Bombay High Court
Both vs 9 Shantabai on 20 October, 2010
Bench: S. S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 12 OF 2004
1 Smt. Suglabai w/o Prabhu Jaishete,
Age 50 years, Occ. Household
2 Onkar s/o Prabhu Jaishete
Age 23 years, Occ. Agri
Both R/o. Moti Nagar,Latur
District Laturig ...Petitioners
Versus
1 Rangrao s/o Govindrao
(Since died through his L.Rs.)
1/1 Sitabai w/o Rangrao
Age 60 years,
1/2 Govind s/o Rangrao
Age 40 years,
1/3 Kusum w/o Shau Ghade
Age 38 years
1/4 Sidram s/o Rangrao
Age 28 years,
1/5 Rajkumar s/o Rangrao
Age 21 years,
1/6 Sunanda d/o Rangrao
Age 20 years
All agriculturists
R/o. Bhatkheda, Tq. and Dist. Latur
2 Ismail s/o Khajasab (died)
Through his L.Rs.
2/1 Sk. Munawar s/o Ismailsab
Age 60 years,
::: Downloaded on - 09/06/2013 16:33:49 :::
2
R/o. Bhatkheda, Tq. Latur
District Latur
2/2 Dedubi w/o Husain
Age 60 years, Occ. Household
R/o. Sugaon, Tq. Ahmedpur
District Latur
3 Chandar s/o Apparao (died)
(Through L. Rs.)
3/1 Ahilyabai w/o Chandar
Age 60 years,
(Dismissed as per court's
order dt. 16.6.2007)
3/2 Gopal s/o Chandar
Age 28 years,
3/3 Govind s/o Chandar
Age 26 years,
3/4 Narayan s/o Chandar
Age 24 years,
3/5 Mahadu s/o Apparao
Age 60 years,
3/6 Venkat s/o Apparao
Age 50 years,
All agriculturists
R/o. Bhatkheda, Tq. and
District Latur
4 Aba s/o Ganpati Mule (Died)
(Through his L.Rs.)
4/1 Manohar s/o Aba Mule,
Age 45 years,
(Dismissed as per court's
order dt. 16.6.2007)
4/2 Waman s/o Aba Mule,
Age 40 years,
4/3 Vishvanath s/o Aba Mule,
Age 46 yeas,
4/4 Sripati s/o Aba Mule,
Age 38 years,
::: Downloaded on - 09/06/2013 16:33:49 :::
3
All agriculturists
R/o. Bhatkheda, Tq. and
District Latur
5 Sangramappa s/o Babanappa Jaishete,
(Died through his L.Rs.)
5/1 Sidramappa s/o Sangramappa Jaishete
(Died, through his L.Rs.
5/1/A Lalita w/o Sidramappa Jaishete
Age 45 years,
5/1/B Rajkumar s/o Sidramappa Jaishete
Age 25 years,
5/1/C Rameshwar s/o Sidramappa Jaishete
Age 23 years,
5/1/D Sangameshwar s/o Sidramappa Jaishete
Age 21 years
All r/o. Hatte Nagar, Latur
District Latur
5/2 Shankarappa s/o Sangramappa Jaishete
(Died through his L.Rs.)
Gangabai w/o Shankarappa Jaishete
(Died through her L.Rs.)
5/2/A Vishwanath s/o Shankarappa Jaishete
Age 50 years,
5/2/B Babu s/o Shankarappa Jaishete
Age 38 years,
5/2/C Gangadhar s/o Shankarappa Jaishete
Age 35 years,
5/2/D Maheshwar s/o Shankarappa Jaishete
Age 30 years,
All R/o. Gavli Galli, Latur
District Latur
5/2/E Sow. Mahadevi w/o Vilasrao
Age 45 years, Occ. Household
::: Downloaded on - 09/06/2013 16:33:49 :::
4
R/o. Barsi
5/2/F Sow. Nagamma w/o Shankar
Age 38 years, Occ. Household,
R/o. Tadwala, Tq. Barsi
5/2/G Sow. Pama w/o Umakant d/o
Prabhu Jaishete,
Age 30 years, Occ. Household
R/o. Udgir
6 6/1 Shobha d/o Prabhu
Age 26 years,
6/2 Chhaya d/o Prabhu
Age 24 years,
6/3
Nirmalabai d/o Prabhu
Age 21 years,
All R/o Moti Nagar, Latur
District Latur
7 Ratnabai w/o Vishwanath
(Died her L.Rs.)
