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Somu Ayyar Vs. Chelliah Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad718
AppellantSomu Ayyar
RespondentChelliah Pillai and anr.
Cases ReferredSrinivasa Prasad Sing v. Kesho Prasad Singh
Excerpt:
.....had been satisfied already and that the application for execution was made fraudulently. the decree-holder expressly requested the court to exorcise its powers under this sub-rule alleging the grounds therefor and the court granted that request but it failed to record its reasons for its order as required by that sub-rule. it is contended for the appellants that the failure to record the reasons makes the order void. in the present case, however the affidavit of the decree holder which was presented along with his application for execution makes it quite clear that the court was invoked to exercise its powers under sub-rule 2, order 21, rule 22, and that it did so presumably on being satisfied with the allegations made therein by the decree-holder. but in this case, if the decision..........311 of 1919 on the file of the principal district munsif of manamadura and the respondent is the decree-holder therein. the decree was transferred for execution to the court of the district munsif of madura town. on 24th october 1925, the decree-holder applied for execution of the decree both by arresting the judgment-debtor and for attaching his moveables. this application having been put in more than a year after the immediately preceding application for execution of the decree, the decree-holder further prayed in an affidavit setting out the grounds therefor that the execution may be ordered as prayed without first issuing notice as required by order 21, sub-rule 1, rule 22. on this petition the court made the following order on 26th october 1925. 'notice and arrest and attach.' it.....
Judgment:

Thiruvenkatachariar, J.

1. The appellant in this Civil Misc. Second Appeal is the judgment-debtor in O.S. No. 311 of 1919 on the file of the Principal District Munsif of Manamadura and the respondent is the decree-holder therein. The decree was transferred for execution to the Court of the District Munsif of Madura Town. On 24th October 1925, the decree-holder applied for execution of the decree both by arresting the judgment-debtor and for attaching his moveables. This application having been put in more than a year after the immediately preceding application for execution of the decree, the decree-holder further prayed in an affidavit setting out the grounds therefor that the execution may be ordered as prayed without first issuing notice as required by Order 21, Sub-rule 1, Rule 22. On this petition the Court made the following order on 26th October 1925. 'Notice and arrest and attach.' It is clear that in ordering arrest and attachment without notice the Court acted under Sub-rule (2), Rule 22, Order 21; but it failed to record its reasons for doing so. On 27th October the judgment-debtor was produced before the Court and he then applied for stay of proceedings in the execution application in order to enable him to move the appellate Court as well as the Court which passed the decree and obtain a stay order from either of those Courts. In that application he alleged that the decree had been satisfied already and that the application for execution was made fraudulently. On 2nd November 1925, the stay applied for was granted on cash security being furnished and the judgment-debtor was then released from custody.

12. On 1st December 1925, he presented an appeal to the District Court of Madura against the order of 26th October 1925, ordering his arrest without notice. The only ground on which the validity of that order was questioned was that the lower Court had no jurisdiction to order his arrest without first issuing notice to him as required by Rule 22 and that on that ground the order should be set aside. The District Judge dismissed the appeal on the ground that the order appealed from is not an order under Section 47, Civil P.C., determining any question arising between the parties and relating to the execution of the decree. In other words it did not amount to a decree as defined in Section 2, Sub-section (2), Civil P.C. Against that order this second appeal is preferred.

13. On behalf of the appellant it is contended (1) that the order of the District Munsif directing the arrest of the appellant is a decree within the meaning of Section 2, Sub-section 2, Civil P.C. and the District Judge therefore erred in not entertaining the appeal. (2) The District Munsif acted without jurisdiction in ordering his arrest without first issuing notice to him under Rule 22. in my opinion both these contentions are untenable.

14. To take the second point first under sub-It. 2, Rule 22, the Court may, without issuing the notice prescribed by Sub-rule 1, order execution of a decree as pray-ed, if in its opinion, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. The decree-holder expressly requested the Court to exorcise its powers under this sub-rule alleging the grounds therefor and the Court granted that request but it failed to record its reasons for its order as required by that sub-rule. It is contended for the appellants that the failure to record the reasons makes the order void. The non-compliance with that requisite is in my opinion a more irregularity and does not render the order void. I wish, however, to observe that, when any enactment requires the recording of reasons by the Court for an, order which it is empowered to pass it should not overlook that requisite but it is bound to do so.

