Gulabsingh Bachhusingh Thakur ... vs Geeteshri Chandrapalsingh ...
2006 Latest Caselaw 397 Bom

JUDGMENT

Chavan R.C., J.

1. The applicants take exception to the order passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur, on Exhibit 122 in Miscellaneous Judicial Case No. 173 of 1974, arising out of execution of decree in Partition Suit No. 945 : of 1968 filed by heirs of Bachhusingh, who' died intestate on 24-11-1964. The suit property comprises of a house situated in Sadar ' at Nagpur. The following genealogical tree will I make the relationship of parties clear.

Father Bachhusingh Thakur S/o Sardar Singh ________________________________________________ | (Sons of Bachhusingh) Vishwn- Sheon- Shiv- Shivba- Gulab Bhola ath Singh ath Si- naray- li Sin- Singh Singh | ngh an Si- gh | | Shiopalsi | ngh | | | ngh | | | | | _____ |Nil | | _____ | | | Suresh Daugh -| | | | | & one ter Sus-| | | | | dau- hma Jit- Jy Chandra Rampal | ghter en- oti Palsingh Singh | dra | WILL

1. Giteshwari Probated to

2. Ranjita his brother

3. Kuldeep Gulabsingh who is 5th son of Bac husingh(Exh.)

2. The suit for partition flied by one of the heirs of Bachhusingh came to be compromised on 30-7-1969, whereby the heirs I had agreed to sell the suit property and share. the sale proceeds. In terms of the compromise, the parties were to arrange to sell the : property in six months; failing which, the: Court was to appoint a Receiver to sell the same. The parties had specifica11y"waived final decree proceedings. Since the parties' could not sell the property, one Shivbali singh I flied Miscellaneous Judicial Case No. 173 of . 1974 for appointment of a Receiver in terms of the compromise decree. Accordingly, necessary steps were taken and the property was put to auction, in which it had fetched a price of Rs. 1,27,000/-. The trial Court, by order dated 30-4-1982, confirmed the sale. One of the parties aggrieved, who had offered to purchase the property at Rs. 1,27,000/ - and whose application dated 28-4-1982 was held by the trial Court to be lacking in bona fides, filed Civil Revision Application No. 383 of 1982 before this Court on the grounds, amongst others, as to whether the sale by advertisement in daily newspaper could be . said to be sale by public auction. This Court held in the decision rendered in the said case reported in Gulabsingh Bachhusingh Thakur v. Chandrapalsingh Sheonathsingh Thakur and Ors. 1988(Supp.) Bom.C.R. (N.B.)535 : 1987 Mh.L.J. 301, that the sale had to be carried out by public auction alone and, therefore, the sale by inviting offers through a public advertisement was a nullity. The sale was, therefore, set aside and the trial Court was directed to conduct sale by public auction by appointing a new Commissioner.

3. Accordingly, the property was put to sale by auction on 15-4-1989. However, the auction did not actually take place. On 26.11-1991, the parties before the trial Court filed application Exhibit 60 giving a no objection for sale to Gulabsingh for a sum of Rs. 2,40,000/ -. This no objection was signed by all the heirs except Chandrapalsingh. Chandrapalsingh filed a similar no objection vide Exhibit 159. S.B. Singh, who had filed the Miscellaneous Judicial case, also agreed to the sale on 17-12-1991 vide Exhibit 61. Thereupon, by order dated 30-4-1992, the learned trial Judge directed Gulabsingh to deposit the amount by 16-6-1992, which time was extended up to 1-7-1992.

4. On 13-7-1992, Chandrapalsingh filed an application Exhibit 65 seeking review of the order dated 30-4-1992 and direction for sale by public auction, since he stated that he too was interested in purchasing the property at the price of Rs. 2,40,000/-. This application was rejected on 16-11-1994 as barred by limitation.

5. On 20-2-1997, after serving the draft sale-deed on the parties, who had not raised any objection, the Court directed Gulabsingh to procure stamp paper, etc. for registration of the sale-deed and ordered the Nazir to execute the sale-deed as per the approved draft.

