Bombay High Court
Jitendra Narottamdas Sheth And Others vs Indradeep Co-Operative Housing ... on 14 August, 1992
Equivalent citations: AIR1993BOM302, 1993(1)BOMCR399, (1992)94BOMLR416, AIR 1993 BOMBAY 302, (1993) 2 ANDH LT 88, (1993) 2 APLJ 34, (1992) MAH LJ 1596, (1993) 1 BOM CR 399
ORDER Pendse, J.
1. Indradeep Co-operative Housing Society, a Society registered under the Co-operative Societies Act instituted Suit No. 5968 of 1968 in the Bombay City Civil Court at Bombay against defendant No. 1 Narottamdas Mansukhlal Sheth and 18 other defendants. Consent terms were arrived at between the plaintiff and defendant No. 1 and decree in accordance with the consent terms was passed by City Civil Court on March 31, 1971. Clause 12 of the Consent Terms, inter-alia, provided that defendant No. 1 Narottamdas shall pay to the plaintiff a sum of Rs. 50,000/- with interest thereon at the rate of 12% per annum within two years from the date of the decree and in two instalments. The decree further provided that in case of default the plaintiff shall be entitled to execute the decree forthwith and recover the amount. It is not in dispute that defendant No. 1 Narottamdas failed to make any payment to the plaintiff in accordance with consent decree.
2. The plaintiff Society instead of instituting proceedings for execution of the consent decree filed Suit No. 647 of 1975 on the Original side of this Court against the legal representatives of Narottamdas and other 18 defendants. The relief sought in the suit was for enforcement of consent terms of the decree passed by the City Civil Court. The suit was resisted by the legal representatives of Narottamdas by claiming that the suit was not maintainable as all questions arising between the parties to the suit in which the decree was passed can only be determined by the Court executing the decree and not by a separate suit as prescribed by S. 47 of the Code of Civil Procedure. The contention was upheld by the learned single Judge by impugned judgment dated June 14, 1991. The learned Judge held that though the suit was not maintainable, it is open for this Court to transfer the suit to City Civil Court for being registered and tried as an execution application. The learned Judge accordingly transferred the suit with a direction that the City Civil Court should treat the suit as execution application. This order of the learned Judge is under challenge in the present appeal.
3. Shri Shah, learned counsel appearing on behalf of the appellants, submitted that prior to amendment of Code of Civil Procedure by Amending Act of 1976, sub-sec. (2) of S. 47 of the Act read as follows :
"The Court may, subject to any objection as to limitation or jurisdiction, 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."
Shri Shah urged that sub-section (2) of S. 47 was deleted by Amending Act of 1976 and thereby the powers of the Court to treat the suit as an execution proceedings were withdrawn. The learned counsel contended that after the year 1976, it is not open for the Court to treat the suit as an execution application. It is not possible to accede to the submission of the learned counsel that after the deletion of sub-s. (2) of S. 47 in the year 1976, the Court has no power whatsoever to treat the suit as an execution application. Sub-sec. (2) of S. 47 was introduced in year 1908 to give legislative sanction to the practice followed by the Court under the Code of 1882. The power was consistently exercised by the Courts prior to 1908 with a view to advance the cause of justice. It is not clear from the Amending Act of 1976 the reasons for withdrawal of powers conferred under sub-sec. (2) of S.47. Subsection (2) of Section 47 prior to its amendment had conferred specific powers on the Courts to treat the suit as an execution application and when that power is withdrawn, then the Court can fall back uopn the inherent powers under S. 151 of the Code of Civil Procedure. Section 151, inter alia, provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The powers under S. 151 relate to matters of procedure and it is well settled by catena of a decisions that powers under S. 151 can be exercised provided such a power is not available under any provisions of the Code or where the power is specifically prohibited or excluded by the Code. Shri Shah did not dispute that the power to treat the suit as an execution application is not specifically prohibited or excluded by any of the provisions of the Code. In these circumstances, power of the Court to treat the suit as an execution application can be exercised under S. 151 of the Code.
4. There is another aspect of the matter which cannot be overlooked. The impugned order directing transfer of the suit to City Civil Court and treating it as execution application causes no prejudice whatsoever to the interest of the appellants but, on the other hand, enables the respondent No. 1 to enforce the decree passed in the year 1991. It is always open for the appellants to raise all permissible contentions in the execution application and in these circumstances, the order passed by the learned single Judge for the purpose of advancing cause of justice is not required to be disturbed.
5. Accordingly appeal fails and is dismissed but there will be no order as to costs. The parties are directed to appear before the City Civil Court on September 7, 1992.
Appeal dismissed.