Rajasthan High Court - Jodhpur
Shantimal vs Smt. Nirrmala & Ors on 21 August, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 426 / 2005
Legal Representatives of Late Shri Shanti Mal:
1/1 Smt. Vimla Jain w/o Late Shri Shanti Mal
1/2 Manish s/o Late Shri Shanti Mal
1/3 Vishal s/o Late Shri Shanti Mal
1/4 Neeraj s/o Late Shri Shanti Mal
----Appellants
Versus
1. Smt. Nirmala w/o Shri Gautam Raj Mehta, resident of B-61,
Yash Path, Tilak Nagar, Jaipur. (Decree Holder)
2. Smt. Chandrakala Jain w/o Lt. Shri Inder Singh Ji, resident
of Outside Sojati Gate, Outside Haider Building, Jodhpur.
3. Mahesh Chandra s/o Late Shri Inder Singh Ji Jain.
4. Ashok s/o Late Shri Inder Singh Ji Jain.
5. Deepak s/o Late Shri Inder Singh Ji Jain.
6. Nilesh s/o Late Shri Inder Singh Ji Jain.
7. Kumari Vijay Laxmi d/o Late Shri Inder Singh Ji Jain.
8. Kumari Prasanna Lata d/o Late Shri Inder Singh Ji Jain.
All resident of Neelam Bhawan, 9 th C-Road, Sardarpura,
Jodhpur.
9. Smt. Usha Mehta w/o Shri G.R.Mehta R/o Jodhpur. A.En.
P.H.E.D., Shastri Nagar, Jodhpur.
10. Amarchand Pitaliya s/o Shri Bichhulal ji Oswal, R/o Ranawas,
District, Pali.
11. Bilam Chand s/o Shri Amrit Chand ji B/C Oswal, R/o Somani
Bhawan, Near Adarsh Children School, Jaipur.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. R.K.Thanvi, Sr. Advocate assisted by
Mr. Narendra Thanvi.
For Respondent(s) : Mr. A.K.Rajvanshy, for respondent no.2.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
REPORTABLE Judgment
21/08/2017
(2 of 13)
[CMA-426/2005]
This appeal filed under Order XLIII Rule 1 CPC is directed against the order dated 29/3/2005 passed by the Addl. District Judge No.2, Jodhpur, ('the Executing Court') whereby, the applications filed by the appellant under Section 152 CPC and Order XXI Rule 58 CPC were rejected.
A money decree dated 16/10/1989 was passed by the court of Addl. District Judge No.6, Jaipur City in Civil Original Suit No.94/89 (129/76) filed by Smt. Nirmala Mehta against Inder Singh Jain and others, wherein, on account of death of Inder Singh Jain during the pendency of the suit, his legal representatives 1/1 to 1/9 were brought on record.
The execution proceedings pertaining to the decree dated 16/10/1989 were transferred by the court at Jaipur vide its Transfer Certificate dated 5/10/1991 to the court of District Judge, Jodhpur, which was transferred to the court of Addl. District Judge No.2, Jodhpur and was registered as Execution Case No.19/98. During the pendency of the execution proceedings, a property situated at Sojati Gate, Jodhpur was ordered to be auctioned and after three attempts made in this regard, the auction proceedings were concluded before the Executing Court on 13/12/2004, wherein, the property in question was auctioned for a sum of Rs.23,11,000/- in favour of Smt. Saroj and Sudesh Ruthia.
After the full auction amount was deposited on 21/12/2004, when the matter came up before the Executing Court on 14/2/2005, the following order was passed:
"14-02-2005 odhy fMØhnkj mifLFkrA fuykeh ds 60 fnu iwjs gks pqds gSA dksbZ mtjnkjh is'k ugha gqbZA vr% fuyke Jhefr (3 of 13) [CMA-426/2005] ljkst o lqns'k :fB;k Rs.23]11000@& esa iq[rk fd;k tkrk gSA odhy fMØhnkj fu;ekuqlkj iksUMst Qhl ,oa Øsrk LVkEi fof/k vuqlkj is'k djsA btjk; dh jkf'k fooj.k is'k gkssus ij fMØhnkj dks ,oa 'ks"k jkf'k en;wu Jhefr pUnzdyk tSu dks ykSVkbZ tkosA i=koyh fnukad 11-03-2005 dks is'k gksA"
On 4/3/2005, an application under Section 152 CPC was filed by the appellant-judgment debtor Shanti Lal Jain with the averments that by order dated 14/2/2005 the surplus amount of the decree has been ordered to be returned to Smt. Chandrakala Jain alone, which is a clerical mistake and certain averments were also made questioning the right of Smt. Chandrakala Jain to receive the said amount. On the same day, another application under Order XXI Rule 58 CPC was filed with similar averments seeking directions that the surplus amount be disbursed in accordance with law and in the alternative till such time the suit pertaining to the Will was not finally decided, the amount be not paid to any party.
