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Madhya Pradesh High Court · body

2008 DIGILAW 1178 (MP)

Laxmi Sarda v. Khushal Chand Khimji & Co.

2008-09-23

A.K.SHRIVASTAVA

body2008
JUDGMENT 1. A summary suit No. 11879/98 was filed by M/s. Khushal Chand Khimji & Company who has been arrayed as respondent No.1 in this appeal, before the High Court of Judicature at Bombay. The said suit was filed under Order XXXVII Rule 2 CPC against M/s Laxmi Narayan Radha Vallabh and Company, a partnership firm and others. An ex-parte decree was passed by Bombay High Court on 5.6.2000 against the defendants. In order to realize the decretal amount, execution application was submitted before the High Court of Bombay, however, the decree was transferred to District Judge, Hoshangabad alongwith a certificate under Rule 6 of Order XXI CPC by Bombay High Court by exercising power under section 39 and Order XXI Rule 5 CPC. Since the judgment debtor actualy resides at Pipariya, the District Judge, Hoshangabad transferred the said decree to Additional District Judge, Sohagpur having pecuniary jurisdiction to execute the decree. 2. In the said summary suit, one Ram Gopal Kabra was one of the defendants. The present appellant is daughter of said Ram Gopal Kabra. The appellant filed objections against the attachment of the alleged HUF property under Order XXI Rule 58 CPC. The objections of the appellant are that Ram Gopal had already died and without impleading the legal representati ves of said Ramgopal Kabra, the suit was decided and decreed in ex-parte and therefore it amounts to nullity, since the decree has been passed against a dead person. Her another objection is that Ram Gopal Kabra was one of the partner of partnership firm M/s Laxmi Narayan Radha Vallabh & Co., who is the judgment debtor and if any money decree has been passed against the firm, it cannot be executed by attaching the property of HUF, therefore, the property be released from attachment. 3. Shri U.K. Shukla, learned counsel for the decree holder/respondent No.1 submits that reply against objections of appellant/objector under Order XXI Rule 54 CPC was filed by the decree holder refuting the averments and it was submitted that the decree has been rightly passed and the same is rightly being executed by attaching the immovable property of the judgment debtor. 4. On going through the record of the Executing Court, it is revealed that without holding any enquiry and without providing any opportunity to adduce evidence to the appellant/objector, her· objections have been rejected by the impugned order by the executing Court. 4. On going through the record of the Executing Court, it is revealed that without holding any enquiry and without providing any opportunity to adduce evidence to the appellant/objector, her· objections have been rejected by the impugned order by the executing Court. Hence, this appeal has been filed by the appellant/objector. 5. The contention of Shri S.A. Dharmadhikari, learned counsel for the appellant is that if the objections are filed under Order XXI Rule 58 of CPC hammering the validity of attachment of immovable property by the objector, they are required to be adjudicated in terms of Rule 58 of Order XXI of CPC but without providing any opportunity to adduce evidence to the appellant-objector in order to establish that immovable property is not liable to be attached in execution to the decree passed against judgment debtor, summarily the objections could not have been rejected. Hence, it has been submitted by learned counsel that by setting aside the impugned order, learned Executing Court be directed to decide the objections under order XXI Rule 58 CPC filed by the appellant/ objector on merit after recording the evidence. 6. Per contra, Shri U.K. Shukla, learned counsel for the decree holder argued in support of the impugned judgment. 7. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 8. On going through the objections filed by the objector, challenging the attachment of the immovable property, it is gathered that the same are filed under Order XXI Rule 58 CPC and if that is the position, those objections are required to be adjudicated in terms and procedure provided under Rule 58 Order XXI CPC. On going through Rule 58, it is revealed that it speaks adjudication of claims or objections to attachment of property. Sub-rule (1) of Rule 58 speaks about that if any claim is preferred to or any objection is made to the attachment of, any property attached in execution of a decree on the ground that said property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions contained in this rule. Sub rule (2) of Rule 58 speaks that all the questions including questions relating to right, title or interest in the property attached arising between the parties to a proceeding, or their representatives under the said rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by 'separate suit'. 9. On going through Rule 58 of Order XXI, it is revealed that the within the meaning of the word "trial"." We may notice that in Ajendraprasadji N. Pandey and another v. Swami Keshavprakashdasji N. and others [ 2006 (12) SCC 1 ], this Court noticed the decision of this Court in Kailash (supra) to hold: "35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on section 148 for extension of time for any purpose. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1.7.2002. It had a provision permitting amendment in the first part which said that the Court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration." This Court also notice Salem Advocate Bar Assn. v. Union of India [ 2006 (1) JLJ 135 = 2005 (6) SCC 344 ] to hold: "41. We have carefully considered the submissions made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the Courts below, the High Court and of this Court. In the counter-affidavit filed by respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings. 42. In the counter-affidavit filed by respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings. 42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order 6 Rule 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the Court to grant amendment. however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief." The ratio in Kailash (supra) was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. 12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and others v. Manohar Singh and another [2006 (III) MPWN 97 = 2006 (6) SCC 498 ]. wherein it was opined: "17. 12. Reliance, however, has been placed by Ms. Suri on Baldev Singh and others v. Manohar Singh and another [2006 (III) MPWN 97 = 2006 (6) SCC 498 ]. wherein it was opined: "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings." It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence. 13. Reliance has also been placed by Ms. Suri on Pradeep Singhvi and another v. Heero Dhankani and others [ 2004 (13) SCC 432 ]. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure had no application. Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and other} v. K.K. Modi and others [ 2006 (4) SCC 385 ]. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of Civil Procedure had no application. Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and other} v. K.K. Modi and others [ 2006 (4) SCC 385 ]. No doubt, as has been held by this Court therein that the Court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side. 14. It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. 15. In Salem Advocate Bar Association (supra), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question. 16. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned Trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also been found that any error of law has been committed by it. The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly. 17. However, we may observe that the question as to whether the documents should have been called for or not by the Court without there being the amended written statement before it may be considered afresh. 18. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.