Delhi High Court
Deutsche Ranco Gmbh vs Mohan Murti on 30 November, 2010
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EFA(OS) No.32/2009 & CM No.12711/2009
Deutsche Ranco GmbH .....Appellant through
Ms. Tasneem A. Ahmadi with
Mr. Anuj Kumar Ranjan &
Ms. Raheela Habib, Advs.
versus
Mohan Murti .....Respondent in person
% Date of Hearing: November 24, 2010
Date of Decision: November 30, 2010
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE G.P. MITTAL
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. Confusion and complexities have been particularly
confounded in the circumstances of this case, as a concise
account thereof will disclose. Execution proceedings have been
initiated by Deutsche Ranco GmbH against the Respondent, Shri
Mohan Murti, who appears before us in person. On the hearing
held on 20.3.2007, in EA No.356/2006 in Ex. No.58/1994, it has
been minuted that - "Counsel for the decree holder submits that
he has instructions to withdraw from the case. He submits that
he would be moving an application for seeking discharge. At this
request, adjourned to 07/08/2007". On the next date of hearing,
EA No.356/2006 was once again listed for appropriate
consideration of the Court. The Order passed on that date reads
thus:-
On the last date of hearing i.e. 20/03/2007 counsel for
the decree holder had informed the court that he had
instructions to withdraw from the case for which he
wanted to file the application seeking discharge from
the case.
No such application has been filed. Neither the counsel
nor the decree holder is present. Hence the execution
is dismissed in default.
2. Placed in this predicament, learned counsel for the Decree
Holder filed EA No.36/2008 under Order IX Rule 4 of the Code
of Civil Procedure, 1908 (CPC for short) for restoration of the
Execution Petition. On 25.1.2008, the learned Single Judge was
pleased to recall the Order dated 7.8.2007, taking support from
H.K. Goods Transport Pvt. Ltd. -vs- Ramesh Chander Bammi,
126 (2006) DLT 404 as well as Babu -vs- L. Dewan Singh, AIR
1952 All. 749. The Dismissal Order was recalled without issuing
notice to the Respondent/Judgment Debtor. Notice of EA
No.356/2006 was thereupon ordered to be issued.
3. The Judgment Debtor/Respondent thereupon filed an
Application seeking a Review of the Order dated 25.1.2008 by
which the Dismissal had been recalled. The Review has been
allowed by Order dated 28.7.2009, and it is these Orders which
have been assailed before us.
4. The confusion, which we have first mentioned above, is
because although the Review has been heard and allowed, an
application for substitution of the Decree Holder, Deutsche
Ranco GmbH by Invensys Deutschland GmbH has not been
decided; it remains in suspended animation. This has created a
piquant situation as the Respondent/Judgment Debtor has
endeavoured to impress upon us that the Appeal is improper as
the proper party/petitioner has not been adjudicated. In this
regard, learned counsel for the Appellant has submitted that the
erstwhile Decree Holder has merged with Invensys Deutschland
GmbH and hence, by operation of law, Invensys Deutschland
GmbH is competent to step into the shoes of the former. As no
decision has been returned by the learned Single Judge on this
legal nodus, we think it proper not to make any further
observations. However, we think that if the Appeal is dismissed
on this ground, it will result in a miscarriage of justice. When
the learned Single Judge was seised with the Review, he ought
to have first decided the locus standi of the parties before him.
We clarify that the matter is left open so as to enable the
learned Single Judge to come to a judicial conclusion as
expeditiously as possible.
5. We have already noted that the learned Single Judge had
proceeded under Order IX Rule 4 of the CPC on being convinced
that notice of that application was not required to first issue to
the non-applicant, and secondly on his being satisfied that there
was sufficient cause for recalling the Dismissal Order and
thereby restoring Execution Proceedings. The learned Single
Judge has held that Order IX Rule 4 of the CPC does not apply
and in this regard we completely concur with his conclusion.
6. We, however, are unable to affirm the analysis of the
learned Single Judge to the effect that Rules 105 and 106 of
Order XXI of the CPC had come into play at the stage when on
7.8.2007 Execution Proceedings had been dismissed in default
as well as for non-prosecution. Our attention has been drawn to
the decisions of the learned Single Judges in Suka Mukhi -vs-
Nata Mukhi, 70(1990) CLT 776, Padmavati Devi -vs- J.D.A.
(Jaipur), RLW 1997(1) Rajasthan, 682, Veera Boyan -vs-
Ponnusamy Gounder decided on 2.3.1998 and Dambarudhar
Mohanta -vs- Mangulu Charan Naik, AIR 2004 Orissa 126.