Both the applications were resisted by respondent no.2 Smt. Chandrakala Jain.
The trial court by its order dated 29/3/2005, after hearing the parties, inter alia passed the following order dismissing both the applications:
"4- i=koyh ds voyksdu ls Li"V gS fd en;qu la[;k 1@1 pUnzdyka tSu dh tks fooknxzLr nqdku uhyke gqbZ gS og bUnzflag tSu ls olh;r esa pUnzdyka tSu dks feyh FkhA en;qu la[;k 1@2 tks vkifRrdrkZ 'kkafrey en;qu la[;k 1@3 dk HkkbZ gS og pUnzdyka tSu dks viuh lksrsyh ek¡ Lohdkj djrk gS lkFk gh pUnzdyka tSu dks LoxhZ; bUnzflag us thfor jgrs tks lEifr olh;r dj nh rFkk ftl lEifr ckcr~ 1988 ls LFkk;h fu"ks/kkKk dk okn 'ks"k en;quku ds fo:) pUnzdyka tSu us yM+s gS rFkk ftl lEifr ckcr fdjk;snkj ds fo:) csn[kyh dk nkok lu~ 1995 esa pUnzdyka tSu us izLrqr fd;k gS ml lEifr esa viuk gd o fgLlk crkdj en;qu la[;k 1@3 vuxZy o vuko';d vkosnu bl U;k;ky; ds le{k yk;k gSA bl btjk; dh dk;Zokgh ds nkSjku en;qu la[;k 1@1 us bUnz flag tSu ds 'ks"k okfjlku vU;Fkk nhxj en;quku dh lEifr;ka bUnz flag ls izkIr lqnk gksuk crk;k o muls olwyh djus dk vkxzg fd;k ijUrq 'ks"k en;quku viuh lEifr;ka bZ/kj&m/kj gLrkukUrfjr dj vius firk ds mRrjnkf;Ro ls cprs jgs o olh;r ls izkIr en;qu la[;k 1@1 dh btjk; esa tks nqdku uhyke gqbZ gS ml ij izFke n`"V;k fdlh Hkh izdkj ds vf/kdkj 'ks"k en;quku ds fdlh Hkh vk/kkj ij izekf.kr ;k iq"V ugha gksrs] 'ks"k en;quku ds o en;qu la[;k 1@3 (4 of 13) [CMA-426/2005] ds bl btjk; dh dk;Zokgh ls pUnzdyka tSu dh uhykeh lqnk nqdku ij dksbZ gd o vf/kdkj curs gS rks os l{ke U;k;ky; esa oS/kkfud dk;Zokgh dj oS/kkfud mipkj izkIr dj ldrs gSA ,fr;kru U;k; fgr esa pUnzdyka tSu ls ;g vUMjVsfdax bl izdj.k esa ysus dk vkns'k fn;k tkrk gS fd uhyke lqnk lEifr ij 'ks"k en;quku ds dksbZ gd izekf.kr gksus ij muds gd ;k fgLls dh jkf'k en;qu la[;k 1@1 ykSVk nsxh bl vkns'k ds lkFk en;qu la[;k 1@3 ds /kkjk 152 lhihlh o vkns'k 21 fu;e 58 lhihlh dk vkosnu [kkfjt fd;k tkrk gSA"
During the pendency of the present appeal, the disbursement of the amount to respondent no.2 was stayed by this court. By order dated 20/8/2008, on an application filed by respondent no.2, it was directed that the amount lying in deposit with the trial court be placed in fixed deposit with a nationalized bank.
