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2007 DIGILAW 33 (GAU)

Khangenbam Mani Singh v. Khangenbam Sachikumar Singh @ Ibotombi Singh

2007-01-11

B.D.AGARWAL

body2007
JUDGMENT B.D. Agarwal, J. 1. The revision application stands restored to file. 2. The revision petitioners are the judgment-debtors in Execution Case No. 1 of 2002. The petitioners are challenging the order dated 25.03.2003 passed by the learned Civil Judge, Junior Division, Imphal East, whereby the learned Judge has rejected the objection of the judgment debtor No. 1. The said objection was filed in the Executing Court against the notice of execution of the decree, purportedly under Order XXI, Rule 22 of the Code of Civil Procedure, 1908 (shortly, the 'CPC’ hereinafter). 3. I have heard the arguments of Ph. Dolen, learned Counsel for the petitioners, Shri Th. Modhu Singh, learned Counsel appeared on behalf of the decree-holder/respondent. I have also perused the impugned order and other documents filed with the revision application and the connected miscellaneous applications. 4. An eviction suit was filed by the respondent in the year 1975. The suit was registered as O.S. No. 14 of 1975. A counter suit was also filed by the petitioners for declaration of their title and partition of the suit property. Their suit was registered as O.S. No. 2 of 1975. The suit of the respondent, which was subsequently re-numbered as 17 of 1984, was decreed whereas the suit of the petitioners was dismissed. Cross-appeals being First Appeal Nos. 1 of 1989 and 2 of 1989 were filed in the High Court. Both the appeals were dismissed, thereby affirming the decree in favour of the respondent. Thereafter, the Execution Case No. 2 of 2001 was filed in the Court of District Judge, No. 2, which had passed the decree. After the passing of the decree, the District of Imphal was divided. One district came to be known as Imphal (East) and other one as Imphal (West). Since the defendants/petitioners, as well as the suit property fell in the District of Imphal East, the execution proceeding came to the file of the Court of Addl. District Judge, Manipur East. By this time, the original Court of ADJ No. 2 of Undivided Imphal District was abolished. Consequently, the records were divided according to the territorial jurisdiction. 5. In the year 2002, the decree holders made a prayer before the learned District Judge, Manipur East to withdraw the execution case from the Court of ADJ. District Judge, Manipur East. By this time, the original Court of ADJ No. 2 of Undivided Imphal District was abolished. Consequently, the records were divided according to the territorial jurisdiction. 5. In the year 2002, the decree holders made a prayer before the learned District Judge, Manipur East to withdraw the execution case from the Court of ADJ. Although, the ground of transfer is not clear from the record, but according to the learned Counsel for the D.H., the transfer was sought for as the Court of ADJ was lying vacant. Hence, the prayer of D.H. was acceded by the learned District Judge and the execution case was transferred to the Court of Civil Judge, Jr. Division, Imphal East vide order dated 01.12.2002 passed in Judl. Misc. Case No. 6 of 2002. Accordingly, the records were sent to the transferee Court whereupon the execution case was re-numbered as Execution Case No. 1 of 2002. On receipt of the decree for execution, notices to the J.Ds. were issued. Objection was filed only by J.D. No. 1 which came to be rejected vide impugned order dated 25.03.2003. It may be mentioned here that in the executing Court, J.D. No. 2 through his legal heirs did not file any objection. Hence, the execution case proceeded ex-parte against J.D. No. 2. 6. Despite the ex-parte proceeding, both JD No. 1 and LRs of J.D. No. 2 challenged the order dated 25.03.2003 by filing this joint revision application. The revision application was dismissed on 24.05.2005 for nonappearance of the petitioners. Hence, the petitioners filed an application under Order IX Rule 9 read with Section 151 CPC for restoration of the Civil Revision along with condonation petition. These petitions have been numbered as CMA No. 74 of 2005 and 73 of 2005 respectively. Separate orders have been passed for condonation and restoration of revision. 