6. Chandrapalsingh and Shivbali singh died and, therefore, their legal representatives were brought on record on 7-8-1998 and 2-11-1998 respectively. Application Exhibit 122, which has given rise to the present proceedings, as filed by the heirs of Chandrapalsingh and Shivbali singh. By this application, they sought permission to intervene in the matter. The prayer made in this application' could be reproduced as under:

It is, therefore, prayed that a permission may kindly be granted to intervene in this application, to submit a say of the applicants in this application and during the pendency of this application, the execution of a sale-deed may kindly be stayed.

7. Gulabsingh filed a reply at Exhibit 129, whereupon the learned trial Judge took evidence of the parties and by order dated 26.4-1999, held that since all the parties had not signed the pursis at Exhibit 60, the order dated 30-4-1992 was a nullity. The operative order passed by the learned trial Judge is as under:

Application is allowed.

Order dated 30-4-92 is cancelled being nullity. The Non-applicant No. 1 is at liberty to with draw the amount deposited. The interested' parties to bring L.Rs. of deceased parties on . record within four weeks from the reopening of Court i.e. 7-6-99.

Suit property be sold by appointing Commissioner by auction on the application of any party and on depositing Commissioner's fees.

In the circumstances, no orders as to cost.

8. This order has been challenged by .Gulabsingh by preferring the present Civil Revision Application. Gulabsingh died during the pendency of the present proceedings c and his heirs are prosecuting the application. The present Civil Revision application has been filed alleging that the order dated 26-4-1999 passed below application Exhibit a 122 by the learned trial Judge suffers from It material irregularity and error of jurisdiction in upholding the claim that predecessors of the applicants had not signed the pursis.

9. I have heard Shri S.P. Chandurkar, the n learned Senior Counsel for the applicants, and Ms. Usha Gujar, the learned Counsel for non-applicants Nos. 1 to 5.

10. The learned Counsel for non-applicants .- Nos. 1 to 5 challenged the tenability of the 3 application on the ground that after amendment to the provisions of Section 115 of the Code of Civil Procedure, revision would not f be maintainable against the order passed by 3 the learned trial Judge below application - Exhibit 122, which is interlocutory in nature, 3 since it merely directs appointment of a Com missioner to put the property to auction. She, therefore, submitted that since the order . whereby the application was allowed, could not have disposed of the Miscellaneous Judicial Case before the learned Judge, even if the order would have been otherwise, the proceedings are misconceived and untenable.

11. The learned Senior Counsel appearing for the applicants submitted first that the order under challenge, if set aside, would result in disposal of the Miscellaneous Judicial Case itself and, therefore, it would not be correct to say that the impugned order is interlocutory in nature. He further submitted that while the Court must examine the question whether the revision is tenable or not, the duty to do justice in this dispute, which is now almost 38 years old, would necessitate treating this revision as a writ. petition and disposing it of so that there is no further occasion for substitution of more parties by their legal representatives. The learned Senior Counsel drew my attention to a decision of this Court in the case of Rajabhau s/o Mahadeorao Rahate v. Dinkar s/o Shantaram Ingole reported in 2003(1) Bom.C.R. (N.B.)40 : 2002(3) Mh.L.J. 921, where the amended provisions of Section 115 of the Code of Civil Procedure were considered from the point of whether the amended provisions applied to the proceedings pending before 1-7-2002 on which date the amended provisions came into force. The learned Senior Counsel submitted that as ruled in the aforesaid judgment, all the applications pending on 1-7-2002 would have to be strictly dealt with in accordance with the amended provisions of Section 115 of the Code. While discussing this question in para 19 of the judgment, the Court extracted observations of the Joint Committee of the Parliament preceding amendment to Section 115N of the Code. After considering Fourteenth and Twenty-seventh Reports of the Law Commission, the Committee recommended that Section 115 of the Code should be modified so that no revision application should lie against an interlocutory order unless either of the following conditions is satisfied:

i. that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceedings; or

ii. that the order, if allowed to stand, is likely to .occasion a failure of justice or cause an irreparable injury.

