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2001 DIGILAW 768 (KER)

Damodaran v. Federal Bank Ltd.

2001-12-21

B.N.SRIKRISHNA, K.A.ABDUL GAFOOR, KURIAN JOSEPH

body2001
Judgment :- K. A. Abdul Gafoor, J. This case has come up before this Full Bench on a reference by a Division Bench consisting of Balasubramanyan, J. (as he then was) and one among us (Abdul Gafoor, J. ) finding conflict of views expressed by two Division Benches of this Court, as to the maintainability of appeal under S.5(ii) of the Kerala High Court Act, 1958, in Padmanabhan v. Shriram Chits & Investments (P) Ltd. ,1995 (2) KLT 61 and in Manoj v. Infant Jesus Church, 1999 (3) KLT 521 = ILR 1999 (3) Kerala 803. The question of law to be answered in this case is whether Letters Patent. Appeal under S.5(ii) of the Kerala High Court Act, 1958 will lie from the judgment of a Single Judge in a appeal against an Order under O. XXI R.100 of the Code of Civil Procedure, 1908 passed by a court executing a decree. 2. The appellant filed an application E. A. No. 299/98 in O. S. No. 54/89 objecting to the delivery of the property in favour of the first respondent, decree-holder, in execution of a decree in the said suit. It was an application under O. XXI R.99 of the Code of Civil Procedure. That application was dismissed as per Order, dated 23rd June 1999 by the Court of Subordinate Judge, Kottarakkara. That Order was challenged by the appellant in EFA No. 21/99. It was dismissed by a learned Single Judge of this Court. Thereupon, he attempts a Letters Patent Appeal under S.5(ii) of the Kerala High Court Act. Is it maintainable? That is the question before us. 3. S.5 of the Kerala High Court Act, 1958 reads as under: "Appeal from judgment or Order of a Single Judge - An appeal shall lie to a Bench of two judges from (i) ' ' (ii) A Judgement of a single judge in exercise of appealable jurisdiction in respect of a decree or Order made in the exercise of original jurisdiction by a subordinate court". (emphasis supplied) Thus, in order to maintain an appeal under S.5(ii), the appeal before the Single Judge shall be from a decree or Order made by a Subordinate Court in exercise of its "original jurisdiction". If the Order impugned in EFA No. 21/99 is one passed in exercise of original jurisdiction, an appeal will lie. (emphasis supplied) Thus, in order to maintain an appeal under S.5(ii), the appeal before the Single Judge shall be from a decree or Order made by a Subordinate Court in exercise of its "original jurisdiction". If the Order impugned in EFA No. 21/99 is one passed in exercise of original jurisdiction, an appeal will lie. If that Order is not one passed in exercise of original jurisdiction by the Sub Court, Kottarakkara, appeal will not lie. So, what is to be examined is whether the Order which was impugned in E. F. A. No. 21/99 had been passed by the Subordinate Court, Kottarakkara in exercise of its "original jurisdiction". 4. "Original jurisdiction" is understood, ordinarily, in contra distinction to appellate jurisdiction. Anyhow, the Order passed by, the Subordinate Court, Kottarakkara is not one passed in exercise of its appellate jurisdiction. It is an Order passed in an application under R.99 of O. XXI CPC. That application was filed by the appellant offering resistance to delivery of property in execution of a decree. In terms of O.XXI, R. 101, all questions including right, title or interest in the property arising between the parties to a proceeding on an application under R.97 or 99, "shall be determined by the Court dealing with that application and not by separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. " (emphasis supplied) 5. This jurisdiction is conferred by R.101 as now stands upon amendment effected in 1976. As per this provision, a separate suit is barred and the jurisdiction to decide all questions regarding right, title and interest of the parties is given to the court dealing with the execution of the decree. Necessarily, that jurisdiction to decide such questions conferred on the court is original jurisdiction itself, because the jurisdiction thus conferred on the court by reason of such amendment is to decide the dispute for the first time raised by the parties concerned. In that sense, the court is exercising original jurisdiction to decide'a question, which had never been a matter for consideration by any other forum. So, going by the provision in R.101, the exercise of the jurisdiction by the court executing a decree while considering such application, is exercise of "original jurisdiction". 6. In that sense, the court is exercising original jurisdiction to decide'a question, which had never been a matter for consideration by any other forum. So, going by the provision in R.101, the exercise of the jurisdiction by the court executing a decree while considering such application, is exercise of "original jurisdiction". 