During the pendency of the appeal, the appellant Shanti Lal died and his legal representatives were brought on record.
When the matter came up for hearing on earlier occasion in the year 2014, apparently on an objection raised by counsel for respondent no.2 pertaining to maintainability of the appeal, an application (I.A.No.3488/14) under Section 151 CPC for treating the appeal as revision petition was filed. A coordinate bench by order dated 24/9/2014 passed the following order rejecting the application:
"I have considered the submissions made by the learned counsel for the parties. From the perusal of the facts on record, it reveals that the impugned order dated 29.03.2000 is passed on application filed by the appellant under Order 21 Rule 58 read with Section 151 CPC but today, the learned counsel for the appellant submits that the provision was wrongly quoted as Order 21 Rule 58 read with Section 151 CPC instead of Section 47 CPC. Whatsoever it is, the impugned order was passed on 29.03.2000 and after 14 years thereafter, this application has been preferred.
When there is specific provision mentioned in the application invoking the provisions under Order 21 Rule 58 read with Section 151 CPC and after considering the provisions Court decided the objections then, after a lapse (5 of 13) [CMA-426/2005] of 14 years, it cannot be believed that it was under Section 47 CPC and revision petition lies against that order, therefore, this application does not have merit and the same deserves to be dismissed which is hereby dismissed. Office to proceed."
Whereafter, an application (I.A. No.914/17) has been filed seeking recall of the order dated 24/9/2014 and again making a prayer to treat the present appeal as a revision petition.
At the outset, learned counsel for the respondent no.2 submitted that the appeal filed by the appellant is not maintainable in view of provisions of Order XXI Rule 58 (4) CPC, which provides that any claim or objection adjudicated upon under Rule 58 of Order XXI CPC shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
It was further submitted that the application filed by appellant under Order XXI Rule 58 CPC before the executing court itself was not maintainable in view of bar created by proviso (a) to Order XXI Rule 58 (1) CPC. It was also emphasized that even a revision petition would also be barred in view of proviso to Section 115 CPC as passing of the order in the present proceedings would not finally dispose of the proceedings.
Further submissions were made that even the plea that objections be treated under Section 47 CPC instead of Order XXI Rule 58 CPC has no substance as the nature of objections raised by the appellant cannot be adjudicated in execution proceedings under Section 47 CPC. It was prayed that the appeal be dismissed.
(6 of 13) [CMA-426/2005] Learned counsel for the appellant with reference to order dated 24/9/2014 (supra) passed by this Court submitted that the application to convert the appeal into a revision petition was rejected only on account of delay and the said aspect was not adjudicated by the Court on merits, therefore, the order deserves to be recalled and the prayer made in this regard be accepted.
Further submissions were made that even if the appeal under Order XLIII Rule 1 CPC is not maintainable, the same may be treated as Execution First Appeal and on account of passage of time the same may be adjudicated on merits inasmuch as not only the appeal was entertained after hearing the respondent no.2, the same was admitted and interim order was granted by the Court which has remained in currency for all these years as no objection with regard to maintainability was raised at any point of time earlier.
With regard to the maintainability of objections under Section 47 CPC it was submitted that provisions envisage determination of all questions arising between the parties to the suit in which the decree was passed or their representatives and such determination can only be made by the court executing the decree and not by a separate suit. According to the learned counsel, the dispute apparently is between the legal representatives of the judgment-debtor and, therefore, it cannot be said that the objection in this regard could not be adjudicated.
With reference to the order passed by the trial court it was submitted that without there being any material on record, the executing court has apparently adjudicated on the validity of the (7 of 13) [CMA-426/2005] Will and the rights of the parties in the property auctioned pursuant to the decree dated 16/10/1989 and, therefore, the order passed by the executing court dated 29/3/2005 deserves to be set aside.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
So far as the application (I.A. No.914/2017) seeking recall of the order dated 24/9/2017 is concerned, besides the fact that the present application is highly belated and no reason has been indicated in this regard in the application seeking recall of the order, except for making similar prayer as was made when the earlier application was rejected by order dated 29/9/2014, no new aspect has been canvassed and, therefore, as apparently there is no substance in the application, the same is rejected.