Manmath s/o Vishwanath
Age 30 years,
R/o. Moti Nagar, Latur
8 Nallabai w/o Not known
Age 40 years, Occ. Household,
R/o. Karepur, Tq. Ahmedpur
9 Shantabai w/o Uttam
Age 40 years, Occ. Household,
R/o. Barsi, Dist. Solapur ...Respondents
WITH
CIVIL REVISION APPLICATION NO. 17 OF 2004
1 Smt. Suglabai w/o Prabhu Jaishete,
Age 50 years, Occ. Household
2 Onkar s/o Prabhu Jaishete
Age 23 years, Occ. Agri
Both R/o. Moti Nagar,Latur
::: Downloaded on - 09/06/2013 16:33:49 :::
5
District Latur ...Petitioners
Versus
1 Ratan s/o Maheboobsab
Age 62 years, Occ. Agri.
R/o. Bhatkheda, Tq. and
District Latur
(Abated as per court's order
dated 14.6.2007)
2 Sangramappa s/o Babanappa Jaishete,
(Died through his L.Rs.)
1 Sidramappa s/o Sangramappa Jaishete
(Died, through his L.Rs.
A Lalita w/o Sidramappa Jaishete
Age 45 years,
B Rajkumar s/o Sidramappa Jaishete
Age 25 years,
C Rameshwar s/o Sidramappa Jaishete
Age 23 years,
D Sangameshwar s/o Sidramappa Jaishete
Age 21 years
All r/o. Hatte Nagar, Latur
District Latur
3/1 Shankarappa s/o Sangramappa Jaishete
(Died through his L.Rs.)
A Vishwanath s/o Shankarappa Jaishete
Age 50 years,
B Babu s/o Shankarappa Jaishete
Age 38 years,
C Gangadhar s/o Shankarappa Jaishete
Age 35 years,
D Maheshwar s/o Shankarappa Jaishete
Age 30 years,
::: Downloaded on - 09/06/2013 16:33:49 :::
6
E Sow. Mahadevi w/o Vilasrao
Age 45 years, Occ. Household
R/o. Barsi
F Sow. Nagamma w/o Shankar
Age 38 years, Occ. Household,
R/o. Tadwala, Tq. Barsi
G Sow. Pama w/o Umakant d/o
Prabhu Jaishete,
Age 30 years, Occ. Household
R/o. Udgir
4 4/1 Shobha d/o Prabhu
Age 26 years,
4/2
Chhaya d/o Prabhu
Age 24 years,
4/3 Nirmalabai d/o Prabhu
Age 21 years,
All R/o Moti Nagar, Latur
District Latur
5 Ratnabai w/o Vishwanath
(Died her L.Rs.)
Manmath s/o Vishwanath
Age 30 years,
R/o. Moti Nagar, Latur
6 Nallabai w/o Not known
Age 40 years, Occ. Household,
R/o. Karepur, Tq. Ahmedpur
7 Shantabai w/o Uttam
Age 40 years, Occ. Household,
R/o. Barsi, Dist. Solapur ...Respondents
.....
Mr. R.B. Deshmukh, advocate for the petitioners
Mr. C.R. Deshpande, advocate for respondents
.....
CORAM: S. S. SHINDE, J.
DATED: 20TH OCTOBER, 2010
JUDGMENT :-
1 Both these Civil Revision Applications are filed challenging the
order passed by the learned Civil Judge Senior Division, Latur in Misc.
Civil Application Nos. 171 and 172 of 1995 on 21.8.2003 thereby
allowing the said applications and restoring the execution proceeding
Nos. 79 of 1983 and 80 of 1983 respectively.
The petitioners herein are the original judgment debtors III and
III/2 in said Misc. Civil Applications, filed by the respondent Nos. 1 to 4
herein for restoration for execution proceeding No. 79 of 1983 and 80
of 1983, as the said proceedings were dismissed in default for non
prosecution by the learned C.J.S.D. Latur on 21.8.1991.
