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1984 DIGILAW 317 (KAR)

NAGAVVA v. TUKARAM

1984-10-26

M.S.NESARGI

body1984
M. S. NESARGI, J. ( 1 ) THIS appeal is directed against the judgment and decree dated 2-11-1974 passed by the District Judge, Karwar, in R. A. No. 37 of 1964 confirming the judgment and decree dated 17-8-1955 passed by the Civil judge, Senior Division. Karwar. in C. S. No. 6 of 1954. ( 2 ) THE appellant/plaintiff filed the suit against the defendants for declaration to the effect that she was entitled to obtain possession of the suit schedule properties from the defendants and for a further decree setting aside the order dated 28. 12. 1953 passed by the Civil Judge, senior Division, Karwar, in K. Mis. No. 15 of 1952 - an application filed by her under order XXI Rule 97 of the Code of Civil procedure, as it stood then. The trial court dismissed the suit and the first appellate court confirmed the decree of dismissal. ( 3 ) THE facts either admitted or undisputed or proved by evidence may be narrated as follows: the plaintiff filed a special suit in O. S. No. 195 of 1940 against one Veerabhadrappa and others for possession of the properties and mesne profits. The property in question was not the subject-matter of that suit. A preliminary decree was passed in her favour on 23-10-1940 (Exhibit 18 ). She applied for passing a final decree which involved the question of deciding the quantum of mesne profits also. On 27. 7. 1940 Veerabhadrappa, one of the judgment-debtors, gifted the present suit property in favour of his wife Iravva by a registered gift Deed dated 27-7-1940 (Exhibit 17 ). During the continuance of the final decree proceedings, the plaintiff Nagawa got the present suit property attached on 8-6-1943. That attachment was raised on 3. 4. 1944. Nagawa filed an original suit in O. S. No. 92 of 1944 on the file of the Civil judge, Senior Division, Karwar, on 1/-4-44 against Irawa for setting aside the order dated 3-4-1944 by which the attachment of the property in question was raised and for a declaration that the gift by Veerabhadrappa in favour of Irawa (Exhibit 17) was bogus and the property conveyed under the said Gift Deed was liable for attachment and sale in the final decree to be obtained by her. This suit (Exhibit 20) came to be registered on 21-4-1944 in the said Court. This suit (Exhibit 20) came to be registered on 21-4-1944 in the said Court. But, on 20-4-1944 itself Irawa sold the suit property by executing a registered sale deed (Exhibit 27) in favour of Janabai, mother of the defendants. The matter stood at this stage. A final decree was passed in favour of the plaintiff Nagawa on 31-1-1945 awarding Rs. 4,168/- as mesne profits in her favour. Nagawa executed the decree in Execution No. 116 of 1949 and sought to recover the said sum by sale of the present suit property which was in the possession of the defendants. The sale took place on 23-8-1951. Nagawa, the plaintiff/decree-holder, herself purchased the property in the auction-sale after obtaining permission of the court. The sale was confirmed on 28-9-1951. The decree-holder/auction-purchaser viz. , Nagawa, the present plaintiff, proceeded to take possession of the present suit property. The defendants obstructed. Hence, she filed K. Mis. No. 15 of 1952 (Exhibit 5) under Order XXI rule 97 of CPC as it stood then. This came to be dismissed on 28-12-1953. Thereafter she filed the present suit for a declaration that she was entitled to obtain possession of the suit property from the defendants and for a decree setting aside the order dated 28-12-1953 dismissing the application in K. Mis. No. 15 of 1952. It is to be made clear here that she has not asked for a relief of actual possession of the suit schedule property. Various contentions were raised on behalf of the defendants. The contention that weighed with the two courts below is that the decree in O. S. No. 92 of 1944 was passed by the trial Court which had no jurisdiction inasmuch as it had been passed by the Civil Judge, Senior Division, Karwar. ( 4 ) SRI S. C. Javali, learned counsel appearing for the appellant/plaintiff, vehemently argued that, in view of Section 24 of the Bombay Civil Courts Act, 1869, the civil Judge, Senior Division, Karwar, had the legal competence to decide O. S. No. 92 of 1944, though the same could have been tried and decided by the Civil Judge, junior Division, Sirsi, who had also the territorial jurisdiction. He urged that the mere fact that the Civil Judge, Junior Division, Sirsi, had the territorial jurisdiction over the property did not oust the Civil judge, Senior Division, Karwar, whose terntorial jurisdiction extended throughout the district. He urged that the mere fact that the Civil Judge, Junior Division, Sirsi, had the territorial jurisdiction over the property did not oust the Civil judge, Senior Division, Karwar, whose terntorial jurisdiction extended throughout the district. Section 15 of CPC, according to sri Javali, would have been basis for nagawa to file such a suit in the Court of the Civil Judge, Junior Division, Sirsi; but, as one of her prayers was to