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Sm. Rekha Rani Dey Vs. Shyam Sundar Dhar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3463 of 1974
Judge
Reported inAIR1976Cal229
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 21, Rule 58 and 58(2)
AppellantSm. Rekha Rani Dey
RespondentShyam Sundar Dhar and ors.
Appellant AdvocateSatish Chandra Roy, Adv.
Respondent AdvocateManmohan Mukherjee, Adv. (for No. 1), ;S.C. Roy, Adv. (for No. 2) and ;Ashim Kumar Mukherjee, Adv. (for No. 3)
DispositionApplication allowed
Cases ReferredSujit Singh v. Debala Mukherjee
Excerpt:
- .....respectively. the said orders were made in a proceeding under order 21, rule 58 of the code of civil procedure.2. the admitted position is that the petitioner is the wife of the opposite party no. 2 sri provat kumar dey and the opposite party no. 1 is his cousin. the petitioner has alleged that by virtue of a registered deed of conveyance executed by one minoti roy mitra wife of sri adhir kumar mitra of 98, p. k. guha road, p. s. dum dum in the year 1964, she purchased 2 cottas 14 chattaks and 39 sq. ft. of land and such purchase was made out of her stridhan money. she has further alleged that since such purchase she is in possession of the said lands and has constructed a two storied building with her own money. she has further alleged that she is in possession of the said lands on.....
Judgment:

M.N. Roy, J.

1. This Rule was obtained against three orders viz.. Orders Nos. 15, 18 and 21 dated 16th August, 1974, 30th August, 1974 and 31st August 1974 respectively. The said orders were made In a proceeding under Order 21, Rule 58 of the Code of Civil Procedure.

2. The admitted position is that the petitioner is the wife of the opposite party No. 2 Sri Provat Kumar Dey and the opposite party No. 1 is his cousin. The petitioner has alleged that by virtue of a registered deed of conveyance executed by one Minoti Roy Mitra wife of Sri Adhir Kumar Mitra of 98, P. K. Guha Road, P. S. Dum Dum in the year 1964, she purchased 2 cottas 14 chattaks and 39 sq. ft. of land and such purchase was made out of her stridhan money. She has further alleged that since such purchase she is in possession of the said lands and has constructed a two storied building with her own money. She has further alleged that she is in possession of the said lands on her own right on payment of rent to the Collectorate of 24 Parganas and partly letting out 8 rooms to different tenants and by realising rents from them.

3. It has further been alleged by the petitioner that the opposite party No. 1. who got a money decree against the husband opposite party No. 2 for Rupees 26,090.80 P. is going to have her dwelling house and the lands sold in Miscellaneous Execution Case No. 3 of 1973 and before the Subordinate Judge, 6th Court, Alipore she has stated that she got the information about the said sale on 14th August 1974 from one of her tenants. She has further alleged that the opposite party No. 1, who duly had notice and knowledge of her ownership and possession of the property was going to effect the said sale fraudulently and in connivance with the process server, because no process meant for such sale has been duly served on her.

4. It appears that immediately on receipt of such information, on or about 16th August, 1974 the petitioner filed an application under Order 21, Rule 58 of the Code of Civil Procedure before the Executing Court and thereby she preferred her claim which was registered as Miscellaneous Case No. 34 of 1974. It further appears from the records of the connected proceedings that by the impugned order No. 15 dated 16th August, 1974 the said claim as mentioned hereinbefore was registered and further proceedings were ordered to be stayed on condition of the petitioner depositing a security of Rs. 5,000/- by 30th August. 1974. It also appears that on 30th August, 1974 the petitioner made an application before the learned trial Judge for 2 months time to move this Court against the said order dated 16th August, 1974 and by order No. 18 dated 30th August, 1974, such prayer has been rejected. Thereafter, by impugned order No. 21 dated 31st August, 1974 the learned trial Court held the sale and the petitioner's property was purchased by the opposite party No. 3 and 19th November, 1974 was fixed for confirmation of the same. The petitioner has alleged that because of the said order, her claim under Order 21, Rule 58 has been rendered infructuous.