3 In the said Misc. applications, it was stated by the respondents
herein that they have filed Special Civil Suit No. 58 of 1966 for specific
performance of agreement of sale against the deceased Sangramappa
and the said suit was decreed. They have filed execution proceedings
to obtain the sale deed to be executed by the defendants at their costs
on payment of balance consideration of Rs.14,850/- as per the decree.
The amount is duly deposited in the Court. On death of Sangramappa,
his heirs and L.Rs. Shankarappa Sidramappa, widow of deceased and
son Prabhu appeared in execution proceedings. While the execution
proceeding were pending, Shankarappa died and his L.Rs. were
brought on record. The decree holders i.e. petitioners had filed the
duly stamped sale deed in Court to be executed by heirs of judgment
debtors. From the record of Darkhast proceeding it is apparent that
judgment debtors Sidaramappa and heirs of Prabhu and Suglabai
have also withdrawn their share out of consideration amount deposited
in Court and in token of their acceptance of sale deed they have put
their signatures, thumb marks on the sale deed. The sale deed was to
be duly registered at the costs of defendants. Judgments debtors after
all have executed the sale deed as per law and decree.
4 One of the L.Rs. Shankarapa and his heirs did not co-operate in
the matter and they delayed the matter on one pretext or the other.
The court below had also passed order for execution of the sale deed
by Superintendent of the court. Indeed, there was no liability caste
upon decree holders except depositing the balance consideration
within specified date, which the decree holders/plaintiff has duly
fulfilled. The decree holder insisted for balance consideration and for
after execution of sale deed by judgment debtors. The sale deed duly
stamped was on record. It seems that no further action was taken by
Superintendent to complete the formalities for registration of sale
deed. The judgment debtors were to pay the costs of registration
stamp etc. as per decree and it seems that execution proceeding was
disposed of for non prosecution on 21.8.1991 by the lower court
without the knowledge of the decree holder. The disposal of the
execution proceeding came to the knowledge of the decree holder on
15.11.1995 when they wanted to obtain copy of sale deed.
5 It was the case of the respondents herein who are original
decree holders that all necessary steps have been taken by them to
complete the sale deed but due to death of judgment debtors, one
after another, during pendency of the case, execution proceeding were
prolonged. The decree holders were ready to deposit the charges of
registration. But no notice or estimated costs was issued or served on
decree holder. Majority of the judgment debtors have taken their share
out of consideration deposited in the court without completing the
execution and registration of the sale deed. Disposal of the case is
unjust and not warranted by law and facts of the case. No final order
on merits is passed in the case. Disposal of case in default needs to
be set aside under section 151 of C.P.C., in the interest of justice.
6 The Misc applications filed by the respondents herein came to
be allowed on 21.8.2003. The Joint C.J.S.D. Latur allowed the
applications and Special Darkhast Nos. 79 of 1983 and 80 of 1983,
dismissed on 21.8.1991 came to be restored in their original file.
Aggrieved by the said orders, these Civil Revision Applications are
filed by the petitioners herein.
7 It is stated in the Revision Applications that the respondent Nos.
1 to 4 were expected to take necessary steps for appearance of the
judgment debtors, as ordered by the court on 7.1.1984. The learned
C.J.S.D. Latur passed an order on 2.4.1988 directing the
Superintendent to execute the sale deed after verifying whether the
decree holder has deposited required amount of registration of sale
deed on or before 30.4.1988 as per the convenience of the parties. It
is further case of the petitioners that inspite of this order, the original
decree holders did not deposit the amount required for registration of
sale deed and therefore, the learned C.J.S.D. Latur on 21.8.1991 was
pleased to dismiss the execution proceeding for want of prosecution. It
is further case of the petitioners that even after dismissal of the
execution petition respondent Nos. 1 to 4 did not take any steps for
filing fresh execution proceeding within prescribed period of limitation,
which they were entitled for.
