Gujarat High Court
Gunvantrai Laxmidas Mehta vs Pushpaben Vasantbhai Aaya on 26 July, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/7/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 7 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary.
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GUNVANTRAI LAXMIDAS MEHTA
Versus
PUSHPABEN VASANTBHAI AAYA
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1
MR.MANAN BHATT(6535) for the PETITIONER(s) No. 1
MR ASHISH M DAGLI(2203) for the RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/07/2018
ORAL JUDGMENT
1. This second appeal under section 100 of the CPC is at the instance of the original defendant-judgment debtor and is Page 1 of 29 C/SA/7/2014 JUDGMENT directed against the judgment and order dated 3rd December, 2013 passed by the 4th Addl. District Judge, Rajkot in the Regular Civil Appeal No.65 of 2012 arising from an order passed by the Judge of the Small Cause Court, Rajkot dated 24th January, 2012 below Exh.1 in the Execution Petition No.2 of 2008.
2. It appears from the materials on record that one Zaverben Mavjibhai-original plaintiff being the owner of the suit property preferred a Regular Civil Suit No.117 of 1991 in the Small Cause Court at Rajkot for recovery of possession of the tenanted premises. The appellant herein was occupying the suit premises as a tenant.
3. By judgment and decree dated 17th March, 1998, the Regular Civil Suit No.117 of 1991 came to be allowed by the Small Cause Court. A decree of eviction was passed.
4. Being dissatisfied and aggrieved by the judgment and decree passed by the Small Cause Court, Rajkot, the original appellant herein preferred a Regular Civil Appeal No.29 of 1998 in the District Court at Rajkot.
5. It appears that on 13th November, 2000,. i.e., during the pendency of the regular civil appeal filed by the appellant herein, the original plaintiff passed away. It further appears that the husband of the original plaintiff sold the suit premises in favour of one Jayantilal Govindbhai Kundaliya. The appellant herein failed to bring the legal heirs of the original plaintiff on record in the regular civil appeal. The appeal came to be disposed of as having stood abated.
Page 2 of 29C/SA/7/2014 JUDGMENT
6. In 2005, Jayantilal Govindbhai Kundaliya sold the suit property in favour of the present respondents.
7. On 28th September, 2008, the respondents herein preferred an Execution Petition No.02 of 2008.
8. The execution petition, Exh.1 filed by the respondents herein came to be allowed vide order dated 24th January, 2012 passed by the Judge of the Small Cause Court, Rajkot. While allowing the execution petition, the court below observed as under;
"5. I have gone through the execution petition and the documentary evidence produced in support of it as well as the objections raised by judgment-debtor and the arguments advanced by learned advocates for both the sides. It appears that the decree has been passed Zaverben Mavjibhai in R.C.S. No.117/1991 on 17.03.1998. It further appears that Zaverben is the single decree-holder. It further appears that against the decree, an appeal No.29/1998 has been preferred by the judgement-debtor which was abated on 16.09.2005. That during the pendency of appeal, original decree- holder Zaverben died on 13.11.2000 and, therefore, her husband Mavjibhai Laxmanbhai has filed C.M.A. No.100/2002 for obtaining heirship certificate which was granted in favour of Mabjibhai Laxmanbhai. It appears that in appeal the heirs of deceased Zaverben have not been joined and therefore, appeal was abated and against the said order neither appeal nor revision has been preferred before the appellate authority. Therefore, the decree passed in R.C.S. No.117/1991 has become absolute. Herein in this case, husbasnd of original decree- holder, Mavjibhai Laxmanbhai has obtained heirship certificate during the pendency of appeal and, therefore, husband of deceased Zaverben has become decree-holder and owner of the rented decretal shop by operation of law as per Order-21, Rule-16 of CPC. Further, as per explanation of this rule which is inserted by Act No.104 of 1976 (w.e.f. 1-2-1977) nothing in this rule shall affect Sec. 146, and transferee of rights in the property, Page 3 of 29 C/SA/7/2014 JUDGMENT which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule. Therefore, as per sec. 146 of CPC, the husband of decree-holder has right and interest in the decreetal rented shop as the decree has been transferred in his favour by operation of law. The husband of deceased Zaverben has obtained heirship certificate of whole property which is situated on Dharmendra Road, Domadia Steet No.6. From the perusal of decree and execution petition as well as the sale deeds, it becomes clear that rented shop includes in the property for which heirship certificate has been granted to the husband of deceased Zaverben. That after getting the right in the decreetal rented shop by way of operation of law by husband of deceased, the husband of deceased Zaverben, Mavjibhai Laxmanbhai has sold the rented decreetal shop to Jayantilal Kundalia by registered sale deed on 20.05.2002. In this sale deed it is mentioned that Zaverben Mavjibhai died and thereafter obtaining heirship certificate. Thereafter, Jayantilal Kundalia has sold the rented decreetal shop to Pushpaben Vasantbhai and others on 20.10.2005. Thereafter, present applicants are the subsequent owners by registered sale deed and they have got rights in the rented decreetal shop as was having by original decree-holder.