5. At the time of the hearing of the Rule Mr. Roy appearing for the petitioner has contended that the directions on the petitioner to deposit Rs. 5,000/- as a condition precedent for the order of stay as was given by the learned trial Court, was in excess of jurisdiction and furthermore the said Court was wrong in making the impugned order for the sale and confirmation thereof without investigating the claim of the petitioner and the more so when such claim was duly registered. Such an act, Mr. Roy has contended to be unauthorised and irregular. Mr. Roy has further contended that the learned trial Court also acted illegally and with material irregularity in not considering first the petitioner's claim, ignoring the mandatory provisions of Order 21, Rule 58 of the Code of Civil Procedure and furthermore the said Court also acted without jurisdiction in ignoring the procedure as laid down in Order 21, Rr. 59, 60 and 61 of the Code of Civil Procedure. He has further contended that the order for sale and fixing the date of confirmation thereof as has been directed by the learned trial Court has in fact rendered the petitioner's application under Order 21, Rule 58 infructuous and this fact has been totally ignored by the learned trial Court. Mr. Roy also contended that since the claim of the petitioner has been registered and not yet rejected 90 under the mandatory provisions of Order 21. Rule 58 of the Code of Civil Procedure, the learned trial Court was under the duty and obligation to investigate and decide the case and/or claim as raised and more particularly so when the petitioner has been able to produce certain documents in support of such claim and has also been able to make out a case for possession. Mr. Roy submitted that Sub-rules (1) and (2) of Order 21, Rule 58 of the Code of Civil Procedure should be read together and in conjunction and not otherwise. In support of his contentions Mr. Roy first relied on the case of Sasthi Charan Biswas v. Gopal Chandra Saha reported in 41 Cal WN 845 = (AIR 1937 Cal 390). In that case it has been held that after the sale has actually taken place, the executing Court has no jurisdiction to entertain a claim or petition filed under Order 21. Rule 58 of the Code although such application may have been made prior to the sale and although the sale may not have been confirmed. It has further been held that consequently, where an application under Rule 58, filed before the sale is dismissed for default after the sale and the suit is-thereafter brought by the claimant, Article II (sic) of the Limitation Act does not apply to such a suit This case apparently does not help Mr. Roy but he tried to distinguish the same on the facts of the present case, by contending that the first order being order No. 15 dated 16th August, 1974 is bad on the face of the record inasmuch as the stay order has not been passed in conformity with the provisions of the Order 21, Rule 58 of the Code of Civil Procedure as from a reference to the same it is not possible to find out as to on what basis the said sum of Rs. 5,000 was asked to be deposited by the petitioner. He submitted that the Calcutta amendment of the said Order 21, Rule 58 certainly has given the discretion to the Court regarding the stay of proceeding upon such terms as to security, or otherwise. Mr. Roy submitted that since, from a reference to the impugned order it is very difficult to find out as to on what basis such deposit was directed, so on the face of it there was non-application of mind and that too appears from the fact that while asking for the said security the learned trial Court failed to consider the admitted fact that the property in question has already been attached and as such the said order is liable to be set aside. He further submitted that if he succeeds on that ground viz., the said impugned order No. 15 is set aside then other orders viz., Orders Nos. 18 and 21' would have no effect. On the question of validity of the said order No. 15 Mr. Roy further relied on the case of Sinnaru Thevan v. Nachiappa Chettiar, reported in : AIR1955Mad67 , wherein it has been observed that pending an application for execution of a decree, if a third party claimant puts in a claim petition on the ground that the properties attached by the decree-holder do not belong to the judgment-debtor, the decree cannot be executed. The pendency of the claim petition operates as stay of the execution of the decree in order to attract the provisions of Limitation Act. By referring to the said judgment Mr. Roy sought to reinforce his argument that since the petitioner's application was filed and the same was registered and pending, so there was an automatic stay of the execution of the decree. Thereafter, relying on the provisions of Order 21, Rule 59 of the Code of Civil Procedure, Mr. Roy further contended that since the claim of the petitioner was registered so the learned trial Court should have held an investigation and the petitioner should have been given an opportunity to adduce evidence to show that at the date of the attachment she had some interest in or she possessed the property so attached.