8 It is further case of the petitioners that after a period of about six
years i.e in the year 1995, the respondent Nos. 1 to 4 original decree
holders filed Misc. Civil application Nos. 171 of 1995 and 172 of 1995
respectively for restoration. The respondent Nos. 1 to 4 were negligent
even after filing of the said restoration applications, inasmuch as the
applications were dismissed against many of the judgment debtors for
not taking steps by the respondent Nos. 1 to 4.
9 Learned counsel appearing for the petitioners relying on the
grounds taken in the civil revision applications would urge that though
the applications were filed after a period of four years, no application
for condonation of delay was filed by the respondent Nos. 1 to 4. The
trial court allowed the application of respondent Nos. 1 and 4 and
restored the execution proceedings. It is further submitted that there is
no explanation in the application or reasons given in the applications
that the respondent No. 1 to 4 were prevented from appearing in the
court for taking steps on the date on which the order of dismissal came
to be passed. The trial court did not follow the settled law that when
the order is passed under Order IX Rule 5 of C.P.C. dismissing the
proceeding for not taking steps, provisions of Order IX Rule 5 are not
attracted and cannot be invoked the only remedy available to the
person against whom order is passed to file a fresh proceeding subject
to period of limitation, as such restoring the execution petition which is
dismissed for default is illegal. It is further submitted that the order
impugned is passed under Section 151 of C.P.C. But at the same time
the court has failed to appreciate the law conferring the powers under
Section 6, execution are not to be invoked in such manner that too
when there is a settled procedure laid down by law. According to the
counsel for the petitioners, restoration applications came to be
dismissed on the date fixed for hearing of the matters. It is further
submitted that while allowing the applications filed by the respondents,
the learned Judge has not assigned any reasons while reviving the
execution proceedings. According to the counsel for the petitioners,
the perverse finding is recorded by the court below while allowing the
application for restoration of execution proceeding. Learned counsel
further invited my attention to order 21 Rule 105 and 106 of C.P.C. and
submitted that the respondents herein ought to have filed applications
under Rule 105 of Order 21 and under Rule 106 limitation is provided
to file such application. The applications should have been filed within
30 days from the date of dismissal of the execution proceedings. In
support of his contention, learned counsel heavily placed reliance on
the reported judgment of the Hon'ble Supreme court in the case of
Damodaran Pillai and others. Vs. Sough Indian Bank Limited,
reported in 2005 AIR SCW 4603 and submitted that inherent of power
of the court cannot be invoked to restore the execution proceeding.
Since there is specific provision provided under Order 21 Rule 105 and
106 of C.P.C. The trial court was not justified in passing the order
under Section 151 of C.P.C. to restore/revive the execution
proceeding. Learned counsel further placed reliance on the judgment
in the case of Dattatraya Raghunath Jog Vs. Radhabai Laxmanrao
Ghate, reported in 2007(6) LJSOFT 149 and submitted that for
restoration of execution proceeding, an application is required to be
filed within a period of 30 days. Learned counsel further submitted
that in the case of Mhatarba Laxman Dongare (Dead through L.Rs.)
Vs. Central Bank of India and others, reported in 2005 (7) LJSOFT
124, this Court has held that in absence of any express provision for
restoration of an execution petition which is dismissed in default or for
non prosecution, it is not possible for the Court to restore the execution
petition, which is so dismissed by resorting to Section 151 of the Code
of Civil Procedure. Learned counsel for the petitioner also placed
reliance on the reported judgment of the Hon'ble Supreme court in the
case of Shipping Corporation of India Ltd. Vs. Machado Brothers
and others, reported in AIR 2004 SC 2093 and submitted that the
Revision against the order of restoration of execution petition under
Section 151 of C.P.C. is maintainable. Learned counsel also invited
my attention to the grounds taken in the civil Revision Applications and
other documents and submitted that these Civil Revision Applications
deserve to be allowed.
10 On the other hand, learned counsel appearing for the
respondents submitted that the orders impugned in these revision
applications are passed under Section 151 of C.P.C. and it cannot be
said that the Court, who has passed the order, has no jurisdiction to
pass such orders. It is further submitted that the concerned court in
order to do the justice to the parties in the matter, has passed the
order and restored the proceedings and directed to rehear the same
and thereby there is no prejudice caused to the petitioners since
execution proceedings were dismissed for want of prosecution.
