Karnataka High Court
Bhojaiah vs Samsan Metal Industries Pvt. Ltd. on 3 July, 1991
Equivalent citations: ILR1992KAR2265, 1991(4)KARLJ23
JUDGMENT N.D.V. Bhat, J.
1. This Revision Petition is preferred against the order dated 7-3-1990 passed by the Principal Civil Judge, Mandya in Miscellaneous No. 12/1986. The facts relevant for the disposal of this Revision Petition, briefly stated, are as under:
2. Dr. Hemavathi B. Shetty and her husband K. Bhaskar Shetty were running respondent-1 Industries which is a Private Limited Company. The instant respondent-2 State Bank of Mysore, Mandya Branch, Mandya has filed a suit against the said M/s. Samsan Metal Industries Pvt. Ltd., and its Managing Director and had obtained a decree. The said decree was put in execution in Ex. Case No. 173/1976 on the file of the Court of Principal Civil Judge, Mandya. The State Bank of Mysore, that is to say, the instant respondent-2 had sought for sale of 'A' and 'B' Schedule properties consisting of both moveable and immoveable properties. In the Court sale held on 26-7-1979, the instant petitioner and respondent-3 - S. Mumtaz Sheriff had purchased the 'A' Schedule properties (immoveable properties). The judgment-debtor that is to say, the instant respondent-1 filed an application under Order 21 Rule 19 CPC praying for setting aside the sale. The Principal Civil Judge on 11-3-1980 dismissed the said application for setting aside the sale and confirmed the sale. Aggrieved by the said order, the judgment-debtor filed a Revision Petition before this Court in C.R.P. No. 935/1980 and obtained a stay order. The said Revision Petition was allowed on 21-1-1985 and set aside the sale and its confirmation. In pursuance of the Order of this Court dated 21-1-1985 in C.R.P. No. 935/1980 setting aside the sale and its confirmation, the Petition 'A' and 'B' Schedule properties were required to be re-delivered to the judgment-debtor. However, the same was not done. Under these circumstances, M/s. Samsan Metal Industries filed Misc. Petition No. 12/1986 before the Principal Civil Judge, Mandya for restitution.
3. Petition was resisted by respondents-1, 3 4, 6 and 7 before the Principal Civil Judge on the grounds reflected in para-3 of the order passed by the learned Civil Judge.
4. The learned Civil Judge on the basis of the materials on record and for the reasons reflected in his impugned order, allowed Misc. Petition No. 12/1986 directing respondents-2 and 3 before him that is to say, the instant petitioner and respondent-3 to re-deliver the possession of 'A' Schedule immoveable property to M/s. Samsan Metal Industries (R-1 to this Petition) and directing respondents-4 to 14 to re-deliver possession of 'B' Schedule moveable properties to M/s. Samsan Metal Industries. This Revision Petition is filed by Bhojaiah who was respondent-3 before the Court below.
5. I have heard the arguments of the learned Advocates on either side.
6. The point for consideration is as to whether the order questioned in Revision is legal and proper?
7. It is seen that the sale in question was held on 26-7-1979. It is further seen that the petitioner and instant respondent-3 purchased the 'A' Schedule property. It is further seen that instant respondents-4 to 14 purchased the 'B' Schedule property. It is also disclosed from the order passed by the learned Civil Judge in Miscellaneous No. 12/86 that the sale was confirmed on 11-3-1980. However, the sale which was confirmed was set aside by the Order of this Court in Civil Revision Petition No. 935/1980 on 21-1-1985 and this Court by its Order directed that the Court below should proceed to hold a fresh sale according to law. It is in the context of these facts that the submission made on either side will have to be understood and appreciated.
8. The main thrust of the submission made on behalf of the petitioner and respondents who suffered an adverse order in the Court below in that Section 144 CPC does not apply to the facts of the case at all, inasmuch as there is no reversal or modification of the decree in execution of which the sale was held. In other words, it is contended at the Bar in that behalf that the decree in execution of which the sale had taken place, is neither varied nor reversed in any appeal, revision or other proceedings nor is the said decree set aside or modified in any suit instituted for that purpose and that therefore, Section 144 CPC cannot be invoked at all in such a situation. In this connection, the Decision in LAL BHAGWANT SINGH v. SRI KISHEN DAS, is pressed into service. In the said case, the Supreme Court has pointed that when the judgment-debtor fails to show that the sale of his property was in substance and truth a consequence of the error in the decree that was reversed he cannot invoke the aid of Section 144. It is further pointed out in the said case that the doctrine of restitution is that on the reversal of a judgment the law raised an obligation on the party to the record, who received the benefit of the erroneous judgment, to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interests of justice. Then again reliance is also placed on the Decision in MAHIJIBHAI MOHANBHAI BAROT v. PATEL MANIBHAI GOKALBHAI AND ORS., In the said case, it is pointed out by the Supreme Court that Section 144 defines the powers of the Court and expressly bars the maintainability of a suit in respect of a relief obtainable under the said Section. It is further pointed out that the Section does not either expressly or by necessary implication change the nature of the proceedings. It is emphasized in the said case that its object is limited and it seeks to avoid the conflict and to make the scope of the restitution clear and unambiguous, and it does not say that an application for restitution which till the new Procedure Code was enacted, was an application for execution, should be treated as an original Petition. It is further pointed out in the said case that the application for restitution flows from the appellate decree and is filed to implement or enforce the same, and in such a situation, the appellate decree enables him to obtain the relief either expressly or by necessary implication.
