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Benoy Krishna De and ors. Vs. Ashutosh De and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 1 of 1951
Judge
Reported inAIR1954Cal389,58CWN78
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 58 and 63; ;Limitation Act, 1908 - Schedule - Article 11; ;Bengal Tenancy Act - Section 170
AppellantBenoy Krishna De and ors.
RespondentAshutosh De and ors.
Appellant AdvocateHemendra Chandra Sen and ;Basanta Kumar Panda, Advs.
Respondent AdvocateAtul Chandra Gupta and ;Chandra Nath Mukherji, Advs.
DispositionAppeal dismissed
Cases ReferredSubedar Singh v. Ramprit Pande
Excerpt:
- .....of the claim was not necessary in order to make a dismissal of an application under order 21, rule 58 a dismissal which would attract the provisions of rule 63, required to be reviewed. in his submission, unless there had been an investigation into the merits of a claim sought to be asserted by an application under order 21, rule 58 there was really no such application prosecuted or considered by the court and therefore there could be no question of the provisions of rule 63 applying. mr. sen went on to argue that the omission in rule 63 in the code of 1908 of a specific reference to the rules, preceding that rule really made no difference, as the rule, on a true construction, must be read as containing a reference to those rules by clear implication. if so, mr. sen continued,.....
Judgment:

Chakravartti, C.J.

1. This is an appeal under Clause 15 of the Letters Patent against a judgment and decree of Rama Prasad Mookerjee J. passed in Second Appeal No. 1451 of 1946 which was heard along with Second Appeal No. 1926 of the same year. The appellants, who were the plaintiffs in the suitout of which this appeal has arisen lost beforethe trial court, won in part before the court of first appeal, lost again in second appeal and have now preferred a further appeal under the Letters Patent.

2. Mr. Sen, who appears for the appellants, has given us an exhaustive history of the antecedent facts which led to the present litigation. Those, however, which lie behind the year 1940 are not strictly material for the purposes of this appeal. Suffice it to say, that there are four holdings which came in course of time to be held and owned both, as regards the landlord interest and the interest of the tenants, by a large number of persons.

In the year 1940, two of them namely Benimadhab Choudhury and Kunja Behari Choudhury, who between them owned a 2 as 8 gds. share in the landlords' interest, brought a rent suit which was Suit No. 412 of that year. Among the defendants of that suit were the present plaintiffs who were defendants Nos. 3 to 5. One Ashutosh Dey who was pro forma defendant No.13 in that suit and another person who was pro forma defendant No. 12 applied to be transferred to the category of the plaintiffs and their applications were allowed. On 18-11-1940, the plaintiffs of the suit, including the new co-plaintiffs, filed a petition by which they prayed that the names of the present appellants who, as I have already said, were defendants Nos. 3 to 5 in the suit, might be expunged, as they did not desire to prosecute the suit against those defendants. The specific prayer was that the plaintiffs might be permitted to proceed with the suit against the remaining defendants after omitting defendants Nos. 3 to 5. Actually, however, the names of the plaintiffs were not expunged and the suit was dismissed against them, whereas it was decreed ex parte against the remaining defendants.

3. On 5-10-1942, Ashutosh De, to whom I have already referred, put the decree into execution by Rent Execution Case No. 878 of 1942. It appears that on that application being made, 21-4-1943 was fixed as the date of the sale, but the appellants made an application whereupon the sale was adjourned to April 26 next and then again to April 27, when the application was dismissed for default. It is not necessary to refer to that application further.

On 27-4-1043, the appellants made another application which they styled as an application under Order 21, Rule 58, Civil P. C. and by that application they stated to the court that the judgment-debtors had no saleable interest in the properties concerned inasmuch as they themselves had become the full 16 as owners as a result of a partition between the co-sharers. Another objection taken by the appellants was contained in para 7 of the application where it was stated that the decree put into execution was not a rent decree at all, inasmuch as it had not been obtained either by the total body of the landlords or against the total body of tenants and that, accordingly, the procedure laid down in Chapter14 of the Bengal Tenancy Act was not applicable. That application came to be dealt with by the executing court on 12-6-1943, when it was dismissed.

