on the former's nishan-dehi and the decree-holder was put into possession of it. He was entitled to retain possession, till the judgment-debtor paid the decretal amount to him. This mode of execution of money decrees was not regarded as immoral or opposed to public policy and continued after the issue of the above notification.

3. The decree-sheet was drawn up on 11-9-47 and on 28-9-47 the first execution application was filed by the decree-holders. The prayer made in this application was that relief may be granted by executing the decree. On this execution application notices under Order 21, Rule 22 were issued to all the judgment debtors.' Notice was sent to Ghanshyam Das appellant by registered post. He refused to accept it and the envelope containing the notice was received by the Court with the endorsement of refusal made on it by the postal authorities. This was regarded as sufficient service by the executing Court and this fact was recorded in the order-sheet dated 5-9-48.

4. On 5-9-48 the decree-holders made a further application in continuation of the application dated 28-9-47 praying that three houses belonging to the judgment-debtors may be attached on their nishen-dehi. On this application the executing Court ordered the attachment of the houses on 8-9-48. Three houses were attached under this order. Thereafter on 12-9-48 the executing Court issued a proclamation inviting objections against the attachment within a period of two months. No objection was received during this period. On 11-12-48 one Hari Das sent an objection by post to the Court purporting to be under Order 21, Rule 58, C. P. C. in which he claimed half share in one attached house and one-third share in another. This objection was rejected on the ground that it was not properly presented and was belated.

5. On 30-12-48 the decree-holders filed an application praying that possession over two of the attached houses may be delivered to them. It was stated by them that the third house belonging to Bithal Das, judgment-debtor, who had paid his one-sixth share of the decretal amount to them and it was prayed that his house may be released from attachment. On this application the executing Court passed an order on the same day for the delivery of possession over two of the attached houses to the decree-holders. On 8-1-49 possession over these two houses was delivered to them.

6. On 13-3-49 Hari Das Sled a regular suit under Order 21, Rule 63, C. P. C. in the Sudder Adalat claiming half share in one attached house and one-third in the other. Along with his plaint he filed an application for the restoration of possession over the two houses to him on the ground that his moveable property was kept in them. On 10-4-49 the presiding Judge of the Court passed an order that possession over the two houses be delivered back to Hari Das on furnishing security in the sum of Rs. 5,000/- pending decision of the suit under Order 21, Rule 63, C. P. C. This order was not executed and Hari Das made an application to the Court for executing the order. By then the previous presiding Judge had been transferred and the then Civil Judge, Jaisalmer, who had taken his place, refused to execute the order dated 10-4-49 on the ground that it was one without jurisdiction.

This order was passed on 29-12-50. Hari Das filed two revision applications in this Court against the orders dated 29-12-50 and 30-12-48 respectively Civil Revn. Nos. 42 and 43 of 1951, D/- 18-9-1951 (Raj). These revision applications were heard by Nawal Kishore J. All the judgment-debtors and all the decree-holders were parties to these revision applications. This Court upheld the order of the executing Court dated 30-12-48 under which possession over the two houses was delivered to the decree-holders. It however set aside the order dated 29-12-50 passed by the Civil Judge Jaisalmer on the technical ground that he could not refuse to execute the order of his predecessor. A perusal of the order shows that this Court refused to consider the legality of the order dated 10-4-49 on the ground that the decree-holders had not filed any revision application against it.

7. The decree-holders then filed a revision application against the order dated 10-4-49 Civil Revn. No. 173/1951, D/- 28-2-1952 (Raj). This came up for hearing before Bapna J. who was of the opinion that the mode of execution resorted to by the executing court namely, putting the decree-holders into possession of the immovable properties of the judgment-debtors for as long as the decretal amount-remained unpaid, was opposed to public policy and therefore ceased to be valid law in Jaisalmer with effect from 1-4-46. On behalf of the decree-holders the attention of the learned Judge was drawn to the fact that an application for restoration of possession could not be made in a suit under Order 21, Rule 63, Civil P. C. He overruled the objection on the ground that it was open to him to treat the revision application filed by the decree-holders as one made in execution proceedings 'as the decree-holders did not stand to lose in any way by the order which he was making.' Possession over the two houses was restored to Hari Dass on 19-7-52.

8. With regard to the execution proceedings the executing court passed an order on 31-10-49 for consigning the record on the ground that possession over the attached properties had already been delivered to the decree-holders and nothing more remained to be done.