Learned counsel submitted that if the execution proceedings are
dismissed for want of prosecution, it cannot be said that the said date
was fixed for hearing of the matters. According to the counsel the
provisions of order 21 Rule 105 and 106 of C.P.C. will come into
picture when the matter is set down for hearing. Learned counsel
invited my attention to the provisions of Rule 105 and 106 and has
submitted that in the instant case the date which was fixed in the
execution proceeding was the date fixed for taking steps and since the
steps were remained to be taken, the execution proceedings were
dismissed for want of prosecution. Therefore, according to the learned
counsel for the respondents, the order of dismissal of execution
proceedings was under Section 151 of C.P.C. and the said Court while
reviving/restoring the execution proceeding has also resorted to
provisions of Section 151 of C.P.C. and therefore, there is no question
of any delay in restoring the order because the court was exercising its
inherent powers. Learned counsel further invited my attention to the
original record and contended that the date on which the matter was
shown on the board was for taking some steps and was not fixed for
hearing. Learned counsel, in support of his contentions placed reliance
on the various judicial pronouncements in the cases of Keshardeo
Chamria Vs. Radha Kissen Chamria and others, reported in AIR 1953
SC 23, Manindra Land and Building Corporation Ltd. Vs. Bhutnath
Banerjee and others, reported in AIR 1964 SC 1336, M/s. Devi Dayal
Textile Company and Ors. Vs. Nand Lal, reported in AIR 1977 Delhi 7,
K. Balasubramania hetty Vs. N.M. Sambandamoorthy Chetty, reported
in AIR 1975 SC 818, Surajdeo Vs. Board of Revenue, U.P. Allahabad
and others, reported in AIR 1982 Allahabad 23 and also in the case of
Dambarudhar Mohanta Vs. Mangulu Charan Naik and others reported
in AIR 2004 Orissa 126, Khoobchand Jain and Anr. Vs. Kashi
Prasadand others, reported in AIR 1986 M.P. 66, Gour Nag Bhusan
Vs. Ananta Sendh and Ors., reported in AIR 1958 Ori. 200, Nemi
Chand and Ors. Vs. Umed Mal, reported in AIR 1962 Raj. 107,
Devineni Durgamba Vs. Raj Kumar Financiers, reported in 1997(1)
A.L.T. 448 and Smt. Padmavati Devi Vs. Jaipur Development
Authority, Jaipur, reported in 1997 (3) C.C.C. 367 (Raj.)
Learned counsel submitted that the judgment cited by the
counsel for the petitioners in the case of Damodaran Pillai and
others (supra) is not applicable in the facts of this case. In the said
case, the matter was set down for hearing. In the said case as it
appears from the facts of the said case that the execution proceeding
had been set down for hearing. Learned counsel invited my attention
to para 19 of the said judgment and submitted that when the execution
application was dismissed on a day which was not fixed for hearing,
the order of dismissal was not under sub Rule 2 of Rule 105 of Order
21 of C.P.C. and therefore, there was no question of taking recourse of
said provisions, while filing application for restoration. Learned
counsel further submitted that the judgment relied upon by the counsel
for the petitioners in the case of Dattatraya Raghunath Jog (supra)
has no relevance in the facts of the case since in that case it appears
from the facts that the execution proceeding was fixed for hearing and
therefore, the court held that the application for restoration of
execution proceeding is required to be filed within 30 days. Learned
counsel further submitted that in the case of Mhatarba Laxman
Dongare (Dead Through L.Rs.) (supra), the observations of this
court runs contrary to the various judgments of the Hon'ble Supreme
Court and therefore, the said judgment cannot be relied upon in the
light of various pronouncements of the Hon'ble Supreme Court. The
sum and substance of the arguments advanced by the counsel for the
respondents is that if the court exercises inherent powers vested in it,
it cannot be said that there is jurisdictional error or there was no
jurisdiction to pass such order. Therefore, he would submit that these
Civil Revision Applications deserve to be dismissed.