6. The problem can be viewed in another angle also. The Order to be passed by the Court exercising such jurisdiction has to be "treated as decrees" in terms of R.103 of O. XXI CPC. It is provided specifically that such order, "shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree". The order is thus given the nature, colour and force of a decree for its enforcement as well as for appeal. If an Order is passed in exercise of that jurisdiction awarding cost' of any other amount, necessarily, that Order can be executed as if a decree. It will never be an appellate decree. In such circumstances, that decree can be taken only as a decree passed by a court in exercise of its original jurisdiction". 7. Such an Order also will have the same conditions as a decree in the matter of an appeal arising therefrom. So the Order is given, statutorily all the trappings of a decree. An appeal will lie only in terms of S.96 read with O. XLI, R. I CPC, which provide for "Appeal from original decrees". So in order to maintain an appeal against such an Order passed by the Court executing a decree and thus to invoke S.96 and O. XLI, R.1 C. P. C., it will have the colour and nature of a "original decree" by reason of the provision contained in O. XXI, R.103 CPC. When the appeal is so entertained and disposed of one way or the other, the nature and colour of the Order appealed against will not be altered. It will remain the same as given in R.103, "as if it were, a decree". That nature will still remain even beyond the first appeal. We have already found that the exercise of jurisdiction to pass such an Order is the original jurisdiction. Therefore, when that nature is so conserved necessarily, it will have to be taken for the purpose of S.5(ii) of the Kerala High Court Act, 1958 as well. 8. That nature will still remain even beyond the first appeal. We have already found that the exercise of jurisdiction to pass such an Order is the original jurisdiction. Therefore, when that nature is so conserved necessarily, it will have to be taken for the purpose of S.5(ii) of the Kerala High Court Act, 1958 as well. 8. In this respect, it will be profitable to read R.101 of O. XXI CPC. "All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under R.97 or R.99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions". (emphasis supplied) Thus, it is clear that the jurisdiction to decide all questions relating to right, title or interest in the property raised in an application under R.97 or 99 is not a jurisdiction that the executing Court inherently had in it for the purpose of execution, but a jurisdiction which is deemed to be specifically conferred on it. The jurisdiction exercised, while considering an application under R.97 or 99, is thus an additional jurisdiction conferred on the Executing Court by a deeming provision or is a jurisdiction in addition, to the normal jurisdiction which an Executing Court normally has for the purpose of executing a decree. Necessarily that cannot be the exercise of jurisdiction ordinarily vested in an executing court as apart of execution of the decree. That jurisdiction is a bit wider than the 'execution jurisdiction' and in many respects akin to 'original jurisdiction' and with no limitation as to appeal as compared to any other Order passed by the executing court in its ordinary jurisdiction. On that count also it has to be treated as Order passed in exercise of "original jurisdiction". 9. Now, we will examine whether there is really any conflict in the views expressed by the two Division Benches in Padmanabhan's case and Infant Jesus's case. Padmanabhan's case was one arising out of proceedings under O. XXI, R.58(3) CPC. On that count also it has to be treated as Order passed in exercise of "original jurisdiction". 9. Now, we will examine whether there is really any conflict in the views expressed by the two Division Benches in Padmanabhan's case and Infant Jesus's case. Padmanabhan's case was one arising out of proceedings under O. XXI, R.58(3) CPC. As per R.58(2), jurisdiction to settle all questions including that relating to right, title and interest in the property attached in execution proceedings had been conferred on the executing court. The Order made while exercising such jurisdiction shall have, in terms of sub-r.