Respondent has endeavoured to rely on Damodaran Pillai -vs-
South Indian Bank Ltd., (2005) 7 SCC 300, but mistakenly. We
say this for the reason that their Lordships had proceeded on
the assumption that Rule 106 of Order XXI was incontrovertibly
attracted to the situation which had arisen there. Their
Lordships were called upon to decide the proper manner in
which the period of limitation was to be calculated. What is
extremely pithy, so far as the factual matrix before us is
concerned, is the specific recording that the "execution petition
had been set down for hearing" on the date on which it came to
be dismissed. In this conspectus, we are of the view that the
Single Benches referred to above, have correctly analysed the
law on the subject. Accordingly, since the Execution Petition
had not been "set down for hearing" on 7.8.2007, it should not
have been dismissed in default. The proper course would have
been to list the Petition, or for that matter any of the pending
applications, for consideration and disposal on a future date. If
only an application had been fixed for disposal on the future
date, only that application could have been dismissed in default
if the applicant remained unrepresented. Of course, in the event
of the listing of all the pending applications as well as Execution
an omnibus order dismissing all of them would also have been
legally possible if there was none to press them.
7. Where no provision of law can be located for alleviating a
grievance, resort to Section 151 of the CPC is the available
recourse with the Civil Courts. The learned Single Judge has
poignantly mentioned that the caption of an application, or to
say it differently, the provisions of law which have been invoked
in an application should not deter the Court from applying the
correct legal provision. This amply finds enunciation in Ram
Sunder -vs- Union of India, (2007) 13 SCC 255, J. Kumaradasan
Nair -vs- Iric Sohan, (2009) 12 SCC 175 and Vijaya Bank -vs-
Shyamal Kumar Lodh, (2010) 7 SCC 635. Having said so, the
Court ought not to have felt inhibited or circumscribed in any
manner in applying the correct law. In the present case, the
learned Single Judge has, in our opinion, incorrectly applied
Rule 106 of Order XXI of the CPC whereas he ought to have
proceeded under Section 151 of the CPC.
8. There is yet one more aspect of the Appeal which calls for
consideration. Learned counsel for the Appellant has contended
that after the detailed Order passed by the learned Single
Judge, predicated on Order IX Rule 4 of the CPC, the Execution
Petition had been restored, the remedy available to the
Respondent was only by way of an Appeal. Even though an
Order under Order IX Rule 4 of the CPC does not find specific
mention in Order XLIII of the CPC, which deals with Appeals
from Orders, assuming such an Order to be one of "moment",
we think that an appeal under Section 10 of the Delhi High
Courts Act, 1996 could have been filed.
9. A reading of Order XLVII of the CPC makes it obvious that
a Review would be maintainable provided that the Applicant (a)
has discovered any new or important matter or evidence which
was within his knowledge or could have been produced despite
his due diligence or (b) it is palpably clear that a mistake or
error apparent on the face of the record has occurred or (c) any
other sufficient reason. We find that none of these three
elements have transpired so far as "sufficient reason" is
concerned which has to be construed ejusdem generis. Often
times, an order is predicated on a provision of law which is
neither relevant nor attracted. Such an order is amenable for
the purposes of rectification not by a Review but through the
avenues of an appeal.
10. For these manifold reasons, we are of the opinion that the
impugned Order deserves to be set aside inasmuch as the
learned Single Judge has first proceeded under Order IX Rule 4
of the CPC and thereafter under Order XXI Rule 106 of the CPC.
We remand the Execution to the Board of the learned Single
Judge requesting him to consider whether sufficient reason has
been made out firstly for the invocation of Section 151 of the
CPC and secondly for granting or denying relief thereunder.
Keeping the uniqueness and singularity of the circumstances in
perspective, it seems to us that the learned Single Judge should
first dispose off the application for substitution of the Decree
Holder, namely, Deutsche Ramco GmbH by the transferee,
namely, Invensys Deutschcland GmbH. Depending on the
conclusions arrived at, the learned Single Judge would
thereafter, or even simultaneously, consider the conundrum of
whether Execution Proceedings deserve to be restored. The
Remand is necessary and proper since it would be inappropriate
for the Appellate Court to return a finding as to whether the
relief could have been granted or denied under Section 151 of
the CPC, an exercise which has not been undertaken by the
learned Single Judge.
11. There shall be no order as to costs.
( VIKRAMAJIT SEN )
JUDGE
( G.P. MITTAL )
November 30, 2010 JUDGE
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