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1986 DIGILAW 128 (KAR)

ABDUL GAFFAR v. JAFFAR SAHEB

1986-03-06

KULKARNI

body1986
KULKARNI, J. ( 1 ) BOTH the advocates submitted that the revision itself may be heard finally on merits. Accordingly, arguments on the final merits were heard. The revision is accordingly disposed of. ( 2 ) THIS is a revision by defendant No. 3 against the order dated 17-1-86 passed by the Addl. Civil judge, Dharwad, in F. D. P. 4/85 over-ruling the objections of defendant No. 3 and allowing the application dated 7-1-86 filed by the plaintiff under Section 148 C. P. C. praying for time to deposit the remaining money. ( 3 ) O. S. 88/78 had been filed by the plaintiff for dissolution of the partnership and for accounts. A preliminary decree dissolving the partnership was passed on 5-7-85 and by that very decree the court ordered the sale of the partnership properties. However, liberty was reserved to the parties to have a reserve bid for purchase of the remaining shares in the rice mill business. In pursuance of the same a reserve bid was held by the Court Commissioner on 1-1-86. After receiving the report of the Commissioner on 2-1-1986, the highest bid of the plantiff for Rs. 5,61,503 for the 2/3 share of the remaining partners was accepted by the Court by its order dated 2 1-86. The court ordered thai 1/4th of the amount shall be deposited in Court on or before 7-1-86 and the balance of the amount shall be paid on or before 31-1-1986. On 7-1-1986 the plaintiff paid the l/4th of the amount. e. Rs. 1,45,000/-by producing a Demand Draft and he filed an application on 7-1-1986 for extending time to pay the remaining amount. On 15-1-86 the plaintiff paid a further sum of Rs. 50,000/. On 15-1-86 the Counsel for plaintiff sought for extension of time till 15th February, 1986 to pay the remaining money. On 15-1-1986 the trial Court granted time till 15th February, 1986 to pay the money. It is this order extending time till 15th February, 1986 that is challenged in this revision. ( 4 ) THE important question that would arise for consideration is whether the Court has got the power under Section 148 C. P. C. to extend the time for depositing the sale proceeds. It is this order extending time till 15th February, 1986 that is challenged in this revision. ( 4 ) THE important question that would arise for consideration is whether the Court has got the power under Section 148 C. P. C. to extend the time for depositing the sale proceeds. ( 5 ) LEARNED Counsel Shivaraj Patil for the revision petitioner contended that this was a sale held by the Court and that when the statute had provided for the payment of l/4th of the bid amount on the spot and when the statute had provided for the payment of the remaining 3/4th of the bid amount before the expiry of 15 days from the date of sale, the Court had no right to extend the time. He relied on Order 21, Rules 84 and 85, He also placed reliance on the ruling reported in dharam Rao -v.- Shankarappa, ILR 1985 KAR. 1051. The said ruling clearly says that in the case of a Court sale, the Court has no power to extend the time as Rules 84 and 85 themselves have prescribed the period. If the present sale amounts to a sale under Order 21 and within the meaning of Order 21, Rule 84, then the Courts will have no power at all to extend the time. But, the question is whether the sale held in this case would amount to a sale within the meaning of order 21 and Order 21, Rule 84 C. P. C. ( 6 ) THE preliminary decree, a copy of which was produced before me, reads as : "it is declared that the said partnership firm stood dissolved from the date of the plaint. e 17-7-1978, A receiver shall be appointed for taking accounts. The defendant No. 3 who is already managing the affairs of the Rice Mill of the partnership firm shall continue to be in management of the same until a receiver is appointed by the Court. Accounts for the period subsequent to 1-4-1977 shall be rendered by the partners and shall be taken by the receiver. The defendant No. 3 who is already managing the affairs of the Rice Mill of the partnership firm shall continue to be in management of the same until a receiver is appointed by the Court. Accounts for the period subsequent to 1-4-1977 shall be rendered by the partners and shall be taken by the receiver. " the portion of the preliminary decree reading as, 'the partnership property shall be sold in public auction' and the further portion reading as, 'however liberty is reserved to the parties to have a reserve bidding for purchase of the remaining shares and if the price offered is found by the court to be reasonable' the shares of other partners may be permitted to be purchased by the bidding party, instead of public auction' is maintained even by this Court. ( 7 ) SECTION 2 (2) C. P. C. reads as : "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation :- A decree is 'preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. " now the question is whether the portion of the decree ordering the sale of the partnership assets would amount to a decree. ( 8 ) THE preliminary decree extracted above shows that the order regarding the sale of the partnership assets is only for the purpose of taking accounts. Even after the sale, something more is required to be done by the Court. It is only after caking the accounts that the final order or final decree will have to be passed. Therefore, even the order regarding the sale of the partnership assets contained in the decree is only preliminary in nature and it cannot be considered to be a final decree at all. It is only after caking the accounts that the final order or final decree will have to be passed. Therefore, even the order regarding the sale of the partnership assets contained in the decree is only preliminary in nature and it cannot be considered to be a final decree at all. It has been laid down by the Supreme Court in Veakata reddy and Ors.-v.