Parshava Properties Ltd v. A.k. Bose

SARWAR ALI AG., C.J.

(1.) This application raises an interesting but difficult question in relation to interpretation of Section 2 (2), Civil P. C. ("the Code"), as it now stands after the amendment of the Cade. The point under consideration is not covered by either a decision of the Supreme Court or a bench decision of this Court. But first the facts.

(2.) The predecessor-in-interest of the opposite party filed a suit being Title Suit No. 17/51 of 1949/50 for various reliefs. They included: (a) a declaration that the plaintiff is entitled to quarry limestone and manufacture lime from the lower and upper Murli Hills; and (b) the defendants be permanently injuncted from dispossessing the plaintiff from the suit property described in the schedule to the plaint. The suit was dismissed on 12-4-1951. On appeal the High Court modified the decree on 15-11-1970 (sic). A further appeal was taken to the Supreme Court which was disposed of on 22-8-1967. The decree of the High Court was modified It was held, inter alia, that the State of Bihar, its agents and servants, and Messrs Dalmia Jain and Company Ltd. are restrained from interfering with the plaintiffs possession in respect of plot No. 168 of village Bakhnour Plot Nos. 42, 128, 130 and 44 (excluding the lands acquired for the Dehri Rdhtas Light Railway Company Ltd.) of village Samahuta so long as the tenancy rights vested in the plaintiff are not lawfully determined.

(3.) On 8-1-1968 an application for execution was filed. It was stated in the execution petition as follows :--

"That in spite of the decree of the Supreme Court the defendants judgment-debtors although has and had an opportunity to obey it and are wilfully disturbing the possession of the decree-holder on the aforesaid plots and are trespassing over the aforesaid plots with the view to go to the upper Murli Hill."

It was prayed in the execution petition that the properties as detailed be attached and that Sri J. P. Saxena, a Director of Parshaya Properties Ltd. (Dalmia Jain and Company having been subsequently named as Parshava Properties Ltd.) be detained in civil prison. Thus it was prayed that action under Order 21, Rule 32, Civil P. C. be taken,

(4.) An objection under Section 47, Civil P. C. was filed by the petitioner. The allegation that the judgment-debtors or its employees were disturbing the possession of decree-holder on the plots claimed was denied. It was further contended that there was no violation or disobedience of the order of any court. The court below having heard the parties has overruled the objection and has held that there was wilful and flagrant disobedience of the direction of the Court. In the facts and circumstances of the case it, therefore, thought fit, to grant leave of the Court to the decree-holder for detaining in civil prison the Director or other Principal Officers named in the petition for execution. It further order ed that the decree be enforced by attachment of property.

(5.) Aggrieved against the aforesaid decision of the learned Subordinate Judge the petitioner filed a Civil Revision application. A first appeal numbered as First Appeal 916/1978 has also been filed.

(6.) When this Civil Revision application was listed for hearing before a learned Single Judge it was contended on behalf of the petitioner that it was the First Appeal and not Civil Revision which was maintainable against the impugned order. The learned Single Judge has referred this case to the Division Bench.

(7.) It is not in dispute that the determination of the court below in this case is under Section 47, Civil P. C. According to the law as it stood before the recent amendment of 1976 such an order was appealable as a decree, This was so because the definition of decree included by a deeming fiction "determination of any question within Section 47" of the Code. Now that fiction has been eliminated by the amended definition of decree. The question which remains to be considered is whether all orders passed under Section 47 of the Code are excluded from the definition of the decree, or even now some of the orders come within the express words of the amended definition. This takes us to the consideration of the definition of decree and the scope and content thereof.

(8.) It would be first pertinent to read the definitions before and after the amendment. Decree was defined as follows befdre the recent amendment :

"2 (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include-- (a) any adjudication from which an appeal lies as an appeal frdm an order, or (b) any order of dismissal for de-fault."

It now reads as :--

"2 (2). "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default."

The definition before the amendment was thus in three parts. The first part sets out the essential characteristics which, if satisfied, would amount to a decree. The second part introduced a legal fiction. It said, inter alia, that determination of any question within Section 47 of the Code shall be deemed to be a decree. The third part states what shall not be a decree. By the amendment the second part has been deleted, in so far as "any question under Section 47" is concerned. The effect thereof obviously is that the aforesaid statutory fiction disappears. It cannot now be said that the determination of any question within Section 47 is a decree. Nevertheless, if an order passed by a court satisfies the essential characteristics of decree, as now defined, the mere fact that the order was passed in exercise of powers under Section 47 of the Code would not be of consequence.