6. It is true that in heirship certificate, it is not mentioned about passing of decree in R.C.S No.117/1991, but it is mentioned in sale deed which was executed in favour of Jayantilal Kundalia by Mavjibhai Laxmanbhai that in the sold shop there is tenant and against tenant as case is pending before the court and all the rights regarding the same are handed over to purchaser and vender will remain present in court if needed and give his signature. So, the husband of Zaverben, Mavjibhai Laxmanbhai who is subsequent decree-holder has mentioned the facts about the decreetal rented shop in sale deed and, therefore, the say of the judgment-debtor cannot be accepted. It is to be noted here that transfers "by operation of law" are not intended by rule to be confined to the three cases of death, devolution or succession. Here in this case, as stated above, the husband of deceased has obtained heirship certificate by way of operation and, therefore, he has all rights in the decreetal rented shop to sell the Page 4 of 29 C/SA/7/2014 JUDGMENT same and the subsequent purchasers have also same rights in the decreetal rented shop as was having by the original decree-holder. Further, they can execute the decree by virtue of the provisions of sec. 146 as a transfer claiming under decree-holder even though he/they may not be a transferee by assignment in writing or by operation of law, but herein in this case the husband of deceased Zaverben, Mavjibhai Laxmanbhai has obtained heirship certificate by operation of law and, therefore, he has got all the rights to sell the decreetal rented shop attached with the property. Further, a reference of a decree is not necessary in sale deeds whatever rights Zaverben was holding are automatically got transferred to the subsequent purchasers. The auithority i.e. the case of Kiritlal Jivabhai vs. Chunilal Manilal, reported in AIR-(33) 1946 Bombay-27, (supra) are not helpful to the judgment-debtor as it is of prior to the amendment in Order-21, Rule-16 of CPC. Further, the said authority is regarding joint Hindu Family coparcener, it is not helpful to the judgement-debtor. Further, there is no dispute about the relationship between deceased Zaverben-original decree-holder and Mavjibhai Laxmanbhai as wife and husband. Further, there is no inter se dispute between deceased Zaverben and Mavjibhai Laxmanbhai and, therefore, the objections raised by the judgement-debtor cannot be accepted and the present applicants are entitled for execution of decree without a separate assignment of the decree. Further, specific identification of the rented decreetal shop is mentioned in Exh.1 execution petition as well as in the sale deed and, therefore, the question of judgement-debtor that no specification about rented decreetal shop is made cannot be accepted. Hence, in the interest of justice, I pass the following final order;
ORDER (1) The application Exh.1 is hereby allowed. The possession warrant be issued in the name of judgment-
creditor for rented Shop No.4 situated in the House viz. Prabhu Nivas, Kadiyanava line Street No.6, Dharmendra Road, Rajkot."
9. Being dissatisfied with the order passed below Exh.1 in the Execution Petition No.02 of 2008, referred to above, the Page 5 of 29 C/SA/7/2014 JUDGMENT appellant herein preferred a Regular Civil Appeal No.65 of 2012 under section 96 of the CPC in the court of the 4th Addl. District Judge at Rajkot. The 4th Addl. District Judge, Rajkot heard the regular civil appeal filed by the appellant herein on merits and, ultimately, by a detailed order, running in 45 pages, dismissed the appeal Being dissatisfied with the judgment and order passed by the 4th Addl. District Judge, Rajkot, referred to above, the present second appeal has been filed under section 100 of the CPC.
10. This second appeal has been filed formulating the following substantial questions of law in the memorandum of the second appeal.
"(1) Whether the provision of Order 41, Rule 31 of CPC are violated by the Lower Court?
(2) Whether the execution petition as filed by the present Respondents is competent in law?
(3) Whether the decree sought to be executed had become infructuous in view of the intervening circumstances and conduct on the part of the subsequent purchasers- Jayantilal Kundaliya?
