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Paras Ram Vs. Hem Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn No. 19 of 1961
Judge
Reported inAIR1962HP32
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 47 and 96; ;Himachal Pradesh Debt Reduction Act, 1953 - Sections 7, 8 and 14
AppellantParas Ram
RespondentHem Raj and ors.
Appellant Advocate D.R. Chaudhary, Adv. on behalf of Ramji Das, Adv.
Respondent Advocate T.P. Vaidya, Adv.
DispositionRevision allowed
Cases ReferredMan Mohan Lal v. Raj Kumar Lal
Excerpt:
(i) civil - amendment of appeal - section 47 of code of civil procedure, 1908 - whether order passed by court executing decree refusing to amend decree in accordance with act relates to execution, discharge or satisfaction of decree and is appealable - order refusing to amend decree was passed by court in which execution of decree was pending - in case decree had been amended and decretal amount scaled down there could have been no doubt that application for amendment of decree raised question relating to discharge of decree - result of dismissal of that application was that decretal amount was not reduced and application for amendment may be considered to have raised question relating to discharge of decree and as such within purview of section 47 - in light of precedents order rejecting..........is a decree under section 2(2) of civil procedure code and is appealable under section 96 of the code? 6. question no. 1: there is no reported decision on the question under consideration. the provisions of the himachal pradesh act are mutatis mutandis substantially identical with the provisions of the u. p. debt redemption act of 1940 and although i have not been able to lay by hands on the bengal money-lenders act no. 10 of 1940 or the madras agriculturists' relief act no. 4 of 1938 it appears from the reported decisions under the madras act that the relevant provisions for reduction of debts and for amendment of decrees under that act were substantially identical with the provisions of the himachal pradesh act. the scope of the provision, of the bengal money-lenders act does not.....
Judgment:

C.B. Capoor, J.C.

1. This application in revision is directed against an appellate judgment and decree whereby the learned District Judge, Mandi and Chamba districts, dismissed an appeal preferred by the petitioner against an order of the Senior Subordinate Judge Mandi dismissing an objection filed by the petitioner.

2. A decree for recovery of Rs. 904/6/- was passed against the petitioner on 26-2-1952. Execution was taken out by the decree-holder and the last execution application was made on 20-4-1960. During the course of execution proceedings the petitioner filed an objection petition purporting to be under Sections 7 and 8 of the Himachal Pradesh Debt Reduction Act 1953, hereinafter to be referred as 'the Himachal Pradesh Act and under Section 47 of Civil Procedure Code. The main ground of objection was that the decree may be re-opened, accounts taken and the decree amended in accordance with the provisions of the Himachal Pradesh Act. The objection petition was dismissed in default of appearance of the petitioner. It was, however, restored to its original number on 3-6-1960. Issues were framed and 20-8-1960 was fixed for the production of evidence. The petitioner did not lead any evidence either on that date or on the dates fixed thereafter and on 8-12-60 the counsel for the petitioner made a statement that he had no instructions for appearance. The learned Senior Subordinate Judge dismissed the objection petition in default of appearance of the petitioner.

On 22-12-1960, the petitioner filed another objection petition purporting to be under Sections 7 and 8 of the Himachal Pradesh Act and Section 47, Civil P. C., raising practically the same points which were raised in the previous objection petition. The learned Senior Subordinate Judge dismissed the objection petition. The petitioner preferred an appeal in the Court of the learned District Judge. The respondents raised a preliminary objection that the appeal was not competent. This objection found favour with the learned Court. It held that a prayer for amending the decree did not fall within the purview of Section 47, Civil P. C., and as such no appeal lay against such an order.

3. The correctness of the aforesaid view has been challenged by the present application in revision.

4. A reference to the relevant sections of the Himachal Pradesh Act may usefully be made at this stage. While there is a provision for the amendment of a decree in accordance with the provisions of the Act and that when a decree is so amended it shall bear the date of the original decree (vide Section 7) there is no specific provision providing or denying a right of appeal against a decree so amended or against an order refusing to amend the decree. Section 14 makes the provisions of Civil Procedure Code 1908, save in so far as they are not inconsistent with the provisions of the Act, applicable to all proceedings under the Act. Section 96, Civil Procedure Code, inter alia provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Courts.

5. The following questions arise for decision:

(1) Whether an order passed by a Court executing the decree refusing to amend the decree in accordance with the provisions of the Himachal Pradesh Act relates to execution, discharge or satisfaction of the decree and is appealable?

(2) If the answer to question No. 1 foe in the negative, whether such an order is a decree under Section 2(2) of Civil Procedure Code and is Appealable under Section 96 of the Code?

