Hariram (dead) through LRs. Sher Singh Dudani v. Prakash Chand Dheeran
2013-02-21
A.K.SHRIVASTAVA
body2013
DigiLaw.ai
JUDGMENT : This revision application under section 115 of Code of Civil Procedure (in short "CPC") has been filed against the order dated 22-10-2007 passed by learned First Additional District Judge, Hoshangabad in Execution Case No. 8-A/1969 whereby the application of the decree-holders/applicants under section 47 read with section 151, Civil Procedure Code has been dismissed. 2. The facts in brief for the disposal of this revision lie in a narrow compass. Suffice it to say that a suit for specific performance of contract was filed in regard to disputed house and learned trial Court vide judgment dated 6-2-1976 in C.S. No. 8-A/1969 passed the decree of specific performance of contract and said decree was affirmed in first appeal by learned Single Judge of this Court. However, in L.P.A. No. 1/1982 the Division Bench of this Court partly allowed the appeal of respondents vide judgment dated 8-5-1997 to the extent that defendant No. 1 shall execute the sale-deed in respect to two rooms of suit house in which the plaintiff is already in possession. The judgment of Division Bench of this Court was assailed by the plaintiff in SLP before the Supreme Court and the Supreme Court disposed of SLP vide order dated 16-10-2001 by passing the following directions :- "The appeal is accordingly disposed of by modifying the impugned judgment and decree of the High Court, by holding that the plaintiff would be entitled to the specific performance of contract with respect to the two rooms in which they are in occupation and the defendants-respondents shall pay them a sum of rupees one Lakh as compensation non-execution of the sale with respect to the remaining portion of the house. The amount of compensation shall be paid within a period of three months failing which the appellants would be entitled to interest on the said amount at the rate of 18% per annum from the date of the default till the whole amount is paid." Thereafter, the decree was put to execution by the decree-holders. 3. On bare perusal of the impugned order, it is gathered that earlier a commission was executed for measurement of decretal portion which is in possession of the applicants but according to the applicants the commissioner did not find the possession of decree-holders on the rear side of room.
3. On bare perusal of the impugned order, it is gathered that earlier a commission was executed for measurement of decretal portion which is in possession of the applicants but according to the applicants the commissioner did not find the possession of decree-holders on the rear side of room. According to decree-holders the Supreme Court specifically directed to execute the sale-deed in regard to two rooms vide its order dated 16-10-2001. Eventually, an application under section 47 read with section 151, Civil Procedure Code has been filed by the present applicants-decree holders that although earlier the commission was executed to inspect the decretal portion but their Senior Advocate had gone to Delhi and therefore it was executed in presence of Junior Advocate did not file any objection although it was required by him to file the same. Eventually by filing the instant application under section 47 and section 151, Civil Procedure Code in the Executing Court it has been prayed that earlier commissioner's report dated 8-9-2004 be set aside and fresh commission be issued by appointing a new Commissioner and thereafter opportunity to adduce oral and documentary evidence be provided to the decree-holders. This application was vigorously opposed by judgment-debtor by filing reply. The learned Executing Court rejected the aforesaid application of the decree-holders by passing the impugned order. 4. In this manner this revision has been filed by the applicants/decree-holders. 5. A preliminary objection has been raised by the learned counsel for respondents/judgment-debtors that looking to the proviso to section 115, Civil Procedure Code this revision is not maintainable. According to him, this proviso has been added vide section 12(i) in Civil Procedure Code (Amendment Act of 1999) which came into force from 1-7-2002, therefore, this revision application is not maintainable. According to him, if the aforesaid application of the decree-holders is allowed, the execution proceeding would not be finally disposed of and therefore looking to the specific bar in section 115, Civil Procedure Code this revision is not maintainable. In support of his contention learned counsel for respondents has placed heavy reliance upon the Division Bench decision of this Court in Johra Bi and ors. vs. Jageshwar and ors., 2010(1) MPLJ 98 = ILR 2010 M. P. 160. 6.
In support of his contention learned counsel for respondents has placed heavy reliance upon the Division Bench decision of this Court in Johra Bi and ors. vs. Jageshwar and ors., 2010(1) MPLJ 98 = ILR 2010 M. P. 160. 6. On the other hand Shri Shroti, learned counsel for applicants submitted that the term "proceeding" which is embodied in the proviso to section 115, Civil Procedure Code is having wider connotation and it would include even the instant application which has been rejected by learned Executing Court and therefore the revision is maintainable. Learned counsel has placed heavy reliance on the decision of Single Bench of this Court in Sawal Singh vs. Smt. Ramsakhi and others, 2003(1) MPLJ 31 and has invited my attention to para 6 and 7 of the aforesaid decision and thus submitted that by overruling the preliminary objection, the revision be heard on merits. 7. Having heard learned counsel for the parties I am of the view that the preliminary objection deserves to be upheld and it is hereby held that this revision is not maintainable. 8. In order to appreciate the rival contentions of learned counsel for the parties it would be appropriate to go through sub-section (1) and especially proviso to section 115, Civil Procedure Code which reads thus :- "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) xxx xxx (b) xxx xxx (c) xxx xxx Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. On going through the aforesaid provision and by paying heed to proviso this Court finds that High Court shall not vary or reverse any order made if the suit or other proceedings, except where the order, if it had been made in favour of party applying for revision, would have finally disposed of the suit or other proceedings. According to me term "proceeding" has wider connotation and it cannot be interpreted in a narrower sense.