15. The case may go up in appeal or revision and the appellate Court should be in a position to know from the order itself the reasons for the lower Court's passing the order objected to and should not be left to surmise what those reasons might be. In the present case, however the affidavit of the decree holder which was presented along with his application for execution makes it quite clear that the Court was invoked to exercise its powers under Sub-rule 2, Order 21, Rule 22, and that it did so presumably on being satisfied with the allegations made therein by the decree-holder. This being the only ground of appeal to the lower appellate Court, I think, the conclusion of the learned District Judge dismissing the appeal is correct whether or not the ground on which he dismissed the appeal, namely, that the order does not amount to a decree and is therefore not appealable is correct. It follows that this second appeal also in which the only question raised is that the arrest with out notice is invalid under Order 21, Rule 22, must also be dismissed. The Full Bench case Rajagopala Aiyar v. Ramanuja Chariar A.I.R 1924 Mad. 431, which was relied on by the appellant's advocate in support of the contention that the order of arrest was void as no notice was issued to him as required by Rule 22, does not support his contention as the order of reference expressly excepts cases where the omission to issue notice is due to the fact that Sub-rule (2), Rule 22, has been applied as it has been in the present case.

16. It is also argued that, if the view taken by the District Judge that the order does not amount to a decree is wrong, the appeal must be allowed and the case remanded to the lower appellate Court. That would no doubt be necessary in a case where any question of fact has to be investigated. But in this case, if the decision is clearly right in law, there is no need to send the case back because it may have been based upon a debatable point of law.

17. The question whether the order amounts to a decree and is therefore appealable was also argued before me on both sides. The order passed is no doubt one which falls within the terms of Section 47 as an order relating to the execution of the decree, But it is not an order relating to the execution of the decree which amounts to a decree as defined in Section 2, Sub-section 2, Civil P.C. The order to have the force of a decree must not only relate to a question which falls within Section 47, but it must also determine the rights of the parties with regard to any matter in controversy between them as regards the decree. There are many orders passed under Section 47, which though they relate to execution are mere interlocutory orders which do not determine any rights but regulate the procedure as regards the steps which may be taken in aid of the execution of the decree. It could not be the intention of the legislature to make every such order appealable as a decree This point is considered by Mukerjee, J., in Srinivasa Prasad Sing v. Kesho Prasad Singh [1911] Cri.L.J. 489, wherein the authorities hearing on the question are considered by that learned Judge. The conclusion come to by him is that:

If is not every interlocutory order passed in the coarse of execution proceedings even though it may decide any point of law which may arise incidentally is a decree but it must be an order which must determine the rights of the parties in controversy in the execution proceedings.

18. I respectfully think that this is the right view. Otherwise as pointed out by the learned Judge every order in the (course of an execution proceeding would be a decree and appealable as such and at every stage, the execution proceeding would be liable to be arrested by an appeal. Applying that test in this case the order for arrest without notice is not a final order and the fact that notice was ordered simultaneously with it shows that it was only an interim order against which the judgment-debtor had an opportunity of objecting when produced before the Court. It is only the order which is passed on his objection, whether it upholds the arrest or sets it aside that will be the final order determining the rights of the parties with regard to the execution of the decree and only such an order will be a decree. The Court evidently was not prepared to release him without his furnishing security though he pleaded satisfaction of the decree, but before asking for an investigation of that question he himself applied for stay of further proceedings and the stay was granted and he was released on his furnishing cash security on 2nd November 1925. The appeal to the lower-appellate Court was not preferred from any later order passed by the District Munsif, but only from the interim order-passed by him on 26th October 1925.

19. The further fact which is material to this case is that, after the disposal of the appeal by the lower appellate Court on 8th December 1925, the execution application and the objection petition put in by the judgment-debtor were taken up for trial by the District Munsif and by his order, dated 11th December 1925, he disposed of the defendant's objection petition on its merits. He held that the alleged satisfaction of the decree could not be sot up under Order 21, Rule 2, and that the decree-holder was entitled to the amount claimed. In that view he ordered the amount deposited in Court to be paid over to the decree-holder. No appeal is preferred by the judgment-debtor on 16th March 1926 against the order of the District Judge dismissing his appeal against the interim order of the District Munsif passed on 26th October 1925 on the ground that that order was void as notice to the judgment-debtor which was not given was an essential pre-requisite.

20. As I hold that the interim order is not void and that this appeal must be dismissed, it is unnecessary to consider how the adjudication by the District Munsif on the merits of the case will be affected if the decision in this appeal had been that the interim order of arrest without notice is void. This appeal is dismissed with costs.


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