11 I have given due consideration to the submissions of the learned
counsel for the petitioners and respondents. I have also perused the
original record and also Civil Revision Applications and annexures
thereto. I have also gone through the judgment cited by the learned
counsel for the parties. At the outset, it is necessary to reproduce the
order passed by the executing Court while dismissing the execution
proceedings. It appears from the original record that on 21.8.1991 the
matter was fixed for compliance/taking some steps, the order reads
thus:-
" No steps
Dismissed for want of prosecution. No costs."
Therefore, from perusal of the order it would show that the
matter was not fixed for hearing and it was fixed for taking some steps.
Since no steps were taken the court dismissed the execution
proceedings for want of prosecution. Therefore, the contention of the
counsel for the petitioners that the matter was fixed for hearing is
required to be rejected.
ig Having said so, there is no question of
invoking the provisions of Order 21 Rule 105 and Rule 106 of C.P.C.
In the instant case. Rule 105 contemplates the situation when the
application is fixed for hearing. Rule 105 and 106 of Order 21 read
thus:-
ORDER XXI
EXECUTION OF DECREES AND ORDERS
"Rule 1 to 104 - -----
105. Hearing of application.- (1) The Court, before
which an application under any of the foregoing rules of this
Order is pending, may fix a day for the hearing of the
application.
(2) Where on the day fixed or on any other day to
which the hearing may be adjourned the applicant does not
appear when the case is called on for hearing, the Court may
make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to
whom the notice has been issued by the court does not appear,
the Court may hear the application ex parte and pass such
order as it thinks fit.
106. Setting aside orders passed ex parte, etc..- (1)
The applicant, against whom an order is made under sub-rule
(2) of rule 105 or the opposite party against whom an order is
passed ex parte under sub-rule (3) of that rule or under sub-rule
(1) of rule 23, may apply to the Court to set aside the order, and
if he satisfies the Court that there was sufficient cause for his
non appearance whom the application was called on for
hearing, the court shall set aside the order or such terms as to
costs, or otherwise as it thinks fit, and shall appoint a day for the
further hearing of the application.
(2) No order shall be made on an application under sub-rule
(1) unless notice of the application has been served on the other
party.
On perusal of above Rules, it reveals that Rule 105
contemplates hearing of application. Limitation prescribed under Rule
106 would be relevant if order is made under sub Rule 2 of Rule 105 of
Order 21 of C.P.C.. Therefore, in the facts of this case, there is no
question of invoking the power under Order XXI Rule 105 and 106 of
C.P.C. This view is fortified by the decision in the case of
Dambarudhar Mohanta (supra). In para 6 of the said judgment, the
High Court held that if the execution proceedings are dismissed in
default, it cannot be restored by filing an application under Order 21,
Rule 106 of C.P.C. and provision in Section 151 is the only provision to
consider such prayer. Yet in another case of Khoobchand Jain and
another (supra), the Madhya Pradesh High court held that dismissal
of execution application for default of appearance of decree holders
cannot be treated under rule 105 of Order 21 of C.P.C. so as to attract
Rule 106 but it should be under inherent powers. Application for its
restoration also would be by invoking inherent powers of court where
no time limit is prescribed. (emphasis supplied).
The Madhya Pradesh High Court further held that the date on
which the execution application was dismissed for default of
appearance of the decree holders, was not a date fixed for 'hearing'
within the meaning of Rule 105.
Yet in another case, in the case of Gour Nag Bhusan (supra),
Orissa High court relying on the view expressed by Allahabad High
Court in the case of Mst. Ram Dulari Vs. B. Udai Bhan Pratap
Singh, AIR 1954 ALL 98 (G), held that in an appropriate case e.g.
where the Court, in ignorance of the fact that notice of the date of
hearing was not actually served on the decree holder or his agent,
dismissed the execution for default, the High court held that it had
inherent jurisdiction to restore the application even though fresh
application is barred. So also the Calcutta High Court in Radha
Kissan Vs. Keshardeo, AIR 1946 Cal 488 (H), expressed the view to
the effect that although the provisions of Order 9 do not apply to
execution proceedings, yet the Court is not altogether incapable of
exercising its inherent power in regard to the restoration of the
execution petitions dismissed for default.
