Himangshu Kumar Nath v. On the Death of Monmohan Nath his heirs Mihir Kanti Nath and others
1990-11-29
B.P.SARAF
body1990
DigiLaw.ai
This revision petition is directed against the judgment and order dated 3.6.81 of the Assistant District Judge No. 1. Cachar affirming the judgment and order of the Munsiff, Hailakandi releasing the land which had been attached in Money Execution Case No. 53 of 1978 in favour of the petitioner. 2. The facts of the case, briefly, are as follows. The petitioner herein obtained a money decree against judgment debtor opposite party No. 2, Adharani Das. An execution case was instituted and a plot of land belonging to the judgment debtor was attached in execution of the said decree. The predecessor of opposite patty Nos. 1 (a) to 1 (g). Monmohan Nath filed an objection to the attachment on the ground that he was in possession of the land by virtue of an agreement to sell in his favour executed by the judgment debtor. This objection was filed under order 21 Rule 58 of the Civil Procedure Code, hereinafter 'the C.P.C. It was also contended that subsequent to the attachment the entire land which was subject matter of attachment had been purchased by him from the judgment debtor on 8.2.80 on payment of full consideration. The learned trial, court found that Monmohan Nath, hereinafter 'the objector', failed to prove the sale of the land by the judgment debtor on 8.2.80. The Court, however, arrived at a finding that the objector was in possession of the attached land by virtue of the agreement for sale executed by the judgment debtor. The learned trial court, therefore, held that the continued possession of the objector had been proved and on that basis released the property from attachment. This decision of the trial court was affirmed on appeal by the Assistant District judge, Cachar at Silchar. Aggrieved by the release of the property from attachment, the decree-holder has approached this court by filing the present revision petition. 3. Mr. S. K. Bhattacharjee, the learned counsel for the opposite parties, raised a preliminary objection in regard to the maintainability of this revision petition under section 15 of the C.P. C. on the ground that appeal lies against the impugned order to the High Court in view of the provisions contained in sub-rule (4) of rule 58 of order 31 of the C. P. C. as substituted by the Civil Procedure Code (Amendment) Act, 1976. I have considered the submission and I find force in it. 4.
I have considered the submission and I find force in it. 4. The learned counsel for the petitioner. Mr. B. K. Acharyya, fairly concedes that in view of the aforesaid provision the petitioner should have filed an appeal and not revision petition. He, however, prays that the present revision petition may be treated as an appeal and may be decided accordingly. Counsel submits that this court can do so in exercise of its inherent power under section 151 of the C. P. C. In support of the submission counsel relies on a decision of the Allahabad High Court in Bahori vs. Vidya Ram, AIR 1978 Allahabad 299 where it was observed that since there is no specific provision for the conversion of an appeal into a revision or vice versa there can be no restriction on the conversion except that imposed under section 151 of the C. P. C. Reliance is also placed on a decision of the Bombay High Court in M/s Rupam Pictures vs. Dr. Brif Mohan, AIR 1977 Bombay 425 where it was observed that in cases where appeal lies but a revision application is wrongly preferred, the court has wide discretion to treat it as an appeal if the conditions laid down by law are fully satisfied. Reference has also been made to a decision of Delhi High Court in Jiwun Dass Rawal vs. Narain Dass, AIR 1981 Delhi 291 where also it was held that the label placed on a cause is not conclusive and does not ordinarily affect the jurisdiction of the court to allow the label to be corrected by treating an appeal as a revision or a revision as an appeal, provided of course the cause of the justice so demands. On consideration of the above decisions I find myself in agreement with the same. In my opinion, under section 151 C. P. C., the court has inherent power to treat a revision as an appeal or vice versa if the conditions laid down by the law are satisfied. This power, however, is discretionary and should be exercised only if it is necessary to do so for the ends of justice. In the instant case, I find that all necessary conditions laid down by law are satisfied. In that view of the matter I allow the present revision petition to be converted into an appeal. It will be heard as such. 5.