have the order dated 28-12-1953 passed by the Civil judge, Senior Division, Karwar, in K. Mis. No. 15 of 1952 set aside, she must have thought it just and proper to file the present suit in the Court of the Civil Judge, senior Division, Karwar. ( 5 ) SECTION 24 of the Bombay Civil Courts act shows that there are two classes of civil judges, viz. , Civil Judge (Senior Division) and Civil Judge (Junior Division ). The jurisdiction of the Civil Judge, Senior division, extends to all original suits and proceedings of a civil nature, while the jurisdiction of the Civil Judge, Junior Division, extends to all original suits and proceedings of a civil nature wherein the subject matter does not exceed the amount of value Rs. 10,000/ -. Therefore, it is plain that the pecuniary jurisdiction of the Civil judge, Senior Division, is unlimited. The jurisdiction of the Civil Judge, Junior Division, as contemplated by the said Act, will be circumscribed by the territorial limit in that division, while the territorial jurisdiction of the Civil Judge, Senior Division, extends to the whole of the division. ( 6 ) THE two courts below have overlooked the aspect that the pecuniary jurisdiction of the Civil Judge, Senior Division, is unlimited and the territorial jurisdiction extends to the whole of the division, while the pecuniary jurisdiction of the Civil Judge, junior Division, is limited to Rs. 10,000/- and the territorial jurisdiction is limited to a specific territory in the said division. Therefore, the only objection that could have been raised in regard to the jurisdiction of the Civil Judge, Senior Division, karwar, in trying O. S. No. 92 of 1944 could have been the aspect of the pecuniary jurisdiction which cannot exist at all. I am clearly of opinion that, on this aspect, Sri S. C. Javali is well supported. ( 7 ) UNFORTUNATELY, in this appeal Counsel for the respondents did not appear and render assistance. I am clearly of opinion that, on this aspect, Sri S. C. Javali is well supported. ( 7 ) UNFORTUNATELY, in this appeal Counsel for the respondents did not appear and render assistance. ( 8 ) THE question of law in regard to the maintainability of the suit itself arose in the course of the arguments. That question of law is whether, in view of Sec. 47 of c. P. C. as applicable prior to the amending act No. 65 of 1956 the suit is competent and maintainable. It is already noticed that the suit on hand is for declaration that the plaintiff-appellant is entitled to obtain possession of the suit property from the defendants and for a decree of setting aside the order dated 28-12-1953 passed in K. Mis. No. 15 of 1952 (Exhibit 5 ). The relief sought by the plaintiff-appellant did not include a decree for possession of the property on the basis that she is entitled to the same in her own right apart from the sale certificate she obtained as decree-holder - auction-purchaser on 28-9-1951. ( 9 ) APPARENTLY, the suit in question was based on Order XXI Rule 103 of CPC, because K. Mis. No. 15 of 1952 was filed by the plaintiff/appellant under Order XXI rule 97 of CPC. The order under Exhibit 5 reads to show that the conclusion of the executing court, i. e. , the Civil Judge, senior Division, Karwar, was that the decree in O. S. No. 92 of 1944 was without competence and, therefore, it is void. The other facts and circumstances are also found narrated in the order under Exhibit 5. ( 10 ) SECTION 47 of CPC as it stood prior to the amending Act No. 65 of 56 reads as follows:" (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 determined 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 additional court-fees. (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 additional court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. "the application under Order XXI Rule 97 of CPC was filed by the appellant/plaintiff on the averments that the defendants represented Iravva as their mother was alienee from Irawa and they had obstructed taking possession of the schedule property by her pursuant to the purchasing in the auction. After enquiry in that proceeding the executing Court passed its order dismissing the application. This order is evidently under Order XXI Rules 98 and 99 of CPC. ( 11 ) THE question that arises is whether the appellant/plaintiff who is the decree-holder/auction-purchaser in the Court would legally continue to be a party to the proceedings so as to attract the provisions of section 47 of CPC and thereby negative her right to file a separate suit. ( 12 ) SRI. Javali, learned counsel for the appellant, argued that, though the appellant was a decree-holder since she has purchased the schedule property in court auction on securing permission from the court she stepped into the shoes of auction-purchaser, she should not in law be a party to the proceedings and as such Section 47 of CPC would have no application. He did not contest the aspect as to the defendants representing Irawa in view of the simple fact that their mother Janabai is an alienee from Irawa. He further argued that Order xxi Rule 103 of CPC provides that any party not being a judgment-debtor