Sheikh Rahim Bux v. Raghunandan Lal D. H. O. P — 1965 DIGILAW 560 (ALL)

JUDGMENT Satish Chandra, J. - This appeal is by the judgment-debtor. Both the courts below have dismissed his objection under Sec. 47, C. P. C. 2. One Jagdish Saran filed a suit (No. 336 of 1942) in the Court of the Munsif, for possession by demolition of the constructions and damages against the judgment-debtor appellant. This suit was ultimately decreed on 30th April 1946. The judgment-debtor filed a second appeal in this Court which was ultimately declared to have abated by an order dated 14-9-1950. Jagdish Saran having died, Raghunandan Lal, his brother, applied for execution of the decree on 17-12-1951. This was Execution Case No. 13 of 1954. The District Judge by an order dated 27-10-1953 transferred the execution case to the Civil Judge for disposal. 3. It appears that one Ramzani claimed ownership of the constructions. He filed suit No. 240 of 1951 for an injunction against the decree-holder that his decree in suit No. 336 of 1942 was not executable. One Chhuttan also claimed title in the land and he brought suit No. 172 of 1950 against the decree-holder, Raghunandan Lal, for a similar injunction. Both these suits were decreed and an injunction was issued against Raghunandan Lal - Raghunandan Lal filed appeals against both these decrees. Ramzani and Chhuttan made an application in Execution Case No. 13 of 1954 objecting to the execution of the decree. The judgment-debtor Rahim Bux also made an application dated 4-11-1954 praying that the decree-holder cannot maintain the execution and that the same be dismissed with costs. These applications were decided by the execution court on 6-11-1954. It observed as under: "Both the decrees are under appeal. So long as the appeals are not disposed of the decree-holder Raghunandan Lal cannot execute this decree. The decree-holder who is present in court is not prepared to execute the decree but only wants that the execution of this decree should be stayed. In the circumstances as they are in this case I do not see any reason to stay the execution of this decree. The best course in such circumstances would be to consign the record to the record room. Let the record be consigned to the record room." 4. The judgment-debtor was not satisfied. He filed an appeal against this order. In the circumstances as they are in this case I do not see any reason to stay the execution of this decree. The best course in such circumstances would be to consign the record to the record room. Let the record be consigned to the record room." 4. The judgment-debtor was not satisfied. He filed an appeal against this order. His grievance was that the execution court should have dismissed the execution case No. 13 of 1954 and should have awarded costs to the judgment debtor. This appeal (No. 472 of 1954) was dismissed with costs on 22-7-1958. The appellate court held that the execution courts order "Let the record be consigned to the record room" did not put an end to the execution proceedings and the impugned order was not an order in pursuance of Sec. 47, C. P. C. with the result that no appeal lies. In the meantime Raghunandan Lal's appeals against Ramzani and Chhuttan's decrees also succeeded. Those decrees were set aside and the suits were dismissed. The appeal against Ramzani was decided on 2-6-1956 and the appeal against the decree of Chhuttan was allowed on 17th March 1958. 5. On 9-7-1956 Raghunandan Lal applied to the execution court for revival of the Execution Case No. 13 for 1954. The judgment-debtor obtained a stay order in his appeal against the order dated 6-11-1954, staying further execution proceedings. On receipt of such a stay order the execution court passed an order on 11-9-1956 directing "let the execution proceedings be revived, but they shall remain stayed in compliance with the stay order." 6. After the appeals against Chhuttan and Ramzani had been allowed and the judgment debtors appeal had also been dismissed on 22-7-1958, Raghunandan Lal made another application to the execution court. This application was in a tabular form prescribed for execution applications. It prayed that the file of Execution Case No. 13 of 1954 be summoned from the record room and proceeded with by delivery of possession as directed in decree No. 336 of 1942. This application was registered as Execution Case No. 75 of 1958. The execution court acted accordingly and on 7-10-1958 issued a warrant for possession. It prayed that the file of Execution Case No. 13 of 1954 be summoned from the record room and proceeded with by delivery of possession as directed in decree No. 336 of 1942. This application was registered as Execution Case No. 75 of 1958. The execution court acted accordingly and on 7-10-1958 issued a warrant for possession. The Amin returned the warrant with a report dated 30th October 1958 that the plaint map had not been received along with the Parvana and that the same should be sent to enable him to identify the properties properly. Thereupon, the execution court directed the decree-holder to take steps and file the map. It appears that some interpolations had been made in the record of the original suit and an enquiry was pending. The record had been sealed for that purpose. The decree-holder was unable to file the map within the time granted to him by the execution court. He made several applications for further time which were granted to him. On 19th February 1959 the decree-holder made an application for one months further time. On this the execution court ordered "one weeks time is given. If steps are not taken within this time, then the execution shall automatically stand dismissed." In the order sheet this order was carried differently. The order-sheet stated that one months time had been granted to file copy of the decree. This order-sheet was [brought to the notice of the decree-holder who signed it. Ultimately the decree-holder filed the required plaint map on 13th March 1959. Thereafter on 21-3-1959 the judgment-debtor appellant filed an objection under Sec. 47, C. P. C. Both the courts below have dismissed the objection. The judgment debtor has, hence, come to this Court in Ex. Second Appeal. 