Ishwar Sharan alias Ishwar Sharan Das (dead) v. Bharat Kumar
2023-01-02
J.J.MUNIR
body2023
DigiLaw.ai
JUDGMENT : This revision is directed against three distinct orders passed by the Additional District Judge, Court No. 9, Budaun in Execution Case No. 1 of 2012, arising out of the decree passed by the learned Additional District Judge, Court No. 8, Budaun in Original Suit No. 2 of 2001, Bharat Kumar and others v. Ishwar Sharan, a suit under Section 92 of the Code of Civil Procedure, 1908, [“Code” for short]. The first order impugned is one dated 24.01.2022, rejecting the application, Paper No. 54 x made in the execution by one Gaurav Das, claiming to bring on record a registered will dated 21.12.2016 in his favour, executed by the late Ishwar Sharan, the former sarvarakar of the temple subject matter of the decree passed in the suit under Section 92 of the Code. The second is an order dated 03.03.2022, by which, the scheme of administration submitted by the revisionist, claiming to be the legal representative of the deceased judgment-debtor, Ishwar Sharan Das has not been accepted, whereas that submitted by the decree holder, Paper No. 9 x has been accepted. The last is an order dated 05.03.1992, by which the execution proceedings have been ordered to be struck off in full satisfaction. 2. Mr. Rahul Sahai, learned Counsel appearing for respondent no. 1 has raised a preliminary objection regarding the maintainability of this revision. He submits that the three orders impugned have been passed on three different applications, and, may be, a case decided within the meaning of Section 115 of the Code. But, each would give rise to a distinct and separate right to the revisionist to prefer a revision to this Court. It is Mr. Sahai’s submission is that the revisionist cannot prefer a single revision against the three orders impugned. 3. In answering the aforesaid objection, Mr. Bhola Nath Yadav, learned Counsel for the revisionist has placed reliance upon a decision of the Supreme Court in Rajendra Prasad Gupta v. Prakash Chandra Mishra and others, (2011) 2 SCC 705 . He has drawn the attention of this Court to Paragraphs Nos. 5, 6 and 7 of the report in Rajendra Prasad Gupta (supra)where it has been held : 5.
He has drawn the attention of this Court to Paragraphs Nos. 5, 6 and 7 of the report in Rajendra Prasad Gupta (supra)where it has been held : 5. In Narsingh Das v. Mangal Dubey [ILR (1883) 5 All 163], Mahmood, J. the celebrated Judge of the Allahabad High Court, observed: “Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.” 6. The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena v. Bhim Sen [ AIR 1966 All 84 ] and we agree with this view. Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly. 7. In the result, the impugned judgment of the High Court is set aside and the appeal is allowed. No costs. The suit shall proceed and to be decided on merits, expeditiously. 4. He submits that the objection raised is no more than a technicality or something to do with rules or procedure. He has emphasized that rules of procedure are hand-maid of justice and so long as a substantially wrong order is there on record, this Court has ample jurisdiction to correct those wrong orders, in exercise of powers of revision, even if more than one orders are challenged in a single revision. Mr. Yadav has placed further reliance upon the decision of the Supreme Court in Achal Misra v. Rama Shanker Singh and others, (2005) 5 SCC 531 . Attention of the Court is drawn to the holding in Paragraphs Nos. 12 and 13 of the report, that read : 13. This principle is recognised by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order 43 Rule 1-A of the Code.
Attention of the Court is drawn to the holding in Paragraphs Nos. 12 and 13 of the report, that read : 13. This principle is recognised by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order 43 Rule 1-A of the Code. The two exceptions to this rule are found in Section 97 of the Code of Civil Procedure, 1908, which provides that a preliminary decree passed in a suit could not be challenged in an appeal against the final decree based on that preliminary decree and Section 105(2) of the Code of Civil Procedure, 1908 which precludes a challenge to an order of remand at a subsequent stage while filing an appeal against the decree passed subsequent to the order of remand. All these aspects came to be considered by this Court in Satyadhyan Ghosal v. Deorajin Debi [ (1960) 3 SCR 590 : AIR 1960 SC 941 . Ed. : See also (1981) 2 SCC 103 , (2004) 12 SCC 754 and (2005) 3 SCC 422 ] wherein, after referring to the decisions of the Privy Council, it was held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from a final decree or order. It was further held that a special provision was made in Section 105(2) of the Code of Civil Procedure as regards orders of remand where the order of remand itself was made appealable. Since Section 105(2) did not apply to the Privy Council and can have no application to appeals to the Supreme Court, the Privy Council and the Supreme Court could examine even the correctness of an original order of remand while considering the correctness of the decree passed subsequent to the order of remand. The same principle was reiterated in Amar Chand Butail v. Union of India [ AIR 1964 SC 1658 ] and in other subsequent decisions. 14. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision-making in passing the final order.
14. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision-making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy case[ (1985) 2 SCC 307 ] which has disapproved the ratio of the decision in Tirlok Singh and Co. [ (1976) 3 SCC 726 ] cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy case [ (1985) 2 SCC 307 ] and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Kunj Lata v. Xth ADJ [(1991) 2 RCJ 658] that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies. 5.
Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies. 5. It is submitted that in the revision filed from a final order in any proceedings, it is open to question interlocutory orders or consequential orders, all of which may be challenged in the same revision on the analogy of Section 105 of the Code. It is further emphasized that all that is required is that the main order should be challenged, along with the consequential orders. In support of this principle, the learned Counsel for the revisionist has placed reliance upon Bussa Overseas and Properties Private Limited and another v. Union of India and another, (2016) 4 SCC 696 . Attention of the Court has been drawn to Paragraphs Nos. 6 and 26 of the report in Bussa Overseas and Properties Private Limited (supra) : 30. .....if the basic judgment is not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. ..... 6. Reliance has also been placed upon the decision in Bhagwanji and Kalyanji v. Punjabhai Hajabhai Rathod, AIR 2007 Guj 88 . Here, the learned Counsel for the revisionist has drawn the Court’s attention to Paragraph Nos. 7 and 8 of the report, which read : 7. So far as the first question is concerned, I must immediately answer the same in favour of the appellant. Section 105 of the Code of Civil Procedure provides that unless otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
As sub-section (2) is not relevant for our purpose, I am not referring the same. Section 105 in its clear terms provides that against some particular order if an appeal is not provided, then such an order can be challenged in an appeal which is filed against the final judgment and decree. The reason behind Section 105 is that a party is not required to rush to the revisional Court every time and at the same time does not allow the party to say that though against the impugned order appeal was provided but he did not file the appeal. 8. Undisputedly an order accepting or rejecting a document would not be an appealable order therefore, correctness, validity and propriety of the order can be challenged before the appellate Court with the help and assistance of Section 15 of Code of Civil Procedure. The learned first appellate Court was absolutely unjustified in holding that in absence of a revision challenging the correctness of the order passed by the trial Court, it would not be open to the appellate Court to examine the validity/correctness of the order. 7. Relying on the said decision, Mr. Bhola Nath Yadav submitted that an order accepting or rejecting a document may be challenged in a revision carried against the final order. It is argued that here, the final order is the one striking off the execution in full satisfaction, without hearing the revisionist as the deceased sarvarakar’s chela, appointed on the basis of the will. It is next submitted by the learned Counsel for the revisionist that the objection by Mr. Sahai is founded on the decision of this Court in Khurjawala Buckles Manufacturing Company, Tatanpara v. Commissioner, Sales Tax, U.P., Lucknow and another, AIR 1965 Alld 517 which has been overruled by a Full Bench of this Court in the case of Mall Singh and others v. Smt. Laksha Kumar Khaitan and others, 1968 SCC OnLine All 5. The following holding in Mall Singh has been brought to this Court’s notice : 69. In Khuriawala Buckles Manufacturing Co. v. Commissioner Sales Tax, U.P. [A.I.R. 1965 Alld. 517.] it has, however, been held by a Division Bench of this Court that the provisions of Civil Procedure Code do not govern a proceeding under Article 226 of the Constitution.
The following holding in Mall Singh has been brought to this Court’s notice : 69. In Khuriawala Buckles Manufacturing Co. v. Commissioner Sales Tax, U.P. [A.I.R. 1965 Alld. 517.] it has, however, been held by a Division Bench of this Court that the provisions of Civil Procedure Code do not govern a proceeding under Article 226 of the Constitution. It is pointed out therein that what is laid down in Sec. 141 of the Civil Procedure Code is that the procedure laid down in the Code in regard to suits is to be followed, so far as it can be, in all proceedings is any court of Civil jurisdiction. A High Court when exercising jurisdiction under Article 226, according to the view expressed by that Bench, cannot be held to be a court of civil jurisdiction. That jurisdiction is not ordinary jurisdiction, but it is extraordinary jurisdiction which means that it is neither civil nor criminal. 70. This view, with respect, will no longer hold good in view of the two Supreme Court decisions referred to above. The jurisdiction may be extraordinary jurisdiction, but that does not mean that it is not civil just as the ordinary jurisdiction of the High Court may either be civil or criminal, the extraordinary jurisdiction as opposed to ordinary jurisdiction may also either be civil or criminal. The classification into “ordinary” and “extraordinary” jurisdiction is different from the classification between “civil and criminal” jurisdiction for both the civil and criminal jurisdiction may be ordinary or extraordinary. The jurisdiction with respect to a petition under Article 226 of the Constitution may be extraordinary jurisdiction, but if the impact of the decision is on the civil rights of a party, it would be exercised under its civil jurisdiction, if its impact is on criminal rights it is exercised under its criminal jurisdiction. 8. Mr. Sahai, on the other hand, submits that the decisions relied upon by the learned Counsel would not help him in maintaining a single revision against the three distinct orders impugned. He submits that Khurjawala Buckles Manufacturing Company (supra) is still good law and attention of the Court has been drawn to the holding of the Division Bench, which reads : 7.