9. On 20-12-51 the executing court suo motu reopened the execution proceedings. In the meantime the file had been requisitioned by this Court for the disposal of Civil Revn. No. 173 of 1951 (Raj.) which has been referred to above. The file was received back by the executing Court on 18-3-52. On that date an order was recorded in the order-sheet directing that the parties be informed and 8-4-52 was fixed as the next date for taking further proceedings. 8th April 1952 was a holiday. The case was taken up on 9-4-52. The decree-holders were present but the judgment-debtors were absent. Their notices were not returned after service. 26th April 1952 was then fixed. On that date it was found that the notices had not been returned after service on the judgment-debtors. 9th July 1952 was then fixed. On that date further proceedings in execution were stayed on the ground that a suit under Order 21, Rule 63 had been instituted by Hari Das in respect of the attached properties.

10. The suit of Hari Das was decreed on 9-12-53. It was held that he was the owner of one-half of Churapara house and one-third of Jethapara-house, On 12-12-53 the execution case was again taken up. It was stated that as a result of the decision in the suit under Order 21, Rule 63 half of Churapara house and one-third of Jethapara house were released from attachment and it was ordered that the remaining shares in these two houses be sold. On 14-12-53 the decree-holders filed two applications in continuation of the execution proceedings which were taking place. In these applications particulars required under Order 21, Rule 11 were all mentioned. They were duly verified and signed in accordance with law. One was for the attachment and sale of some movable property. In the other it was stated that half share in Churapara house and two-thirds share in Jethapara house were under attachment and a prayer for selling them was made.

The executing Court ordered that notices under Order 21, Rule 66 be issued for 18-1-54. On 18-1-54 it was found that Govind Lal had been served personally, that Prabhu Lal had refused to accept service and notice was affixed to his house and that the other judgment-debtors had not been served. Notices were sent again for them for 28-3-55. On that latter date it was again found that Ghanshyam Das, Kanhaiya Lal and Raman Lal had not been served. On 17-5-55 on the prayer of the decree-holders it was ordered that these judgment-debtors may be served by publication in Nav Bharat. After service had been effected in this manner the sale of the two attached houses took place. Two-thirds of Jethapara house was sold to Bhanwar Lal for Rs. 800/- on 17-7-55 and half of Churapara house was sold to Himmat Rani decree-holder for Rs. 1,300/- on 18-7-55. Both these sales were confirmed before 13-9-55 and sale certificates were issued in favour of the purchasers on 8-12-55.

11. On 19-3-55 the decree-holders made another execution application for attachment and sale of 2 other houses--a Nohra with constructions inside it and a Bada belonging to the judgment-debtors. They were attached on 4-4-55 and notices under Order 21, Rule 68 were issued and were served by registered post. Ghanshyam Das judgment-debtor appeared in response to this notice on 27-8-55 and prayed for time to file objections. Objections were filed by him on 28-9-55. He objected to the attachment and sale of these two properties on the ground that the application dated 28-9-1947 was not in accordance with Order 21, Rule 11, Civil P. C., that on that application a final order was passed on 31-10-1949, that no application within the period of limitation prescribed under Article 182(5) was filed after 31-10-1949 and that consequently the execution proceedings were barred by limitation. The executing Court upheld this objection under its order dated 4-4-1956. The decree-holders filed civil appeal No. 41/59 against this order in the Court of District Judge who allowed it. Ghanshyam Das has filed S. B. Civil Execution Second Appeal No. 4/61 against that order.

12. Himmat Ram decree-holder auction-purchaser applied for possession over one-half of Churapara house which was sold in his favour on 18-7-1955 and the sale of which had been confirmed. This application was rejected by the executing Court on the same ground on which its order dated 4-4-1958 referred to above was based. The decree-holders preferred Civil appeal No. 40/59 in the Court of District Judge, Jodhpur, against this order. This appeal was allowed. S. B. Civil Execution Second Appeal No. 5/61 has been preferred by Ghanshyam Das judgment-debtor against that order.