(9.) It was contended that the very purpose of the deletion of the deeming clause was to make orders passed under Section 47 non-appeal able. Further that it wduld frustrate the object of the legislature if orders under Section 47 were held to be a decree and as such appealable. Dealing with the last aspect it may at once be pointed out that a large number of orders would not in any event come within the definition of the decree, as they do not finally determine the rights of the parties with regard to all or any of the matters in controversy. To illustrate, orders of stay of execution proceeding and the like cannot come under the said category. I would later refer td the aspect of legislative intent and the legislative policy.

(10.) Let us first look to the language of the provision. In order to satisfy the definition of decree two things have to be established. They are : (a) The adjudication in question conclusively determines the rights of the parties with regard to all or any of the matters in controversy and (b) The determination is in respect of a controversy in the suit. There does not appear to be serious dispute that if the order df the court below determines a controversy in the suit, and that controversy conclusively determines some of the rights of the parties, such an order would fulfil the definition of decree. The decision in this case, therefore, hinges on whether the order df the court below is in relation to a matter in controversy in the suit.

(11.) The expression suit may be interpreted in two ways. It may either mean a civil proceeding which is instituted by presentation of a plaint and culminates in the decree passed by the court of first instance. This would be a narrow or limited meaning. The crucial expressions may also have a wider meaning. The expressions may embrace within themselves proceedings which are continuation of the suit in the eye of law.

(12.) It is well settled that an appeal is not a fresh suit. It is only a continuation of the original proceeding and a stage in the suit (See AIR 1957 SC 540 [LQ/SC/1957/10] at p. 553 and AIR 1915 Mad 1223 at p. 1229 (FB)). It is to be observed that there is no specific provision in the Code requiring preparation of decree in an appeal from original decree. But that a decree has to be prepared is implicit in Section 100 Civil P. C. This section envisages second appeal, in enumerated circumstances, from decree passed in appeal. The question of preparation of decree can only arise if the decision in appeal is decree within the meaning of law. It can only be treated to be a decree provided the determination in an appeal is a determination in the suit. We are, therefore, led to the conclusion that the determination in a proceeding which is continuation of a suit is determination in the suit, so as to amount to decree, within the meaning of Section 2 (2) of the Code.

(13.) The true nature of the execution proceeding has been clearly indicated in Bhushayya D. v. K. Ram-krishnayya, (AIR 1962 SC 1886 [LQ/SC/1962/199] at p. 1899) where it has been held (approving the decisions in (1902) ILR 26 Bom 109, (1906) ILR 29 Mad 309 [LQ/MadHC/1905/109] and (1933) ILR 56 Mad 430 (FB)) that execution proceeding is a continuation of the suit. Reference in this connection may also be made td the decisions in Sadashiv Ganpatrao v. Vitthal-das Nanchand ((1896) ILR 20 Bom 198) and Thakur Prasad v. Sheikh Fakir-Ullah ((1895) 22 Ind App 44 (PC)) where it has been held that applications for execution of the decree are proceedings in the suit. It would thus appear that both appeal and execution proceedings are continuation of the suit. Just as final determination of a controversy in the appeal is a decree, so must be the decision in the execution proceeding, provided the other necessary ingredients of Section 2 (2) of the Code are fulfilled.

(14.) Much emphasis was laid by the learned counsel for the opposite party on the legislative policy in bringing about the amendment. It was contended that all determinations made under the provisions of Section 47 of the Code have been made non-appealable. The underlying purpose of this, it was claimed, is the shortening of litigations. That the purpdse of the amendment was to eliminate unnecessary appeals is neither in doubt nor disputed. As already noticed a number of orders passed under Section 47 of the Code would be non-appealable, in view of the amendment of Section 2 (2) of the Code. Nevertheless, there may be certain orders which may be appealable, which in its turn would depend on whether such orders come within the definition of decree.

(15.) Learned counsel for the petitioner contended that if the amendment be taken to abolish the right of appeal even where final determination of rights takes place there will be violation of principles of equality as embodied in Article 14 of the Constitution. In my view the contention has substance. It is well known that in order to satisfy the test of permissible classification two conditions have to be fulfilled. They are : (1) the classification must be founded on an intelligible differentia . which distinguishes those who are grouped together from those who are left out and, (2) it must have a rational relation to the object sought to be achieved by the statute in question.

(16.) The narrower construction as canvassed by the opposite party could result in the provision becoming discriminatory (as) would be illustrated by examining different situations in which appeal would or would not lie from various determinations.

