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2012 DIGILAW 875 (KER)

Pushpa v. T. V. Josekutty

2012-09-19

V.CHITAMBARESH

body2012
JUDGMENT : 1. Is a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (the ‘CPC’ for short) maintainable against an order determining a question of restitution under Section 144 CPC? Can the Civil Revision Petition so filed be permitted to be converted into an Execution First Appeal when it is found not maintainable? 2. The suit for realization of money due under a demand promissory note in O.S.No.167 of 1992 on the file of the court of the Subordinate Judge of Kozhikode was decreed by judgment dated 30.09.1993. The decree holder attached the property of the judgment debtor (8 cents of land with a building thereon) in execution and brought it up for sale wherein he himself bid it in auction. The decree holder obtained delivery of the property in E.A.No. 1543/2001 in E.P.No. 61/1996 in O.S.No. 167/1992 and the same was recorded by the execution court on 20.12.2001. 3. The judgment debtor challenged the decree of the trial court in A.S.No. 514/1995 which was allowed by judgment dated 23.01.2002 setting aside the decree of the trial court and dismissing the suit. The judgment debtor thereupon applied for re-delivery of the property in E.A.No. 180/2002 in E.P.No. 61/1996 which was allowed and the factum of re-delivery recorded on 11.4.2002. The verdict in the appeal was however reversed in further appeal in A.F.A.No. 31/2002 by the Division Bench of this Court by Judgment dated 15.1.2007 restoring the decree of the trial court. 4. The decree holder again applied for delivery of the property in E.A.No. 205/2007 in E.P.No. 61/1996 under Section 144 CPC against the legal heirs of the judgment debtor who had died in the meanwhile. The decree holder asserted that he is entitled to redelivery of the property consequent on the reversal of the decree in A.S.No. 514/1995 by the judgment in A.F.A. No. 31/2002. The execution Court by the order dated 30.11.2011 allowed the application and directed re-deliver of the property to the decree holder which is impugned in this Civil Revision Petition. The legal heirs of the judgment debtor filed the civil Revision Petition on 1.2.2012 and had obtained an interim stay of further proceedings for re-delivery of the property. 5. Mr. The execution Court by the order dated 30.11.2011 allowed the application and directed re-deliver of the property to the decree holder which is impugned in this Civil Revision Petition. The legal heirs of the judgment debtor filed the civil Revision Petition on 1.2.2012 and had obtained an interim stay of further proceedings for re-delivery of the property. 5. Mr. R.D. Shenoy, Senior Advocate on behalf of the decree holder raised a preliminary objection as regards the maintainability of the Civil Revision Petition filed against an order determining a question under Section 144 CPC. The decree holder invited my attention to the definition of ‘decree’ under Section 2(2) CPC which is as follows:- (2) “decree” means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.-A decree is preliminary when further proceeding have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposed of the suit. It may be party preliminary and partly final: (emphasis Supplied) Thus the inclusive definition of decree takes in the determination of any question under Section 144 CPC pertaining to restitution which necessarily follows that the same is appealable only. The dictum in Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai (AIR 1965 SC 1477) also lends support to this conclusion and therefore I sustain the preliminary objection raised. 6. Mr. C.P. Mohammed Nias, Advocate on behalf of the legal heirs of the judgment debtor when confronted with this situation sought permission to convert the Civil Revision Petition into an Execution First Appeal. I.A.No. 2255 of 2012 in C.R.P. No. 59 of 2012 was filed under Section 151 CPC seeking permission to so convert on the ground that such exercise is permissible in appropriate cases. I.A.No. 2255 of 2012 in C.R.P. No. 59 of 2012 was filed under Section 151 CPC seeking permission to so convert on the ground that such exercise is permissible in appropriate cases. My attention was drawn to The Reliable Water Supply Service v. Union of India and Others [ 1972 (4) SCC 168] Wherein an order of he High Court converting an appeal into a revision was approved. The decision of this Court in Leela Mathew v. Krishnamoorthy [2002 (3) KLT 417] was also relied on to show that a Second Appeal when found not maintainable was permitted to be converted into a Civil Revision Petition. 7. The question that however arises for consideration in this case is as to whether a Civil Revision Petition when found not maintainable can be permitted to be converted into an Execution First Appeal. This assumes importance since a case filed seeking to invoked a lesser jurisdiction is sought to be converted into a case filed seeking to invoke a larger jurisdiction. The Supreme Court in Essar Constructions v. N.P. Rama Krishna Reddy [2000 (6) SCC 94] held as follows :- “The application under Section 115 of the Code therefore did not lie. Despite the fact that this issue was neither raised before nor considered by the High Court, we cannot take a blinkered view of the situation in law. Had the issue been raised, it would have been open to the High Court to have converted the revision petition into an appeal.” (emphasis Supplied) The Supreme Court again in Nawab Shaqafath Ali Khan And Others v. Nawab Imdad Jah Bahadur And Others [2009 (5) SCC 162] held as follows:- “If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Article 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of his inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out.” (emphasis Supplied) 8. Thus a note of caution has been added by the Supreme Court to the effect that such jurisdiction could be exercised only in appropriate cases and subject to fulfillment of other conditions. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out.” (emphasis Supplied) 8. Thus a note of caution has been added by the Supreme Court to the effect that such jurisdiction could be exercised only in appropriate cases and subject to fulfillment of other conditions. The case in hand is undoubtedly an appropriate case in as much as the extent of the right of the decree holder and the date on which it accrued to him deserves to be adjudicated. The decree holder contended that he is entitled to redelivery of the property obtained in execution of the decree in O.S.No. 167/1992 and which was in his possession prior to the disposal of A.S.No. 514/1995. The legal heirs of the judgment debtor however maintained that the entire decree debt was deposited after the disposal of A.F.A.No. 31/2002 to which alone the decree holder was entitled to in the suit for money. These are all matters to be considered at the time of final hearing and I deem it fit and appropriate to grant permission to convert the Civil Revision Petition into an Execution First Appeal as sought. I allow I.A.No. 2255/2012 in C.R.P. 59/2012. The Registry shall re-number the case as an Execution First Appeal and post it according to the roster.