13. Taking appeal No. 5/61 first, it is clear that the order of the executing Court is wholly erroneous. The judgment-debtors did not file any objection before the sale in favour of Himmat Ram decree-holder auction-purchaser was confirmed. After the confirmation of the sale the judgment-debtor can only succeed if he is able to show that the sale was without jurisdiction. The executing Court got jurisdiction to execute the decree by the judgment of the Sudder Adalat dated 27-12-1945. After the expiry of one year from the date of the decree, the executing Court got jurisdiction to sell the property of the judgment-debtors in execution by issuing notices under Order 21, Rule 22, Civil P. C. The judgment-debtors were residing outside the State of Jaisalmer. Notices were sent to them by registered post as authorised by Order 5, Rule 25, Civil P. C. The Court held that these notices had been duly served. The Court had jurisdiction to decide whether or not they were so served. The executing Court was thus seized of jurisdiction to sell the property of the judgment-debtors in execution of the decree. Himmat Ram decree-holder duly obtained permission of the executing Court to bid for the property at the auction under Order 21, Rule 72 (1). The sale in favour of Himmat Ram | cannot therefore be regarded as a nullity and the executing Court erred in refusing to deliver possession over the share of the house purchased by him. S. B. Civil Execution Second Appeal No. 5/61 is accordingly dismissed.

14. Coming now to S. B. Civil Execution Second. Appeal No. 4/61, the first objection of the appellant is that the application dated 28-9-1947 was not in, accordance with law. That application was no doubt not in accordance with law. Notices under Order 21, Rule 22, Civil P. C., were however issued on this application to the judgment-debtors. The notice of Gnanshyam Das was sent by registered post to him. It was returned with an endorsement by postal authorities that it was tendered but Ghanshyam Das refused to accept it. This was rightly taken to be sufficient service by the executing Court. As Ghanshyam Das was residing outside the State of Jaisalmer the sending of notice by registered post was a duly authorised mode of service under Order 5, Rule 25, Civil P. C. He did not appear in response to the notice to file any objection. On 8-9-1948 the executing Court passed an order for the attachment of three houses belonging to the judgment-debtors on the application of the decree-holders dated 5-9-1948. The order of the executing Court dated 8-9-1948 was an order under Order 21 Rule 23 (1), Civil P. C. This order operates as constructive res judicata against the judgment-debtors as held by a Division Bench of this Court in Amar Singh v. Gulab Chand, 1960 Raj L W 149 : (A I R 1980 Raj 280), and estops them from pleading that the execution application was not in accordance with law. In the application of 5-9-1948 which was filed in continuation of the application of 28-9-1947, the names of the decree-holders as well as judgment-debtors were given and the amount due against the judgment-debtors on that date was also given. It was prayed that three houses of the judgment-debtors which the decree-holders will point out may be attached with a view to granting relief to the decree-holders. The number of the suit and the date of the decree were not given in this application.

The omission to give these particulars does not however disable the Court from proceeding with the execution of the decree and omission to give these particulars is therefore not enough to make the application defective. The particulars of the properties to be attached were also not specified in the application. It was stated that the houses will be pointed out on the spot. Nor was a prayer for the sale of the houses made. Only a prayer for their attachment was made. The reason was that it was the practice prevailing in the Courts in Jaisalmar State to put the decree-holder into possession of the property of the judgment-debtor after attaching it on the Nishandehi of the decree-holder. It was for the judgment-debtor to pay the decretal amount to get back possession. However, as I have mentioned above, the judgment-debtors are estopped from challenging; that the application was not in accordance with Taw.

15. The next objection of the appellant is that the order dated 31-10-49 was a final order within the meaning of Article 182 (5) of the Limitation Act and no application was made by the decree-holders for the execution of the decree within 3 years of that order.

16. As has been mentioned above the decree-holders filed an application on 30-12-48 praying that possession over two of the attached houses be given to them and the third may be released from attachment. On this application the Court passed an order for the delivery of possession to the decree-holders over two of the houses. On 31-10-49 the executing Court consigned the file to the record room without notice to the parties on the ground that possession had already been delivered to the decree-holders as prayed by them and nothing else remained to be done.

17. On behalf of the respondents it was contended that this was not a final order as it was passed without notice to them and was based on a wrong assumption. In Mohommad Taqi v. Raja Ram AIR 1936 All 820 a Full Bench of the Allahabad High Court laid down the test that where the Court intends to dispose of the matter completely and no longer keeps it pending on its file and does not merely suspend the execution or consign the record to the record room for the time being, the order must be deemed to be a final order which will give a fresh start for purposes of limitation. The order passed by the Court on 31-10-49 fulfils the test and I am of the opinion that it should be regarded as a final order, so far as the executing Court was concerned.