12. The learned Senior Counsel submitted that occasions to decide the question as to whether an order will terminate the lis either way have arisen more often in exercise ( of criminal jurisdiction than in civil proceedings. He submitted that since Section 397 of the Code of Criminal Procedure also forbids entertaining revision applications against interlocutory orders, it may be useful to refer to observations of courts to find out as to what could be termed as interlocutory order. For this purpose, he referred to the decision' of the Supreme Court in the case of Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and Anr. reported in 2002(2) Bom.C.R. (S.C.)265 : 2002 Bom.C.R.(Cri.) (S.C.)190 : 2002(1) Mh.L.J. 81, where the Court was considering the power of revision exercised by the Sessions Judge in intervening in an order passed by the learned Magistrate on an application for exemption from personal appearance. In this context, while examining as to what is the interlocutory order, the Court observed that the test would be that if the contention of the petitioner, who moves the superior Court in revision, as against the order under challenge, is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage. The learned senior counsel also referred to some judgment on the issue of process in criminal proceedings, which, it is not necessary to refer to.

13. The learned Counsel for non-applicants Nos. 1 to 5, who had filed application exhibit 122 before the trial court, submitted that even if application Exhibit 122 had been rejected,still the Miscellaneous judicial case would not have been disposed of finally and, therefore, it cannot be said that the order passed is amenable to exercise of revisional jurisdiction by this court.

14. The learned senior counsel appearing for the applicats countered by submitting that such a simplistic view of the matter is impermissible in the context of the facts of the case at hand. He submitted that in the instant case, before the clients of Advocate Ms. Usha Gujar filed application Exhibit 122 before the trial court ,even the dreft of saledeed had been approved by the Court and all that remained to be done was execution of the sale-deed by nazir of the court. He, therefore, submitted that in fact the entire proceedings of execution in terms of the decree had come to an end, but for the intervention allowed by the learned trial judge, who went a step ahead and even went on to declare the order passed his predecessor at an earlier stage as a nullity.It is thus clear that the proceedings would have culminated had the learned trial Judge rejected application Exhibit 122. therefore, the revision is maintainable.

15. In any case, as rightly pointed out by the learned Senior Counsel for the applicants, the course of converting a revision into a petition under Article 227 of the Constitution of india is always open and for this purpose, the learned Senior Counsel placed reliance on the decision of the Supreme court in the case of (Col. Anil Kak (Retd.) v. Municipal Corporation, Indore and Ors.) reported in 2005 Supreme Appeals Reporter (Civil) 782. However,in this case , it is not necessary to have recourse to the powers under Article 227 of the Constitution of india, since it is clear that the lis before the trial Court would have come to an end had the application Exhibit 122 been rejected by the learned trial Judge. Further, considering the pendency of the dispute between the heirs of Bachhusingh right since 1968 when the suit was filed, it is necessary to put an end to the litigation, which must be draining the heirs of their resources. Therefore, I have no hesitation in holding that the present revision petition is maintainable and is required to be decided in order to do justice to the parties. There is no doubt in my mind that had the order on Exhibit 122 gone the other way, the proceedings before the trial Court would have been terminated. Also the discussion to follow would show that the order, if allowed to stand, is sure to result in proverbial denial of justice because of the interminable delay in deciding the rights of the parties.

16. Advocate Ms. Usha Gujar, representing the applicants before the trial Court, submitted that the impugned order cannot be questioned, also because it merely seeks to give effect to the orders passed by this Court in Civil Revision Application No. 383 of 1982, whereby this Court had categorically directed that the property be put to public auction, ruling out any sale of the property by mutual understanding amongst the parties. As rightly submitted by the learned Senior Counsel for the present applicants, the question before this Court, while deciding Civil Revision Application No. 383 of 1982, was not whether the parties could or could not enter into any settlement about the mode by which the decree was to be executed. The question before this Court was as to whether the sale by calling advertisement amounted to sale by public auction or not. It is in this context that the direction to put the property to auction was given by this Court. As rightly pointed out by the learned Senior Counsel, it is always open to the parties to civil proceedings, particularly proceedings arising out of suit for partition, to reach an adjustment and, therefore, it would not be appropriate to insist that the property be put to auction, in spite of the fact that it fetched lesser price at the auction, than the price offered by Gulabsingh. The learned Senior Counsel further rightly pointed out that the ex post facto wisdom dawning on any other heir of Bachhusingh to make him say that he too would have purchased the property at such a price could not have been entertained, because such an heir should have made a better offer to all the co-heirs before they came to the Court with an agreement. He, therefore, submitted that since, while approving the sale on 30-4-1992, the learned trial Judge had, after duly considering all the factors, accepted the proposal of the parties to the Miscellaneous Judicial Case to sell the property to Gulabsingh, there should have been no occasion to reopen the matter.