The two grounds upon which the court based the dismissal were that, there had been a prior application which, although not called an application under Order 21, Rule 58 was, in fact and in substance, an application under that rule and consequently any further remedy of the applicants lay by way of a suit and not by way ofa second application. The other ground given by the executing court should be stated in the language of the court itself which was as follows :

'In view of the description of the lands, in the execution petition and in Ex. A, it is clear that the holding attached has been attached in execution of a decree for arrears of rent due thereon. Hence, in view of the provisions of Section 170, Bengal Tenancy Act, the petitioners cannot take advantage of Order 21, Rule 58, C. P. Code in order to object to the sale or the attachment.'

In the result, the learned Munsif held that the Miscellaneous Case started on the petition of objection was not 'maintainable in law.'

4. Thereafter, the sale was held on 21-3-1943, at which the executing creditor, Ashutosh De, purchased the properties himself. There was a further objection taken by the appellants by means of an application under Section 47, Civil P. C. But it is not necessary to make any reference to that application except to say that it was dismissed.

5. The suit out of which the present appeal has arisen was filed on 28-10-1944. It was a suit for a declaration of the plaintiffs' title, for a further declaration that that title had not been affected by the auction sale held in Rent Execution Case No. 878 of 1942, for confirmation of possession or in the alternative recovery of possession and a permanent injunction, restraining Ashutosh De, from interfering with the possession of the plaintiffs. The averments in the plaint are practically the same as had been made by the plaintiffs on three previous occasions, namely in their first application filed on 21-4-1943, the second application filed on April 27 and the third application under Section 47 filed on 15-1-1944. They alleged that the sale was not a rent sale and that their interest had not passed thereby. There can thus be no doubt that the appellants were trying by the suit to establish the right which they claimed to the properties in dispute and which they had asserted in theirapplication under Order 21, Rule 58 of the Code.

6. On 4-10-1945, the trial court dismissed the suit on two grounds. It held, in the first instance, that the suit was barred by limitation under Article 11, Limitation Act, inasmuch as it had not been brought within one year from the date when the application under Order 21, Rule 58 had been dismissed. It was held in the second place that the suit was also barred under Section 47, Civil P. C. as also by principles of res judicata.

7. The appellants thereafter preferred an appeal and were successful as regards an eight annas share which had never been disputed. The learned District Judge held that inasmuch as the executing court, in dealing with the application under Order 21, Rule 58 held that no such application could lie in view of the provisions of Section 170, Bengal Tenancy Act. the consequences laid down in Order 21, Rule 63 read with Article 11, Limitation Act, could not ensue, inasmuch as, if those provisions were applied, it would be treating the application as an application under Order 21, Rule 58 which it had been declared not to be. According to the learned District Judge, Rule 63 contemplated a 'partyagainst whom an order is made', but where the executing court decided that it had no jurisdiction to entertain the application made, it really passed no order against anybody and therefore the provisions of Rule 63 were not attracted to such a case. Apparently, however, the learned District Judge did not believe the story of the partitionand the khas possession by the appellants of the full 16 as interest in the property. Accordingly, he gave them a declaration with respect to an eight annas share and a decree for joint possession with Ashutosh De.

8. Thereafter, two appeals were preferred to this Court. The present appellants preferred Second Appeal No. 1826 of 1946 by which they complained of that part of the learned Judge's decision whereby he had disallowed their claim with regard to an eight annas share of the properties, while Ashutosh De preferred Second Appeal No. 1451 of 1946 against that part of the learned District Judge's decision whereby he allowed the present appellants' claim to the extent of eight annas. The two appeals came to be heard together by Rama Prasad Mookerjee J, and he allowed Appeal No. 1451 while dismissing Appeal No. 1926. In the result, he restored the judgment and the decree of the trial court and dismissed the appellants' suit. It is against that decision that the present appeal has been preferred, but it is limited to Second Appeal No. 1451 of 1946.