In the instant case, I find that all necessary conditions laid down by law are satisfied. In that view of the matter I allow the present revision petition to be converted into an appeal. It will be heard as such. 5. Adverting to the merits of the case, it appears that in the instant case the objection was only on the ground that at the time of attachment the property was in possession of the objector by virtue of an agreement to sell executed by the judgment-debtor. Admittedly, on the date of attachment the title vested in the judgment-debtor. He was the owner of the land. The claim of the objector is that subsequent to the attachment the land was sold to him by the judgment-debtor. But the said sale could not be proved and the courts below were not satisfied in that regard. In any event that is not material for deciding the present controversy. The question for determination is whether the property belonging to the judgment-debtor attached in execution of the decree against him can be released from attachment on the ground that it was in passession of a third party on the strength of an agreement to sell. The learned counsel far the petitioner submits that the property cannot be so released because despite an agreement to sell in favour of the objector and his possession, if any, the judgment-debtor has a title over the land. The land, therefore, does not cease to be subject matter of attachment in execution of a deceee against the judgment-debtor. It is also stated that in any event, in the instant case the courts below were not justified in releasing the property from attachment. If the courts were satisfied that there was an agreement to sell between the judgment-debtor and the objector and an obligation was incurred by the owner of the land by such agreement the courts could have passed a suitable order as contemplated by sub-rule (3) or rule 58 of order 21 of the C. P. C. and allowed the attachment to continue subject to the right of the objector. 6. I have considered the submissions of the learned counsel. I have also perused the provisions of order 21 rule 58 and 59.
6. I have considered the submissions of the learned counsel. I have also perused the provisions of order 21 rule 58 and 59. It appears that the scheme of adjudication of claims to or objections to attachment of property contained in rules 58 to 63 of order 21 of the C.P.C. underwent complete change by the C.P. C. (Amendment) Act, 1976. Earlier the scope of enquiry under order 21 rule 58 was very limited and was confined' to question of possession. But that is not the position after the Amendment of 1976. By the said amendment, new rules 58 and 59 were substituted and rules 60 to 63 omitted. The adjudication under the present order 21 rule 58 is no longer summary. It is the intention of the legislature that it should be a decision as if rendered in a regular suit resulting in an appellable decree. In view of the amended provision of order 21 rule 58, filing of a separate suit is barred and all questions relating to title or interest in the property attached have to be decided and adjudicated only in the claim proceeding and not by a separate suit. 7. In the present case there was an agreement for sale in favour of the objector executed as back as on 11.10.63. The price was fixed at Rs. 9150/- out of which a sum of Rs. 2000/- only was paid at the time of execution of the agreement. The balance amount was to be paid at the time of execution of the sale deed. No sale had been effected in pursuance thereof for long 15 years till the attachment was made. The question is whether the property, which is subject matter of agreement for sale, can be attached in execution of a decree or not. 8. It is settled that an agreement for sale of immovable property does not create any interest in or charge on the property. Reference may be made in this connection to the decision of the Supreme Court in Radhakishan Laxminarayan Toshniwal v. Sridhar Ramchandra Alshi AIR 1960 SC 1368 where it was held that a contract for sale does not of itself create any interest in or charge on immovable property. Such property can, therefore be attached and sold by the Court in execution of a decree. The sale of such property will pass good title to the purchaser.
Such property can, therefore be attached and sold by the Court in execution of a decree. The sale of such property will pass good title to the purchaser. It, however, does give rise to an obligation which limits the right of the owner and any attachment of the right, title and interest of the owner will be subject to any such limitation by which the owner was bound. The attachment and sale of such property shall therefore, be subject to such obligation. The position may however be little different where full purchase money has been paid and possession delivered. In such a case the purchaser would be entitled to a charge on the property. 9. In view of the aforesaid, lam of the opinion that the learned Courts below were not justified in releasing the property from attachment. Instead of releasing the property from attachment it could have passed an order to continue the attachment subject to the obligation arising out of the prior contract of sale in favour of the objector. I therefore, set aside the orders of the Court below releasing the property from attachment and direct that the attachment shall continue subject to the obligation arising out of the agreement to sell. 10. In the result, this appeal is allowed. No order as to costs.