- Pethi Reddy, AIR1963 SC 992 , [1963 ]supp2 scr616 , as : "a decision is said to be final when, as far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees - a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it. Section 97, Civil Procedure Code clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree. " as laid down by the Supreme Court in the said ruling, it is only a final decree which wilt have to be executed. As already stated above, the sale of the partnership assets was ordered by the Court in order to take accounts of the assets belonging to the partnership. It is not with a view to finally adjudicate the rights of the parties. As already stated above, the sale of the partnership assets was ordered by the Court in order to take accounts of the assets belonging to the partnership. It is not with a view to finally adjudicate the rights of the parties. The final adjudication of the rights of the parties will be done by the Court after the accounts are taken and after the assets of the partnership are sold. It is no doubt true that the shares of the parties are determined. The simple determination of the shares of the parties does not convert this portion of the decree into a final one. ( 9 ) ORDER 21, Rule 10 C. P. C. reads as : "where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the Officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof. " it is not the simple existence of the decree that would attract Order 21. An application for execution of the decree will have to be made. Then only the provisions of Order 21 would come into play. Similar is the view taken by the Gujarath High Court in The State of Rajasthan -v.- rustamji Savkasha, AIR1972 Guj 179. The Supreme Court also ruled in manilal Mohanlal Shah -v.- Sardar Saved Ahamed Sayed Mahmad, AIR1954 SC 349 , (1955 )57 BOMLR10 , [1955 ]1 SCR108 , that though a mortgagee might have bid the property, it will not entitle him to claim set-off because he is not a Decree-Holder within the meaning of the Civil Procedure Code. ( 10 ) FURTHER, the question as to who is the Decree-Holder and the Judgment-Debtor will not come into picture at this stage. None of the parties at this stage can be said to be a Decree-Holder and judgment-Debtor within the meaning of Section 2 (3) and 2 (9) of the Code of Civil Procedure. ( 11 ) ORDER 20, Rule 15 CPC may be usefully referred to. It prescribes a separate procedure as to how a decree in a suit for dissolution of partnership should be drawn up and should be executed. ( 11 ) ORDER 20, Rule 15 CPC may be usefully referred to. It prescribes a separate procedure as to how a decree in a suit for dissolution of partnership should be drawn up and should be executed. The present order regarding the sale of the rice mill in question between the parties would fall within the ambit of Order 20, Rule 15 CPC. Hence, such a sale, in my opinion, would not fall within the ambit of Order 21 at all. ( 12 ) WHEN the provisions of Order 21 are not attracted to the sale in question, applicability of rules 84 and 85 of Order 21 will not come in the picture at all. If it is so, then the ruling of this court reported in Dharma Rao's case1 will not be applicable to the facts of the present case. ( 13 ) WHEN the provisions of Order 21 do not govern such sale, the Court has got power under section 148 to extend the time for the payment of the remaining money. ( 14 ) LEARNED Counsel Shivraj Patil submitted that when the Court had ordered that the remaining sale amount should be paid on or before 31-1-1986 and when the plaintiff did not pay before 31-1-86, his rights would be seriously affected. In short he submitted that in the event of the sale being set aside his party would be inclined to pay a higher price and bid for a higher amount. He further submitted that his party thought that the sale held in this case was a sale within the meaning of Order 21, Rule 82 C. P. C. and as the party was not able to comply with Rules 84 and 85, he did not make a further bid. This argument only indicates that his client was labouring under a misconception of Law. Any misconception of law would not come to the rescue of any party. ( 15 ) THEREFORE, in the view I have taken, I think that the extension of time granted by the Court below does not need any interference. Further, I have been informed by Learned Counsel Gunjal that the entire remaining sale amount had already been deposited in Court. ( 15 ) THEREFORE, in the view I have taken, I think that the extension of time granted by the Court below does not need any interference. Further, I have been informed by Learned Counsel Gunjal that the entire remaining sale amount had already been deposited in Court. ( 16 ) SRI Gunjal submitted that the revision petitioner defendant No. 3 had challenged in this revision only the order dated 17-1-86 extending time till February 15th, He submitted that the previous order granting time till 7-1-86 to deposit 1/4 of the amount and granting time till 31-1-86 to pay the remaining balance had not been challenged by the revision petitioner. In short, he submitted that even if this order dated 17-1-86 were to be set aside, the previous order granting time till 31-1-86 would have remained intact. In short, he contended that as the Court had extended the time till 15-2-86 before the expiry of 31-1-86, he paid the money before 15-2-86 and, according to him, if the Court had not extended the lime he would have deposited the money on or before 31-1-86 itself. This submission has got ample force. But, Shivraj Patil contended that as the entire matter was before the Court, this Court could also interfere with the said order. Though the entire matter might be before this Court, the legality of the first order cannot be questioned in this revision as the merits or otherwise of the first order cannot be determined finally in this revision. ( 17 ) THUS, in the result, there is no merit in the revision and it is dismissed. No costs. ( 18 ) SRI Shivraj Patil at this stage requested that this order may be stayed for 3 months as his client desires to approach the Supreme Court. As a serious question of law is involved in this case and as there does not appear to be any direct ruling of this Court or the Supreme Court on this point, I think that it would be better if the party is given some time to approach the Supreme court. Therefore, I am inclined to stay the operation of this order for 2 months from today.