9. A careful perusal of the aforesaid two Decisions would go to show that they were not rendered to meet a situation like the one in hand. From the said Decisions it would follow that Section 144 CPC does not apply unless the decree is reversed or varied in any of the modes referred to in Section 144. However, such is not the situation here. Here is a case where the sale itself is set aside on the ground that the sale proclamation was issued without issuing notice to the judgment debtor as required under Order 21 Rule 66(2) CPC and that a fresh sale is ordered. It is also seen that in the meanwhile, the sale had been confirmed and it appears that possession of the property sold was also taken by the respective auction purchasers. It is seen that the order of confirmation also is set aside by the High Court in its order setting aside the sale. The precise question which would arise for consideration in this case therefore is as to whether where an application for restitution does not come strictly within the purview of Section 144 CPC where the sale alone is set aside in execution proceedings but the decree is not varied or reversed, an application for restitution or restoration of the possession of the property which was sold but since set aside, can be granted. In this connection, the observation of the Privy Council in JAI BERHAM AND ORS. v. KEDAR NATH MARWARI AND ORS. Indian Appeals Vol. 49, 351 , would be relevant for consideration. In the said case, the Privy Council has, among other things has pointed out as under:
"It is the duty of the Court under Section 144 of the Civil Procedure Code to 'place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed.' Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved."
In other words, the Decision referred hereinabove given by the Privy Council is an authority for the proposition that where an application for restitution does not come strictly within the purview of Section 144, e.g., where the sale alone is set aside in execution proceedings but the decree is not varied or reversed the Court may entertain the application under the inherent power conferred upon it by Section 151 CPC. That is so for an obvious reason. Once when the sale is set aside the question as to whether the decree in execution of which the sale was held is reversed or not does not assume significance. The learned Counsel for the petitioner, in particular, raised a contention that the instant petitioner was a bonafide purchaser for value and that therefore, petitioner's right cannot be affected. It is significant to note here that the question as to whether the auction purchaser is a stranger to the decree in execution proceedings or whether the auction purchaser is a decree-holder himself are all questions which would properly crop up for consideration in a case where the sale is required to be set aside on the count that the decree in execution of which the sale was held was either varied or reversed. As seen earlier, that is not the situation here at all. The sale is already set aside on the ground that the sale held was not in accordance with the provisions reflected in Order 21 Rule 66 CPC in an application under Order 21 Rule 92 CPC. Further it is seen that the confirmation of sale is also set aside. Under these circumstances, the points highlighted by the learned Counsel for the petitioner do not assume significance at all.
10. From what is stated hereinabove, it would follow that though Section 144 as such does not apply to the facts of the case, it is legally permissible for the Court to order restitution of the property in question under Section 151 CPC.
11. Sri G. Lingappa, learned Counsel for respondents-6 and 7, however, contended that respondents-6 and 7 were not made parties to the Civil Revision Petition No. 935/1980 and that therefore, the said order is not binding on respondents-6 and 7 and such other respondents who are not made parties to the Civil Revision Petition and that therefore, be called upon to restore the possession of the property. It is true that respondents-6 and 7 and some other respondents were not parties to C.R.P. No. 935/1980. However, it is seen that they do not appear to have taken any steps atleast after they were made aware of the order passed by this Court in C.R.P. No. 935/1980. It is significant to note here that the Petition is filed before the lower Court in the year 1986 for restitution. However, the order is passed in the year 1990. Respondents who were not parties to C.R.P. No. 935/80 do not appear to have taken any steps like petition for review or recall of the Order passed by this Court in C.R.P. No. 935/80. Having regard to the same and having regard to the interregnum between the filing of the Miscellaneous Application and the Order passed therein, I am indeed of the view that this is not a case where the exercise of the power under Section 151 CPC for restitution of the property can be rejected on this count. It is also necessary to remember here that the auction purchasers of moveable properties have not challenged the order of the lower Court by preferring a Revision. Under these circumstances, I am not impressed by the submission made by the learned Counsel for respondents-6 and 7.
12. Thus it is seen that though Section 144 CPC does not strictly apply to the facts of this case, it is clear that the power to restore can be ordered under Section 151 CPC. In this connection, the Decision in RAKESH SINGHAL AND ANR. v. VTH ADDITIONAL DISTRICT & SESSIONS JUDGE, BULANDSHAR AND ORS., , also makes this aspect clear. In the said case, it is pointed out by the learned single Judge of the Allahabad High Court that Section 144 CPC deals with the powers of the Court for making of an order of restitution in particular class of cases and that the Section is not exhaustive. It is further pointed out that it is only enumerative and if there are cases where Section 144 CPC is not attracted as such, the principle can be borrowed and made applicable in dispensing substantial justice under its inherent powers.
13. For the reasons stated hereinabove, I find that there is no merit in this Revision Petition and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is hereby dismissed.