17. Advocate Ms. Usha Gujar for non-applicants Nos. 1 to 5 submitted that the crux of the matter is that there was in fact no agreement between the parties as was sought to be projected by her learned adversary. She submitted that Chandrapalsingh had not at all agreed to the proposal to sell the property to Gulabsingh. She submitted that one Shivnarayansingh had also died on 14-3-1989, that is prior to the filing of. No Objection. (Exhibit 60) before the trial Court on 26-11-1991. Shivnarayansingh had executed a will and had created a Trust. For selling the property of Trust, it would have been necessary to obtain permission from the Charity Commissioner and, therefore, without such permission, the property could not have to be transferred. It may be seen that it is not disputed by the clients of Advocate Ms. Usha Gujar also that Gulabsingh himself had been nominated as a trustee, though the applicants also state that one Rajendra kumar was also a co-trustee. The learned Senior Counsel for the applicants submitted that since Gulabsingh himself was a trustee and since the exact nature of the Trust, as to whether it was a public charitable Trust or a private Trust, has not been elaborated, the question of permission from the Charity Commissioner may not be relevant for deciding the validity of the order under challenge. He submitted that the Trust could not have insisted on retaining the property, since there are six sharers and since it is already decided in terms of the agreement that the property was sold. Secondly, since the price offered by Gulabsingh is not shown to have been less than any offer by any other person till Gulabsingh's offer was accepted by the Court, there is no question of the interest of such Trust being adversely affected. Further the learned Senior Counsel rightly submitted that since Advocate Ms. Usha Gujar's clients do not represent the Trust or the Trustees, this argument need not be considered. All the judgments in civil disputes decide the dispute in personam and not in remand, therefore, should anybody, who is not a party to such a proceeding, have any grievance, such a person should always have the freedom to agitate the question of his interest before appropriate forum. In view of this, the objections emanating from Shivnarayansingh's demise have to be rejected, first, because the applicants, who filed an application Exhibit 122 before the trial Court, do not represent such interest; secondly Gulabsingh, the purchaser himself, was a trustee; thirdly, even a Trust could not have objected to a sale which has to be effected to execute compromise decree to which Shivnarayan was a party; and lastly, interest of Trust is not affected, since no better offer is shown to have been made.

18. Applicants Nos. 4 and 5 in application Exhibit 122 before the trial Court are the son and widow of Shivbalisingh. They have absolutely no right to raise any objection to the sale, since application Exhibit 60 before the trial Court categorically shows that Shivbalisingh was a signatory to the document Exhibit 61, whereby he had conveyed that he had no objection to sell the property to Gulabsingh for a sum of Rs. 2,40,000/-.

19. Advocate Ms. Usha Gujar for non-applicants Nos. 1 to 5 had a serious objection about the consent of Chandrapalsingh, whose heirs are applicants Nos. 1 to 3 in application Exhibit 122. She submitted that Chandrapalsingh had not at all signed application Exhibit 60 and, therefore, the learned trial Judge should have seen that

Chandrapalsingh, having not consented to the sale in favour of Gulabsingh, there was no consensus in the matter and, therefore, he was not justified in directing by his order dated 30-4-1992 that the property be sold to Gulabsingh. There is no dispute that-Chandrapalsingh's signature does not appear on Exhibit 60. It is, however, clear from the record of the trial Court that there is a document at Exhibit 159 in the record of the trial Court, which signifies no objection by Chandrapalsingh. As far as this document at Exhibit 159 is concerned, it may be seen that it is a replica of no objection at Exhibit 60 filed by the parties, with the only change that instead of signatures of all the parties, it bears only the signature of Chandrapalsingh Thakur. The Counsel for applicant Geeteshri, who filed application Exhibit 122 before the trial Court, was as fair as the client herself, and conceded that Geeteshri herself had admitted in her deposition at Exhibit 158 that the document in question bore the signature of her father, and so it seems to have been marked as Exhibit 159. Thus, Geeteshri does not dispute that there was a document in the record of the trial Court, which specifically signified A+B her father's no objection for sale of property to Gulabsingh. Geeteshri very fairly admitted in cross-examination also that the signature was that of her father and also admitted that in the papers, which her father had left, copy of Exhibit 159 was found by her. Now if Chandrapalsingh had not consented to the sale to Gulabsingh, there would be no occasion for him to file document Exhibit 159 before the trial Court and also there would be no occasion for him to retain a copy of the same in his personal papers. In the present days, it is indeed rare to find a litigant so fairly stating as to what she found in her father's papers. In view of this, it is not open to the heirs of Chandrapalsingh to say that Chandrapalsingh had not consented to the sale in favour of Gulabsingh.