(17.) Let us take a case where in a suit for recovery of money, a decree is passed against one defendant and dismissed against another. In the course of the execution proceeding the exonerated defendant files objection. The objection of the exonerated defendant is overruled and the said defendant or his legal representatives are made liable by the decision in the execution proceeding. Such a person would not have a right of suit. .Section 47 refrains him from filing a suit. An appeal would be impermissible on the contention raised. This may be compared with a situation where a person is not impleaded in the suit or though impleaded, is struck off from the record (which comes to the same thing). Such a person can raise objection to the attachment of property under Order 21, Rule 58 of the Code. If his objection is overruled he has a right of appeal under Order 21, Rule 58 (4) of the Code. It appears to me that there would be no rational basis for classification in putting impleaded parties or their representatives against whom the suit has been dismissed as one class, different from persons who were not unpleaded in the suit. In the illustra-tion just given what has been determined in the suit is the liability of one of the defendants. The exonerated defendant is not liable under the decree nor the defendant whose liability was left undetermined ((See AIR 1959 Mad 80 [LQ/MadHC/1958/182] ). A person not impleaded in the suit has also his liability undetermined. In either case when the objection is in regard to a property which they claim, the matter would not be concluded by the decree one way or the other. The decree has no relevance to the question of such a claim. Yet if the contention of the opposite party is correct, there would be no right of appeal to the impleaded party or his representatives.

(18.) It would be pertinent td examine the provisions of Order 21, Rules 97 to 103 of the Code. The provisions confer right of appeal in enumerated circumstances. If a dispute arises with regard td the claim of property followed in execution then if the dispute has arisen before the sale there is no right of appeal to the impleaded party although there is such a right to a new claimant. There would be right of appeal to all parties if the dispute arises at the stage of delivery of possession. This is a clear indicator to the intention of the legislature that right of appeal in respect of final determination of a matter not adjudicated updn was in the contemplation of the legislature. To take away right of appeal even in such cases would be, in my view, violative of Article 14 of the Constitution.

(19.) The contention of the opposite party leads to anomalies and patent injustice. And these have to be avoided unless compelled by the express language of the statute. As Lord Simon pointed out in Rugby Joint Water Board v. Foottit (1972-1 All ER 1057) : "It is a canon of statutory interpretation, founded on happy experience, that Parliament is presumed to intend justice and to avoid injustice." The Supreme Court has approved this approach in the following words in Budhan Singh v. Babi Bux, (AIR 1970 SC 1880 [LQ/SC/1969/290] ) :

".....It is necessary to mention that it is proper to assume that the lawmakers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Constructions that the entire legislative process is influenced by consideration of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently, where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute was not the one intended by the law-makers. In the absence of sdme other indication that the harsh or ridiculous effect was actually intended by the legislature there is little reason to believe that it represents the legislative intent."

(20.) It would also be pertinent to point out that in all developed jurisprudence there is at least one right of appeal even on questions of fact. Faced with a situation where two plausible interpretations are possible, I would be rather inclined to the view which upholds the right of appeal -- in preference to an interpretation which denies such a right. This I am observing on the assumption that the two views are equally balanced. But, as already indicated, in my opinion, the view propounded by the petitioner is correct and acceptable.

(21.) Learned counsel for the oppdsite party laid much stress on the fact that the intention of the legislature was to shorten litigation by eliminating the right of appeal. In my view, the interpretation that I am putting ddes not go contrary to that intention. Even on the interpretation that I have put, right of appeal is only available against conclusive determination and ndt in regard to orders which are interlocutory in nature. The intention of the legislature, in my view, appears to me to eliminate appeals only against drders where right of appeal is not essential like orders which are interlocutory in character. (22.) In my view, therefore, the expression suit should be interpreted for the purpose of Section 2 (2) and Section 96, Civil P. C. td continue after the decree till the stage of appeal and execution.

(23.) It only now remains to examine some of the decisions that were cited at the bar. Learned counsel for the opposite party placed strong reliance on Diwan Brothers v. Central Bank of India, Bombay (AIR 1976 SC 1503 [LQ/SC/1976/230] ). All decisions, even the decisions of the Supreme Court, have to be examined in the context of the essential facts. Decision of courts are not like definition clauses in a statute. The observations made are in relation to the controversy raised. They do not purport to lay down prdposition which are not necessary for the decision of the case. Decisions are authorities for what they decide and not what logically follows from them. I now examine the following observations in Diwan Brothers case which has been relied upon by the opposite party :--

"Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows: Firstly, that under the definition of a decree contained in Section 2 (2) Civil P. C. 1908, three essential conditions are necessary : (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, must be given by a civil or revenue court."

(24.) It would appear that the decision was dealing with a fiscal matter and decided the principles which govern the interpretation of fiscal statutes. Secondly the decision itself points out that there could not be decree having been passed by a tribunal and not a court. If I may say so with respect, the observation that a suit may be identified by its commencement on the basis of a plaint and its conclusion by a decree is an observation quite apt for identification of a proceeding which may be called a suit, but the question whether the suit after it is decided at the initial stage continues to be so even in appeal or execution proceeding was neither relevant nor decided.