7. Learned counsel for the appellant has urged that the order dated 19-2-1959 not having been complied with, the execution stood automatically dismissed. It is true that the Court had granted one weeks time for filing the map and it directed that the execution shall automatically stand dismissed in default; but the order that was brought to the notice of the decree-holder stated one months time. The decree-holder did file the requisite document within one month. It is true that the Court had granted one weeks time for filing the map and it directed that the execution shall automatically stand dismissed in default; but the order that was brought to the notice of the decree-holder stated one months time. The decree-holder did file the requisite document within one month. An enquiry was held by the execution court in this matter and it came to the conclusion that it was not under any collusion with the decree-holder, but under an honest mistake that the execution clerk had mentioned one months time in the order-sheet. It is obvious that the decree-holder was influenced by the order-sheet in making compliance within a month. It is a settled law that no litigant should be made to suffer owing to any act of the court. The same principle would apply where the concerned act has been done by the office of the court. This does not mean that the order as noted by the execution clerk on the order-sheet prevailed over the order written by the judge himself, but when the decree-bolder was honestly misled by the order-sheet, he should not be penalised, see Nalini Kanta Roy v. Kamaraddi, AIR 1933 Calcutta 239 and Kali Prasad Sahu v. Mst. Bibi Aziz Fatma, AIR 1938 Patna 149. The court below were, therefore, right in holding that the execution did not stand dismissed. 8. Learned counsel for the appellant next urged that the order dated 11-9-1956 reviving the execution was void as it was passed in contravention of the stay order. I am not satisfied that there had been any direct contravention of the stay order. The court only directed that the proceedings be revived, but that they shall remain stayed. The court did not proceed with the execution. The appeal in which the stay order was passed was ultimately dismissed on 27-2-1958 and whatever infirmity existed in the order dated 11-9-1956, it disappeared with the dismissal of the appeal. 9. The learned counsel urged that the order dated 20th March, 1956 did in any case effectively terminate the execution case No. 13 of 1954 It appears that the appellant had a decree against Raghunandan Lal. He put the decree into execution and prayed that it be satisfied by adjustment with the money part of Raghunandan Lal's decree which was under execution in Ex. Case No. 13 of 1954. He put the decree into execution and prayed that it be satisfied by adjustment with the money part of Raghunandan Lal's decree which was under execution in Ex. Case No. 13 of 1954. On 20th March, 1956 the appellant's decree was satisfied by adjustment. By some oversight an order was passed on the file of execution Case No. 13 of 1954 that the execution was dismissed in full realisation by set off in Execution Case No. 45 of 1954. This was obviously an erroneous order. The decree of Ex. Case No. 13 of 1954 had not been fully satisfied by realisation. The decree for possession still remained. It was really Ex. No. 45 of 1954 of the appellant which was so satisfied by set off after adjustment. On 9-7-1956 the decree-holder pointed out this mistake to the court. The court called for an explanation from the execution clerk and censured him for his negligence. It afforded the judgment debtor an opportunity of explanation and objection, but none having been filed, it passed an order on 11-9-1956 reviving the execution. The effect of the order dated 11-9-1956 is to correct the order dated 20th March, 1956. The order of 11-9-1956 was necessary to keep the record straight. It cannot be construed as violating the stay order. 10. The third and the main submission of the learned counsel for the appellant was that the order dated 6-11-54 consigning the record was the final order terminating the Ex. Case No. 13 of 1954 and as such the application dated 5-8-1958 (No. 75 of 1958) will be a fresh execution application. A fresh application will be incompetent on two grounds. It will be barred by the 12 years rule under Sec. 48, C. P. C. and the court for the Civil Judge will not be competent to entertain it. The decree was passed by the learned Munsif. The execution application had originally been filed before the learned Munsif. Later on the Execution Case No. 13 of 1954 was transferred to the Civil Judge. The learned Civil Judge was thus not the execution court. He could not entertain a fresh execution application. The question, therefore, is whether the order dated 6-11-1954 finally terminated the execution case No. 13 of 1954. Later on the Execution Case No. 13 of 1954 was transferred to the Civil Judge. The learned Civil Judge was thus not the execution court. He could not entertain a fresh execution application. The question, therefore, is whether the order dated 6-11-1954 finally terminated the execution case No. 13 of 1954. For the appellant it is urged that the decree-holder wanted the execution court to stay the execution, but the execution court did not accept the prayer. Under the circumstances the execution court did not intend to keep the execution pending and it finally terminated it on 6-11-1954. 11. The question whether a particular order is a final order terminating an existing execution has been considered by more than one Full Bench of our Court. In Chhattar Singh v. Kamal Singh, A.I.R. 1927 Alld. 16 F.B. a Full Bench of our Court held that an order "send to the record-room" does not generally intend a judicial disposal of the execution application. In Baij Nath v. Ram Bharose, A.I.R. 1927 Alld. 165 F.B. another Full Bench of our Court held that "a disposal of an execution proceedings with an order directing consignment of the papers to the record room is not a final decision of an execution application." 