6. Mr. Manmohan Mukherjee, the learned Advocate for the opposite party No. 1 contended that the provisions of Order 21, Rule 58 of the Code of Civil Procedure have made categorical provisions that the Court may direct stay upon such terms as to security and a discretion has been given to the Court concerned as to fix the amount of security. Relying on the determinations in the case of Sasthi Charan Biswas v Gopal Chandra, 41 Cal WN 845 = (AIR 1937 Cal 390) (Supra) and a still earlier decision of this Court in the case of Gopal Chandra Mukherjee v. Notobar Kundu, reported in (1912) 16 Gal WN 1029, Mr. Mukherjee contended that the executing Court loses its jurisdiction to entertain and decide a claim petition under Order 21, Rule 58 of the Code of Civil Procedure after the property attached, has been sold. Thus in the facts of the present case, Mr. Mukherjee contended that since by order No. 21 dated 31st August, 1974, the sale has been held and a date has been fixed for confirmation of the same 50 the learned trial Court in any event had no jurisdiction to entertain and consider the said application of the petitioner under Order 21, Rule 58 of the Code of Civil Procedure. In short, he submitted that because of such subsequent happenings the said application of the petitioner cannot not only be entertained but the same has lost all its force and in that view of the matter this Court should not interfere with the determination as made. Apart from the above cases Mr. Mukherjee also relied on the case of Kali Charan Ghose v. Sarajini Debi reported in AIR 1926 Cal 468 = 87 Ind Cas 166 wherein it has also been held that after a property which had been attached in execution of a decree has been sold, the Court has no jurisdiction to hear an application putting forward a claim which, if successful, would result in the release of the attached property. Mr. Mukherjee further contended that in exercise of this Court's jurisdiction under Section 115 of the Code of Civil Procedure which incidentally is a very limited one, no interference should in the facts and circumstances of this case be made as there is no inherent illegality or irregular exercise of jurisdiction by the learned trial Court. For the purpose of finding out this Court's jurisdiction he relied on the case of Shaik Jaffar Shaik Mahmood v. Mohd. Pasha Hakkani Saheb, reported in : [1975]2SCR890 . In that case the respondent landlord applied to the Rent Controller for eviction of the appellant tenants on grounds of default in payment of rent and secondly bona fide personal requirement. Both the Rent Controller as well as the Assistant Judge who heard the appeal found that the tenants were not in default in payment of rent and that the landlords failed to establish bona fide requirement for their own use and occupation. The High Court in revision under Section 26 of the concerned Act reversed the decision holding that the landlords had sufficiently proved their bona fide requirement and ordered delivery of possession. On appeal it has been held that the revisional power is different from appellate power, the same being narrower than the latter. The said Section 26 is not different from Section 115 of the Civil Procedure Code. The revisional power under Section 26 is limited in terms of the section itself and is necessarily narrow. Section 26 is not wider than Section 115 which has been held to apply to jurisdiction alone, the irregular exercise, or the non-exercise of it, or the illegal assumption of it. It is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. Thus it has also been held that in such a case the High Court has to see whether there is any error of jurisdiction committed by the Controller or by the appellate authority in passing the order or whether there is any such manifest error of procedure committed by the Courts as may affect the ultimate decision resulting in gross injustice. The High Court cannot sit in appeal in order to reappreciate evidence. This apart, on this point Mr. Mukherjee also relied on an earlier decision of the Supreme Court in the case of Ratilal Balabhai Nazar v. Ranchodbhai Sankerbhai Patel, reported in : AIR1966SC439 . Mr, Mukherjee also submitted that in view of the admitted position that the petitioner had and has other remedies to have the sale set aside under Order 21, Rules 89 and 90 no interference should be made in this jurisdiction at this stage. He also submitted that the petitioner not having made application under Rules 89 and 90 or 91 of Order 21 of the Code, the sale in question has also become absolute under the provisions of Order 21, Rule 92 of the Code of Civil Procedure and as such following the determinations in Gopal Chandra Mukherjee v. Natobar Kundu (supra). Sasty Charan Biswas Banik v. Gopal Chandra Shaha (supra) and Kalicharan Ghose v. Sarajini Debi, the executing Court could not interfere or entertain the instant application under Order 21, R. 58 of the Civil Procedure Code, Mr. Mukherjee also contended that under the provisions of Order 21, Rules 97, 98 and 99 the petitioner in the instant case also had and has the right to resist or obstruct the action of the decree-holder or the auction purchaser and she not having taken such steps even, this Court should not interfere at this stage in this jurisdiction. Mr. Mukherjee also submitted that apart from those (remedies) as mentioned hereinbefore the petitioner had still another remedy open under Order 21, Rule 100 and she having failed and neglected to avail of such remedy no interference should be made. Apart from the above mentioned points regarding the maintainability of the application, Mr. Mukherjee submitted that the said application or the claim as sought to be raised therein on the question of sole ownership of the petitioner in respect of the properties in question, was not bona fide and for the purpose of establishing his contentions that the petitioner is not the owner of the land and the buildings thereon and in fact the opposite party No. 2 is the owner, he first referred to the application for execution of the decree, where it is noted in the column meant for encumbrances that the said application was subject to the registered agreement for sale dated 9th January, 1970 in favour of the decree-holder. Mr. Mukherjee further produced and relied on a plain copy of the said agreement for sale in favour of the opposite party No. 1, executed jointly by the petitioner and her husband, the opposite party No. 2. Although the said agreement for sale is not on the record yet the same on being produced by Mr. Mukherjee, we have look into me same as the reference of the said record is available on the application for execution itself and furthermore as Mr. Roy appearing for the petitioner has not objected to the said course which was followed by us.

7. In reply, apart from denying the validity of the submissions of Mr. Mukherjee on merits and repeating his submissions as recorded hereinbefore, on the question of the jurisdiction of this Court in interfering in the instant case under Section 115 of the Code of Civil Procedure, Mr. Roy first relied on the case of Sarajubala Debi v. Mohini Mohan Ghose, reported in 40 Cat LJ 191 = (AIR 1925 Cal 204). In that case it has been held that it is the settled practice of the High Court to interfere as little as possible with interlocutory orders where an alternative remedy exists but the High Court can and will interfere with interlocutory orders where they may lead to a failure of justice or to irreparable injury. Mr. Roy further relied on the case of Indu Bala Dasi v. Lakshmi Narayan Gagali, reported in AIR 1935 Cal 102.