So far as the maintainability of appeal under Order XLIII Rule 1 CPC is concerned, apparently the same, in view of express provision of Order XXI Rule 58 (4) CPC, is not maintainable and only an Execution First Appeal would be maintainable.
However, in view of the judgment of this Court in Lehru vs. Chattrbuj & Anr. : 2013 (4) CDR 2269 (Raj.), on account of passage of time and the fact that no such objection apparently was raised for over 10 years, the matter can be considered on its own merits. It was inter alia observed in the case of Lehru (supra) as under:
"4. However, even if it has been held that the civil misc. appeal as such is not maintainable and appeal under Sec. 96 CPC against the order passed under Order 21 Rule 58 CPC must be filed as Civil Execution First Appeal as the same only would be maintainable, does not affect the (8 of 13) [CMA-426/2005] maintainability of the present appeal, as such, on account of limitation and court fees, inasmuch as, the limitation would be the same as provided for Civil Misc. Appeal and the court fees would be as provided in Schedule-II Article 11(h) read with Sec. 47 of the Rajasthan Court Fees and Suits Valuation Act, 1961. However, the office is directed to categories the said appeals as Execution First Appeals in future.
5. Further, in view of the fact that the present case is pending after admission since 1996 as Civil Misc. Appeal, the same is being decided as it is."
Coming to the merits of the case, there is no dispute about the fact that pursuant to the judgment and decree dated 16/10/1989 passed by the Addl. District Judge No.6, Jaipur City, in execution, the property in question was auctioned by the executing court on 13/12/2004 and on deposit of full consideration by 21/12/2004, the same was confirmed in favour of Smt. Saroj and Sudesh Ruthia on 14/2/2005, whereafter, the applications under Section 152 CPC and Order XXI Rule 58 CPC were filed on 4/3/2005 i.e. after confirmation of sale on 14/2/2005. The provision of Order XXI Rule 58 CPC reads as under:
"58. Adjudication of claims to, or objections to attachment of, property--
(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained--
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in (9 of 13) [CMA-426/2005] sub- rule (2), the Court shall, in accordance with such determination,--
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.
(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. (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claims or objection shall be conclusive."
(emphasis supplied) A bare look at the title of the provision would reveal that the same pertains to adjudication of claims to the attachment of property i.e. on the ground that property is no liable to attachment etc. The proviso (a) specifically prohibits entertaining such objection or claim where before the claim is preferred or objection is made the property attached has already been sold.
In the present case, admittedly when on 4/3/2004 the objections were preferred by the appellant Shanti Lal, the sale stood confirmed vide order dated 14/2/2005 and, therefore, apparently the objections raised by the appellant under Order XXI Rule 58 CPC could not be entertained. In such circumstances, Rule 5 of Order XXI clearly provides that where a claim or objection is preferred and the court under proviso to sub rule (1) refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the (10 of 13) [CMA-426/2005] property in dispute.
The executing court by its impugned order has made observations in consonance with the provisions of Order XXI Rule 58 (5) CPC. In view of the express bar created by proviso (a) to Order XXI Rule 58(1) CPC, the objections raised by the appellant were not maintainable.
So far as the application under Section 152 CPC is concerned, provisions of Section 152 CPC provides for amendment in judgment, decree or orders if a clerical or arithmetical mistake or error arises from any accidental slip or omission.
Hon'ble Supreme Court in Master Construction Company (P) Ltd.vs. State of Orissa : AIR 1966 SC 1047 laid down that the jurisdiction under Section 152 CPC is limited and confined to only correction of mistake or omission mentioned therein, an arithmetic mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing and an error arising out of or occurring from accidental slip or omission is an error due to careless mistake or omission unintentionally made.
The plea sought to be raised by the appellant does not apparently fall within the said parameters laid down by Hon'ble Supreme Court and, therefore, rejection of application under Section 152 CPC also cannot be faulted.
Coming to the prayer made by counsel for the appellant for treating the objections filed under Order XXI Rule 58 CPC as objections under Section 47 CPC, it would be appropriate to notice provisions of Section 47 CPC, insofar as relevant, which read as under:
(11 of 13) [CMA-426/2005] "47. Questions to be determined by the Court executing decree-- (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."
