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2005 DIGILAW 655 (RAJ)

Udai Singh v. Govind Singh

2005-02-28

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-The instant second appeal under Section 100 of the Code of Civil Procedure (CPC) against the Judgment and decree of the Additional District Judge, Rajsamand dated 28.04.1983 in Civil First Appeal No. 30/82 affirming the Judgment and decree passed by the Munsif , Bheem in Civil Original Suit No. 6/81 was admitted by this Court on 13.09.1983 with the following order :-"13.09.1983 Honble Mr.M.C. Jain, J. Mr. V.D. Calla for the appellant. Learned Counsel for the appellant has cited a Full Bench decision of the Patna High Court. Triveni Prasad Singh vs., Ramasray Choudhary, AIR 1931 Patna P. 241. In view of the above authority it appears that the following substantial question of law arises in this appeal. "Whether the present suit for possession is not barred by Section 47 of CPC." The appeal is admitted on the above question." 2. The short question, therefore, in this appeal is to consider maintainability of the suit filed by the appellant with reference to Section 47 CPC. Brief facts relevant for the purpose of determination of this question are that the plaintiff Prem Singh (since deceased and represented by the appellants) filed a suit in the Court of Munsif , Bheem against the defendant-respondent Govind Singh with the averments in the plaint that there was a conditional agreement to sale of the agricultural land described in para 1 of the plaint executed by the defendant Govind Singh in favour of plaintiff Prem Singh and upon defendant refusing to perform the agreement, Civil Suit No. 44/1976 was filed in the same Court by the plaintiff for specific performance of the agreement which was decided on 31.07.1979 in the manner that if the plaintiff would deposit Rs. 2,000/-(sale consideration) by 31.08.1979 then the defendant would execute the sale deed in favour of the plaintiff and deliver possession. The plaintiff further averred that Execution Case No. 51/1979 was proceeded and the plaintiff deposited amount of Rs. 2,000/-on 29.08.1979 but the defendant neither executed the sale deed nor delivered possession. Therefore, the Executing Court on 111.1980 executed sale deed in favour of the plaintiff and ordered that if the defendant does not deliver possession then the plaintiff may adopt suitable proceedings in accordance with law. 2,000/-on 29.08.1979 but the defendant neither executed the sale deed nor delivered possession. Therefore, the Executing Court on 111.1980 executed sale deed in favour of the plaintiff and ordered that if the defendant does not deliver possession then the plaintiff may adopt suitable proceedings in accordance with law. The plaintiff further averred that from 29.08.1979 to 29.01.1981, the defendant has illegally enjoyed usufruct of the land and not delivered possession to the plaintiff which resulted in a loss of Rs. 500/-to the plaintiff . According to the plaintiff between 29.08.1979 to 10.02.1981 the possession and damages were demanded but not given by the defendant. The plaintiff , therefore, filed the suit on 11.01.1981 seeking the reliefs of delivery of possession, damages and mesne profits. 3. Although, the defendant filed a cursory written statement of general denial but further averred that the plaintiff has not stated as to under which procedure such suit was filed and, therefore, the suit was liable to be dismissed. 4. The learned trial Court framed five issues arising in the case on the questions as to whether the suit was not of the jurisdiction of the Court, as to whether the sale deed was executed in favour of the plaintiff in pursuance of the decree in Civil Suit No. 44/76 on 111.1980 and as to whether the defendant has not delivered possession to the plaintiff and the plaintiff was entitled for damages. 5. In oral evidence, the plaintiff Prem Singh examined himself as PW. 1 and produced a witness Jethu Singh as PW. 2 on 19.09.1981 and closed his evidence. Copy of the execution proceedings were produced as Exhibit -1, order sheet dated 111.1980 as Exhibit-2 and the sale deed as Exhibit-3. It appears that on 111.1981, an application was moved for substitution of legal representatives of the plaintiff which was allowed on 08.02.1982 and the present appellants were substituted as plaintiffs in place of deceased plaintiff Prem Singh. It further appears that in spite of several opportunities, the defendant did not produce any evidence and, therefore, his evidence was closed. 6. After hearing the parties finally, the learned trial Court proceeded to decide the issues involved in the suit by its Judgment dated 10.08.1982. Issue No. 2 relating to the factum of the previous suit and execution proceedings and execution of the sale deed on 111.1980 was decided in favour of the plaintiff . 