According to me term "proceeding" has wider connotation and it cannot be interpreted in a narrower sense. The expression "proceeding" has not been defined in Civil Procedure Code and therefore this Court is constrained to derive its dictionary meaning. In Black's Law Dictionary, Ninth Edition the meaning of word "proceeding" on page 1324 has been mentioned as under :- proceeding;...... Any procedural means for seeking redress from a tribunal or agency. An act or step that is part of a larger action. The business conducted by a Court or other official body, a hearing. Bankruptcy. A particular dispute or matter arising within a pending case-as opposed to the case as a whole. In The Major Law Lexicon by P. Ramanatha Aiyar 4th Edition 2010 at page 5368 and 5369 the term "proceeding" has been explained as under :- "Proceeding" is a word much used to express the business done in Courts. A proceeding in Court is an act done by the authority or direction of the Court, express or implied. It is more comprehensive than the word "action", but it may include in its general sense all the steps taken or measures adopted in the prosecution or defense of any action, including the pleadings and judgment. As applied to actions, the term 'proceeding' may include- (1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to execution in code practice; (11) the taking of the appeal of writ of error; (12) the remittiur, or sending back of the record in the lower Court from the appellate or reviewing Court; (13) the enforcement of the judgment, or a new trial as may be directed by the Court of last resort, (emphasis supplied) At page 5370 again the expression 'proceeding' has been explained which includes 'execution proceeding'. The term "execution" has also been magnified by the Supreme Court in Babu Lal vs. M/s Hazari Lal Kishori Lal and others, 1982(1) SCC 525 and in this regard para 17 of the said decision may be seen in which it has been held that expression "proceedings" would also include the 'execution proceedings'.
The term "execution" has also been magnified by the Supreme Court in Babu Lal vs. M/s Hazari Lal Kishori Lal and others, 1982(1) SCC 525 and in this regard para 17 of the said decision may be seen in which it has been held that expression "proceedings" would also include the 'execution proceedings'. In a later decision Collector of Central Excise, Kanpur vs. Flock (India) Pvt. Ltd. C-7, Panki Industrial Area, Kanpur, 2000(6) SCC 650 in para 7 the Supreme Court has held that "proceeding" would include execution proceeding. Hence I have no scintilla of doubt in my mind that execution application to get the decree executed is also a proceeding and would come within the ambit and sweep of proviso to section 115, Civil Procedure Code. The Division Bench of this Court in Johra Bi (supra) in para 20 has interpreted the word "proceeding" and has held that the revision would be maintainable if it would have finally disposing of proceeding though it has no effect with the suit at that point of time. Hence I am of the view that even if application of the applicants/decree-holders to set aside the earlier Commissioner's report is allowed and fresh commission is issued and further opportunity to adduce oral and documentary evidence is provided to the decree-holders, the execution proceedings would not come to an end and it will not be disposed of finally. Hence, according to me this revision application is not maintainable. 9. The Single Bench decision in Sawal Singh (supra) placed reliance by learned counsel for applicants does not say that the "proceeding" would not include "execution proceedings". There is nothing in this decision that if an interim application is filed in an execution proceedings and that application is decided either way the execution proceedings will be culminated and therefore this decision is not applicable in the present factual scenario. 10. For the reasons stated hereinabove, the preliminary objection is hereby upheld and it is hereby held that this revision application is not maintainable in view of the proviso to section 115, Civil Procedure Code which came into force w.e.f. 1-7-2002.
10. For the reasons stated hereinabove, the preliminary objection is hereby upheld and it is hereby held that this revision application is not maintainable in view of the proviso to section 115, Civil Procedure Code which came into force w.e.f. 1-7-2002. However, the applicants shall be free to assail the impugned order by filing a petition under Article 227 of the Constitution of India and if they so opt, necessary application may be filed before the Registrar (Judicial) of this Court to return back the certified copy of the impugned order so as to enable them to file petition under Article 227 of the Constitution of India and in that situation certified copy of impugned order may be returned back to learned counsel and a photocopy thereof be retained in the file. 11. This revision application is hereby dismissed as not maintainable with the aforesaid observations and liberty. Revision dismissed.