Case: Maganlal Etc Vs. Jaiswal Industries Neemach &amp; Ors

holding that the said principle will not be attracted to a sale which has taken place pursuant to an order under Section 32 of the Act insofar as the provisions in the Code with regard to execution of a decree are concerned. Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applicable to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying Section 34 of the Code as was sought to be done in the case of Everest Industrial Corporation ((1987) 3 SCC 597 ) nor could it be extended for treating the application made under Section 32(1) of the Act as a plaint for purpose of payment of court fee as we sought to be done in the case of Gujarat State Financial Corporation. ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com Cas 187). 31. That the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under Section 32 of the Act is clear from Section 32(8) of the Act and the reasons stated above. It would also be so inasmuch as even otherwise once the order under Section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would get attracted. 32. In National Sewing Thread Co. Ltd., v. James Chadwick & Bros. Ltd., (1953 SCR 1028 : AIR 1953 SC 357 ) an appeal was filed before a Single Judge of the Bombay High Court under Section 76(1) of the Trademarks Act, 1940 which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High court having jurisdiction. The Trademarks Act, however, did not make any provision with regard to the procedure to be followed by the High court in the appeal or as to whether the order of the High court was appealable. Against the judgment of the Single Judge and appeal was preferred under clause 15 of the letters patent. That appeal was allowed and the judgment of the Single Judge was reversed. Before the Supreme Court an objection was raised that the Letters Patent appeal was not maintainable. While repelling the said objection it was held : (SCR pp. 1033-34) "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted an which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co., Ltd., v. Postmaster-General (1913 AC 546 : 82 LJKB 1197 : 109 LT 562 HL), in these terms"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches. The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar ((1947) 74 IA 264), wherein it was said: "Where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. Again in Secretary of State for India v. Chellikani Ram Rao (1916 ILR 39 Mad 617), when dealing with the case under the Madras Forest Act their Lordships observed as follows: It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trademarks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the letters patent there being nothing to the contrary in the Trademarks Act."

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We shall first deal with the question with regard to the effect of an appeal being pending against an order dismissing an application under Order XXI, Rule 90 of the Code.In Chandra Mani v. Anarjan Bibi (AIR 1934 PC 134 ) in execution of two final mortgage decrees for sale, the mortgaged properties were sold by auction. The judgment debtors filed applications under Order XXI, Rule 90 of the Code which were dismissed and the sales were confirmed in pursuance of Order XXI, Rule 92 on April 22, 1924. Appeals were filed against this order by some of the judgment debtors in the High Court which were dismissed on March 17, 1927. Sale certificates were thereafter granted to the two auction purchasers on May 19, 1928 and June 1928 respectively, who thereupon applied on September 10, 1928 for possession of the properties purchased by them. These applications were objected to by the judgment debtors on the ground that they were barred by limitation under Article 180 of the Limitation Act, 1908 which provided that such an application must be made within three years from the time when the sale becomesSubordinate Judge overruled the objection on the ground that in view of the pendency of the appeals filed by the judgment debtors against the order dismissing their applications under Order XXI, Rule 90 of the Code time did not begin to run until March 17, 1927 when the said appeals were dismissed by the High Court. On appeal by the judgment debtors the High Court took the view that the sale became absolute on April 22, 1924 when the Subordinate Judge confirmed the sales. On further appeal by the auction purchasers the order of the High Court was reversed by the Privy Council and it was held : (AIR p.consideration of the sections and orders of the Code, their Lordships are of opinion that in construing the meaning of the words when the sale becomes absolute in Article 180, Limitation Act, 1 regard must be had not only to the provisions of Order XXI, Rule 92(1) of the schedule to the Civil Procedure Code, but also to the other material sections and orders of the Code, including those which relate to appeals from orders made under Order XXI, Rule 92(1). The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the abovementioned application"Their Lordships therefore are of opinion that on the facts of this case the sales did not become absolute within the meaning of Article 180, Limitation Act, until March, 17, 1927, and that the applications for possession of the properties purchased at the auction sales were not barred by the Limitation Act.A similar view was taken by this Court in Sri Ranga Nilayam Rama Krishna Rao v. Kandokori