18. The above order was passed under the impression that nothing further remained to be done in the execution proceedings as possession had already been delivered to the decree-holders by the order of the Court dated 30-12-48. That order was however set aside by this Court in Civil Revn. No. 173 of 1951 (Raj) on 28-2-1952 as has been mentioned above. The foundation upon which the order dated 31-10-49 rested thus disappeared. In these circumstances, I am of the opinion that it is the order passed by this Court on 28-2-52 which must be regarded as final order from which the decree-holders get a fresh start of limitation under Article 182 (5). I am fortified in this view by the following decisions :

Annamalai Chettiar v. Valliammai Achi, AIR 1945 P C 176, Rameshwar Prasad v. Rajendra Prasad, AIR 1952 Pat 8, Lakshmanan v. Malayandi, AIR 1954 Mad 177.

In Annamalai Chettiar's case, AIR 1945 P C 176 a decree-holder applied for execution of a decree and got certain property attached. The judgment-debtor then got the attachment raised, whereupon the decree-holder appealed against the order removing attachment. The decree-holder's appeal was held by the Privy Council to be an application to take a step-in-aid of execution. It was accordingly held that the order of the appellate Court dismissing the appeal would constitute a fresh starting point of limitation under Article 182 (5). It was also held by the Privy Council that the appellate Court's order was also the final order' on the decree-holder's application to execute the decree.

19. The above decision is equally applicable to an order passed on a revision application. In Article 182 (2) of the Limitation Act, limitation runs from the date of the final decree or order of the appellate Court or the withdrawal of the appeal. It was held in Nagendra Nath Dey v. Siresh Chandra Dey, AIR 1932 P C 165 by their Lordships of the Privy Council:--

'There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term.'

In AIR 1952 Pat 8 a decree was passed on 17-3-1939. Some properties were attached in execution of this decree. One of the judgment-debtors filed an objection to the attachment. The objection was allowed whereupon the decree-holder went up in appeal. The appellate court remanded the case to the lower court. But in the meanwhile some other properties of the judgment-debtor were sold and the executing court passed an order on 28-1-1941 to the effect that the execution case be dismissed on part satisfaction. After the case was remanded, the lower court rejected the judgment-debtor's objection. The judgment-debtor went up in appeal against this order. The appellate court dismissed the appeal for non-prosecution on 28-7-1944. Pending the above appeal, (against the order rejecting the judgment-debtor's objection), some of the properties were sold. The sale was confirmed and on 18-11-1942, the executing court passed an order to the effect that the execution case be dismissed on part satisfaction.

After the appellate order of 28-7-1944, the executing court on 9-11-1944 passed an order 'No steps-taken. Case disposed of.' The decree-holder filed an application for execution on 18-7-1947. The lower court held that the execution case having been dismissed on part satisfaction on 28-1-1941, the application was barred by limitation as more than, three years had elapsed after that date. It was held that the application was not barred by limitation. The final order in the prior execution case was the appellate order of 28-7-1944 and time ran from that date. It was this order which finally determined the question whether the property was liable to attachment and sale. Although the property had in the meantime been brought to sale, and the sale was confirmed by the lower court, the sale was all the time subject to the final decision of the appellate court. Hence the order of the executing court of 18-11-1942 was not the 'final order' from which time would run. It was further held that though the order of executing court dated 9-11-1944 was the 'last' order in the execution case it was not the-'final order'.

19a. In AIR 1954 Mad 177 it was held that an appeal is the continuation of the proceedings in the original court and sets at large the finality attached to the decision of the subordinate court. Therefore, where an application has been made by the decree-holder to the proper court for execution of decree-or for taking some step-in-aid and there is an appeal against the order made on that application, it is the ultimate decision of the appellate court that is the 'final order' in the case, and an application filed within 3 years from the date of the appellate order is within time. The fact that the appeal was preferred by the judgment-debtor and not the decree-holder is not a reason for making a distinction.

20. In the present case, as has already been pointed out above, the decree-holders had filed a revision application against the order D/- 10-4-49 passed in the suit under Order 21 Rule 63 instituted by Hari Das (Civil Revn. No. 173 of 1951 (Raj)). This was treated by Bapna J. as a revision application made in execution proceedings and he set aside the order of the executing court D/- 30-12-48 which had been passed in favour of the decree-holders. Bapna J. will be deemed to have exercised the power under Section 115, Civil P. C. suo motu. In my opinion the principle laid down by their Lordships of the Privy Council in Annamalai Chettiar's case, AIR 1945 P C 176 is equally applicable in a case like the present one where a learned Judge interferes with an order of the executing court suo motu in exercise of the powers under Section 115 Civil P. C. If any other view is taken, it would result in grave injustice to one of the parties. By the order passed in civil Revn. No. 173 of 1951, D/- 28-2-1952 (Raj.) the very foundation of the order passed by the executing court consigning the proceedings on 31-10-49 was taken away. This order must in justice and equity be regarded as the final order in execution proceedings which gives a fresh starting point of limitation to the decree-holders under Article 182 (5).