9. The only point urged in the Second Appeal appears to have been that the order passed on 12-6-1943, was not a decision under Order 21, Rule 58, Civil P. C., inasmuch as the appellants' application had been thrown out 'in limine' without an investigation into the facts. That being the only point urged, the learned Judge found it easy to dispose of it by referring to some of the innumerable decisions by which it has now been firmly established that it is not necessary that there should be an investigation as to the merits of the claim before a dismissal of an application under Order 21, Rule 58 if the consequences laid down in Rule 63 were to follow. Before the learned Judge, reference appears to have been made not only to the second application which was expressly described as an application under Order 21, Rule 58 but also to the first application which seems to have been regarded as equally an application under that rule. As the learned Judge thought that the view he was taking as to the effect of the dismissal of the application under Order 21, Rule 58 and the failure of the appellants to bring their suit within a year from the date of the dismissal was decisive of their claim, he considered it unnecessary to deal with any other question.

10. Before us. Mr. Sen who appears on behalf of the appellants sought to argue that the decisions where it had been held that an investigation into the merits of the claim was not necessary in order to make a dismissal of an application under Order 21, Rule 58 a dismissal which would attract the provisions of Rule 63, required to be reviewed. In his submission, unless there had been an investigation into the merits of a claim sought to be asserted by an application under Order 21, Rule 58 there was really no such application prosecuted or considered by the court and therefore there could be no question of the provisions of Rule 63 applying. Mr. Sen went on to argue that the omission in Rule 63 in the Code of 1908 of a specific reference to the rules, preceding that rule really made no difference, as the rule, on a true construction, must be read as containing a reference to those rules by clear implication. If so, Mr. Sen continued, nothing had happened to displace the decisions given under the old Code and consequently the decisions in the contrary sense, given under the new Code, required re-examination.

11. In my opinion, this contention of Mr. Sen cannot be accepted. Apart from the fact thatthere is nothing in the language of Section 63 or the language of Rule 58 to require that the relevant dismissal must be a dismissal after an examination of the merits of the case, the principle that no such examination is essential is now too firmly established to be questioned. The point involved is one of procedure and if a particular procedure has been held and declared to be the correct procedure by judicial decisions spread over almost half a century, it would not be proper to seek to re-open the question over again, unless some very strong reasons could be made out. I do not find any reason, strong or weak, to think that the decisions under the Code of 1908 may not be correct and may have put a wrong construction upon the provisions of Rule 58 and 63 of Order 21, of the Code. In my opinion, the question of the necessity or otherwise of an examination of the merits of a claim was rightly decided in the judgment under appeal and Mr. Sen's contentions to the contrary are not sustainable.

12. Another point, however, falls to be considered. It is a point to which a passing reference is to be found in the judgment of the learned District Judge, although it does not seem to have been raised in the course of the Second Appeal before this Court. It was contended that since the application under Order 21, Rule 53 was thrown out by the executing court as not entertainable in view of the provisions of Section 170, Bengal Tenancy Act, there was no application under that rule at all and consequently the provisions of Rule 63 would be out of the appellants' way. What was said was that if the execution proceeding was a proceeding for the execution of a rent decree under Chapter 14 of the Bengal Tenancy Act an application under Order 21, Rule 58 would be entirely foreign to such a proceeding and if a party mistakenly made such an application and the court threw it out on the ground that no such application lay, the position, in effect, would be as if no application under Order 21, Rule 58 had been made at all and as if no dismissal of such an application had taken place. From that premises it was sought to be concluded that no question arose in the present case of non-suiting the appellants under Order 21, Rule 63 read with Article 11, Limitation Act.