He submits that Khurjawala Buckles Manufacturing Company (supra) is still good law and attention of the Court has been drawn to the holding of the Division Bench, which reads : 7. There are a number of decisions laying down that one petition impugning several orders is not maintainable; vide AIR 1980 All 366 (supra), Revenue Patwaris Union v. State of Punjab, AIR 1982 Punj 55, Inder Singh v. State of Rajasthan, AIR 1954 Raj 185 and AIR 1953 Mad 626 (supra). In Calcutta Discount Co. Ltd. y. Income Tax Officer, AIR 1961 SC 372 , one petition was filed to impugn three notices issued under S. 31 of the Income-Tax Act in respect of three years' assessment orders and was entertained. It was granted by a single Judge but rejected by a Bench. The Supreme Court on appeal restored the order of single Judge issuing prohibition but without deciding that a single petition was maintainable. It was not argued before it that one petition was not maintainable and so it did not decide this matter. The Division Bench of the High Court had dismissed the petition but not on the ground that it was not maintainable. It has not been argued before it also that it was not. Hence this decision of the Supreme Court does not help the petitioner. In Chandra Bhan v. State of Orissa, Civil Mis. Petn. No. 1398 of 1962 decided by the Supreme Court on 5-4-1963 (SC) the Supreme Court did not decide whether one petition impugning two or mote assessment orders could validity be filed or not; all that it decided was that when one petition was filed one appeal arose out of the order and not two or more appeals. 8. ...... In a petition under Art. 226 the opposite party generally is the State Government and if a petitioner or petitioners were allowed tin benefit of Order II Rule 3 all kinds of different orders under different Acts having no connection whatever with one another would be liable to be joined in one petition causing confusion and embarrassment and this cannot be permitted. Then the principle that one proceeding maybe instituted combining a number of cases in which common questions of law or fact arise is not of universal application.
Then the principle that one proceeding maybe instituted combining a number of cases in which common questions of law or fact arise is not of universal application. Nobody yet has thought of filing one appeal against several orders or of filing one revision application against several appellate orders, on the ground that common questions of fact or law arise. If there are two proceedings and, therefore, two orders Courts have always insisted upon two appeals and two revision applications regardless of whether they are by the same appellant or applicant or against the same respondent or opposite party or not. There is no reason why one writ petition should be entertained simply on the ground that common questions of law or fact arise or that they are by or against the same person. 9. It is pointed out that this decision was overruled by the Full Bench in Mall Singh (supra)on another point, but not that a single petition or a single revision against multiple orders can be maintained. In this connection, he has drawn the attention of the Court to the questions that were referred to the Full Bench in Mall Singh, which appear to be related to joinder of more than one parties as petitioners in a single petition and the applicability of Order I Rule 1 of the Code to a petition under Article 226 of the Constitution. The questions that were precisely referred to the Full Bench in Mall Singh are : 1. Whether an application under Article 226 of the Constitution is a proceeding in a court of civil jurisdiction and as such the provision of Or. 1, R. 1 of the Code of Civil Procedure would be applicable to such a proceeding? 2. If the answer to the first question is in the affirmative, then whether persons more than one can join together in a petition under Article 226 of the Constitution in the circumstances in which persons more than one can join together as plaintiffs in a suit in accordance with the provisions of Or. 1, R. 1 of the Code of Civil Procedure? 10. These were answered by their Lordships of the Full Bench thus : Question No. 1—An application under Article 226 of the Constitution involving civil rights is a proceeding in a Court of civil jurisdiction. So, the provision of Or. 1.