(4) What is effect of continuously accepting rent by the subsequent purchasers-Jayantilal Kundaliya from the Appellant tenant and whether any fresh tenancy or any tenancy by holding over can be said to have been created in favour of the Appellant?
(5) Whether the present Respondents can claim rights more than what was available to Jayantilal Kundaliya from whom the Respondents have purchased the premises in question?
(6) Whether the principles of Waiver and Estoppel can be applied against Jayantilal Kundaliya and, in turn, against the present Respondents?Page 6 of 29
C/SA/7/2014 JUDGMENT (7) Whether there was a valid assignment of the decree in favour of the present Respondents as required under the provisions of Order 21, Rule 16 of the Civil Procedure Code?
(8) Whether the provisions of section 146 of the Civil Procedure Code can apply in the facts of the case, particularly when the Respondents are not claiming under the original decree holder but are claiming under one Jayantilal Kundaliya who by his conduct had no right to make any application for execution of the original decree?"
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the short point for my consideration is whether a regular civil appeal under section 96 of the CPC before the District Court was maintainable in law, more particularly, when the subject matter of challenge in the said appeal was an order passed by the Executing Court under section 47 read with Order 21 Rule 35 of the CPC.
12. It is evident that the Executing Court ordered issue of possession warrant in the name of the Judgement Creditor. This adjudication by the Executing Court could be said to be under the provisions of Order 21 Rule 35 of the CPC. Order 21 Rule 35 of the CPC reads as under;
"O. 21. R. 35: Decree for immovable property :-
(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, be removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered Page 7 of 29 C/SA/7/2014 JUDGMENT by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where a possession of any building is enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession."
13. The real crux of the problem is as to whether the order passed under section 47 read with Order 21 Rule 35 of the CPC could be considered a decree after the amendment of section 2(2) of the CPC so as to make an appealable against such order under section 96 CPC maintainable in law?. There need not be any debate on the point that an appeal is a continuation of a suit. There also need not be any debate on the point that an execution proceeding is a continuation of a proceeding which originally started after the presentation of a plaint as a suit. In order to arrive at a correct conclusion it would be necessary first to reproduce sec. 2(2) of the Civil Procedure Code as it stood before the amendment and after the amendment also.
14. Sec. 2(2) of the Civil Procedure Code before the amendment ran as under :
"2. In this Act, unless there is anything repugnant in the subject or context -
xxx xxx xxx xxx (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the Page 8 of 29 C/SA/7/2014 JUDGMENT 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 sec.
47 or sec. 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 disposed of the suit. It may be partly preliminary and partly final."
15. Sec. 2(2) of the Civil Procedure Code after the amendment runs as under :
"2. In this Act, unless there is anything repugnant in the subject or context, -
(1) xxxx xxxx xxx (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 sec.
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."
16. It was urged that an order passed under sec. 47 if conclusively determines the rights of the parties it would be a Page 9 of 29 C/SA/7/2014 JUDGMENT decree within the meaning of sec. 2(2) of the Civil Procedure Code even after the amendment. It was submitted that though formerly it was provided that it shall be deemed to include the rejection of a plaint and the determination of any question within sec. 47 and now because of the amendment the only words taken out are "sec. 47", therefore, the deeming provision is only taken out and it was submitted that if one can come to a conclusion without the aid of the deeming provision that the question is conclusively determined between the parties and an order is passed in a civil proceedings by a civil court it must be held to be a decree. I may mention here that the amendment came into force on 1-2-1977 and Civil Miscellaneous Appeal came to be filed in the year 2012. Therefore, this is a case which has arisen after the amendment of the Civil Procedure Code. This Court in Mohanlal Maneklal Shah v. Bai Maniben w/o. Gordhandas Kevaldas reported in 20 G.L.R. at page 711 came to the conclusion that if any order passed by an executing court prior to the coming into force of the amending Act of Civil Procedure Code in 1976, was subjected to an appeal and if such an appeal was pending on 1-2-77 when the amending Act came into force, such appeal was saved under sec. 97 of the amending Act but the appeals instituted for the first time after 1-2-77 challenging the orders of the executing Courts passed even before 1 -2-77 could not be entertained on the dates on which such appeals came to be filed after 1-2-77. Thus on the date of the institution of any appeal after 1-2-77 there would be no order of any executing court, which would remain clothed with the deeming effect of a "decree," as such a deeming effect had stood withdrawn on 1-2-77 when the amending Act came into force, and consequently no appeal could be filed after 1-2-77 against any Page 10 of 29 C/SA/7/2014 JUDGMENT order passed by the executing Court, whether such an order was passed before or after 1-2-77. (see Hasumatiben Desai vs. Ambalal Parikh, 1982(2) SLR 346).