(25.) The next case relied upon by the learned counsel for the opposite party is the decision Hansraj Gupta v. Dehradun-Mussoorie Electric Tramway Co. Ltd. (AIR 1933 PC 63 [LQ/PC/1932/93] ) where it was observed :-- "The word "suit" ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint." The Privy Council in that case was considering the question whether application by a liquidator under Section 186 of the Companies Act 1913 was a suit within the meaning of Section 3 of the Limitation Act, 1908. It is in that context that the observation relied upon was made. It is not, in my view, helpful in resolving a controversy which is in a completely different context.

(26.) Learned counsel for the opposite party placed reliance on the observation of the Privy Council in R. M. A. R, A. Adaikappa Chettiar v. R. Chandra-sekhara Thevar (AIR 1948 PC 12) in paragraph 8 where a distinction is made between execution proceeding and a suit. That distinction was pertinent in the context of the question under consideration and cannot be read to mean that the execution proceedings are not continuation of the suit.

(27.) I must now refer to the decisions relied upon by the learned counsel for the petitioner, namely, Bhu-shayya D. v. K. Ramakrishnayya (AIR 1962 SC 1886 [LQ/SC/1962/199] ). In the case before the Supreme Court, in the execution proceeding, pursuant to a decree, certain properties were brought to sale and were purchased. Before the sale was confirmed the appellant (a minor) represented by his maternal grandfather, filed an application to set aside the sale under Order 21, Rule 90 of the Code. Later a memorandum was filed in the court by the guardian of the appellant to the effect that the matter was adjusted and the petition should be dismissed as having been withdrawn. No sanction of the court was obtained by the guardian for withdrawing the objection. The question for consideration was whether the withdrawal of the said petition by the guardian was in contravention of Order 32, Rule 7 of the Code. Order 32, Rule 7 Clause (1) is as follows :--

"No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian," Considering the words of this rule it was held that the words with respect to the suit must be limited to the rights put in issue in the suit. It was observed :--

"The next limitation is that the protection is only during the pendency of the suit. When does a suit come to an end It has been held that for the purpose of the said rule an execution proceeding is a continuation of a suit: See (1902) ILR 26 Bom 109, Arunachal-lam Chetty v. Ramanandhan Chetty, (1906) ILR 29 Mad 309 [LQ/MadHC/1905/109] and Mutha Lakkammal v. Narappa Reddiar (1933) ILR 56 Mad 430 : (AIR 1933 Mad 456) (FB). If it was a continuation, the rule would also apply to an agreement or compromise with reference to the said execution proceeding. But, just like in the case of a suit, in the case of execution proceedings, also, the agreement or, compromise shall be one affecting rights or liabilities ascertained or declared by the decree put in execution. As in the case of a suit, so also in the case of an execution of a decree, mere procedural steps not affecting the rights or liabilities so declared are not governed by the pro-vision. The guardian may agree to an adjournment of a sale, to a waiver of a fresh proclamation, to a reduction of upset price etc. It could not have been the intention of the Legislature that every time such a step is taken, the procedure laid down in Order XXXII, Rule 7 of the Code should be complied with."

Finally it was held that the "result is that Order XXXII, Rule 7 of the Code will apply only to an agreement of compromise entered into by the guardian of a party to the suit, who is the minor, with another party thereof during the pendency of the suit, and the execution proceedings." It would thus be seen that the expression with regard to matters in suit occurring in .Section 2 (2) of the Code and the expression with reference to the suit occurring in Order XXXII, Rule 7 are practically the same and in regard to the final determination, according to the Supreme Court, Order XXXII Rule 7 applied while it would not apply to interlocutory matters. This leads to the conclusion that the expressidn suit is capable of being interpreted, in a proper context, as including an execution proceeding.

(28.) Learned counsel for the opposite party relied on the decisions in Mohan Das v. Kamla Devi (AIR 19-78 Raj 127) and Mohammad Khan v. State Bank of Travancore (AIR 1and78 Ker 201 (FB)) No doubt observations in these two decisions help the opposite party. These decisions do not examine the question from the point of view which have been canvassed in this case. The aspects now presented were not presented before the Rajasthan and Kerala High Court. For the reasons already discussed I respectfully take a view different from the view taken in the aforesaid decisions.

(29.) In my opinion, the point of view put forth on behalf of the petitioners is preferable and therefore acceptable. It avoids all anomalies and injustice and sustains constitutionality of the amendment

(30.) Consequently, I would hold that this application is not maintainable and the petitioner has right to pursue the appeal which it has already filed. This application is accordingly dismissed as not maintainable but in the cricum-stances without costs.