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2008 DIGILAW 707 (GAU)

Lallianpuii Sailo v. H. Vanlaltlana

2008-09-17

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Heard Mr. M.M Ali, learned Counsel for the appellant and Mr. L.H. Lianhrima, learned Counsel for the respondents. 2. The judgment and order dated 23rd July, 2007 passed by the learned District Council Court, Aizawl in RFA No. 1 of 2006, which has arisen out of Execution Case No. 12 of 1998 is the subject matter of challenge under this appeal. 3. The appellant herein borrowed an amount of Rs. 4,00,000 from one Lalrivenga in the year 1996 and on her failure to repay the said amount, said Lalrivenga instituted a Money Suit No. 7 of 1997 for recovery of Rs. 4 lakh which had been decreed against the appellant. Lalrivenga, the decree holder, thereafter, filed an execution case in the court of Sub-District Council Court, Aizawl for recovery of amount of Rs. 10,00,000, which was registered as Execution Case No. 12 of 1998. Sub-District Council Court in order to execute the decree attached the landed property and building of the judgment debtor, the appellant herein, covered by LSC No. 61 of 1970 and passed an order for sale of the properties in auction on 26th May, 2003. Respondent No. 2 herein participated along with 13 other bidders in the auction purchase and he came out as a successful bidder of the landed property and building belonging to the judgment debtor, the appellant. In the meantime, the judgment debtor, the appellant deposited an amount of Rs. 10 lakhs in the Sub-District Council Court on 18.6.2003, which had been taken by the appellant from the respondent No. 1 by executing an agreement that she would sale her said landed property covered by LSC No. 61 of 1970 to the respondent No. 1 which was put in auction sale by the court. 4. On deposit of the decreed amount with the court the Execution Case No. 12 of 1998 ought have been closed, but the Sub-District Council Court kept the matter alive. 5. In the meantime, the respondent Nos. 1 and 2 on 4.7.2003 entered into an agreement stating inter alia, that if the appellant could not repay the amount of Rs. 10 lakhs taken from the respondent No. 1, respondent No. 2 being the successful bidder shall handover the said land and building covered by LSC No. 61 of 1970 to respondent No. 1 on payment of debt to the appellant. 10 lakhs taken from the respondent No. 1, respondent No. 2 being the successful bidder shall handover the said land and building covered by LSC No. 61 of 1970 to respondent No. 1 on payment of debt to the appellant. Sub-District Council court subsequently on 2nd December 2005 passed an order directing the appellant to vacate her land and building covered by LSC No. 61 of 1970 within a period of 30 days from the date of the order and asked the respondent No. 1 to take possession of the land and building. 6. Appellant being aggrieved thereby preferred an appeal against the order before the District Council Court and the learned appellate court vide order dated 23.7.2007 dismissed the appeal which is now under challenge. 7. The substantial issues involved in this appeal can be read as under; (1) Whether after satisfaction of the decree on the basis of an agreement between the appellant, judgment debtor and the respondent No. 1, which is not the subject matter of suit, continuance of the Execution case is justified? (2) Whether the District Council Courts have got the jurisdiction to entertain a suit or proceeding between tribal and non tribal? 8. Mr. M.M. Ali, learned Counsel for the appellant in the matter of above two substantial questions submits that continuance of the Execution Proceeding after satisfaction of the decree, on the basis of the agreement between the judgment debtor and the respondent No. 1 cannot entertain a suit, appeal or other proceeding by District Council Court between non-tribal and tribal and if at all entertained would be not sustainable in law. 9. It is argued by Mr. Ali that the Money Suit being decreed against the judgment debtor, the appellant, the decree was satisfied by the judgment debtor by depositing Rs. 10 lakhs in the court. The factum of borrowing money by the judgment debtor from the respondent No. 1 is beyond the purview of the executing court and the executing court ought to have concentrated on the question of satisfaction of the decree alone. When decree is satisfied, the continuance of the execution case, is unjustified. Further, if for the purpose of an execution of the decree, some attachment is made, on satisfaction of the decree the attachment is required to be withdrawn. 10. When decree is satisfied, the continuance of the execution case, is unjustified. Further, if for the purpose of an execution of the decree, some attachment is made, on satisfaction of the decree the attachment is required to be withdrawn. 