17. In a case Mohan Das and Others v. Kamla Devi reported in A.I.R. 1978 Rajasthan at page 127 it was held that the definition of 'decree' having been amended by omitting the words "S. 47 or" as a result of the Amending Act 1976, any order passed under sec. 47 C. P. C. which otherwise treated as decree is no more a decree and as such the first appeal and the second appeal which were provided earlier against the orders passed under sec. 47 are no more there.
18. In a case Mohammad Khan v. State Bank of Trarancore reported in A. I. R. A. I. R. 1978 Kerala at page 201, The Full Bench considered the effect of the amendment and it was observed that the express omission of orders under sec. 47 of the Civil Procedure Code from the definition of decree in sec. 2 (2) has rendered orders under sec. 47 not appealable since the commencement of the Code of Civil Procedure Amendment Act 104 of 1976.
19. In Pratop Narain Agarwal v. Rom Narain Agarwal and Others reported in A. 1. R. 1980 Allahabad at page 42 the Full Bench came to the conclusion that an order passed on an objection filed under sec. 47 after the amendment of 1976 does not amount to a decree and is not appealable
20. In a case Chelaram v. Bhagatram reported in A. I. R. 1980 Madhya Pradesh at page 16 it was held that the amendment brought about in sec. 2 (2) of C. P. C. by which the Page 11 of 29 C/SA/7/2014 JUDGMENT determination of any question under sec. 47 does not now amount to a decree, cannot be construed to take away a vested right of appeal in pending executions. Thus in that case the effect of the amendment in pending executions was only considered.
21. At this stage it is also necessary to refer to sec. 47 of the Civil Procedure Code which stood before the amendment and which stands now after the amendment.
22. Sec. 47 of the Civil Procedure Code before the amendment :
"47. (1) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdictional, treat a proceeding under this section as a suit or a suit as a proceeding and may if necessary, order, payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation - For the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit."
23. Sec. 47 of the Civil Procedure Code after the amendment :-
"47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Page 12 of 29 C/SA/7/2014 JUDGMENT Court executing the decree and not by a separate suit.
(2) Omitted by Amendment Act, 1976 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I: For the purpose of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II : (a) For the purposes of this section, a purchaser of property at a sale in exercise of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."
24. In the aforesaid context, I may refer to a Division Bench decision of this Court in the case of Hasumatiben Wd/o. Pranjivandas Narottamdas Desai vs. Ambalal Krishnalal Parikh, reported in 1982 (2) GLR 346, wherein the Court observed as under;
"12. There is no manner of doubt that a suit in a Civil Court starts on the presentation of a plaint. In a case of Divan Brothers v. Central Bank of India, Bombay and Others reported in A.I.R. 1976 Supreme Court at page 1503, the definition of the worm 'decree' was considered. The essential conditions were laid down as under :
"(i) that the adjudication must be given in a suit;
(ii) that the suit must start with a plaint and culminate in a decree; and
(iii) that the adjudication must be formal and final and Page 13 of 29 C/SA/7/2014 JUDGMENT must be given by a civil or revenue court."