8. There cannot be any doubt that the jurisdiction and power of interference of the High Court in a proceeding under Section 115 of the Civil Procedure Code is not only very limited but the same is restricted too. It is not all wrongs which can be corrected or interfered with in such a proceeding. On the basis of the determination of the Supreme Court in the case of Shaik Jaffar Shaik Mahmood v. Mohd. Pasha Hakkani Saheb, : [1975]2SCR890 (supra), High Court has power to see whether there is any error of jurisdiction committed by the Court below in passing the order or whether there is any such manifest error of procedure committed by the said Court which has affected the ultimate decision resulting in gross injustice. Thus we shall have to consider and examine first whether the impugned determination suffers from such defect as mentioned hereinbefore and if the answer to such question is in the affirmative then and then only we can interfere under the present jurisdiction. It is an admitted fact that the property in the instant case has been attached. So it cannot be denied that the claim of the decree-holder was and is secured. Now the question would be whether in that admitted state of affairs the learned trial Court was justified in asking for further or any security as mentioned in the impugned order No. 15 dated 16th August, 1974, whereby a conditional stay, was granted. In our view such demand for security without specifying the basis for the same and the more so when the entire claim was secured by the attachment in question was not required and the said fact of non-consideration of the order, of attachment has affected the ultimate decision and has resulted in gross injustice and as such the said order cannot be sustained. We are also of the view that in making the said order No. 15 there has been total non-application of mind which can be considered as material irregularity and that also gives us jurisdiction to interfere under Section 115 of the Code of Civil Procedure. As a consequence of the said order No. 15 being held to be void, illegal and irregular, the other impugned orders being orders Nos. 18 and 21 would also fail because the said orders cannot be sustained or enforced in the absence of order No. 15. We are further of the view that the application for stay which has been disposed of in the manner as indicated above and the said order itself was improper and the more so when the claim under Order 21, Rule 58 of the Code of Civil Procedure has been duly registered.

9. Now reverting back to the other point on merits as was urged by Mr. Mukherjee relying on the determinations as made in the cases of Gopal Chandra Mukherjee v. Notobar Kundu. (1912) 16 Cal WN 1029 (supra), Kalicharan Ghose v. Sarajini Debi, AIR 1926 Cal 468 (supra) and Sasthi Charan Biswas v. Gopal Chandra, (AIR 1937 Cal 390) (supra), we find that the case before us because of the admitted filing of an application for stay during the pendency of the application under Order 21, Rule 58 of the Code of Civil Procedure may be distinguished from those cases and the determinations made therein. In the first case i. e., (1912) 16 Cal WN 1'029 (1030), no separate application for stay was filed in the proceeding under Order 21, Rule 58 of the Code of Civil Procedure, the same is also the position in the second case reported in AIR 1926 Cal 468 and similar is the position in the third case reported in 41 Cal WN 845 = (AIR 1937 Cal 390). In this case we are of the view that when a separate application was filed in the proceeding under Order 21, Rule 58 of the Civil Procedure Code, which was duly registered, the learned trial Court should have duly disposed of the same after properly taking into consideration the subsisting order of attachment before making any order for security and the non-consideration of the said order of attachment and/or issuing the impugned order for security without such consideration has become fatal and that has made the said order bad, void, illegal and irregular and furthermore the same has resulted in failure of justice.

10. For all the reasons as mentioned above, the said impugned order No. 15 cannot be sustained and as such the said is quashed and set aside. As a result of such determination the other subsequent orders NOB. 18 and 21 cannot also stand.

11. The Rule is thus made absolute. There will however, be 'no order for costs.

12. We direct that the records should be sent down at once and within 4 months from the date of receipt of the records from this Court the learned trial Court should make endeavours to dispose of the application under Order 21, Rule 58 of the Code of Civil Procedure as filed by the petitioner and determine the bona fides or otherwise of the claim as has been raised by her. We also feel that when the purchase in the instant case has been alleged to be made in 1964 and the petitioner has alleged possession of the properties in question on her, she must be given an opportunity to substantiate her claim. We further direct that until such determination is made or till necessary orders are passed by the learned trial Court the attachment of the properties in dispute would continue and the security as has been furnished by the petitioner in the original proceeding and under order a of this Court should not be released.

13. It must also be noted that Mr. Mukherjee also made a reference to the case of Sujit Singh v. Debala Mukherjee reported in (1974) 78 Cal WN 332 and since the determinations in that case have no relevance or any application in the facts of the instant case, we have made no reference to the same.

K.J. Sen Gupta, J.

I agree.


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