Madhya Pradesh High Court
Lukmaan vs Rafat Warsi on 11 September, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 11th OF SEPTEMBER, 2024
MISC. PETITION No. 920 of 2017
LUKMAAN AND OTHERS
Versus
RAFAT WARSI AND OTHERS
Appearance:
Shri Sameer Kumar Jain - Advocate for the petitioners.
Shri Rohit Bansal - Advocate for respondents.
ORDER
1. The present petition under Article 227 of the Constitution is directed against the order dated 31.10.2017 passed by Additional District Judge, District Sheopur in MJC Civil No.7/15 whereby an application under Sections 148, 151 and 152 of Code of Civil Procedure preferred by the present respondents/plaintiffs for correction in one of the dates mentioned in the decree was allowed.
2. The aforesaid order has been assailed by the petitioners/judgment debtor on the ground that vide judgment and 2 decree dated 1.4.2017 the rights between the parties were finally adjudicated and, therefore, the trial Court has become functus officio to exercise any of the powers as contained under Sections 148 and 151 of CPC and as the correction sought in the decree was not a clerical or arithmetical mistake, therefore, could not have been corrected by moving an application under Section 152 of CPC, thus, the impugned order is per se illegal. While referring to the Sections, it has been contended that so far as Section 152 of CPC is concerned it only deals with any clerical or arithmetical mistakes while passing the judgments and decrees or orders or errors arising therein from any accidental slip or omission and only those errors can be corrected by the court either of its own motion or on the application by either of the parties but herein case it was not a case of any clerical or arithmetical mistake as vide judgment and decree the respondent/plaintiff was directed to deposit a sum of Rs.26,50,000/- till 30.03.2017 with a stipulation that if the said amount was not deposited, the suit decreed in favour of the present respondents/plaintiffs would automatically be dismissed. Thus, by extending the time and correcting the date of last payment was well beyond the jurisdiction of the trial Court, 3 therefore, the impugned order suffers from patent illegality and perversity and thus liable to be quashed.
3. With regard to Section 148 it was submitted that the said ground itself was controverted by the present respondents/plaintiffs in reply and was submitted that in the present proceedings the provisions of Section 148 are not applicable rather provisions of only 151 and 152 of CPC would be applicable and once the respondents/plaintiffs themselves have asserted that provisions of Section 148 CPC would not be applicable then the trial Court had no occasion to invoke the provisions of Section 148 and extend the time. It was thus prayed that the impugned order being per se illegal and perverse deserves to be quashed and present petition deserves to be allowed.
4. To bolster his submissions he has placed reliance in the matters of State of Haryana and others vs. Babu Singh, 2008(2) MPLJ 55, State of Punjab vs. Darshan Singh, (224) 1 SCC 328 and Ramesh Joshi vs. Government of M.P. and another, 2021 (1) MPLJ 378.
5. Learned counsel for the petitioners has also argued that the decree which has been passed by the trial Court was a final decree 4 and for execution of the same, the respondents/plaintiffs had filed an execution and it is an admitted law that only a final decree can be executed and not a preliminary decree and if the respondents/plaintiffs are construing the decree to be preliminary then they could have asked the trial Court to had pass a final decree and only thereafter for its non-compliance they could have filed the execution.
6. Per contra, Shri Bansal appearing for respondents submitted that from bare perusal of the impugned judgment and decree it is evident that it was a preliminary decree as Clause 14-B of the said decree laid down that if the money part of the decree was complied with by the respondents/plaintiffs and the judgment debtor/petitioner does not execute the sale deed then the said sale deed shall be executed through the court. Therefore, in no way it can be said to be a final decree and when the decree was a preliminary decree then the trial Court had every right to correct any mistake or to extend/enlarge such period as it may think fit. Even though the period originally fixed or granted have expired, by invoking the inherent powers under Section 151 of CPC such period would be extended and in such case the court who has 5 passed the judgment and decree cannot be said to have become functus officio. Thus, the contentions of the petitioners in this regard is bad in law.
7. While referring to Section 148 of CPC it was contended that the powers which could be exercised by court under provisions of the said Sections are discretionary in nature and it can in its discretion enlarge such period not exceeding 30 days in total for being act prescribed or allowed by this Court. Even though, the period originally fixed or granted have been expired which in eventuality has been extended exercising the discretion, therefore, the order cannot be said to be perverse or illegal.