The question as to what is the meaning of the word "suit" is not required to be considered in this matter because this is not a matter which started by filing any proceeding in any other manner. A plaint was filed in Small Causes Court and there was a suit which as numbered as Civil Suit No. 1396 of 1975.. Now that, therefore the Small Causes Court had before it a civil suit which adjudicated upon it and that adjudication was final and, therefore, the Small Causes Court passed a decree within the meaning of sec. 2(2) of the Civil Procedure Code. That decree was put into execution and in that execution proceeding an objection was taken and that objection was that the decree-holder had accepted the judgment-debtor as a tenant and, therefore the decree became in executable. Now, therefore, this was a clear case where an order came to be passed in an execution proceeding and under sec. 47 of the Civil Procedure Code when analysed all questions which relate to the execution, discharge or satisfaction of the degree are required to be determined by the Court executing the decree and not by a separate suit and, therefore, the learned Judge of the Small Causes Court decided the questions which arose between the parties to the suit and passed an order by which he issued a warrant for possession. Now it was an order which was contemplated under sec. 47 of the Civil Procedure Code. Before the amendment of the Civil Procedure Code by the amending Act, 1976 the execution court had a power to treat a proceeding under sec. 47 as a suit or a suit as a proceeding and that power was especially given to the Court under sec. 47(2) of the Code of Civil Procedure. By amendment of the Code of Civil Procedure in 1976 clause (2) of sec. 47 is omitted. Now that, therefore, the Court has no power left to convert a proceeding into a Suit and, therefore, the question was required to be determined as per amended sec. 47 of the Civil Procedure Code. Now at this stage it is necessary to see the whole scheme of the amendment of the Civil Procedure Code in regard to the execution proceedings. Firstly sec. 2(2) of the Civil Procedure Code was amended and by that amendment if by any deeming provision, an order under sec. 47 C. P. C. could be construed as a decree that deeming provision was Page 14 of 29 C/SA/7/2014 JUDGMENT deleted. Now that, therefore, any order passed under sec. 47 of the Civil Procedure Code cannot be considered as a decree by any deeming provision. After that amendment the powers of the executing court to convert a proceeding into a suit under sec. 47(2) of the C.P.C. were taken away. Now that, therefore, there remained a simple definition of the word 'decree' in sec. 2(2) without the deeming provision which included an order under sec. 47 of the Civil Procedure Code. Therefore, an effort was made to argue that an execution proceeding being a continuation of a suit and if the rights of the parties are conclusively determined in any of the matters in controversy, the order passed under sec. 47 of the Civil Procedure Code must be construed as a decree though the deeming provision is taken away. If we accept such a proposition, an absurd result would follow. The Civil Procedure Code contemplates one decree and there cannot be two decrees passed under the provisions contained in the Civil Procedure Code. An appeal is a continuation of a suit. In appeal, the appellate court passes an appellate decree but that merges with the original decree. Therefore, what is done in appeal is that either original decree is modified, confirmed or varied or reversed and the result thereafter follows is that there remains one decree which could be executed. Now that, therefore, in appeal a decree could be passed and that decree changes the original decree and as a result so far as the executing court is concerned, there is only one decree which could be executed. Now if the executing court which has no power under the Civil Procedure Code to go behind the decree, passes a decree which can neither affirm, modify, very or reverse the original decree, it could pass only a new decree and the result would be that there would be two decrees and such an absurdity was never contemplated when the Code of Civil Procedure was amended in 1976. This is clear from farther provisions made by the Amending Act. It may he useful to refer to sec 99 of the Civil procedure Code which runs as under :
"99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of Parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Provided that Page 15 of 29 C/SA/7/2014 JUDGMENT nothing in this section shall apply to non-joinder of a necessary party."
Thereafter by the Amending Act, 1976, sec. 99-A is added which runs as under :-
"99A. Without prejudice to the generality of the provisions of sec. 99, no order under sec. 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case,"
Now so far as sec. 99 is concerned, it starts with the words "no decree shall be reversed" ...... -.. In sec. 99A reference is made to orders passed under sec. 47. Now both these sections appear in Part VII of the Civil Procedure Code and part VII refers to Appeals. It therefore, could be suggested that there could be orders under sec. 47 also which could be challenged in appeal. Now that, therefore, those orders are provided in Order XLIII Rule l(i)Q) and (ja) of the Civil Procedure Code. They are the rules where appeal is provided from orders passed under Order XXI and they are as under :-
"Appeals from orders.
1. An appeal shall he from the following orders under the provisions of sec. 104, namely :-
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to~ set aside a sale;
(ja) an order rejecting an application made under sub-
rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that order is appealable.
" Now these are the only order against which the appeals are provided and as the appeals against these orders are provided we find that sec. 99A is placed in Chapter VI) with heading "appeals." We may here also mention that Page 16 of 29 C/SA/7/2014 JUDGMENT before the amendment certain orders which were passed under the provisions contained in Order XXI could be challenged by way of a suit. That resulted in prolonged litigation. The Parliament, therefore, found that instead of driving the parties to separate suits, the objections could be treated as suits and whenever the Parliament so desired specific mention has been made and that could be found in Order XXI, Rules 46H, 58(4) and 103 of the Civil Procedure Code, Rules 46H, 58(4) and 103 of Order XXI run as under :
"46H. An order made under rule 46B, rule 460 or rule 463 shall be appealable as a decree."
"58(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."
"103. Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."