20. The learned Senior Counsel for the applicants further pointed out that Chandrapalsingh, who possibly had a second thought, had himself filed an application Exhibit 65 on 13-7-1992 for review of the order passed by the learned trial Judge on 30-4-1992. By this application Exhibit 65, Chandrapalsingh had indeed raised the contention that he had not signed the application on which the signatures of sharers had been taken. However, he did not specifically CED state that he had not submitted any other independent We Objection' before the Court. Chandrapalsingh went on to add that he had objection in giving the suit property to Gulabsingh, as Chandrapalsingh himself was interested in purchasing the property at the price at which Gulabsingh was to purchase the same. This application for review was rejected by the trial Court as barred by limitation and Chandrapalsingh does not seem to have taken the matter in any higher forum and had allowed the matter to rest at that stage. The learned Senior Counsel submitted first, that Chandrapalsingh had not specifically denied having submitted an independent no objection to the proposed sale in favour of Gulabsingh. Secondly, Chandrapalsingh's own willingness on 13-7-1992 to purchase the property at a price at which Gulabsingh offered to purchase it on 26-11-1991, that is after almost seven months, was obviously an afterthought and since the matter has to reach finality at some stage or the other and offers and counter offers cannot be allowed to go on endlessly, the application for review, apart from being time-barred, had no merit. In any case, since Chandrapalsingh had himself not taken the matter to its logical culmination and had allowed the matter to rest at the rejection of his review application, it would not be open for his heirs to reagitate the issue. Thus no fault can be found with this line of reasoning, which practically extinguishes all the contentions, that could have been imagined on behalf of the heirs of Chandrapalsingh.

21. It is indeed tragic that the learned trial Judge deciding application Exhibit 122 on 26-4-1999, that is seven years after the sale was approved by his learned predecessor, had overlooked all that had happened during the intervening period, and ordered the matter to be reopened. It is indeed unfortunate that when the prayer in the application Exhibit 122 was merely to permit intervention, the learned trial Judge went on to declare the order dated 30-4-1992 as a nullity, when he had no jurisdiction to do so. He should have realised that he was not entertaining any application for review or sitting in appeal over the orders passed by his learned predecessor. He should have also realised that the orders passed at various stages in execution proceedings attain finality at the relevant stages and cannot be allowed to remain in constant flux till the proceedings are consigned to the record room. The last order consigning the proceedings to the record room is not the only order which disposes of the proceedings. Every order which completes a stage in an execution proceedings is final in itself, taking the proceedings to a further stage. In the instant case, not only had the Court approved sale of the property to Gulabsingh, but had also caused drafts of sale-deed to be served on the concerned parties and after settling the drafts, directed the Nazir to execute the sale-deed, since Gulabsingh had deposited the requisite sum and necessary stamp papers had also been purchased for executing the sale-deed. It is extremely unfortunate that overlooking all this, the impugned order came to be passed by the learned trial Judge. Therefore, not only would the orders passed in the present revision result in disposal of the lis, since the execution of the sale-deed now in favour of Gulabsingh would complete the execution proceedings, the impugned order itself, if allowed to stand, would become a monumental example of failure of justice.

22. In view of this, the revision application is allowed. The impugned order dated 26-4-1999 passed below application Exhibit 122 is quashed and set aside. The trial Court is directed to proceed with the execution of sale-deed in terms of the order dated 30-4-1992 and the further steps which the trial Court had taken in pursuance of the said order.

23. In the circumstances, the parties to bear their own costs.