7. Before entering into the merit of the revision application, one technical objection was raised on behalf of the learned Counsel for the respondent, which needs to be dealt with. Shri Modhu, learned Counsel for the respondent submitted that the execution of the decree was contested only by J.D. No. 1. However, the said J.D. No. 1, namely Kh. Mani Singh has not filed any application for restoration of the revision petition, which was once dismissed for default on 24.05.2005. Shri Modhu, learned Counsel for the respondent submitted that the execution of the decree was contested only by J.D. No. 1. However, the said J.D. No. 1, namely Kh. Mani Singh has not filed any application for restoration of the revision petition, which was once dismissed for default on 24.05.2005. Hence, no purpose will be served if the revision application is heard and decided on merit at the instance of the LRs of J.D. No. 2, who have been debarred from contesting the Execution Case for non-filing of any objection. 8. Apparently, the submission of the learned Counsel for the respondents appears to be weighty inasmuch as the main contestant, i.e., J.D. No. 1 has not filed any application for restoration of the revision application. Despite this legal lacuna, I have restored the revision application exercising judicial discretion, since Section 115 CPC empowers the High Court to examine the legality of any order passed by a Court subordinate to it suo moto. I am inclined to examine the legality and correctness of the impugned order to satisfy the parties before me that no miscarriage of justice has been done to them by throwing the revision application above-board without examining its merit. 9. Before examining the propriety and legality of the impugned order, it should be borne in mind that the High Court cannot travel beyond the statutory limitations prescribed under Section 115 CPC. The revisional power of the High Court is entirely discretionary and the petitioners must not only show that there was jurisdictional error but should also show that the interest of justice also calls for interference in the impugned order. For ready reference, it would be apposite to reproduce the relevant provisions of Section 115 CPC, which runs as under: 115 Revision (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-- (a) To have exercised a jurisdiction not vested in it by law, or (b) To have failed to exercise a jurisdiction so vested, or (c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fits; 1.* * * 2.* * * 3.* * * 10. In the case of D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh and Ors. [1970] 2 SCR 368, the Hon'ble Supreme Court has succinctly laid down the parameters of power conferred Under Section 115 CPC in the following words: 8. The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegality" and "with materials irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its powers under Section115 of the Code. Merely because the High Court would have inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter, the High Court treated the revision virtually as if it was an appeal. It seems to us that in this matter, the High Court treated the revision virtually as if it was an appeal. 11. Similarly, in the case of Bhojraj Kunwarji Oil Mill & Ginning Factory and Anr. v. Yograjsinha Shankersinha Parihar and Ors. AIR 1984 SC 1894 , the Apex Court has held that exercise of power under Section 115 CPC is not permitted only on the ground that a different view is plausible in the impugned order. This legal position has been reiterated by the Apex Court and other High Courts. However, I do not deem it necessary to burden this judgment by referring catena of judgments on this point. Keeping in mind the limitations of the revisional Court 1 now proceed to examine the case on its merit. 12. In the case before me, Shri Dolen, learned Counsel for the petitioners submitted that the learned Civil Judge did not examine the question of its jurisdiction to proceed with the Execution case. According to the learned Counsel, after the abolition of the Court of ADJ No. 2 in the undivided Imphal District, the execution application came to the file of ADJ, Manipur East by virtue of administrative reshuffle and jurisdiction of this Court ought not to have been interfered with by the District Judge Under Section 24 CPC. Learned Counsel for the petitioner also submitted that the execution petition was filed after more than 12 years from the date of the decree and as such, it was hit by Article 136of the Limitation Act, 1963. However, this aspect was also not considered in the impugned order. Learned Counsel for the petitioners also submitted that the impugned order is not a speaking one in as much as it does not reflect the schedule of the property. It was also pleaded that the order should also be viewed with seriously since it was passed nearly after 8 months of the argument. 13. Per contra, Shri Modhu, learned Counsel for the respondents submitted that the transfer order was not challenged by the judgment debtors before filing their objection against the notice issued under Order XXI Rule 22 CPC and as such, this plea cannot be entertained at this belated stage. 