Now, therefore, it was clear that the order contemplated to be appealable as decrees were in fact not decrees but by deeming fiction it was declare that they will be treated as decrees. Now that, therefore, if we read the scheme as a whole it would appear that the deeming provisions of all orders under sec. 47 of the Civil Procedure Code which could be read as decrees under the provisions of sec. 2(2) of the Civil Procedure Code were omitted. As a corollary by amendment sec. 47(2) of the Civil Procedure Code was omitted and thereafter certain orders were made appealable as orders and certain orders though they were orders were by deeming fiction made appealable as decrees. Therefore, a complete machinery was provided in order to meet with the exigencies of the removal of the deeming provision of an order under sec. 47 from the definition of a decree as provided in sec. 2(2) of the Code of Civil Procedure.
[13] The learned advocate Shri J. G. Shah submitted that there could be a case where a contention could be taken Page 17 of 29 C/SA/7/2014 JUDGMENT in the executing court that the decree is a nullity and the court may come to one or the other conclusion. It may declare that decree to be a nullity or it may come to the conclusion that the decree was not a nullity. According to the submissions made, that was a question which was determined between the parties and, therefore, if no appeal is provided no remedy would be left. That is not the correct situation. If the decree which is not a nullity and it is declared by the executing court to be a nullity and the executing court refuges to execute the decree on the ground that it is a nullity it would be a' case of failure to exercise jurisdiction. If it Was a case where a decree in fact was a nullity the second suit is not barred. The parties, therefore, are not left without any remedy, the reason is that the executing court by passing such an order does not conclusively decide the rights of the parties and the remedy is clearly open. We may here in passing refer to the question as to whether the Parliament could validly determine by the amendment that certain orders would be considered as decrees and would be appealable as such and certain orders would be orders and they would be appealable under Order LXIII of the Civil Procedure Code and certain orders would not be appealable at all. If one goes through the whole scheme one could clearly see that there is an intelligible classification and if such a classification is made one cannot argue that this classification is hit by Art. 14 of the Constitution of India. The learned advocate Shri J. G. Shah did not submit any such argument. We have only made this reference because such a reference has been made in A.I.R. 1979, Patna at page 308 (supra). We may here say that in the case of A.I.R. 1979 Patna at page 308 (supra) the definition of the word "order" occurring in sec. 2(14) of the Civil Procedure Code is not referred and the definition is as under :-
"order" means, the formal expression of any decision of a Civil Court which is not a decree."
Now that, therefore, decision of a civil court expressed in formal manner is an order if it is not a decree. The learned advocate Shri J. G. Shah submitted that if one comes to the conclusion that an order under sec. 47 is a decree within the meaning of sec. 2(2) of the Code, even after the amendment this definition of the word "order" would not help the petitioner. We have already come to Page 18 of 29 C/SA/7/2014 JUDGMENT the conclusion that an order passed under sec. 47 of the Code is an order which was deemed to be a decree within sec. 2(2) of the Code before the amendment and which is now deemed to be a decree for the purpose of Order XXI, rules 46H, 58(4) and 103 of the Civil Procedure Code. For all other purposes they are not deemed to be decrees and, therefore, they are orders. We, therefore, with respect cannot agree with the propositions laid down in the case of A.I.R. 1979 Patna at page 308 (supra) that an order passed under sec. 47 of the Civil Procedure Code is covered by the first part of the definition of the word "decree" contained in sec. 2(2) of the Civil Procedure Code. We are of the view that an order passed under sec. 47 of the Civil Procedure Code was not covered by the definition of the word "decree" given in first part of sec. 2(2) of the Civil Procedure Code even before the amendment of sec. 2(2) of the Civil Procedure Code. In the circumstances the Parliament had in fact made a deeming provision and realising that unless such a deeming provision was made, an order passed under sec. 2(2) of the Civil Procedure Code would not become a decree they made that order to be a decree. That deeming provision is now taken out by the amendment and we have referred to the scheme of the Amending Act and it clearly appears to us that the Parliament clearly intended that the orders passed under sec. 47 of the Civil Procedure Code are not required to be made appealable as decrees and they made further provisions in Order XXI, wherever it was thought fit, that the order passed should be made appealable as decrees. We have in our judgment referred to the definition of the word "order contained in sec. 2(14) of the C. P. C. and also considered the effect of the omission of sec. 47(2) of the C. P. C. and the added provision of sec. 99A of the Civil Procedure Code. All these provisions were not considered in the judgment reported in A. I. R. 1979, Patna at page 308 (supra). We have, therefore, disagreed with the views expressed in that ruling. We, therefore, hold that when executing court passes an order under sec. 47 of the Civil Procedure Code, it is an order which is not appealable as a decree unless it is expressly provided for in other provisions of the Civil Procedure Code. In this particular case the order which is passed is an order against which no appeal lies and, therefore, the contention raised by the respondent fails."