13. The question is an interesting one, but on the facts of the case it is not so interesting as it might be, if the appellants' application had not purported to be an application under Order 21, Rule 58 and if the execution proceeding had really been a correct proceeding under Chapter 14 of the Bengal Tenancy Act. It appears, however, as I have already stated, that the appellants themselves described the application as one under Order 21, Rule 58 of the Code. They themselves took it as one of the grounds of their objection that Chapter 14 of the Bengal Tenancy Act was not applicable, inasmuch as the decree put into execution was not a rent decree. Clearly, their own case that it was the Code which applied and it was under the Code that they preferred an objection. That being so, I do not see how the dismissal of the application made by the appellants could be any thing else than a dismissal under the Code of Civil Procedure and if it was such a dismissal, how the operation of Rule 63 or Article 11, Limitation Act could be excluded. The position, on the facts of the case, clearly was that there was a proceeding for the execution of a decree for rent which was, in law, a money decree and to which the provisions of Chapter 14 of the Bengal Tenancy Act were not applicable. The appellants themselves thought so and therefore, if I may use a calloquial expression, it was the Civil P. C. all over.

An application made expressly under Order 21, Rule53 in a proceeding which, the applicants said, could not be a proceeding under the Bengal Tenancy Act and could therefore be only a proceeding under the Code could only to be dismissed under the Code as, in my judgment, the appellants' application was. That being so, I do not see how Mr. Sen can maintain his contention that there was never any application under Order 21, Rule 58 of the Code at all, and never any dismissal of such an application. Indeed, the application was dismissed for the very reason that it was an application under Order 21, Rule 58 and a decision that it did not lie, could not make it a different application.

14. Two positions are conceivable. There may be a rent decree in the true sense of the term and there may be an execution proceeding in fact launched and properly launched under Chapter 14 of the Bengal Tenancy Act. There may be an application under Order 21, B. 58 in such a proceeding and that application may be rightly dismissed as barred under Section 170, Bengal Tenancy Act. The other position is that there may be a rent decree which is, in law, a money decree but the decree may be wrongly put into execution under the procedure prescribed in Chapter 14 of the Bengal Tenancy Act. There may be in such a proceeding an application under Order 21, Rule 58 and that application may be wrongly dismissed by the executing court as not maintainable upon a mistaken reliance on the provisions of Section 170, Bengal Tenancy Act. The latter, I need hardly point out, is the position in the present case.

There can be no doubt that when the executing court decided that the appellants' application under Order 21, Rule 58 was barred by Section 170, Bengal Tenancy Act, it made a wrong decision, but whatever the reasons it might have given, the fact remains that it dismissed an application which was an application under Order 21, Rule 58 and if there was a dismissal, all else, in my judgment, followed. There was a disallowance of the claim under Rule 60 and therefore Rule 63 was attracted and there was an order under the Code against the appellants in respect of their claim to the property and their objection to its attachment which attracted Article 11, Limitation Act.

14a. It was stated before us that the order sheet of the execution case suggested that it was not a proceeding under the Bengal Tenancy Act, but a proceeding under the Code, although what the nature of the proceeding was, did not appear very clearly. If the proceeding was under the Code, the point taken by the appellants is not even arguable, whatever the mistake of the Munsif might have been.

15. It is not necessary for the purposes of this case to say what the position would be in the first of the two positions I have sketched above. In my view, there too, the dismissal of the application under Order 21, Rule 58 would attract the consequences laid down in Rule 63 for the simple and sufficient reason that the application would be an application under Rule 58 and there would be a dismissal under the Code of Civil Procedure. But, as I have stated, it is not necessary for the purposes of this case to examine the first position further.

16. In my view, it cannot be held, on the facts of the present case, that there was no application under Order 21, Rule 58 and no dismissal of that application under the Code. That being so, if the appellants wanted to bring a suit in order to assert a claim which they had put forward by their application, they were required by the Limitation Act to bring it within one year but having, in fact, brought their suit after the expiry of the prescribed period, they must find their suit barred. The view I am taking was, I find, also taken in the case of -- 'Subedar Singh v. Ramprit Pande', AIR 1929 Pat 116 (A).

17. For the reasons given above, this appeal is dismissed with costs.

Lahiri, J.

18. I agree.


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