6. After hearing the parties finally, the learned trial Court proceeded to decide the issues involved in the suit by its Judgment dated 10.08.1982. Issue No. 2 relating to the factum of the previous suit and execution proceedings and execution of the sale deed on 111.1980 was decided in favour of the plaintiff . However, while considering issue No. 3 and 4, the learned trial Court referred to the procedure provided under Order 21 of the Code of Civil Procedure and observed that although the record indicated that the plaintiff has not obtained possession of the suit property but it cannot be said that plaintiff has taken steps to recover possession and still failed to get possession. The Court was of opinion that it was required of the plaintiff to move an application as envisaged by Order 21 Rule 97 CPC and the plaintiff could have got the relief of damages also but a suit for this purpose was not maintainable. Issue No. 1 relating to the jurisdiction of the Court was also considered by the trial Court and again it was observed that such a suit was not permitted by law else it would result in unending litigation. The learned Munsif , therefore, decided the relevant issues concerning the maintainability of the action by way of civil suit against the plaintiff and accordingly held the suit liable to be dismissed. The learned trial Court accordingly passed the decree dismissing the suit. 7. The Judgment and decree passed by the learned trial Court were assailed in Appeal No. 30/82 by the plaintiff-appellants before the Addtional District Judge, Rajsamand who agreed with the findings and conclusions of the learned trial Court and found that such a suit for recovery of possession was not maintainable. The appeal was accordingly dismissed on 28.04.1983. The plaintiff-appellants have come up in appeal being aggrieved against the Judgment and decree passed by the Court below upholding the dismissal of the suit. 8. As noticed hereinabove, this second appeal has been admitted only on the question of law as to whether the present suit for possession was not barred by Section 47 of the CPC? However, as noticed by this Court while admitting the appeal, the question of law was formulated in view of the Full Bench decision of the Patna High Court reported in AIR 1931 P. 241. 9. However, as noticed by this Court while admitting the appeal, the question of law was formulated in view of the Full Bench decision of the Patna High Court reported in AIR 1931 P. 241. 9. Nobody has put in appearance for the respondent despite service. 10. Having heard the learned Counsel for the appellants, this Court is clearly of the opinion that the present appeal is totally devoid of substance and deserves to be dismissed. 11. It is relevant to refer in the first place to the contention on the basis of which substantial question of law aforesaid has been formulated by this Court. The contention about maintainability of the suit on the basis of Triveni Prasads case (Supra) (AIR 1931 Patna 241) is neither correct nor germane to the real questions in controversy in this case. In Triveni Prasads case (supra), the Full Bench of Patna High Court was concerned with the then existing one of the ticklish and vexed questions pertaining to the execution proceedings to which various High Courts expressed divergent and conflicting views. The question was pertaining to the status of a decree-holder who becomes an auction purchaser of the property sold in execution and the proceedings for recovery of possession of the property so purchased. It was addressed by various High Courts in different circumstances to consider as to whether the question relating to delivery of possession of the property purchased by the decree-holder auction purchaser was a question relating to the execution discharge or satisfaction of the decree to be determined by the Executing Court only under Section 47 CPC and a suit instituted by the decree-holder auction purchaser for recovery of possession of the purchased property was, therefore, barred? Sharply conflicting views were expressed by the Patna, Bombay, Allahabad and Lahore High Court on one hand and Calcutta and Madras High Court on the other. Sharply conflicting views were expressed by the Patna, Bombay, Allahabad and Lahore High Court on one hand and Calcutta and Madras High Court on the other. Broadly it could be summarised that while the view of the Calcutta and other High Courts on one hand was that when the auction purchaser is the decree-holder himself , any question relating to delivery of possession is also a question relating to "execution, discharge or satisfaction of the decree" within the meaning, of Section 47 CPC while the view as propounded by Patna High Court followed the line of reasoning that a suit for possession of property purchased at execution sale does not give rise to any question relating to execution, discharge or satisfaction of the decree and such a suit was not barred by Section 47 CPC. The view as propounded in Triveni Prasads case (Supra) was extensively dealt with by the Full Bench of Lahore High Court in the case of Ram Singh Gopal Singh vs. Abdullah Habibulah, reported in AIR 1944 Lahore 402 in which, inter-alia, the aforesaid decision of Patna High Court in Triveni Prasads case has been referred and concurred while regarding the view of the Calcutta High Court in the case of Kailash Chandra vs. Gopal Chandra, reported in 53 Calcutta 781 (AIR 1926 Calcutta 798) it has been observed that in view of the decision of Privy Council in the case of Raghunandan Prasad vs. CIT , reported in 12 Patna 305, the authority of the said decision of Calcutta High Court was considerable shaken and it may be that that Court would have to reconsider the matter. 