Yet in another case in the case of Nemi Chand and Others
(supra) the Rajasthan High court has taken a view that it is not a case
of inherent lack of jurisdiction. It cannot be disputed that the execution
court had the jurisdiction to consider the question of restoration and at
best it can be said to be a case of an erroneous decision restoring the
case. This by itself does not justify an interference in the exercise of
revisional jurisdiction at this stage in the facts and file circumstances of
this case.
Yet in another case, in the case of Smt. Padmavati Devi
(Supra), the Rajasthan High court held that the date on which
executions were dismissed in default could not be said to be a date for
hearing within the meaning of Rule 105. Even otherwise execution by
one of the joint decree holders were competent, order of dismissal in
default of execution since were not covered by Rule 105 of Order 21 of
C.P.C. application for setting aside said order could not be filed under
Rule 106 of Order 21, application under Section 151 of C.P.C. was
competent.
Therefore, taking into consideration the view taken in the
aforesaid judicial pronouncements, it can be said that there is no
substance in the contention of the counsel for the petitioners that the
applications ought to have been filed under Rule 105 and within
limitation of 30 days, as contemplated under Rule 106 of Order 21 of
C.P.C.
12 Another important aspect, which involved in this matter is that
whether the court below who has passed the order restoring the
execution proceeding has jurisdiction to pass such order or not?. The
Larger Bench of the Hon'ble Supreme Court in the case of Keshardeo
Chamria (supra), has considered the case involving the similar facts
like the case in hand. In that case, on the adjourned date of hearing
of an execution the decree holder therein again applied for time for
giving instructions to his pleader for taking necessary steps in
execution but the application for time was refused by the Court and the
execution case was dismissed on part satisfaction by the very same
order without formally calling for the execution case and without
intimating the decision of the adjournment application to the decree
holder's pleader in order to enable him to take the necessary steps.
The decree holder then applied under S. 151, C.P.C. for restoration of
the case and the Court thereupon restored the execution case under
its inherent powers in order to rectify the said mistake, it had
committed in dismissing the execution case by the same order without
giving opportunity to the decree holder to take the necessary steps.
On revision the High Court set aside the order of restoration and
remanded the case to the executing Court for reconsideration and
disposal in accordance with the observations made in its order.
In the facts of the said case, the Supreme court in paras 13, 14,
15 and 21 held that;-
(i) in the circumstances of the case the order dismissing the
execution on part satisfaction was bad and the executing Court
was justified in correcting the same under its inherent powers.
(ii) the order of restoration of the execution case passed
under S. 151 by the executing court did not come within the
purview of S. 47, C.P.C. and as such was not appealable. The
proceedings that commenced with the decree holder's
application for restoration of the execution and terminated with
the order of revival could in no sense be said to relate to the
determination of any question concerning the execution,
discharge or satisfaction of the decree. Such proceedings were
in their nature collateral to the execution and were independent
of it.
(iii) An order under S. 151 simplicitor is not appealable. Under
the Code of Civil Procedure, certain specific orders mentioned in
S. 104 and O. 42 R. 1 only are appealable and no appeal lies
from any other orders (vide S. 105 C.P.C.) An order made under
S. 151 is not included in the category of appealable orders.
(iv) In reversing the order of the executing court reviving the
execution, the High court exercised a jurisdiction not conferred
on it by S. 115, The High Court therefore, acted in excess of its
jurisdiction when it entertained a revision against the order of
the executing Court and set it aside in exercise of that
jurisdiction and remanded the case for further inquiry.
This decision of the Supreme Court is rendered by the larger
Bench of three Hon'ble Judges in which it is held that the High Court
acted in facts of the case and in excess of its jurisdiction when it
entertained the revision against the order of executing Court and set it
aside in exercise of revisional powers of the High Court and remanded
the case for further enquiry.
Yet in another case in the case of Manindra Land and
Building Corporation Ltd. (Supra) the Court held that it is not open
to the High Court in the exercise of its revisional jurisdiction under
Section 115, to question the findings of fact recorded by a subordinate
Court. Section 115 applies to cases involving questions of jurisdiction,
i.e. questions regarding the irregular exercise or non exercise of
jurisdiction or the illegal assumption of jurisdiction by a Court and is
not directed against conclusion of law or fact in which questions of
jurisdiction are not involved.