(4) thereof, "the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree', if there was jurisdiction of the claim or objection with regard to such right, title or interest. The Order passed by the executing court in Padmanabhan's case was one whereby, as understood by the learned judges, the learned Sub Judge has declined to entertain the claim filed under O. XXI, R.58 CPC reserving the right of the petitioners in the E. A. to initiate independent action to establish their right in the property". Thus there was no adjudication of the claim raised with respect to the property. It is only "where any claim or objection has been adjudicated' by the executing court, the Order will have 'the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree'. Viewed in that backdrop, it could not have been stated to be an Order adjudicating the question raised, exercising the jurisdiction conferred by O. XXI, R.58(2) to attract sub-r.(4). Resultantly, a Letters Patent Appeal under S.5(ii) of the Kerala High Court Act, 1958 could not to have been maintained. Viewed in that perspective, the decision in Padmanabhan's case is perfectly justified in the fact frame of the point involved there. 10. On the other hand the Order passed by the executing court leading to the Infant Jesus's case was one adjudicating the claim put forth by the appellant in that case. Viewed in that perspective, the decision in Padmanabhan's case is perfectly justified in the fact frame of the point involved there. 10. On the other hand the Order passed by the executing court leading to the Infant Jesus's case was one adjudicating the claim put forth by the appellant in that case. The claim was rejected by the executing court finding that, as noticed by that Division Bench, "no oral or documentary evidence was let in to prove the entrustment of the building to the appellant on any rental arrangement or the payment of any security deposit and that there was no bonafide in filing the petition". There was thus an adjudication of the claim with respect to the title to the property on merit. It was an order made "adjudicating upon" an application under R.98 with respect to which a suit could not have been filed. The division Bench in that case noticed that the amendment to CPC effected in 1976 introducing R.101 of O. XXI as it now stands, was made taking into account the opinion of the Joint Committee that "the executing court should be clothed with jurisdiction to decide all such questions that such question may be heard and finally decided". Such amendment was necessary to avoid multiplicity of proceedings and to avoid unnecessary delay in the execution of a decree by raising objections and claims on the subject-matter of the decree. It was taking into account these aspects that the Division Bench in Infant Jesus's case found that orders passed in exercise of jurisdiction in terms of: "R.101 are Orders passed in exercise of original jurisdiction of the subordinate Court and those Orders shall come within clause (ii) of S.5 of the Kerala High Court Act". Examining the observations in Padmanabhan's case, that Division Bench found that in Padmanabhan's case "there was no adjudication of the claim put forward by the claimant and that the claimant had the right to agitate the claim and get it adjudicated by separate suit as provided in O. XXI, R.58(5) CPC". Thus the decision in Padmanabhan's case was distinguished. 11. It is true that it is an observation in Padmanabhan's case that the jurisdiction exercised by the executing court: "can never be treated as anything different from that of an executing court. Thus the decision in Padmanabhan's case was distinguished. 11. It is true that it is an observation in Padmanabhan's case that the jurisdiction exercised by the executing court: "can never be treated as anything different from that of an executing court. The jurisdiction exercised though may be wide and akin in many respects to original jurisdiction it will still be subject to all the limitations of the jurisdiction of the executing court. " This observation was made by that Division Bench making it clear that "we do not want to pronounce finally on the question". Even after observing so, the Division Bench further stressed that "We would, however, like to leave the matter open without finally deciding the issue". Thus the issue had never been probed in depth in Padmanabhan's case as, according to us, it was unnecessary in the fact frame of that case. 12. Therefore, according to us, there arise no conflict of views in the said two decisions to be resolved by us. We, further hold that Order passed by the executing court in exercise of the jurisdiction vested by O. XXI, R.101 is an "Order made in exercise of original jurisdiction by a subordinate court"; as such Order is given by R.103, the same force and the same conditions as to an appeal as if it were a decree and hence an appeal under S.5(ii) of the Kerala High Court Act, 1958 is maintainable. We answer the reference accordingly. The concerned Division Bench shall consider the appeal as if it is maintainable. Post the appeal for admission before the concerned Division Bench.