Bombay High Court
Jayant S/O Ganpatrao Buty vs Bhagwandas Timappa Puthran ... on 29 January, 2018
Bench: A.S. Chandurkar
34-J-CRA-155-17 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.155 OF 2017
Jayant s/o Ganpatrao Buty
Aged about 70 years,
Occupation Law Practitioner,
R/o 320, Civil Lines, Nagpur ... Applicant.
-vs-
Bhagwandas Timappa Puthran
since deceased through his legal
heirs :
i) Sandeep s/o Bhagwandas Puthran
Aged about 48 years,
ii) Yadesh s/o Bhagwandas Puthran
Aged about 49 years,
Both resident of Shalimar Restaurant
and Bar, Buty Marg, Opposite Hotel Adit,
Sitabuldi, Nagpur ... Non-applicants.
Shri P. P. Kothari, Advocate for applicant.
Shri S. V. Bhutada, Advocate for non-applicants.
CORAM : A. S. CHANDURKAR, J.
DATE : January 29, 2018.
Oral Judgment :
This civil revision application filed under Section 115 of the Code of
Civil Procedure, 1908 (for short, the Code) takes exception to the order
passed by the appellate Court permitting the non-applicants-original
defendants to deposit the amount of costs of Rs.4000/- that were imposed
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while granting them an opportunity to contest the suit.
2. Facts in brief are that the applicant is the original plaintiff who
had filed suit for recovery of possession of an open piece of land against the
non-applicants herein. That suit came to be decreed on 19/12/2014. The
non-applicants filed an appeal challenging that decree. According to them
they did not have proper opportunity to defend the suit. The appellate Court
by its judgment dated 04/10/2017 allowed the appeal subject to payment of
costs of Rs.4000/- by the defendants to the plaintiff. The amount of costs
were to be paid within period of two weeks failing which it was ordered that
the appeal would stand dismissed. It was further observed that if the costs
were paid, the parties would appear before the trial Court on 26/10/2017
after which the suit would be decided afresh. On 12/10/2017 the
defendants filed an application below Exhibit-36 before the appellate Court
and sought permission to deposit the amount of costs of Rs.4000/-. The
appellate Court on the same day permitted the amount of costs to be
deposited and directed the Nazir to accept the same. The amount of costs
were deposited on the same day. On 24/10/2017 the original plaintiff filed a
pursis stating that as the conditional order of payment of costs had not been
complied with, the appeal was liable to be dismissed. The appellate Court
however held that the amount of costs were already deposited as per
application at Exhibit-36. Being aggrieved by the order permitting costs to
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be deposited, the original plaintiff has filed this civil revision application.
3. Shri P. P. Kothari, learned counsel for the applicant submitted that
as per the order passed by the appellate Court, the amount of costs were to
be paid to the plaintiff within a period of two weeks. Instead of complying
with that order and paying the costs to the plaintiff, the defendants sought
permission of the appellate Court and deposited that amount in Court.
According to him the appellate Court exceeded its jurisdiction and acted
contrary to its own decree by granting permission to the defendants to
deposit the costs inasmuch as the decree required the defendants to pay costs
to the plaintiff while the appellate Court permitted the defendants to deposit
that amount in Court. Referring to the provisions of Order XXI Rule 1(1) of
the Code it was submitted that the manner of paying money under decree
has been specified therein and in view of provisions of Order XXI Rule 1(1)
(c) of the Code the direction as issued ought to have been complied with.
As this direction was not complied with and the costs were not paid to the
plaintiff, the consequence as stated in the judgment of the appellate Court of
dismissal of the appeal ought to have followed. Learned counsel placed
reliance on the judgment of the Allahabad High Court in Mahabir Prasad
Jain vs. Indira Devi Jain AIR 1986 (Allahabad) 238. It was thus
submitted that the impugned order is liable to be set aside. The appeal filed
by the original defendants was liable to be dismissed for not complying
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with the decree.