Delhi High Court in the case of M/s. Devi Dayal Textile
Company and others (supra) held thus:
"When a suit is dismissed for default due to a mistake of
the Court, and the Court, on the same day, on discovering the
mistake recalls the order of dismissal, the subsequent order
does not suffer from lack of jurisdiction. It is not only, the
jurisdiction and power of the Court, but it is certainly its duty to
recall its order, if it finds that the same is invalid and had been
passed by a mistake of the Court and would cause injustice to
the parties not at fault. Correction of the mistake of the court can
be done by the court suo motu without any application by the
parties concerned, or even if the Court is moved to do so by the
parties. But though the Court is justified in setting aside the
order of dismissal suo motu it ought to have done so after notice
to the opposite side. But the failure to do so will not justify
interference by the High court under its discretionary powers
under Section 151, when the impugned order has advanced
substantial justice." (Emphasis supplied).
Yet in another case of K. Balasubramania Chetty (supra), the
Supreme Court held that under section 115 of C.P.C. it is only where
there is a jurisdictional error or irregularity or material irregularity in the
exercise of jurisdiction that the High court can interfere.
In the case of Surajdeo Vs. Board of Revenue, U.P.
Allahabad and others (supra), the Allahabad High Court held that,
"revisional Court should not exercise its powers to set aside even an
illegal and wrong order, if it results in restoring another illegal and
wrong order."
Therefore, it follows from the various pronouncements of the
Hon'ble Supreme Court as well as the High Courts, if the proceedings
are restored by passing the order U/s 151 of C.P.C., the court had
advanced substantial justice. The High Court should not interfere in
such orders. Since in the instant case, the impugned order is passed
under Section 151 of C.P.C. it cannot be said that said Court has no
jurisdiction to pass such order. Though counsel for the petitioners has
strenuously urged that the judgment of this Court in the case of
Mhataraba (supra) squarely covered the case in hand. However, in
my opinion, the said judgment has not considered the various
judgments of the Hon'ble Supreme court. This court in the case of
Mhataraba (supra) held that in absence of any express provisions of
restoration of execution proceeding which is dismissed for non
prosecution, it is not possible for the Court to restore the execution
proceeding which was dismissed by resorting to Section 151 of C.P.C.
With respect to the judgment of this court in the case of
Mhataraba (supra), it has to be held in the facts of this case that said
judgment runs contrary to the view taken by the Larger Bench of the
Hon'ble Supreme Court in the case of Manohar Lal Chopra Vs. Rai
Bahadur Rao Raja Seth Hiralal, reported in AIR 1962 SC 527. In
para 24 and 25 of the said judgment, the Hon'ble Supreme Court held
thus:-
" Section 151 itself says that nothing in the Code
shall be deemed to limit or otherwise affect the inherent power
of the Court to make orders necessary for the ends of justice. In
the face of such a clear statement, it is not possible to hold that
the provisions of the code control the inherent power by limiting
it or otherwise affecting it. The inherent power has not been
conferred upon the Court; it is a power inherent in the Court by
virtue of its duty to do justice between the parties before it.
Further, when the code itself recognized the existence of the
inherent power of the Court, there is no question of implying any
powers outside the limits of the Code." (Emphasis supplied).
13 Therefore, in my considered opinion, in the facts of this case,
the learned Joint Civil Judge Senior Division, Latur had jurisdiction to
allow the applications for restoration of Special Darkhast No. 79 of
1983 and 80 of 1983, which were dismissed on 21.8.1991. Thus, the
order dated 21.8.2003 passed below Exh.1 in Misc. Application No.
171 of 1995 and 172 of 1995 is well within jurisdiction of the court
since the Joint C.J.S.D. Latur exercised the jurisdiction under Section
151 of C.P.C. Therefore, the orders impugned in these Revision
Applications do not call for any interference in the revisional powers
under Section 115 of C.P.C. The learned C.J.S.D. Latur had
jurisdiction to pass the impugned orders and they do not suffer from
any jurisdictional error, illegality or irregularity. Hence, these Civil
Revision Applications are devoid of merits and the same stand
dismissed. Rule discharged.
14 Record and proceedings received from the lower court be sent
back forthwith to the said Court.
*****