against whom an order is made under Rule 98, rule 99 or Rule 101 may institute a suit to establish the right which she claims to the present possession of the property. He further argued that Order xxi Rule 103 of CPC provides that any party not being a judgment-debtor against whom an order is made under Rule 98, rule 99 or Rule 101 may institute a suit to establish the right which she claims to the present possession of the property. He pointed out that Nagawa, the appellant/plaintiff, had filed application under Order xxi Rule 97 of CPC and an order in her favour ought to have been made by the executing Court in exercise of its power under Order XXI Rule 98 of CPC; but, the executing Court felt satisfied about the claim of the defendants and passed an order in their favour in exercise of its power under Rule 99 of Order XXI of cpc. He argued that Nagawa is not the judgment-debtor and the order against her has been passed under Rule 98 of Order xxi of CPC and, therefore, she has under rule 103 of Order XXI of CPC a right to file a separate suit to establish her right to the present possession of the suit schedule property. ( 13 ) REGARDING whether the decree-holder/auction-purchaser will be a party to the proceedings within the meaning of Section 47 of CPC (reference is made to the provision as it stood prior to the amendment in 1956) the Supreme Court has in HARNANDRAI BADRIDAS v. DEBIDUTT bhagwati PRASAD AND OTHERS (A. I. R. 1973 S. C. , 2423) laid down the law after considering a long series of decisions of various High Courts following two divergent streams. The High Courts of Calcutta and Madras had taken the view that the decree-holder/auction-purchaser continue to be a party to the proceedings within the meaning of Section 47 of CPC even after becoming auction-purchaser by obtaining permission of the Court. The High Courts of Lahore, Allahabad, Patna, Bombay and rangoon took the view that there is no distinction between a decree-holder/auction-purchaser and a stranger auction-purchaser as the effect of making such a distinction would amount to making the position of such a person better or worse than that of a stranger auction-purchaser. Ultimately the supreme Court has upheld the view taken by the Culcutta High Court in KAILASH chandra TARAFDAR v. GOPAL chandra (A. I. R. 1926 Cal. 798 ). Ultimately the supreme Court has upheld the view taken by the Culcutta High Court in KAILASH chandra TARAFDAR v. GOPAL chandra (A. I. R. 1926 Cal. 798 ). ( 14 ) IN Kailash Chandra's case the auction-purchaser had made an application for delivery of possesion under Order XXI rule 95 of CPC. The executing Court held that he was entitled to possession under rule 96 of CPC through a tenant in possession. The decree-holder/auction-purchaser preferred an appeal and that appeal was resisted mainly on the ground that no appeal lies as the order passed by the executing Court was under Order XXI rule 95 of CPC and it did not amount to a decree and also it was not an appealable order. The lower appellate Court allowed the appeal and ordered to put the decree- holder/auction-purchaser in actual possession under Order XXI Rule 95 of CPC. The Judgment-debtor preferred an appeal to the High Court putting forth heavy contentions. The division Bench of the High court who heard the appeal referred the matter to a Full Bench in view of the conflicting decisions. The two questions that arose were (1) Whether it was a question arising between the parties to the suit and (2) Whether it was a matter relating to the execution, discharge or satisfaction of the decree. Both the questions were answered in favour of the decree-holder-auction- purchaser and it was held that the appeal to the lower appellate Court was competent as it arose between the parties to the suit, though the decree-holder himself was the auction -purchaser, and the question did relate to the execution, discharge or satisfaction of the decree. Therefore, I hold that the question is no longer resintegra though the provision of Sec. 47 (3) of C. P. C. is supplemented by the explanation provided by Act No. 65 of 1965 and it has settled the question at rest by making all auction-purchasers parties to the proceedings. ( 15 ) NOW the question to be considered relate to the contention of Sri Javali on the basis of the wording under Rule 103 of order XXI of CPC. ( 15 ) NOW the question to be considered relate to the contention of Sri Javali on the basis of the wording under Rule 103 of order XXI of CPC. It is plain that Rule 103 states that a separate suit can be instituted for the purpose of establishing the right of the person to the present possession of the property by a person who is not a judgment -debtor against whom an order under Rule 98 or Rule 99 or Rule 101 of order XXI of CPC has been passed. In harnandrai Badridas' case, the Supreme court has in para 5 of its judgment stated as follows:"5. As we have already said, the appellant relied on the Full Bench decision of the lahore High Court. We have carefully gone through the various decisions cited before us and we find ourselves in agreement with the opinion of the