Chellayamma (1950 SCR 806 : AIR 1953 SC 425 ) where it was held that that when an appeal is filed against an order refusing to set aside an execution sale under Order XXI, Rule 90 of the Code no finality can be attached to the order confirming the sale until the appeal is decided. In S. V. Ramalingam ((1975) 2 Mad LJ 494) the question came up directly in connection with the applicability of Order XXXIV, Rule 5 itself which contemplates payment into court "on to before the day fixed or at any time before the confirmation of a sale". In that case to in pursuance of a final decree passed in this behalf the mortgaged property was sold and the applications made by the mortgagors for setting aside the sale were dismissed and the sale was confirmed and the sale certificate was also engrossed an stamp papers. The mortgagors filed an appeal against that order before the High Court XXXIV, Rule 5 was filed for redemption of mortgage. This application was opposed inter alia on the ground that such an application could not lie after the sale had been confirmed by the lower court. While repelling the objection of the auction purchaser and holding that the judgment debtors were entitled to the benefit of Order XXIV, Rule 5 of the Code it was held by Mr. Justice S. Natarajan (as His Lordship thenconfirmation of sale subsequent to the dismissal of a petition under Order XXI, Rule 90 cannot, in reality, alter the situation when the mortgagor-judgment debtor has preferred within time an appeal against the dismissal of his petition under Order auction-purchaser a step further than before the confirmation of the sale, the confirmation, by itself, is in one sense, inchoate. The confirmation gives that sale only viability but does not render the indefeasible one, till such time as the appeal preferred by the mortgagor against the validity of the sale remains undisposed. In that sense, the confirmation effected by the executing court may become final as far as the executing court is concerned, but it certainly does not stamp the transaction with irrevocable finality when alone the rights of parties get crystallised beyond retracement. Consequently, the appeal preferred by the judgment debtor has the effect of rendering a sale and its confirmation fluidal and nebulous. It, therefore, follows that the finality of the sale is rendered at large before the appellate court in appeal and as such, the petitioners will be entitled to exercise the right conferred on them under Order XXXIV, Rule 5 to redeem the mortgage.The same view was reiterated in almost an identical case by a bench of the Madras High Court in M. Sevugan Chettiar v. V. A. Narayana Raja (AIR 1984 Mad 334 : (1984) 97 Mad L W 328 : (1984) 2 Mad LJ 55). It was held that as long as there is no confirmation of sale in the eye of law and matter was sub judice in appeal time was available for the judgment debtor to make the deposit sunder Order XXXIV, Rule 5 of the Code and the process of deposit could be worked out until the confirmation of sale reaches theIn Gujarat State Financial Corporation v. Natson Manufacturing Co. (P) Ltd.((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com Cas 187), the question as to what was the nature of proceedings under Sections 31 and 32 of the Act came up for consideration before this Court in connection with an objection about payment of court fee on an application under Section 31(1). It was held that the form of the application, the nature of the relief, the compulsion to make interim order, the limited inquiry contemplated by sub-section (6) of Section 32 and the nature of relief that can be granted and the manner of execution clearly show that the application under Section 31(1) is neither a plaint as contemplated by Article 1 of Schedule 1 nor an application in the nature of a plaint as contemplated by Article 7 ofthe Court Fees Act, 1870. It was also held that Section 31(1) of the Act prescribes a special procedure for enforcement of the claims of the Financial Corporation and it is not even something akin to a suit of a mortgage to recover mortgage money by sale of mortgaged property. It was pointed out that the distinguishing features noticeable between a suit for recovery of mortgage money be sale of mortgaged property and an application under Section 31 for one or more reliefs specified therein are that even if the Corporation applicant so chooses it cannot in the application pray for a preliminary decree for accounts or final decree for payment of money nor can it seek to enforce any personal liability even if such one is incurred under the contract of mortgage. The Corporation cannot pray for a decree of its outstanding dues and can make an application for one of the three reliefs mentioned in Section 31(1), none of which if granted results in a money decree or decree for recovery of outstanding loans or advance. It was further held that a substantive relief in an application under Section 31(1) "is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree. "With regard to the scope of sub-section (6) of Section 32 it was held that it has to be read in the context in which it is placed and it does not expand the context in the application as if it is a suit between a mortgage and the mortgagor for sale of mortgaged property. The relief claimed under Section 31(1) was held not to be a substantive relief which can be valued in terms of the monetary gain or prevention of monetary loss. It was pointed out that the claim