Tipan Raut v. Raj Kumar Singh — 1976 DIGILAW 105 (PAT)

Judgment 1. This application under Sec.115 of the Code of Civil Procedure (hereinafter referred to as the Code) by Tipan Raut, who was the plaintiff in the trial Court, is directed against the order dated the 16th January, 1974, pass-ed by the Munsif of Patna in Title Suit No. 36 of 1968, refusing to convert the petitioners suit into a proceeding under Sec. 47 of the Code. 2. This application came up for decision before L. M. Sharma, J., who, by an order dated the 27th February, 1975, was pleased to refer it to a Division Bench, and this is how it has come be-fore us for disposal. 3. In order to appreciate the points involved in this application, it will be necessary to state some material facts. The petitioner instituted the said Title Suit on the 17th February, 1968. It will be relevant to quote in extenso the Eng-lish rendering of the statements of the petitioner in Paragraphs Nos. 3, 4 and 5 of the plaint:- "3. That no notice under Order XXI Rule 22 (C. P. C.) was, by any means, sent to the plaintiff, nor was the same served upon him. And likewise, neither processes for attachment; nor proclamation for sale was served on the spot. All the proceedings including that for fixation of value were taken surreptitiously, and the plaintiff was not at all allowed to have any knowledge of the processes. On the contrary, with the similar motive of usurping the property, the entire process, was kept secret. 4. That no drum was got beaten on the spot and because of fraud there could not be an assemblage of purchasers (bidders) at the time of auction. Due to this, the disputed property entered in Schedule No. 1 of the plaint, value whereof is at least Rs. 25,000/-, was sold at auction for inadequate price of Rs. 469/8/- only. 5. That the plaintiff has also learnt that subsequently the defendants have, on the 28th June, 1958, surrepti-tiously succeeded in getting delivery of possession on paper only, in respect of the disputed property, otherwise some land out of the disputed property is in posses-sion of the plaintiff and some land which stood mortgaged to others and which was later on sold to the mortgagees by the plaintiff, has been in possession of the vendees. The defendants have, by totally suppressing that also got the same sold at auction by declaring the same to be the plaintiffs property, which also is an illegal act of the defendants". To correctly appreciate the statements of the plaintiff made in the aforesaid para-graphs, it would be relevant to quote those statements, as they are in Hindi itself: In Paragraph 10 of the plaint, the plain-tiff-petitioner claimed the following re-liefs, as translated into English: "10. That the plaintiff prays for the following reliefs: (1) That by passing a decree in favour of the plaintiffs against the defendants, it may be adjudicated by the Court that the order of auction sale passed on the 16th April, 1958, in Execution Case No. 10 of 1957, in the 3rd Court of Munsif at Patna, is quite inoperative, illegal and null and void and that the same is not at all binding on the said plaintiff, and which was confirmed on the 17th day of May, 1958, may be absolutely set aside. (2) That the cost of this suit with in-terest till the date of realisation may be awarded against the person and property of the defendants. (3) That such other reliefs as the plaintiff may be deemed entitled to by the Court may be awarded to the plain-tiff." In Hindi, the same reads thus: 6 The suit was contested by Rajkumar Singh and Ram Narayan Singh (Opposite Party Nos. 1 and 2) and, accordingly, a written statement was filed on their behalf. 7. On the pleadings of the parties the following issues were framed:- (1) Is the suit as framed maintain-able? (2) Has the plaintiff any cause of action for the suit? (3) Whether the sale dated 16-4-58 is void, illegal, fraudulent and not binding on the plaintiff and whether the same is liable to be set aside? (4) To what relief, if any, is the plaintiff entitled ? 8. The parties led evidence in support of their respective claims, and from the order-sheet of the trial Court, it appears that the evidence led on behalf of the parties was closed, and the parties had only to argue their cases. (4) To what relief, if any, is the plaintiff entitled ? 