The above provision is explicit and provides that all questions arising between the parties to the suit in which 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. The language is clear, whereby, the adjudication has to take place pertaining to the question arising between the parties to the suit or their representatives i.e. the decree holder and the judgment debtor and a dispute if it arises between the parties on the same side i.e. the judgment debtor or a decree holder, the said dispute/question would not fall within the scope of Section 47 CPC, unless its determination would affect the judgment debtor or decree holder, as the case may be.
The law in this regard was initially laid down by a Full Bench of Madras High Court in Annamali Mudali vs. Ramasami Mudali :
AIR 1941 Madras 161, wherein, it was laid down as under:
"This Full Bench has been constituted to decide two questions referred by Krishnaswami Ayyangar and Somayya JJ., in a second appeal arising out of a suit for possession. The two questions are:
(1)Whether an application by a stranger auction purchaser for delivery of possession as against the judgment-debtor or his representative is covered by S.47, Civil P.C.? (2) Whether S. 47 applies to a case where the dispute arises between a party and his own representative or between the two persons who both represent the same party?"
"..........The contest in the suit out of which this reference arises is, as has been shown, between a stranger auction- purchaser in execution proceedings relating to a money decree and the purchasers in a private sale from the widow of the judgment-debtor. The judgment-debtor having died the property devolved on the widow. The conflict is merely (12 of 13) [CMA-426/2005] one between persons claiming under the judgment-debtor and the decree holder is in no way concerned with it. He has been paid his money and has disappeared from the proceedings. The contest not being a contest between the parties to the suit or their representatives, but a contest between persons claiming under one of the parties, the case does not fall within the decision of the Judicial Committee in 19 Cal 683, and this being the position the dispute cannot be settled in an application under S.47, Civil P.C. With this expression of opinion I will now proceed to answer the questions referred.
The answer which I give to the first question is that a stranger who purchases property at a court auction held in execution of a money decree is not entitled to apply for possession as against the judgment-debtor or his representative-in-interest under S.47. When the judgment- debtor or any one at his instigation resists or obstructs the auction-purchaser the latter must proceed in accordance with the provisions of O.21, R.97. The answer to the second question is directly in the negative. The aggrieved party's remedy in such a case is by way of suit............"
It was inter alia laid down that Section 47 CPC does not apply to a case where the dispute arises between the party and his own representative or between the two persons who both represent the same party and the remedy in such a case is by way of a suit.
The said view has been followed/reiterated in large number of cases including Mohd. Osman Ali & Ors. vs. Mohd. Khasim & Ors. : 1994 (3) ALT 616 and M. Kandasamy vs. U. Baskar :
(1999) 3 MLJ 558.
A submission was feebly made by counsel for the appellant that while in the provision of Section 47 the phrase used is 'parties to the suit', and the phrase used in Order XXI Rule 58 (2) CPC is 'parties to a proceedings', therefore, probably the application under Order XXI Rule 58 CPC could be entertained. The said submission also is baseless inasmuch as the interpretation put to the phrase 'parties to the suit' will apply with equal force to the (13 of 13) [CMA-426/2005] phrase 'parties to a proceedings' and, therefore, the dispute inter se between the judgment debtors cannot be adjudicated.
In view of the above discussion, even if the application filed by the appellant is treated under Section 47, regarding which repeated prayers have been made, the same on its face and in view of express provisions of Section 47 CPC would not be maintainable. The said aspect has been considered, as already noticed hereinbefore, on account of pendency of the present proceedings for over 12 years by now and the fact that the decree was passed by the trial court in the year 1989 wherein the present controversy had been raised.
So far as the observations made by executing court pertaining to the Will and/or the right of the parties are concerned, the same have to be read in the context and cannot be said to be final adjudication on the subject matter.
In view of the above discussion, it is apparent that the applications filed by the appellant either under Section 152 CPC or Order XXI Rule 58 CPC/Section 47 CPC were not maintainable and, therefore, the order impugned dated 29/3/2005 passed by the executing court does not call for any interference.
There is no substance in the appeal and the same is, therefore, dismissed.
(ARUN BHANSALI)J. baweja