of the Corporation in an application was pointed out that the claim of the Corporation in an application under Section 31(1) was that there is a breach of agreement or default in making repayment of loan or advance or installment thereof and, therefore, the mortgaged property could beIn Everest Industrial Corporation v. Gujarat State Financial Corporation ((1987) 3 SCC 597 ) a question arose as to whether an order under Section 34 of the Code could be passed in proceedings under Section 31(1) of the Act. After referring to the decision in the case of Gujarat State Financial Corporation ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com Cas 187) it was held that if as held by this Court in that case the proceeding instituted under Section 31(1) of the Act is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree no question of passing any order under Section 34 of the Code would arise since that section could be applicable only at the stage of the passing of the decree and not to any posterior to theIn view of these two decision the law seems to be settled that an application under Section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under Section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property. On the other hand the substantive relief in an application under Section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of theIn this connection, it is relevant to note that in neither of the two cases namely, Gujarat State Financial Corporation ((1987) 3 SCC 597 ) sub-section (8) of Section 32 of the Act came up for consideration. Section 46-B of the Act reads asThe provisions of this Act and of any rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern.No provision in the Act or any rule or order made thereunder has been brought to our notice stating that the effect of any action taken thereunder including the passing of orders of attachment and sale under Section 31 and 32 thereof, is to extinguish the right of redemption. In other words, there is nothing in the Act or in any rule or order made thereunder which maybe inconsistent with Section 60 of the Transfer of Property Act particularly the proviso thereto. Consequently no provision in the Act can be read "in derogation" of the said SectionIt is true that under the Code it is not necessary to attach the mortgaged property before putting it to sale but Section 31 of the Act contemplates attachment of even the mortgaged property and Section 32 thereof speaks on an order of sale of the attached property, but that alone can by no stretch of imagination have the effect of extinguishing the equity of redemption. Such attachment does not have that effect either under the proviso to Section 60 of the Transfer of Property Act or under any provision of the Act, or rule or order made thereunder. Section 31 and 32 of the Act insofar as they contain requirement of attaching the mortgaged property before its sale and ordering sale of the attached property read with sub-section (8) of Section 32 of the Act will, therefore, have the only effect that the said requirement" shall be in addition to, and not in derogation of" the provisions contained in the Code for sale of mortgagedThe purpose of enacting Sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recovery of the dues of the Financial Corporation. This purpose however was, in cases covered by clause (a) of sub-section (1) of Section 31 confined to the stage of obtaining an order akin to a decree in a suit, in execution whereof "the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance" could be sold. Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (1) of sub-section (1) of Section 31 could be sold. After this stage was reached sale in execution of an order under Section 32 of the Act was for purposes of execution put at par with the sale in execution of a decree obtained in a suit, by enacting sub-section (8) of Section 32 of the Act. This sub-section as noted earlier provides that an order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in theCode of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decreeExpression "as far as practicable" and in execution of a decree as if the Financial Corporation were the decree holder" are the only expressions which qualify the "manner provided" for sale of property in execution of a decree", as contained not only in some specific provision of the code e.g. Order XXI thereof but" in theCode of Civil Procedure, 1908" namely, all the provisions in the Code in this regard wherever they mayIf in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the code for execution of a decree for sale of such properties as are referred to in clause (a) of sub-section (1) of Section 31 of the Act, it would have made some provision analogous to provisions contained in the enactments for revenue recovery. But that was not done. Instead, sub-section (8) was incorporated in Section 32 of the Act. It is in this background that the question whether provisions of Order XXXIV, rule 5 of the code will be attracted or not to the facts of the instant case has to beWe shall first deal with the scope and import of the expression "as far as practicable" and "in execution of a decree as if the Financial Corporation were the decree holder" used in sub-section (8) of Section 32 of the Act. Without anything more the expression "as far as practicable" will mean that the manner provided in the Code for attachment or sale of property in execution of a