8. The parties led evidence in support of their respective claims, and from the order-sheet of the trial Court, it appears that the evidence led on behalf of the parties was closed, and the parties had only to argue their cases. At that stage, on the 2nd January, 1974, an application was filed before the trial Court by the plaintiff-petitioner inter alia, stating therein that the defendants in their written statement had taken the plea that the suit was hit by the provisions of Sec. 47 of the Code. Therefore, ac-cording to the plaintiff-petitioner, a pro-ceeding under Sec. 47 of the Code was more appropriate course to initiate by him, than to proceed with the suit. It was also stated in paragraph 4 of the ap-plication that the plaintiff had filed the suit under wrong legal advice. There-fore, in Paragraph No. 5 of the applica-tion the plaintiff submitted that in the ends of justice the suit should be treated at an application under Sec. 47 of the Code. Therefore, it was prayed to treat the suit as a proceeding under Sec. 47 of the Code. Whereas, on behalf of the defendants, a rejoinder to the said ap-plication was filed on the 8th January, 1974, submitting inter alia, therein, that no application under Sec. 47 of the Code was maintainable, on mere allega-tion of irregularity, in service of various processes of the execution case, for which the only remedy available to the plain-tiff-petitioner was under Order XXI, Rule 90, of the Code. The learned Munsif, after hearing the Counsel for the parties, rejected the application filed by the plaintiff-petitioner by the impugned order. 9. Mr. Jagdish Pandey, learned Counsel appearing on behalf of the peti-tioner, has assailed the impugned order, and contended that the learned Munsif should have treated the plaint as an application under Sec. 47 of the Code. He drew our attention to the provisions contained under Sec. 47 of the Code, the relevant portion of which reads thus:- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree shall be deter-mined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any addi-tional court-fees. XX XX XX XX" According to the learned Counsel, the statements of the plaintiff-petitioner in Paragraphs Nos. 3, 4 and 5 of the plaint contained all the ingredients required for a proceeding under Sec. 47 of the Code, and, therefore, according to him, the learned Munsif has committed an error of jurisdiction under Sec.115 of the Code in not treating the suit as a proceeding under Sec. 47 of the Code, as required under sub-section (2) of Sec. 47, He referred to Paragraph 7 of the impugned order, wherein the learned Munsif observed- "Once the judgment-debtors property being sold and the amount due under the decree being realised, the decree is fully executed, discharged and satisfied, and, no question relating to the execu-tion, discharge or satisfaction of the decree remains to be considered and that whether or not the auction-purchaser ob-tains possession of the property sold is wholly immaterial for the purpose of the decree. Hence the matter is not a ques-tion relating to execution, discharge or satisfaction of a decree." Mr. Pandey has submitted that on that ground alone, the learned Munsif has held that the application of the petitioner was not maintainable. He urged that the learned Munsif has taken absolutely a wrong ground for rejecting his applica-tion. Hence the matter is not a ques-tion relating to execution, discharge or satisfaction of a decree." Mr. Pandey has submitted that on that ground alone, the learned Munsif has held that the application of the petitioner was not maintainable. He urged that the learned Munsif has taken absolutely a wrong ground for rejecting his applica-tion. In order to find support to his con-tention, learned Counsel has relied on a decision of the Supreme Court in the case of B. V. Patankar v C. G. Sastry, (AIR 1S61 SC 272) and he has drawn our at-tention to Paragraph 8 of the judgment, wherein their Lordships observed as follows:- "The inapplicability of Sec. 47 to the proceedings out of which the appeal has arisen was also raised before us, but that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore the court became functus officio is a matter relating to execution, satisfaction and dis-charge of the decree." In this connection, he also relied on an-other decision of the Supreme Court in the case of M. P. Shrivastava V/s. Veena, ( AIR 1967 SC 1193 ), where the observa-tions made in AIR 1961 SC 272 (supra) were relied upon, and it was observed that "a question relating to execution, dis-charge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution depart-ment and that pendency of an application for execution by the decree-holder is not a condition of its exercise". In our opinion, the submission of Mr. Pandey is well founded. That ground given by learned Munsif for rejecting the application of the petitioner was not correct. On the other hand, Mr. S. C. Ghosh, learned Counsel appearing on behalf of the Opposite Parties Nos. 1 and 2, who are defendants 1 and 2, respectively, in the trial Court has raised a preliminary objection. According to him, the Civil revision application against the impugn-ed order is not maintainable. He referred to sub-section (2) of Sec.2 of the Code, which defines decree. It provides that "It shall be deemed to include ............ the determination of any question within Sec. 47 .........". The impugned order, according to Mr. Ghosh, has determined the question that the suit could not be converted into a proceeding under Sec. 47 of the Code. He referred to sub-section (2) of Sec.2 of the Code, which defines decree. It provides that "It shall be deemed to include ............ the determination of any question within Sec. 47 .........". The impugned order, according to Mr. Ghosh, has determined the question that the suit could not be converted into a proceeding under Sec. 47 of the Code. Therefore, according to him, it is a decree and as such an appeal ought to have been filed against the im-pugned order instead of a civil revision application, which, according to him, is not maintainable. In order to find support to his submission he has relied upon a decision of the Madras High Court in the case of Rangaswami V/s. Ramana, ( AIR 1966 Mad 308 ), where Kailasam, J., has observed:- "I find considerable difficulty in holding that no appeal lies against an order passed under Sec. 47 (2), for Sec.2 (2), Civil Procedure Code, which defines decree, provides that it shall be deemed to include the determination of any question within Sec. 47. Thus a determination of any question within Sec. 47 is deemed to be a decree and is appealable." We had directed Mr. Ghosh to place be-fore us whether the above observations of his Lordship has been followed in some later cases of any High Court or of the Supreme Court. Mr. Ghosh, however, could not find any such case. 10. With due respects, we differ from the above observations of Kailasam J. In our view, the definition of decree, where it mentions the "determination of any question within Sec. 47" means any question relating to the execution, dis-charge or satisfaction. In the instant case, the prayer made by the plaintiff-petitioner before the learned Munsif was only for treating his suit as a proceeding under Sec. 47 of the Code and that was rejected by the learned Munsif. Therefore, it would not be a matter relating to execution, discharge or satisfac-tion of a decree. In the instant case, the prayer made by the plaintiff-petitioner before the learned Munsif was only for treating his suit as a proceeding under Sec. 47 of the Code and that was rejected by the learned Munsif. Therefore, it would not be a matter relating to execution, discharge or satisfac-tion of a decree. A reference may be made to a decision of this Court in the case of Saurendra Nath Mitra V/s. Mritunjay Banerji 5 Pat LJ 270 = (AIR 1920 Pat 249), where Dawson Miller, C.J. and Coutts J., while considering the provisions contained under Sec.2 (2) and Sec. 47 of the Code, observed that a decision under Sec. 47 of the Code is not a decree within the meaning of Sec-tion 2 (2), unless it, in some way, deter-mines the rights of the parties with re-gard to all or any of the matters in cont-roversy. In that view of the matter, according to us, the civil revision application against the impugned order filed by the plaintiff-petitioner in this court is maintainable. 11. Mr. Ghosh has also challenged the maintainability of the Civil revision itself. According to him, the learned Munsif has not committed any error of jurisdiction. He has simply exercised his discretion under the law. In order to find support to his submission, he has re-lied upon a decision of the Supreme Court in the case of Managing Director (MIG) Hindustan Aeronautics Ltd. V/s. Ajit Prasad Tarway, ( AIR 1973 SC 76 ), wherein their Lordships, while considering the provisions of Sec.115 of the Code, ob-served that the High Court should not interfere even if the order is right or wrong or in accordance with law or not. unless it has exercised its jurisdiction il-legally or with material irregularity. In our opinion, the submission of Mr. Ghosh, on the basis of the above observation of the Supreme Court, is not tenable. In the instant case, as pointed out earlier, according to us, the learned Munsif has erred at least in giving the main ground for rejecting the application of the petitioner. Therefore, he has, according to us, committed a material irregularity. In that view of the matter, the civil revi-sion application against the impugned order is maintainable. We have, there-fore, to deal with the merits of the application in the present case. 12. Mr. Therefore, he has, according to us, committed a material irregularity. In that view of the matter, the civil revi-sion application against the impugned order is maintainable. We have, there-fore, to deal with the merits of the application in the present case. 12. Mr. Ghosh however, contend-ed that the grounds mentioned in the im-pugned order, according to him, are good grounds and in order to find support to his submission, he has relied upon a Full Bench decision of this Court in the case of Tribeni Prasad Singh V/s. Ramasray Prasad, (AIR 1931 Pat 241) and he drew our attention to a passage at page 252 of the report, wherein