6. QUESTION No. 1: There is no reported decision on the question under consideration. The provisions of the Himachal Pradesh Act are mutatis mutandis substantially identical with the provisions of the U. P. Debt Redemption Act of 1940 and although I have not been able to lay by hands on the Bengal Money-lenders Act No. 10 of 1940 or the Madras Agriculturists' Relief Act No. 4 of 1938 it appears from the reported decisions under the Madras Act that the relevant provisions for reduction of debts and for amendment of decrees under that Act were substantially identical with the provisions of the Himachal Pradesh Act. The scope of the provision, of the Bengal Money-lenders Act does not sufficiently appear from the reported decisions and I do not, therefore, propose to notice the cases under that Act. The decisions under the U. P. Debt Redemption Act and the Madras Agriculturists' Relief Act indicate that there is divergence of judicial opinion on the question under consideration. One view is that an objection by a judgment-debtor that a decree be amended, and the decretal amount be reduced in accordance with the provisions of the Debt Acts raises a question relating to the satisfaction or discharge of the decree. Another view is that the question of discharge or satisfaction of the decree can arise only after a decree is amended and that the amending or refusing to amend a decree does not relate to execution, discharge or satisfaction of the decree and is beyond the purview of Section 47, Civil P. C.

7. It was held by a Full Bench of the Allahabad High Court in the Case of Mohd. Abdul Razzak v. Mt. Parvati Devi, AIR 1942 All 394 that an order rejecting an application for amendment of the decree by reduction of the decretal amount under Sections 8 and 9 of the U. P. Debt Redemption Act falls under Section 47, Civil P. C. and is appealable. The aforesaid case was relied upon in Shyam Sunder Lal v. Mt. Chandan Devi, AIR 1944 Oudh 119. The question, however, again came up before a Bench of seven Judges of that Court in the case of Badri Prasad v. Shankar Lall, AIR 1950 All 713 (FB) and it was held by majority that an order refusing to amend a decree under Section 8 of the aforesaid Redemption Act is not an order which relates to the execution, discharge or satisfaction of the decree and as such is not appealable under Section 47, Civil P. C. The earlier Full Bench case of Mohd. Abdul Razzak, AIR 1942 All 394 was overruled. The 1950 Full Bench ruling has since been followed by the Allahabad High Court, vide Chhedi Sahu v. Mst. Sheoraji, AIR 1953 All 708 and Rajendra v. Balsmukand, AIR 1954 All 63.

8. Section 19 of the Madras Agriculturists' Belief Act provided for the amendment of a decree in accordance with the provisions of the Act and a Full Bench of the Madras High Court held in the case of A.S. Nagappa Chettiar v. Annapoorani Achi, AIR 1941 Mad 235 that proceedings under Section 19 of the aforesaid Relief Act could not be regarded proceedings in execution and, therefore, Section 47, Civil P. C. could have no application and hence an order under that section was not appealable under Section 47. The question again came up before the Madras High Court in the case of Chandrasekhara Thevar v. Adaikappa Chettiar and the Court followed the earlier Full Bench decision. The matter went up in appeal and their Lordships of the judicial Committee accepted the appeal, vide Adaikappa Chettiar v. Chandrasekhara Thevar, AIR 1948 PC 12.

9. The facts of that case were as below. On 15-9-1925 a final decree was passed in a mortgage suit by the Subordinate Judge of Ramnad at Madura. Execution was taken out by the mortgagee decree holder and certain properties of the judgment debtor were advertised for sale. Before sale was effected the Madras. Agriculturists' Relief Act was passed in March 1938 and thereafter the judgment debtor made an application purporting to be under Sections 20, 19 and 8 of the aforesaid Agriculturists' Relief Act and under Sections 47 and 151, Civil P. C. The prayers were that the execution proceedings be stayed, the question of extent of liability of the objector under Section 19 of the Act be determined and a declaration be made that the debt was wholly discharged. On 25-7-1938 the aforesaid objection petition was dismissed summarily on the ground that the judgment debtor was not an agriculturist and an appeal was filed against that order in the High Court which directed the Subordinate Judge to submit a finding whether the judgment-debtor was an agriculturist and if so to what relief he was entitled under the Act. Thereafter the learned Subordinate Judge heard evidence and held that the judgment-debtor was not an agriculturist and was not entitled to the scaling down of the debt under the Act In the meantime on 3-8-1938 the judgment-debtor made an independent application in the original suit praying that the preliminary and final decrees be amended in accordance with the provisions of the Agriculturists' Relief Act. That application was dismissed on 9-2-1939 in view of the finding in the earlier objection petition. The judgment-debtor filed appeals in the High Court against both of the aforesaid orders. In view of 1941 Full Bench case, AIR 1941 Mad 235 (supra) the High Court held that an appeal against the order dated 9-2-1939 was incompetent but it acceded to the request made on behalf of the appellant that the appeal be treated as an application in revision and set aside the order dated 9-2-1939. The appeal against the order dated 25-7-1938 was heard as an appeal and was allowed and the case was remanded to the Subordinate Judge for disposal in accordance with the directions contained in the judgment.