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25. So far as the case on hand is concerned, the matter rested at the stage of Order 21 Rule 35 CPC. Take a case that after the oder passed by the Executing Court or to put it in other words, the decree for possession could not be executed in the normal manner even after obtaining warrant for possession under Order 21 Rule 35 of the CPC. In such circumstances,, the decree holder then has to move an application under Order 21 Rule 97 CPC for removal of such obstruction and after hearing the decree holder and the obstructionist, the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21 Rule 97, Sub-Rule (2) read with Order 21 Rule 98. In such an eventuality, the order passed would be treated as a decree under Order 21 Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate Appellate Court against such deemed decree.
26. In the aforesaid context, let me refer to a decision of the Supreme Court in the case of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal, reported in 1997 (3) SCC 694, where the issue that came up before the Supreme Court for consideration was whether the appellant who claimed to be a stranger occupying the decretal premises in his own right and who offered resistance to the execution of the decree obtained by the decree holder, whether could have requested the executing court to adjudicate upon his resistance and obstruction without being insisted upon that first he must handover the possession and then only move the application under Order 21 Rule 99. The Supreme Court, after considering the Rules 97,98, 99 and 110 of Order 21 CPC, observed as Page 20 of 29 C/SA/7/2014 JUDGMENT follows;
"If a decree-holder, is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97 sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98 sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21 Rule 101 and no separate: suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate Court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be resorted to him. If such an application is allowed after adjudication than as enjoined by Order 21, Rule 98 sub-
rule (1), CPC the Executing Court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substancetess it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order 21, Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before appropriate appellate forum. But, no separate suit Page 21 of 29 C/SA/7/2014 JUDGMENT would lie against such order as clearly enjoined by Order 21, Rule 101."
The purpose of engrafting such a section was also considered by the Supreme Court in para 5 which is to the following effect:
"In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree- holder against such an obstructionist is only under Order 21, Rule 97 sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a; stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent: right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution Page 22 of 29 C/SA/7/2014 JUDGMENT proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest de hors the interest of the Judgment-debtor. Both these types of enquiries in connection with the right title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executive Court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21 Rule 97 CPC as discussed earlier clearly guards against such a pit fall and provides a statutory remedy both to the decree-holders as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are Page 23 of 29 C/SA/7/2014 JUDGMENT avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves."
27. It is very important to bear in mind a fine distinction between a decree, as defined under section 2(2) CPC, and the orders having the force of a decree, for example the order under Rule 58 of Order 21 CPC. Order 21 Rule 58(4) itself clarifies that where any claim or objection has been adjudicated upon under the Rule, the order made thereon will have the same force and will be subject to the same conditions as to appeal or otherwise as if it were a decree. In such circumstances, a regular civil appeal would be maintainable.
28. Let me explain the above referred aspect in little details so that it may be helpful to the subordinate courts. The CPC provides for two kinds of appeals from the adjudications undertaken by Courts of the original jurisdiction, namely, appeals against decrees, and appeals against orders. The former are provided for under Section 96, and the latter under Section 104. Though the provisions are familiar, it is necessary to extract them, to appreciate their actual purport.
"Section 96: Appeal from original decree.
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court Page 24 of 29 C/SA/7/2014 JUDGMENT with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed (ten thousand rupees)."
Section 104: Order from which appeal lies.- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-
3[***] 4[(ff) an order under section 35A ;] 5[(ffa) and order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
6[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.] (2) No appeal shall lie from any order passed in appeal under this section."
29. These two substantive provisions are supplemented by Orders 41 and 43, respectively of Schedule I of the C.P.C. Section 96 gets attracted only in such cases, where the subject matter of the appeal is a decree. On the other hand, Section 104 provides for appeals against orders. Section 2(14) defines an order as formal expression of any decision of a civil Court, which is not a decree. Every order is not appealable. It is only such orders which fit into the various clauses of Section 104 and Order 43 Rule 1, that are appealable.