21. Another decision that may be profitably referred to in this connection is that in Keshav Narayan v. Ghasiram AIR 1956 Madh B. 226. I think what the learned Judge meant, by saying in this decision that the parties should be relegated back to the same position, was that the order of the superior court should be treated as a final order within, the meaning of Article 182 (5) so as to give the decree-holder a fresh starting point.

22. Two houses of the judgment-debtors had been attached by the order of the executing court dated 8-9-1948 as has already been mentioned above. The order of the court dated 31-10-1949 consigning the proceedings to the record room was passed under the impression that as possession had already been delivered to the decree-holders over the houses nothing more remained to he done. After that another order was passed by this Court in Civil Revn. No. 173 of 1951 (Raj) setting aside the order of the executing court dated 30-12-1948 delivering possession over the attached houses to the decree-holders. This as I have held above is the final order in execution proceedings within the meaning of Article 182 (5). Neither of these orders puts an end to the attachment within the meaning of Order 21 Rule 57, which runs as follows :--

'Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.'

Neither the order of the executing court dated 31-10-1949 nor the order of this Court dated 28-2-1952 were based on any default on the part of the decree-holders. The attachment of the two houses made on 8-9-1948 therefore subsisted.

23. During the subsistence of this attachment two applications were made by the decree-holders on 14-12-1953. In one application a prayer for attaching some movable property of the judgment-debtorswas made (paper No. B.21/1). In the other application a prayer for the sale of the two houses was made (paper No. B 18/1). These two applications which were filed simultaneously should be treated as one application. All the material particulars required in an application under Order 21 Rule 11 are contained in these applications. In the latter application the prayer for the sale of the two houses has been made. The description of the houses, the number of the suit and the amount of the decree remaining unpaid are all given. These applications constitute in substance an application in accordance with law for the execution of the decree. This application dated 14-12-1953 was filed within 3 years of the order of this Court dated 28-2-1952, which I have held above to be the final order for purposes of limitation.

24. No fresh notice under Order 21 Rule 22 was given. But notices under Order 21 Rule 66 were issued to the judgment-debtors before their properties were sold and they were duly served in accordance with law. The judgment-debtors thus had an opportunity of showing cause why the decree should not be executed against them by the sale of houses. In this connection the decision of this Court in Mitha Lal v. Kapoor Chand ILR (1958) 8 Raj 1140: (AIR 1959 Raj 47) may be referred to. The judgment-debtors did not appear in response to this notice to file any objection. The Court thereupon ordered the sale of the properties. The judgment-debtors are estopped by the principle of constructive res judicata from challenging the execution proceedings in which their houses (Jethapara and Churapara) were sold on any ground which they could have taken if they had appeared in response to the notice issued under Order 21 Rule 66 C. P. C., and had filed an objection.

25. I now come to the application dated 19-3-1955 for the attachment and sale of their immovable properties in respect of which Ghanshyam Das judgment-debtor has filed the present objection. These properties were attached on 4-4-1955 and notices under Order 21 Rule 66 were issued. No notice under Order 21 Rule 22 was required as another execution proceeding in which two houses (Jethapara andChurapara) have been sold was already pending. Further no prejudice has been caused to the appellant by non-issue of a notice under Rule 22 and non-issue of it cannot be regarded as fatal defect in view of the decision in Mitha Lal's case ILR (1958) 8 Raj 1140 : (AIR 1959 Raj 47) referred to above.

26. I accordingly hold that the properties which were attached in consequence of the application dated 19-3-1955 were rightly attached and are liable to be sold in execution of the decree.

27. Some other aspects of the matter were also canvassed on behalf of the contesting respondents but it is not necessary for me to deal with these arguments on account of the view which I have taken above.

28. In the result I dismiss S. B. Civil Execution Second Appeal No. 4/61 also.

29. In the circumstances of the case, I direct that the parties shall bear their own costs of both these appeals.


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