1, R. 1 of the Code of Civil Procedure? 10. These were answered by their Lordships of the Full Bench thus : Question No. 1—An application under Article 226 of the Constitution involving civil rights is a proceeding in a Court of civil jurisdiction. So, the provision of Or. 1. R. 1, C.P.C. is applicable to such a proceeding. Question No.—2 Even if we assume that a writ petition is not a proceeding in a Court of civil jurisdiction, and Or. 1, R. 1, C.P.C. in terms does not apply to such a proceeding, more persons than one can join in a petition under Article 226 of the Constitution under circumstances in which persons more than one can join as plaintiffs in a suit in accordance with the provisions of Or. 1, R. 1, C.P.C. 11. Mr. Sahai appears to be in right in his submission that the decision in Khurjawala Buckles Manufacturing Company on the point about the impermissibility of challenge to multiple orders was not the subject matter of consideration in Mall Singh or overruled there. At the same time, what cannot be disputed is that the principle in Khurjawala Buckles Manufacturing Company appears to be that distinct and different orders in different proceedings, may be against same party, cannot be challenged in a single appeal or revision. In fact, in Khurjawala Buckles Manufacturing Company the issue arose in the context of two separate assessment orders under the Uttar Pradesh Sales Tax Act, 1948 passed against the petitioner, one for the Assessment Year 1960-61 and the other for the year 1961-62, both of which were challenged in a single writ petition. That was held impermissible. 12. Here, the issue is about the maintainability of a single revision under Section 115 of the Code from three successive orders passed in the same execution. The last order, that is to say, the one dated 05.03.2022 strikes off the execution in full satisfaction. The order dated 24.01.2022 is an order that was passed on an application filed by the revisionist with a prayer that the former Sarvarakar Ishwar Sharan is dead and the revisionist, being his Chela, has been nominated as the Sarvarakarby Ishwar Sharan. The nomination has been done through a registered Will dated 11.12.2016. The prayer in the application was that the Will be accepted on record. This application was rejected by the order dated 24.01.2022.
The nomination has been done through a registered Will dated 11.12.2016. The prayer in the application was that the Will be accepted on record. This application was rejected by the order dated 24.01.2022. Apparently, the application to bring on record the Will left by the former Sarvakar, the judgment debtor, was to represent the Sarvarakarby the revisionist, claiming to be his Chela. if the Will were accepted on record, the revisionist would assert that he is entitled to represent the interest of the deceased Sarvarakar on behalf of the temple in further proceedings for execution. This application being rejected, prejudiced the revisionist's right. 13. The other application 45-Ga was also made on behalf of the revisionist, Bharat Kumar, saying that the scheme of administration filed on behalf of the decree holder may not be accepted by the Court, and instead, the scheme of administration proposed on behalf of the judgment debtor, the deceased Sarvarakar, now represented by Bharat Kumar, his Chela, be accepted. This application has been rejected by means of the impugned order dated 03.03.2022 and the proposed scheme of administration filed on behalf of the decree holder has been accepted. All this having been done, by the order dated 05.03.2022, also impugned in the revision, the execution has been struck off in full satisfaction. 14. The question is, is it not in keeping with the mandate of Section 105 of the Code, applied mutatis mutandis to the execution of a decree that erroneous or defective orders, prejudicing a party, passed in the course of proceedings be permitted to be challenged against the final order made. By virtue of Section 141 of the Code, the procedure provided in regard to suits is mandated to be followed, mutatis mutandis in all proceedings in any Court of civil jurisdiction. The proceedings for execution of a decree are not excepted. The provisions of Section 105(1) of the Code would, therefore, apply, and, in any case, would apply on principle, if not proprio vigore. 15. The principle behind Section 105(1) of the Code is to enable a party to challenge interlocutory orders passed during the course of a suit or other proceedings against the final order or the decree, which the party against whom these orders are made, thinks are erroneous, defective or irregular and further prejudices his interest.
15. The principle behind Section 105(1) of the Code is to enable a party to challenge interlocutory orders passed during the course of a suit or other proceedings against the final order or the decree, which the party against whom these orders are made, thinks are erroneous, defective or irregular and further prejudices his interest. By enabling a party to challenge such interlocutory orders while challenging the final decree or order, the inevitable delay that would be caused in laying challenges to all kinds of prejudicial orders, that are passed during the course of proceedings, can be obviated. The purpose of it all is to eschew delay and speed up conclusion of the trial or other proceedings. But, at the same time, orders passed during the course of proceedings, that are prejudicial to a party, are still left open to be challenged in an appeal or revision from the final order, if that also goes against the party suffering interlocutory reverses. The provision balances the competing interest of an expeditious conclusion of proceedings on the one hand, with rectification of errors committed during the course of it, on the other. 16. In our opinion, therefore, looking to the nature of the impugned orders 24.01.2022, 03.03.2022 and 05.03.2022, a single revision can be maintained by the revisionist. 17. There is another pragmatic angle of looking at the worth of the respondent's objection. By the order dated 05.03.2022, the execution has been struck off in full satisfaction. If the revisionist were asked to file separate revision from all the three orders, any of these cannot be individually heard or may even be maintainable unless all the three orders are challenged through separate revisions and all the revisions heard together. The orders impugned are all but part of one challenge by the revisionist, arising out of the same execution. 18. In the considered opinion of this Court, therefore, the objection regarding maintainability raised by Mr. Sahai, cannot be sustained. The revision is, accordingly, held to be maintainable. 19. Considering the fact that the revision has not been heard on merits, let it be listed for admission on 06.01.2023 at 2:00 p.m. Liberty to mention is granted to the revisionist.