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

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in119Ind.Cas.43
AppellantSomu Iyer
RespondentChelliah Pillai and anr.
Cases ReferredSrinivas Prosad Singh v. Kesho Prasad Singh
Excerpt:
.....police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the..........second appeal is the judgment-debtor in order 8. 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 the 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 xxi, sub-rule 1 of rule 22. on this petition the court made the following.....
Judgment:

Tiruvenkata Achariar, J.

1. The appellant in this civil miscellaneous second appeal is the judgment-debtor in Order 8. 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 the 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 XXI, Sub-rule 1 of 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 of Rule 22 of Order XXI but it failed to record its reasons for doing so. On the 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 the 2nd November, 1925, the stay applied for was granted on cash security being furnished and the judgment-debtor was then released from custody. On the 1st December, 1925, he presented an appeal to the District Court of Madura against the order of the 26th October, 1925, ordering his arrest without notice. The only ground on which the validity of that order was questioned was that sue lower Court had no jurisdiction to order his arrest without first issuing notice to him as required by r. 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 Procedure Code determining any question arising between the parties and relating to the execution of the decree. In other words, it did not amount a decree as defined in Section 2, Sub-section (2) of the Civil Procedure Code. Against that order this second appeal is preferred.

2. On behalf of the appellant it is contended (i) that the order of the District Munsif directing the arrest of the appellant is a decree within the meaning of Section 2, Sub-clause 2, Civil Procedure Code 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.

3. In my opinion both these contentions are untenable.

4. To take the second point first under Sub-rule 2 of Rule 22 the Court may, without issuing the notice prescribed by Sub-rule 1, order execution of a decree as prayed, 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 exercise 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 noncompliance with that requisite is in my opinion a mere 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. 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 reason for the lower Courts 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 of Order XXI, 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 without notice is invalid under Order XXI, Rule 22 must also be dismissed. The Full Bench case Rajagopala Aiyer v. Ramanujachariar : AIR1924Mad431 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) of Rule 22 has been applied, as it has been in the present case.

5. 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.

6. 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 of the Civil Procedure Code. 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 Srinivas Prosad Singh v. Kesho Prasad Singh 12 Ind. Cas. 745 : 14 Cri.L.J. 489 wherein the authorities bearing on the question are considered by that learned Judge. The conclusion come to be him is that. 'It is not every interlocutory order passed in the course 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'. 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 proceedings 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 on the order which is passed on his objection, whether it upholds the arrests or sets it aside that it 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 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. The further fact which is material to this case is that, after the disposal of the appeal by lower Appellate Court on the 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 the 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 set up under Order XXI, 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 appears to have been preferred against the order but this appeal is preferred by the judgment-debtor on the 16thMarch, 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 the order was void as notice to the judgment-debtor which was not given was an essential prerequisite.

7. 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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