it was observed that the execution of the decree terminated with the sale and confirmation thereof and the decree was satisfied by the sale proceeds; and execution or satisfaction of the decree was not affected in the re-motest degree, whether the purchaser, be he the decree-holder or a third party, succeeded in obtaining possession of the property or not, and that when the de-cree-holder brought a suit for possession, basing it upon the title derived from the court sale, he did not raise any question regarding the execution or satisfaction of the decree, but rather assumed and re-lied upon the validity of the execution, the sale and the satisfaction of the decree. In that case the execution terminated with the sale of the property, and as such he could not raise any question relating to the execution, discharge or satisfaction of the decree within the purview of Sec. 47 of the Code in the widest sense of the term relating to as meaning connected with Hence, a simple suit for possession by the decree-holder purcha-ser would not be barred by the section. In our opinion, the above observations are not applicable to the facts and circumstances of the instant case. It may be seen that in the above observations, the validity of the execution was not challenged, rather it was assumed. In the present case, the validity of the execu-tion proceeding is challenged on the ground that notices etc., were not duly served, as they were suppressed. 13. The said ground for rejection of the application of the plaintiff-petitioner is no doubt not tenable, but, we find no reason to differ from the conclusion arrived at by the learned Munsif. In the present case, the validity of the execu-tion proceeding is challenged on the ground that notices etc., were not duly served, as they were suppressed. 13. The said ground for rejection of the application of the plaintiff-petitioner is no doubt not tenable, but, we find no reason to differ from the conclusion arrived at by the learned Munsif. We have to examine in the instant case as to whether the statements made by the plaintiff-petitioner in Paragraphs 3, 4 and 5 of the plaint and the reliefs, contained the necessary ingredients required for a proceeding under Sec. 47 of the Code. According to us, the statements made by the plaintiff-petitioner in those para-graphs, as well as in the relief, contained ingredients apt for a proceeding under Order XXI, Rule 90, of the Code, which reads thus:- "Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material ir-regularity or fraud in publishing or con-ducting it: Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the application has sustained substantial injury by reason of such irregularity or fraud." The allegations contained in those paragraphs in substance relate only to material irregularity or fraud in publishing or conducting the sale. A reference may be made to a Full Bench decision of the Andhra Pradesh High Court in the case of Satyanarayanamurthy V/s. Bhavanarayana, (AIR 1957 Andh Pra 185) wherein it has been observed in Paragraph 27 that unless the matters alleged in an applica-tion for setting aside a sale were such that they would render the sale void (in which case no question of substantial injury could arise as the application fell under Sec. 47), it would come under Order XXI, Rule 90, and could succeed only on the proof of material violation of Rule 65. Reference may also be made to the decision in the case of Tamma Venkata Pardhasaradhi V/s. Tamma Ramchandra Rao, (AIR 1972 Andh Pra 223), where-in it was observed that for the purpose of finding out whether a particular appli-cation came under Rule 90 or Sec. 47, the substance of the application must be considered. If the substance was that there were irregularities or illegalities in publishing or conducting the sale, then the application must be treated as one under Rule 90. Their Lordships further observed that if, on the other hand, the grounds alleged were either anterior or subsequent to the publishing or conducting the sale, it was outside the purview of Rule 90 and would come within Sec. 47 of the Code. 14 After reading those paragraphs of the plaint, as the relief portion, Mr. Pandey could not satisfy us that any of the alleged grounds were either anterior or subsequent to the publishing or conducting of the sale. Obviously, therefore, we do not find any ingredients men-tioned therein, necessary, for a proceeding under Sec. 47 of the Code. Mr. Pandey, however, referred to a judgment of the Supreme Court in the case of Ramchand Spinning and Weaving Mills Ltd. V/s. Bijli Cotton Mills (P) Ltd., ( AIR 1967 SC 1344 ), wherein their Lordships were considering Order XXI, Rules 84, 85 and 90, and Sections 47 and 2 (2) of the Code. Mr, Pandey drew our attention to Para-graph 8 of the judgment, wherein it was observed that the question then was, whe-ther Sec. 47 