Research › Browse › Judgment

Gujarat High Court · body

1995 DIGILAW 161 (GUJ)

M. SHANTILAL v. KASTURCHAND PARSHOTTAMDAS

1995-03-21

S.D.SHAH

body1995
S. D. SHAH, J. ( 1 ) THIS Civil Revision Application filed under Sec. 115 of the code of Civil Procedure, is directed against the judgment and order, dismissing the appeal From Order No. 24 of 1983 passed by the District Judge of Bharuch. The said Misc. C. A. was preferred by the present petitioner (original plaintiff - decree holder) against the order passed by Civil Judge (S. D.), Valia, in Misc. Civil application No. 6 of 1981 on 28th February, 1983. By said order, the Executing court, in substance, set aside and/or cancelled order dated 19th November, 1981, which was passed in execution proceedings directing the judgment-debtor to hand over possession of the property in question to the judgment-creditor. ( 2 ) IN order to appreciate the submission made by Mr. J. S. Adhyaru, learned counsel appearing for the petitioner, it is necessary to set out few relevant facts hereunder : (I) It appears that the present petitioner instituted Summary Suit No. 4287 of 1977 in the City Civil Court at Ahmedabad to recover the amount of Rs. 5,094. 69 ps. Along with the suit, he has also taken out a Notice of Motion for the relief of temporary injunction as well as for relief of attachment before judgment under Order 38 Rule 5 of the C. P. Code. It was a composite application. (ii) On such application, the learned City Civil Judge passed following Order on 15th December, 1977 : "rule - emergent process" it appears that the summons of the suit as well as of the application was served on the respondent No. 1 judgment-debtor, but he did not appear in the proceeding and thereafter the Court proceeded to pass the ex-parte decree. (iii) The petitioner judgment-debtor thereafter filed execution proceedings, wherein the judgment-debtor once appeared but thereafter failed to appear and in such proceeding the order was passed by the executing Court on 19th november, 1981, directing the judgment-debtor to hand over possession of the said property to the judgment-creditor. (iv) Subsequently, the judgment-debtor filed Misc. C. A. No. 6 of 1981 before the executing Court and pointed out to the Court that he has sold the property to the present respondent No. 2 by a Registered sale deed much prior to 19th November, 1981 and, therefore, the question of handing over of possession by him did not arise. (iv) Subsequently, the judgment-debtor filed Misc. C. A. No. 6 of 1981 before the executing Court and pointed out to the Court that he has sold the property to the present respondent No. 2 by a Registered sale deed much prior to 19th November, 1981 and, therefore, the question of handing over of possession by him did not arise. It appears that in such proceeding, the purchaser also filed objections against handing over possession of the property to the judgment-creditor, inter alia, contending that she has purchased the property as a bona fide purchaser. (v) The learned Judge of the executing Court found substance in such Misc. Civil Application and by his order dated 28th February, 1983, he cancelled/ reviewed his earlier order, directing the judgment-debtor to hand over possession of the property. (vi) The Miscellaneous Civil Application preferred by the present petitioner was dismissed and that has given rise to the present Civil Revision Application. ( 3 ) MR. J. S. Adhyaru, learned Counsel appearing for the petitioner has strenuously urged before this Court that once Notice of Motion was taken out and "rule" was issued by the trial Court on an application for temporary injunction and attachment before judgment, and once summons of such application was served on judgment-debtor, in substance, the order of injunction as well as attachment before judgment can be said to have been granted and can be said to have been operative against the judgment-debtor. He submitted that as per the dictionary meaning of the word "rule" it would mean "an order issued by the Court in favour of the applicant and against the opposite party. " In this connection, he has invited attention of this Court to the dictionary meaning of the words "rule" as given by Webster (2nd Edition) page 1214-1585 to mean "to issue a formal decree about a question as the Court will rule, on the matter", - give judicial or authoritative decision and the word "nisi" is defind to mean "to vindicate that it shall take permanent effect at a specified time unless cause to show why it should not or unless it is changed by further proceedings". ( 4 ) THE Oxford English Dictionary, Vol. ( 4 ) THE Oxford English Dictionary, Vol. VIII, on page 882 defines the word "rule" in its procedural context of law as "an order made by a Judge or Court, the application of which is limited to the case in connection with which it is granted. . . . . . . " further Rule absolute means an order following a rule nisi and changing a conditional direction into a peremptory command. In this connection, the meaning of the word "nisi" is also required to be noted and from such meaning which is given by webster, it becomes clear that the order shall take permanent effect at a specified time unless cause is shown why it should not be granted and the practice which is followed by the City Civil Court at Ahmedabad under the Ahmedabad City Civil court Rules, generally, on Notice of Motion, the Court issues "rule - emergent process" with a view to calling upon the other side to show cause as to why prayer made in the application should not be granted. This is the consistent meaning of the order of the special nature and if the opposite party fails to appear or to show cause against granting of such order, the Court proceeds to grant ad interim or interim order as prayed for. Mere issuance of "rule" on an application for temporary injunction for attachment before Judgment, would not, in my opinion, amount to granting even the relief of temporary injunction or attachment before judgment. In the context of the procedure which is followed by the Indian Courts and more particularly by Ahmedabad City Civil Court and the practice which is followed by the High Court of Gujarat, mere issuance of "rule" on Civil Application for any temporary relief, would not amount to granting temporary relief. It is, therefore, not correct to state that the learned Chamber Judge of the City Civil Court, in fact, granted temporary injunction and/or attachment before judgment with respect to suit property. In absence of any prohibitory order or attachment before judgment, if the rights of the third party has crept in and if third party as purchased the property by a regular Registered sale deed, in my opinion, the lower Courts were justified in passing the orders, which are assailed before this Court. In absence of any prohibitory order or attachment before judgment, if the rights of the third party has crept in and if third party as purchased the property by a regular Registered sale deed, in my opinion, the lower Courts were justified in passing the orders, which are assailed before this Court. In the aforesaid view of the matter, I do not see any merit in this Civil Revision Application, the same is dismissed. Rule is discharged with no order as to costs. .