13. Per contra, Shri Modhu, learned Counsel for the respondents submitted that the transfer order was not challenged by the judgment debtors before filing their objection against the notice issued under Order XXI Rule 22 CPC and as such, this plea cannot be entertained at this belated stage. On the question of filing of execution application beyond statutory period, the learned Counsel submitted that this process could not be initiated due to the stay orders, which were issued by the High Court in F.A. No. 2 of 1989. In addition to this submission, learned Counsel for the respondent submitted that the LRs of J.D. No. 2 cannot question the legality of the impugned order without filing any objection in the lower Court. According to the learned Counsel, non-filing of objection would operate as res judicata and fresh opportunity to LRs of J.D. No. 2 cannot be given under revisional powers. 14. To substantiate the arguments of res judicata, the learned Counsel relied upon the judgments rendered in the case of Ramrup Rai v. Mst. Gheodhari Kuer and Ors. AIR 1980 Pat 197 ; P. Sainath Reddy and Ors. v. G. Narayan Reddy AIR 1982 AP 247 and the case of Union Bank of India v. Byram Pestonji Gariwala and Ors. AIR 1991 Bom 185 . 15. It is true that the learned Jr. Civil Judge has not discussed the objection raised by the JD-1 in the impugned order. However, since the suit has not come to its logical conclusion in the last 30 years, it would not be proper to refer the matter back for giving a finding on the grounds raised by J.D. No. 1 The objections of the judgment debtors can also be examined by this Court, which I am going to do. 16. First question relates to the propriety of transferring the execution case from the Court of ADJ to the Court of Jr. Civil judge by the learned District Judge, it appears to me that this is the only objection which was raised before the lower Court by JD No. 1, as could be gathered from the Written objection, which has been enclosed with the revision application under Annexure-A/3. 17. For better appreciation of the legal issue, it would be proper to reproduce the relevant provisions of Section 24 of the CPC: 24. 17. For better appreciation of the legal issue, it would be proper to reproduce the relevant provisions of Section 24 of the CPC: 24. General power of transfer and withdrawal.- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try and dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) * * * (ii) * * * (2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section,-- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding" includes a proceeding for the execution of a decree or order. (4) * * * (5) * * * 18. Apparently, the District Judge has the power to withdraw and transfer any suit, appeal or other proceeding either from its own Court or from other Courts subordinate to it and can make it over to any other competent Court for disposal. Sub-section (3)(b) of Section 24 has further clarified that "proceeding" includes a proceeding for the execution of a decree. In the present case, the District Judge has transferred the decree from one Court to another. 19. Now coming to the powers and limitations of the District Judge to transfer a case from one Court to another, I find that Section 24 has not put any such limitations. Apparently, the powers conferred on the High Court and District Court Under Section 24 is plenary in nature and it is not circumscribed with any qualifications. 19. Now coming to the powers and limitations of the District Judge to transfer a case from one Court to another, I find that Section 24 has not put any such limitations. Apparently, the powers conferred on the High Court and District Court Under Section 24 is plenary in nature and it is not circumscribed with any qualifications. Rather, the inherent power to transfer the case one Court to another within the legal limits of High Court or District Court prescribed Under Section 24 is not exhaustive and same can be exercised at any stage of the suit or proceeding to advance the cause of Justice. 20. It is true that Section 39 CPC specifically deals with transfer of a decree from one Court to another. However, I am of the view that Ss. 24 and 39 CPC operate in two different fields. Section 39 have given the power to the executing Court itself to transfer the decree to another Court for execution under certain circumstances set out in the said law itself. However, the scope of Section 24 is much wider, whereby the High Court or District Court can transfer suits or proceedings from one Court to another sans the limitation prescribed Under Section 39 CPC to the executing Court. The only distinction in between Ss. 24 and 39 CPC is that under the former provision suit, appeal or other proceeding can be transferred within the legal limits of the jurisdiction of the High Court or for that matter the District Court, whereas the executing Court can transfer the execution case to any Court outside its jurisdiction under certain circumstances. Except this difference related to the local limits of transfer, the powers of High Court and that of District Court are much wider and the same is not controlled by Section 39. 