Full Bench of the Calcutta High court in Kailash tarafdar's case, ILR 53 Cal 781 = (AIR 1926 Cal. 798 (FB ). If a confirmation of the sale would finally terminate all questions as to execution of the decree it is difficult to appreciate why the legislature would frame such rules as Rules 95 to 102 under Order xxi of the Code of Civil Procedure. We are in respectful agreement with G. K. Mitter J. , that the legislature must have thought that the duty of the executing court should not end with the confirmation of the sale and it is because the legislature thought 'that the auction purchaser should have the right of applying for possession under the provisions of Rule 95 and Rule 96 that proceedings for obtaining possession were included in the catena of rules relating to the execution of the decree'". It is clear from this that the orders falling within the ambit of Rules 95 to 102 of Order XXI of CPC have also been taken into consideration by the Supreme court. It has already been seen that Rule 103 of Order XXI of CPC provides for a suit as against an order passed by a Court under Rules 98 or 99 of Order XXI of cpc. Therefore , the nature of the suit contemplated under Rule 103 of Order xxi of CPC has to be understood. It has already been seen that Rule 103 of Order XXI of CPC provides for a suit as against an order passed by a Court under Rules 98 or 99 of Order XXI of cpc. Therefore , the nature of the suit contemplated under Rule 103 of Order xxi of CPC has to be understood. By carefully perusing the provisions, I hold that the stress lies on the wording (already underlined) in Rule 103 of Order XXI of cpc. It has to be remembered that an application under Order XXI Rules 95 or 97 of CPC is required to be made by an auction-purchaser seeking possession from a person who is in present possession. An application under Rule 97 is required to be made by the auction-purchaser for possession of the property purchased in the auction from a person who is in the present possession of the property and who has obstructed the auction -purchaser from taking possession of the property. If the application under Rule 97 is allowed on enquiry an order in favour of the auction-purchaser would be made under Rule 98 CPC. If the person wno is in the present possession of the property and who has obstructed the auction-purchaser succeeded to established the ingredients of Rule 99 of CPC, and order dismissing the application filed under rule 97 of CPC against the auction-purchaser and in favour of the person who is in the present possession of the property would be made under Rule 99 of Order xxi of CPC. Such an order can as well be under Rule 98 and Rule 99 of Order xxi of CPC. Therefore, the person who can bring a suit by virtue of Rule 103 of order XXI of CPC cannot be the person who seeks to establish the right he claims to the present possession of the property. That person has to establish the right for possession of the property and not to maintain the present possession of the property. The present possession of the property would always be with the person who has obstructed taking over the possession of the property on his own account or on account of some person whom he may represent as found narrated under Rules 95 and 101 of Order XXI of CPC. The present possession of the property would always be with the person who has obstructed taking over the possession of the property on his own account or on account of some person whom he may represent as found narrated under Rules 95 and 101 of Order XXI of CPC. Hence, it follows that, if an order under Rule 98 or rule 99 or both is passed against a person who has obstructed taking over possession of the property concerned by the auction- purchaser he is enabled under Rule 103 of order XXI of CPC to institute a suit to establish his right which he claims to the present possession of the property in question provided that he is not a judgment- debtor. It necessarily follows that, if an order under Rule 98 of Order XXI of CPC is passed against the auction-purchaser that order will be in the very proceedings contemplated by Section 47 of CPC. The auction-purchaser cannot, therefore, maintain a separate suit. A right of appeal is conferred on such auction-purchaser. This is a well settled position in law. Hence, this argument of Sri Javali does not find favour to him. The plaintiff-appellant had a right of appeal against the order dated 28. 12. 1953 (Exhibit. 5) and she ought to have exercised it. It is needless to state that when the right of appeal is vested in a party to challenge the order or decree, that party cannot, in law, institute a separate suit for getting such an order or decree set aside. ( 16 ) IN view of the aforementioned reasons ,f I hold that the suit filed by the plaintiff is incompetent and it has to fail, but, not for the reasons relied on by the two Courts below. When that is so, the judgment and decree passed by the Court below dismissing the appeal of the plaintiff- appellant has to be upheld and confirmed. ( 17 ) IN the result, this appeal fails and is dismissed. No order as to costs. --- *** --- .