of the Code would apply. In that case, in pursuance of a decree passed against the appellant (judgment-debtor), the judgment-creditor took out execution proceedings. An auction sale of the factory belonging to the appellant was ordered by the executing Court. In pursuance of that order, the Amin (Auction Officer) held an auction sale on the 10.09.1962. Respondent No. 1 was held to be the highest bidder for Rs. 2,45,000.00. The appellant challenged the auction sale alleging that the Amin had not realised one-fourth of the sale proceeds after the said auction was closed, as required by Order XXI, Rule 84 of the Code. His case was that the Amin realised the said amount and deposited it in the Treasury on the 11th September, 1962. 2,45,000.00. The appellant challenged the auction sale alleging that the Amin had not realised one-fourth of the sale proceeds after the said auction was closed, as required by Order XXI, Rule 84 of the Code. His case was that the Amin realised the said amount and deposited it in the Treasury on the 11th September, 1962. The appellant thereafter filed an applica-tion under Order XXI, Rule 84 of the Code before the Civil Judge, Respondent No. 1 contested that application, stating that he had tendered the said amount im-mediately after the auction. The said amount being large, the Amin hesitated to take it as it was too late to deposit the same in the Treasury. He wanted to know, whether he could accept a cheque instead of cash, and, therefore, he took Chhotelal, a representative of the respondent, along with him, to the residence of the Munsif, to take directions. Leaving Chhotelal in the car outside the Munsifs residence, the Amin went in to consult the Munsif, if he would accept a cheque, but the Munsif advised him to take cash. Thereafter the Amin returned to the car, where he accepted the said amount from Chhotelal and issued a receipt therefor then and there. The Respondents case, therefore, was that he offered the amount immediately and it was no fault of his that the Amin did not then accept it and that it was paid in any event soon after the auction, and, therefore, the payment was in consonance with Order XXI, Rule 84 of the Code. In paragraph 8 it was observed that it has been consistently held in a number of decisions of the Privy Council and the High Courts that Sec. 47 of the Code was wide and should be liberally construed so as not to drive the parties to a separate suit and thereby prolong litigations. All questions relating to the execution, discharge or satisfaction of the decree which arose between the parties fell within the scope of that section. The explanation added to the section included a purchaser at a sale in execution of a de-cree as a party to the suit. All questions relating to the execution, discharge or satisfaction of the decree which arose between the parties fell within the scope of that section. The explanation added to the section included a purchaser at a sale in execution of a de-cree as a party to the suit. Consistently with the decisions giving a liberal interpretation to that section, it has been held that the order setting aside the auction sale for non-payment or deposit as provided by Rule 84 of Order XXI of the Code, fell within the purview of Sec. 47 of the Code, irrespective of whether the purchaser is a decree-holder or a stranger. Their Lordships further observed that various High Courts had similarly held that when a sale in execution of a decree whose validity was not ques-tioned was attacked on the ground that it was not merely irregular but illegal and void that must be done by a proceeding under Sec. 47 of the Code and not by an independent suit. 15. In our opinion, the above observations of their Lordships are not ap-plicable in the present case, because all the grounds which the plaintiff-petitioner has taken in his plaint and the reliefs which he has sought, clearly relate to the sale being voidable and not void. Reference may be made to a decision of this court in the case of Ram Saran Sah V/s. Deonandan Singh, AIR 1957 Pat 433 , wherein it was observed that non-issue of notice under Order XXI, Rule 22, of the Code was not a matter affecting the jurisdiction of the executing Court. A simi-lar view was taken in the case of Sukhdeo Gond V/s. Brahamdeo Tewary, AIR 1957 Pat 431 . 16. After a careful consideration, we do not find any justification for com-ing to a different conclusion than the one arrived at by the trial Court, although, as pointed out above, we do not approve the ground of the trial Court for rejecting the application, but, for the grounds enu-merated by us, in our opinion, the trial Court has rightly rejected the application and not converted the suit into a proceed-ing under Sec. 47 of the Code. The revision application is therefore, dismissed. In the circumstances, however, there will be no order as to costs.