21. In the case of P. Madhavan Unni v. M. Jayapandia Nadar AIR 1973 Mad 2 , the Madras High Court had the occasion to examine the contours of Ss. 24 and 39 CPC. 21. In the case of P. Madhavan Unni v. M. Jayapandia Nadar AIR 1973 Mad 2 , the Madras High Court had the occasion to examine the contours of Ss. 24 and 39 CPC. After elaborate discussion, their Lordships came to the following conclusion: We consider that the power of transfer, under Section 24 of the Code, of a suit, appeal or other proceeding, by a High Court or a District Court to a Court within their respective jurisdiction is a very effective remedy and no fetters should be placed upon it on grounds of want of territorial jurisdiction of the transferee Court. 22. In view of the legal position of the powers of District Judge to transfer the execution case from one Court to another. I hold that no illegality was committed by the District Judge in transferring the execution case from Court of ADJ to Civil Judge, Jr. Division. The above question was indirectly raised only before the executing Court, which was not competent to decide the legality of transfer. Besides this, the judgment-debtors also did not challenge the transfer order dated 01.02.2002 in the revision application and as such, the said order has attained finality. At the same time, I also do not find any flaw in the said order. 23. Coming to the question of filing of the execution case beyond the statutory period of 12 years, I find that the respondents has annexed two orders dated 04.01.1989 and 19.11.1990 whereby the High Court had prevented the defendants from being evicted under the impugned decree. The former order was interim, which was made absolute in the latter order. As stated earlier, the first appeals were dismissed only in the year 2005 and as such, this period is to be excluded from the statutory period of 12 years for execution of the decree. It is also worth mentioning here that in the written objection, no specific ground of limitation to execute the decree was taken. Hence, this objection of the judgment debtors also devoid of merit. Learned Counsel for the petitioners also submitted that the impugned order has not disclosed the details and boundary of the suit-land, wherefrom the judgment-debtors are liable to be evicted. In my opinion, it is not necessary to incorporate the schedule of the suit-land in the judicial order. Hence, this objection of the judgment debtors also devoid of merit. Learned Counsel for the petitioners also submitted that the impugned order has not disclosed the details and boundary of the suit-land, wherefrom the judgment-debtors are liable to be evicted. In my opinion, it is not necessary to incorporate the schedule of the suit-land in the judicial order. In other words, in absence of any controversy related to the schedule of the suit-land, such details can be incorporated in the warrant of attachment/sale etc. as per the decree. Hence this objection is also not sufficient to stall the execution process. Similarly, the submission of the learned Counsel that the impugned order was passed nearly after 8 months of the hearing is also not a strong ground to set aside the impugned order. The petitioners have failed to explain as to why no steps were taken to get the order passed on the fixed date. It is true that the latitude shown by the learned Civil Judge. Jr. Division in passing the impugned order belatedly cannot be approved. At the same time, the impugned order cannot be interfered with without any illegality or impropriety in the same. I have already discussed the limitation of this Court for interfering with the non-appealable orders Under Section 115 CPC. Under this provision of law, the order of subordinate Court can be interfered with only under the circumstances set out therein. In the present case, the petitioners have failed to show that the learned Civil Judge had either wrongly exercised the jurisdiction not vested in him or failed to exercise its jurisdiction so vested or that the Court has committed any material legality connected with its jurisdiction. 24. For the reasons alluded hereinabove, hold that the revision application is devoid of any merit. Consequently, the same is hereby dismissed. Application dismissed.