4. Shri S. V. Bhutada, learned counsel for the non-applicants
opposed aforesaid submissions. According to him the defendants had within
the period of two weeks deposited the amount of costs in Court. There was
substantial compliance with the direction issued by the appellate Court and
merely on the basis of technicalities of the matter, the plaintiff was seeking
dismissal of the appeal. It was submitted that what was relevant was the
compliance with the order of payment of costs and same was duly done. He
further submitted that in view of deposit of such costs, both the parties had
appeared before the trial Court on 26/10/2017 as per the directions of the
appellate Court. He therefore submitted that the act of the defendants of
seeking permission and depositing the costs in Court should not be held
against them and as per directions of the appellate Court the suit was liable
to be decided on merits. In support of his submissions, the learned counsel
placed reliance on the decisions in Premchand Bhikabhai vs. Ramdeo
Sukdeo Marwadi Air 1949 Nagpur 141, Chinna Nadar vs. A.R.V.
Arumugham Chetti AIR 1927 Madras 1196, Smt. Jadav vs. Rameshwar
Prasad 1998(1) RLW 49, Ladulal v. Keshavda AIR 1969 Rajasthan 112
and Rakhadoo Isso Kothari vs. Narayan and ors. AIR 1959 Madhya
Pradesh 352. It was thus submitted that no jurisdictional error was
committed by the appellate Court while passing the impugned order.
34-J-CRA-155-17 5/7
5. I have heard the learned counsel for the parties at length and I
have given due consideration to their respective submission. As per the
judgment of the first appellate Court the appeal filed by the defendants was
allowed and after setting aside the decree for eviction the proceedings were
remanded to the trial Court for fresh adjudication. This remand however
was subject to payment of costs of Rs.4000/- to the plaintiff within a period
of two weeks. It was further ordered that if the costs were not paid within
said period the appeal would stand dismissed. This order is dated
04/10/2017 and the defendants on 12/10/2017 sought permission to
deposit the costs in Court. This permission was granted on the same day and
the costs were accordingly deposited. It is thus clear that the defendants
within the stipulated period of two weeks had deposited the costs in Court.
The only question as whether this act of depositing the costs in Court is
contrary to the provisions of Order XXI Rule 1 of the Code.
6. The mode of making payment under decree has been specified by
Rule 1(1) of Order XXI of the Code. Such money can either be deposited in
the Court or sent to the Court by postal Money Order or through bank. It can
also be paid out of Court to the decree-holder by various modes; else as per
the direction of the Court which made the decree. These provisions pertain
to execution of decrees and orders. If the nature of the decree passed by the
first Appellate Court is taken into account it can be seen that a conditional
34-J-CRA-155-17 6/7
direction has been issued by the appellate Court. Subject to payment of
costs of Rs.4000/- the proceedings have been remanded. These costs were
imposed with a view to compensate the plaintiff as there was delay in
deciding the suit due to absence of the defendants before the trial Court.
The consequence of non-compliance was also stated in the order. It is thus
clear that this order cannot be said to be one which is executable as an
order/decree. If the costs were paid to the plaintiff within stipulated period,
the proceedings to be decided afresh by the trial Court and on failure to
deposit the same within that period, the appeal filed by the defendants was
to stand dismissed. The order was therefore self operative. In that view of
the matter it cannot be said that the order passed by the first appellate Court
was an executable order.
7. Though it is true that as per that order the costs were to be paid
to the plaintiff, the defendants deposited the same in the Court. The
intention of the defendants of complying with the order of payment of costs
is thus clear and within the time granted by the first appellate Court its
order was substantially complied. The contention raised on behalf of the
plaintiff that the order passed by the first appellate Court permitting deposit
of the amount of costs amounted to modifying the decree of the Court cannot
be accepted. The decree stands as it is. From the conduct of the defendants I
find that they have taken all necessary steps to comply with the directions
34-J-CRA-155-17 7/7
issued by the appellate Court. The objection now raised by the plaintiff is
more of form rather than substance. The decisions relied upon by the
learned counsel for the defendants in Premchand Bhikabhai, Smt Jadav
and Chinna Nadar (supra) substantiate his contentions. The decision in
Mahabir Prasad Jain (supra) relied upon by the learned counsel for the
plaintiff takes a narrow view of the matter which respectfully does not
commend itself to me.
8. In that view of the matter I do not find that the appellate Court
committed any error in permitting deposit of the amount of costs. The
impugned order does not suffer from any jurisdictional error warranting
interference under Section 115 of the Code.
The Civil Revision Application therefore stands dismissed leaving
the parties to bear their own costs.
JUDGE
Asmita