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30. Once it emerges that an order passed under Rule 58 of Order 21 is conferred the status of a decree, in the particular context of appeal, Section 96 gets attracted. Section 96 does not enumerate the types of decrees that can fall into its fold. Once the outcome of an adjudication partakes the character of a decree, it gains an entry into the realm of Section 96. If someone would contend that the appeals provided for under section 96 are against the original decrees and not other kinds of decrees then the same would not be tenable in law. The word " original" in the heading of section 96 signifies the jurisdiction, i.e, the original jurisdiction in contradistinction to the appellate jurisdiction.
31. Section 104, on the other hand, is neither general, nor residuary in nature. It is only those orders, which answer the descriptions contained in its clauses, that are appealable under it. Section 104, as it stands now, provides for appeals against five categories of orders. There is no dispute that an order under Rule 58 does not fall into clauses (ff), (ffa), (g) and (h). An effort can certainly be made to bring it within the purview of clause (i) of sub-section (1), since it is an order made under a Rule. This effort would certainly have been successful, had the clause been "any order made under the Rules", without anything further. The subsequent part of the clause, which obviously refers to Order 43 C.P.C., restricts its scope. In none of the clauses contained in Rule 1 of Order 43, an order passed under Rule 58 of Order 21, finds place.
32. Further, if for any reason, the expression "an appeal Page 26 of 29 C/SA/7/2014 JUDGMENT expressly allowed by Rules" occurring in Clause (i) Section 104(1) can be taken as including Rule 58 of Order 21 in its fold, the fact that Rule 58(4) directs that the order passed under sub-rule (3) shall have the same force of a decree, for the purpose of appeal cannot be ignored. On account of it, the order passed under Rule 58 of Order 21 stands physically lifted from the purview of Section 104 C.P.C. While the right to file a suit is a common law remedy, right of appeal is one, which has to be specifically provided for by a statute. The procedure to be followed in filing the appeal as well as the forum to which it shall be presented, are to be specifically provided. This requirement becomes significant in the context of different kinds of remedies provided in the form of appeals and revisions, in the enactments like C.P.C. Each remedy has its own significance as well as limitations. The Legislature is deemed to have taken the relevant factor into account, when it provides for a particular kind of remedy against the outcome of an adjudication. By the process of interpretation, such remedies can neither be restricted nor expanded.
33. When Section 96 C.P.C. specifically provides for appeals against decrees, and sub-rule (4) of Rule 58 of Order 21 directs that the order passed under sub-rule (3) thereof shall have the force of a decree, there hardly exists any basis to deny such characteristics to such an order. An interpretation to the contrary would have the effect of setting at naught, the intention of the Parliament in attributing characteristics of a decree to an order. In view of a clear mandate under sub-rule (4) of Rule 58, an order passed under sub-rule (3) thereof, partakes a character of a decree for all practical purposes, Page 27 of 29 C/SA/7/2014 JUDGMENT more so, in the context of availing the remedy of appeal. Same reasoning holds good for the orders passed under Rules 98 and 100 of Order 21 C.P.C.
34. Thus, in my view, against the impugned order passed by the executing court which could be termed to be one under Order 21 Rule 35 CPC, a regular civil appeal under section 96 of the CPC was not maintainable. There was no need for the lower appellate court to hear the regular civil appeal on merits. It ought to have dismissed the appeal only on the ground of its maintainability. Thereafter, it would have been open for the appellant herein to avail of an appropriate legal remedy before the appropriate forum in accordance with law.
35. The normal remedies available under the Code whenever a civil court makes an order under the Code are as under:
"(i) Where the order is a 'decree' as defined under section 2(2) of the Code, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code).
(ii) When the order is not a 'decree', but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal).
(iii) If the order is neither a 'decree', nor an appealable 'order' enumerated in section 104 or Order 43 Rule 1, a revision would lie under section 115 of the Code, if it satisfies the requirements of that section."
36. When a party is aggrieved by any decree or order, he can also seek review as provided in Section 114 subject to Page 28 of 29 C/SA/7/2014 JUDGMENT fulfillment of the conditions contained in that section and Order 47 Rule 1 of the Code. Be that as it may. The difference between a 'decree' appealable under section 96 and an 'order' appealable under Section 104 is that a Second Appeal is available in respect of decrees in First Appeals under section 96, whereas no further appeal lies from an order in an appeal under section 104 and Order 43 Rule 1 of the Code.
37. I am informed that the decree has been executed. The possession has been taken over.
38. In the result, this second appeal fails and is hereby dismissed. Notice stands discharged.
(J.B.PARDIWALA, J) Vahid Page 29 of 29