12. In Chaube Mahendra Rao v. Lala Bishambar Nath, A.I.R. 1940 Alld. 270 (F.B.) during the course of execution proceedings the parties entered into a compromise for payment of the decretal amount by instalments. The decree-holder then applied for the postponement of the sale. The execution court passed an order striking off the execution case. The Full Bench held that such an order does not show that the execution case came to an end. The subsequent application for continuing the execution, though in the usual tabular form, was not a fresh execution application. 13. The Supreme Court has also recently dealt with this matter. In Pentapati China Venkanna v. Pentapati Bangararaju, A.I.R. 1964 SC 1454, it has been held that the order "closed" passed on an execution application does not terminate the execution, but the same remains pending. The Code of Civil Procedure contemplates specific types of orders whenever it wants the termination of an execution. Under Or. XXI, Rule 17 Cl. (1) of the Code, the Execution Court can reject an execution application if the requirements of Rules 11 to 14 have not been complied with. The Code of Civil Procedure contemplates specific types of orders whenever it wants the termination of an execution. Under Or. XXI, Rule 17 Cl. (1) of the Code, the Execution Court can reject an execution application if the requirements of Rules 11 to 14 have not been complied with. Order XXI, Rule 57 states:- "Where any property has been attached in execution for a decree but by reason of the decree-holders default the court is unable to proceed further with the application for execution, it shall either dismiss the application, or for any sufficient reason adjourn the proceedings to a future date . . . ." 14. Where the execution court finds itself unable to proceed by reason of decree-holders default it can "dismiss" the application. The Code does not contemplate the termination of execution proceedings by an order directing that the record be consigned to the record room. Such an order could not be treated as an order under rule 57. In the instant case, the execution could not proceed by reason of the injunctions against the decree-holder in the cases for Ramzani and Chhuttan. The decree-holder was unable to proceed with the execution. It was for this reason that the court consigned the record to the record room. There being no default of the decree-holder, the court could not dismiss the execution. It did not pass an order dismissing the execution. The order consigning the record hence, would not indicate an intention to finally terminate the execution. In the order dated 6-11-954 the court had indicated that the execution cannot proceed further. It is best to consign it." 15. For the appellant it is urged that the fact that the execution court did not accede to the decree-holder's request for stay of proceedings shows that there was no intention to keep the proceedings pending, but this will not mean that the execution court was finally terminating the case. The Court did not desire to keep the case pending on its own file. By consigning the file to the record room the case would be deemed to have been closed for statistical purposes and it would not be a burden on the pending file of that Court. The question whether the court intended to finally terminate the execution has to be decided by considering all the surrounding circumstances under which the order was passed. The question whether the court intended to finally terminate the execution has to be decided by considering all the surrounding circumstances under which the order was passed. On a consideration of these circumstances, I have no hesitation in agreeing with the courts below that by the order dated 6-11-1954 the execution court did not terminate the execution proceedings. 16. Learned counsel for the appellant has placed reliance upon the case of Mohammad Taqi Khan v. Raja Ram, A.I.R. 1936 Alld. 820 (F.B). In my opinion that case does not help the appellant. A Full Bench of our Court has held that "the question whether an execution case is still pending and has not been terminated must depend on an interpretation of the order passed by the court and the inference to be drawn as to the courts intention. Where the court intends to dispose of the matter completely and no longer keeps it pending on its file and does not merely suspend the execution or consign the record to the record room for the time being, the order must be deemed to be a final order." According to the Full Bench, an order consigning the record to the record room will not be a final order. Moreover, in that case the execution court had passed an order of costs. The direction with respect to costs was interpreted as conveying an intention to finally dispose of the execution case. In the instant case the execution court had not passed any order as to costs. The dictum of the Full Bench if at all, applies against the appellant. The application dated 5-8-1958 was between the same parties and was in respect for the same properties. It did not seek a relief different from that asked for in the previous execution. On the other hand, it specifically prayed that the file of the previous case be recalled from the record room and be proceeded with. This application cannot, therefore, be treated as a fresh application. 17. Apart from the merits, it is not open to the judgment debtor appellant to contend that by this order the execution was concluded finally. The judgment debtor had gone up in appeal against this order and the appeal was dismissed as incompetent on the ground that it was not an order under Sec. 47, C.P.C. as it did not put an end to the execution proceedings. The judgment debtor had gone up in appeal against this order and the appeal was dismissed as incompetent on the ground that it was not an order under Sec. 47, C.P.C. as it did not put an end to the execution proceedings. That judgment was inter parties and has become final. It operates as res judicata constructively, in the present proceedings. 18. In the result, all the submissions advanced on behalf of the judgment debtor appellant are without merit. The appeal fails and is dismissed with costs. Appeal dismissed.