8. Learned counsel for the respondents/plaintiffs with regard to the contentions made by the counsel for the petitioner that the decree was a final decree had contended that mere filing of an execution would not preclude the respondents/plaintiffs to raise the issue of the decree being a preliminary decree and not a final decree and it is for the Executing Court to consider this aspect and to hold whether the decree which has been sought to be executed was a preliminary decree or a final decree. Thus, at this juncture, on this count the order passed by the trial Court whereby 6 application under Sections 148, 151 and 152 of CPC has been allowed cannot be said to be illegal or perverse. Thus, it is prayed that the present petition deserves to be dismissed.
9. To bolster his submissions reliance has been placed in the matter of Matthu Singh (Thakur) and another v. Surat Singh (Thakur) reported in 1981 JLJ 678 and had been contended that looking to the terms of the decree it could be gathered as to whether it was in the nature of preliminary decree and once it is found that the decree was preliminary in nature, therefore, the court was still seized of the case and has not become functus officio. Therefore, the Court had ample power to extend the time as directed in the original decree for making payment of the amount. Further, he has placed reliance in the matter of Mohar Singh (Sardar) v. Mangilal, 1997 (2) MPWN 25 and lastly in the matter of P.R. Yelumalai vs. N.M. Ravi reported in 2015(9) SCC 52.
10. On the basis of aforesaid arguments and citations, it was submitted that the present petition deserves to be dismissed with cost.
11. Heard the learned counsel for the parties and perused the 7 record.
12. The question first this Court requires to address upon is whether the decree dated 01.04.2017 was a preliminary decree or a final decree.
13. Section 2(2) of the Code of Civil Procedure states that formal expression that court makes about disputes through parties may either be final or preliminary. Similarly, a preliminary decree refers to a decision the court makes before the parties conclusive rights have been established and when it is unable to grant them final decree and such a decree can be passed when the case is not entirely resolved and the remaining proceedings are or would be still pending. The difference between preliminary and final decree would be that a preliminary decree is a formal statement made by the court to determine the rights of the parties involved in the issues in the suits whereas final decree resolves the suits entirely and leaves no issues for decision in the future. By passing a preliminary decree the courts may determine the parties rights but had to wait final decree to be rendered and so far as final decree is concerned there is nothing left to decide after the parties rights and responsibilities are established. A preliminary decree may be 8 revised if the circumstances changed but the final decree is always required to be complied with the preliminary decree.
14. For reference Section 2(2) of Civil Procedure Code, 1908 is reproduced herein:
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [* * *] section 144, but shall not include-
(a)any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
15. If in the light of the aforesaid definition of a decree the decree passed by the trial Court on 1.4.2017 is analyzed, it would be seen that the said decree is basically in two parts. First part required the respondents/plaintiffs to deposit certain sum and in case it not deposited within the time frame, the suit shall be dismissed and the second part relates to the execution of the sale deed by the petitioners/judgment debtor in favour of the respondents/plaintiffs, in case, such an amount is deposited, with a 9 further stipulation that if after deposit of the amount the sale deed is not executed by the judgment debtor then it shall be executed through court and thereafter the respondents/plaintiffs would be even entitled to get the vacant possession of the suit property.
16. Thus, it is find that both the reliefs granted by the court are in alternate. Only after fulfilling condition No.1 the second part of the decree as contained in Clause B would come into play and the second part of the decree renders the decree in a shape of a preliminary decree as one of its condition, if not fulfilled by the judgment debtor would be executed through court. Thus, the very nature of the decree according to this Court appears to be prima facie preliminary in nature.
17. In this eventuality, this court finds that the court below had not become functus officio to have entertained any application like under Sections 148 or 151 or 152 of CPC. Admittedly, it is not the case of any clerical or arithmetical mistake. It is a case where extension/enlargement of time was sought beyond the time which was granted in the decree. Thus, the application under Section 148 of CPC would, therefore, was maintainable.
18. So far as the contention of counsel for the petitioners that 10 when the respondent/plaintiff himself has argued before the trial Court that provisions of Section 148 CPC are not applicable, allowing the application under Section 148 was beyond the jurisdiction incompetence of the trial Court is concerned, merely raising an argument just not akin to the legal provisions would not make the party debar from raising the said issue once again. Thus, the aforesaid arguments had no force. In the light of the aforesaid discussions, this court finds that no illegality or perversity has been committed by the learned trial Court in allowing the said application.
19. The judgments cited by the learned counsel for the petitioners since are only confined to the provisions of Section 151 and basically 152 which are not applicable to the facts of the present case.
20. Petition stands allowed and disposed of.
(MILIND RAMESH PHADKE) JUDGE van VANDANA VERMA 2024.09.17 12:19:11 +05'30'