10. Appeals were taken to the Privy Council against the orders made by the High Court and a question arose as to whether the orders of the Subordinate Judge dated 25-7-1938 and 9-2-1939 were appealable. Their Lordship held that the order dated 25-7-1938 related to the execution, discharge or satisfaction of the decree within the meaning of Section 47 and an appeal lay against it under Section 96 of Civil P. C. With regard to the order dated 9-2-1939 they held that it was not made in execution proceedings but was made in a suit and amounted to the formal expression of an adjudication which so far as regards the Court expressing it conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, namely, whether the judgment-debtor was an agriculturist and as such entitled to have his debt discharged or reduced under the Act. In their opinion the order was a decree within the meaning of Section 2(2), Civil P. C., and an appeal lay under Section 96 of the Code. In the course of their judgment they observed as below:

'The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such disputes the Courts are governed by ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal'

and concluded that the High Court was wrong in entertaining an application in revision since under Section 115 of the Code there is no jurisdiction in revision where an appeal lies and they vacated the order of the High Court setting aside the order of the Subordinate Judge dated 9-2-1939.

11. The following propositions of law emerge from, the aforesaid decision:

(a) That if an application for the reduction of a decreed debt to which the provisions of the Madras Agriculturists' Relief Act apply is made to the Court in which the decree is under execution a question relating to the satisfaction or the discharge of the decree arises and the order on such an application is one under Section 47 of Civil P. C. and is appealable.

(b) That if the application for the reduction of a debt governed by the Madras Agriculturists' Relief Act is made in the Court which decreed the debt the application does not relate to execution, discharge or satisfaction of the decree and is not one under Section 47, Civil P.C., but the order made on such an application conclusively determines the rights of the parties with regard to a matter in controversy and such an order has the force of a decree under Section 2(2) of Civil Procedure Code and is appealable under Section 96 of the Code even though a right of appeal against such an order has not been specifically conferred by the Agriculturists' Relief Act.

12. A right of appeal has not been specifically conferred against an order amending a decree or refusing to amend it either by the Himachal Pradesh Act or the U.P. Debt Redemption Act and in both of those Acts there is a provision for the application of the Civil Procedure Code to the proceedings) under the Acts in so far as there is no inconsistency between the provisions of the Code and of the Acts. The Madras Agriculturists' Relief Act appears to be on the same lines as the Himachal Pradesh and the U. P. Acts, referred to above, so far as the provisions for appeal and the application of Civil Procedure Code are concerned.

13. The aforesaid Privy Council cast does not appear to have been noticed in the Allahabad High Court decisions, referred to above and it is a matter for speculation as to what would have been the decision of that Court in the 1950 Full Bench, (AIR 1950 All 713) and the 1953 and 1954 cases, (AIR 1953 All 708 and AIR 1954 All 63) supra if its attention had been invited to it.

14. In the instant case the order refusing to amend the decree was passed by the Court in which the execution of the decree was pending. If the decree had been amended and the decretal amount scaled down there could have been no doubt that the application for the amendment of the decree raised a question relating to the discharge of the decree. The result of the dismissal of that application was that the decretal amount was not reduced and the application for amendment may well be considered to have raised a question relating to the discharge of the decree and as such within the purview of Section 47, Civil P.C. I am, therefore, with respect inclined to agree with the earlier decisions of the Allahabad High Court and the minority opinion expressed in the 1950 Full Bench case, (AIR 1950 All 713) supra.

15. Question No. 2: Even if the order of the Senior Subordinate Judge Mandi is not held to be one under Section 47, Civil P. C., it would be appealable. There is nothing in the Himachal Pradesh Act that may be inconsistent with the provisions of Section 96, Civil P. C., and it has already been seen that by Section 14 of the Himachal Pradesh Act such of the provisions of the Code as are not inconsistent with that Act have been made applicable to proceedings under the Act. Decree according to Section 2(2) of the Code is a formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to one of the matters in controversy in the suit. If an application for the scaling down of the decretal amount in accordance with the provisions of the Himachal Pradesh Act is opposed by the decree-holder a matter in controversy--at least a very vital matter to the applicant judgment-debtor--is raised and the order passed On such an application conclusively determines the rights of the parties with respect to such matter and in accordance with Section 2(2) of the Code is a decree and an appeal would lie against it in view of Section 96, Civil P. C.

16. It has been held by a majority decision in the case of Man Mohan Lal v. Raj Kumar Lal, AIR 1940 All 89 that an appeal under Section 96 of the Civil Procedure Code lies against an order amending a decree in accordance with the provisions of the Debt Redemption Act and if an appeal can lie against an order amending a decree it is a matter requiring serious, consideration as to why an appeal should not lie against an order refusing to amend the decree as in either case a matter in controversy is conclusively determined.

17. In conclusion, the application in revision is accepted with costs and the order of theearned District Judge is set aside and theappeal is remanded to him with the directionthat he should dispose it of on merits inaccordance with law.


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