12. The conflict of the views aforesaid was set at rest by the Honble Supreme Court in the case of Harnand Rai Badri vs. Debidutt Bhagwati Prasad & Ors., reported in 1973 (2) SCC 467 . The Honble Supreme Court referred to the two divergent streams from the series of decisions one referable to Calcutta and other High Court as in Kailash Chandras case (Supra) and other of Lahore and other High Court in Ram Singhs case (Supra). The view expressed by the Full Bench of Patna High Court was also in the line of the views of Lahore High Court. The view expressed by the Full Bench of Patna High Court was also in the line of the views of Lahore High Court. Their Lordships of the Honble Supreme Court, after referring to the two divergent views, affirmed the view of the Calcutta High Court in Kailash Chandras case (Supra) and held that Section 47 CPC was required to be construed liberally and there was no reason why a decree-holder who has been a party to the suit to the decree will shed his character as such party merely upon purchasing the property at the execution sale. There was no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. The Honble Supreme Court, therefore, held:- "Having regard to this consideration, if any question is raised by the Judgment -debtor at the time of delivery of possession concerning the nature of the rights purchased and if the Judgment -debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit." 14. The Honble Supreme Court upheld the view taken by the Calcutta High Court relating to the character of decree-holder auction purchaser and held that all questions arising between the auction purchaser and Judgment -debtor must be determined by the Executing Court and not by a separate suit. 15. Furthermore, the law laid down by the Honble Supreme Court has been incorporated in Explanation -II to Section 47 CPC by way of Amendment Act No. 104 of 1976 and Clause (b) of Explanation -II clarifies that delivery of possession of property to the auction purchaser or his representatives shall be deemed to be a question relating to the execution, discharge or satisfaction of the decree. Obviously, therefore, all questions falling under Explanation -II (b) can be decided only by the Executing Court and not by a separate suit. 16. Obviously, therefore, all questions falling under Explanation -II (b) can be decided only by the Executing Court and not by a separate suit. 16. The discussion in the preceding paragraphs makes it clear and obvious that so far the decision of the Full Bench of Patna High Court in Triveni Prasad Singh vs. Ramasray Choudhary., AIR 1931 Patna 241 is concerned, the same was no longer a good law in view of the decision of the Honble Supreme Court in Harnand Rai Badri Das vs. Debidutt Bhagwati Prasad & Ors., reported in 1973(2) SCC 467 . Moreover, the ratio of the said decision of Patna High Court was totally eclipsed by insertion of Explanation-II to Section 47 CPC by the Amendment Act of 1976. This Court is clearly of opinion, therefore, that the reference to the aforesaid decision of the Patna High Court in support of the contention regarding maintainability of the suit was not correct. 17. Furthermore, any reference to the principles relating to the status of a decree-holder who becomes auction purchaser also by purchase of the property in execution sale is even otherwise not at all related to the subject matter of present case. The present one was simply a case of a decree-holder allegedly having a decree for specific performance and delivery of possession in his favour alleging the Judgment -debtor having not delivered the possession of the suit property despite the sale deed having been executed by the Court in execution proceedings. This Court is of the considered view that the reference to the question about the status of auction purchaser decree-holder remains entirely misplaced in relation to the facts of the present case. 18. So far the maintainability of the suit filed by the plaintiff is concerned, it is at once evident that the question raised by the plaintiff related directly to the satisfaction or the execution of the decree and all such questions by the force of Section 47 of the Code of Civil Procedure were required to be decided by the Executing Court and not by a separate suit. The law laid down and explained by the Honble Supreme Court in Harnand Rai Badri Das vs. Debidutt Bhagwati Prasad & Ors., reported in 1973(2) SCC 467 as quoted hereinabove makes it clear that if the Judgment -debtor offered any resistance to delivery of possession, it gave rise to a question relating to the execution , discharge or satisfaction of the decree and that too between the parties to the suit only. The question as alleged and raised in the present suit directly related only to the execution of the decree and the same cannot be decided by way of a separate suit. 19. The plaintiff -appellant has categorically asserted in the plaint that in the earlier suit decree for specific performance of the agreement and delivery of possession was granted in his favour. The plaintiff has totally failed to show the efforts, if any, made by him for recovery of possession nor it has been pointed that the Executing Court despite having been requested did not execute the decree or did not determine the questions regarding satisfaction or execution of the decree. The bar of Section 47 clearly operates against the maintainability of the suit. The suit has rightly been dismissed by the learned Courts below. The question of law formulated in the present appeal deserves to be and is decided against the appellant. 20. As a necessary consequence of the decision on the question of law against the appellant, the appeal fails and is dismissed. However, as the respondent has not appeared despite service, there shall be no order as to costs.