10. Rule 54 of Administration of Justice (Lushai Hills) Rules, 1954 provides for execution of a sentence, order or decree passed by subordinate District Council Court, Additional District Council Court or District Council Court in accordance with the procedure prescribed by the Criminal Procedure Code or Code of Civil Procedure, 1908 as the case may be. The money decree was passed by the subordinate District Council Court and accordingly for execution of the said decree, execution case was instituted being No. 12 of 1998. Such execution is to take effect as per provisions of Order XXI of the CPC. Rule 55 of Order XXI of the Code provides for removal of attachment after satisfaction of the decree. The executing court by an order attached the land and building covered by LSC No. 61 of 1970 belonging to the judgment debtor, the appellant and put into auction sale, in which respondent No. 2 herein became a successful auction purchaser. But when the decree is satisfied by payment of Rs. 10 lakhs, removal of attachment and subsequent putting of the property and the building in auction sale covered by LSC No. 61 of 1970 of the judgment debtor ought to have been withdrawn by the executing court. By not resorting to such procedure, the executing court passed an order, which, is also under challenge whereby the judgment debtor, the appellant was directed to vacate the property within 30 days from the date of the order against which appeal was preferred before the District Council Court which too dismissed the appeal. 11. When execution of decree is to be made in accordance with the provision provided in the code of Civil Procedure, the provision incorporated in the code are required to be followed by the executing court. Continuance of the execution proceeding by violating the provisions would be erroneous and illegal. The First Appellate Court ought to have considered the provisions of Rule 54 of the Administration of Justice (Lushai Hills) Rules, 1954 and the provisions of the code of Civil Procedure, 1908 while dealing with the appeal. Continuance of the execution proceeding by violating the provisions would be erroneous and illegal. The First Appellate Court ought to have considered the provisions of Rule 54 of the Administration of Justice (Lushai Hills) Rules, 1954 and the provisions of the code of Civil Procedure, 1908 while dealing with the appeal. The agreement made between the parties are not at all the subject matter of the execution proceeding and, therefore, the order passed by the subordinate court and the allowance of the order to stand by the First Appellate Court, i.e., District Council Court cannot be allowed to stand in view of the provisions of Rule 54 and provisions of the Code of Civil Procedure. Therefore, the continuance of the execution proceeding is illegal and cannot sustain in law. 12. Now, let us turn to the second substantial question of law: whether the District Council Courts have got jurisdiction to entertain a suit or proceeding between a tribal and non-tribal. On this question Mr. M.M. Ali, learned Counsel for the appellant referring to the provision of Rule 23 of Administration of Justice (Lushai Hills Autonomous District) Rules, 1953 submits that a subordinate District Council Court or Additional Subordinate District Council Court shall not have jurisdiction to try suits and cases in which one of the parties is a person not belonging to a Scheduled Tribe. Here, in this present appeal, the First Appeal No. 1 of 2008 which is the out come of the order passed by the Executing Court in Execution Case No. 12 of 1998, respondent No. 1 is a non-tribal. Therefore, a District Council Court cannot have any jurisdiction to entertain the First Appeal in which one of the parties is a non-tribal. For administration of justice in Lushai Hills, three classes of courts are constituted per provision of Rule 5 of the Administration of Justice (Lushai Hills Autonomous District) Rules, 1953. Those three classes of courts are: 1. Village Courts. 2. Subordinate District Courts. 3. District Council Courts. These courts are constituted by the District' Council for trial of suits and cases between the parties all of whom belong to a scheduled Tribe or Tribes within such areas, other than suits and cases to which the provisions of sub-para (1) of para 5 of the Sixth Schedule to the Constitution. Therefore, by entertaining a regular first appeal by the District Council Court overrides its jurisdiction. Therefore, by entertaining a regular first appeal by the District Council Court overrides its jurisdiction. Learned Counsel for the respondent Mr. L.H. Lianhrima also concedes to the submission of Mr. M. Ali that District Council Courts do not have jurisdiction to try suits and cases in which one of the parties is a non-tribal. Accordingly this second substantial question of law is answered in negative. 13. Having considered all the matters in its entirety and the substantive law this Court is of view that neither the order passed by the Executing Court nor the First Appellate Court is sustainable in law. The order passed by the learned Executing Court as well as the judgment and order passed by the First Appellate Court stands set aside and quashed. 14. The Second Appeal is accordingly allowed, however with no cost. Appeal allowed.