decree shall be applicable in its entirely except such provision therein which may not be practicable to be applied. It will be for the person asserting that a particular provision with regard to execution of a decree for a sale of an immovable property contained in theCode of Civil Procedure will not apply to execution of an order under Section 32 of the Act on the ground that it was not practicable to show as to how and why it was not practicable. As regards the second expression namely" in execution of a decree as if the Financial Corporation were the decree holder" it may be pointed out that even though an order under Section 32 as seen above is not a decree stricto sensu as defined in Section 2(2) of the Code and the Financial Corporation would not as such be called the decree holder, Section 32(8) of the Act imports a legal fiction whereby the order under Section 32 of the Act for purposes of execution would be a decree and the Financial Corporation a decree holder. Apparently, the person against whom such decree has been executed namely the debtor of the Financial Corporation would be the judgment debtor, InEast End Dwellings Company Limited v. Finsbury Borough Council ((1952) AC 109 : (1950) 2 All ER81) Lord Asquith at page 132you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it..... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.It is also settled law that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond the legitimate field. Reference for the proposition may be made to the decision of this Court in Bengal Immunity Company Limited v. State of Bihar, ((1955) 2 SCR 603 : AIR 1955 SC 661 : (1955) 6 STC 446 ), C.I.T. v. Amarchand N. Shroff (1963 Supp 1 SCR 699 : AIR 1963 SC 1448 : (1963) 48 ITR 59 ) and C.I.T. v. Vadilal Lallubhai ((1973) 3 SCCAs is apparent from the plain language of Section 32(8) of the Act the legal fiction was created for the purpose of executing an order under Section 32 of the Act for sale of attached property as if such order was a decree in a suit for sale and the Financial Corporation was the decree holder whereas the debtor was the judgment debtor. Consequently, the provisions of theCode of Civil Procedure with regard to execution of a decree for sale of mortgaged property contained in Order XXI of the code including the right to file an appeal against such orders passed during the course of execution which are appealable, shall apply mutatis mutandis to executive of an order under Section 32 of the Act unless some provision is not practicable to be applied. It cannot be disputed that the provisions contained in Order XXXIV, Rule 5 of the Code are attracted as is apparent from the plain language thereof during the proceedings in execution of a final decree for sale and are thus provisions contained in the Code with regard to and having a material bearing on the execution of a decree as aforesaid. As seen above, the provisions contained in Order XXXIV, Rule 5 of the Code in substance permit the judgment debtor to redeem the mortgage even at the stage contemplated by Order XXXIV, Rule 5 of the Code in substance permit the judgment debtor to redeem the mortgage even at the stage contemplated by Order XXXIV, Rule 5 unless the equity of redemption has got extinguished. Since the contingency whereunder an equity of redemption gets extinguished is contained in the proviso to Section 60 of the Transfer of Property Act and since as indicated above, in the instant case the equity of redemption has not extinguished we find no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under Section 32 of the Act, the provisions contained in Order XXXIV, Rule 5 of the Code shall not apply. Nothing has been brought to our notice as to how and why it is not practicable to apply the said provision. As already pointed out earlier it has been held by this Court in the case of Mhadagonda Ramgonda Patil ((1988) 3 SCC 298 ) that in a suit for redemption of a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree but before the confirmation of such sale and that in view of these provisions the question of merger of mortgage debt in the decretal debt does not at all arise. We again do not find any good ground for holding that the said principle will not be attracted to a sale which has taken place pursuant to an order under Section 32 of the Act insofar as the provisions in the Code with regard to execution of a decree are concerned. Of course, in view of the limited scope of legal fiction as indicated above the provisions in the Code shall be applicable to an order of sale under the Act only with regard to execution of that order as if it was a decree in a suit and the Financial Corporation was a decree holder and the debtor a judgment debtor and this legal fiction will not be capable of being extended so as to treat an order of sale passed under the Act to be a decree in a suit for any other purpose for instance applying Section 34 of the Code as was sought to be done in the case of Everest Industrial Corporation ((1987) 3 SCC 597 ) nor could it be extended for treating the application made under Section 32(1) of the Act as a plaint for purpose of payment of court fee as we sought to be done in the case of Gujarat State Financial Corporation. ((1979) 1 SCC 193 : (1979) 1 SCR 372 : AIR 1978 SC 1765 : (1979) 49 Com CasThat the provisions of the Code with regard to execution of a decree for sale of mortgaged property would apply to execution of an order under Section 32 of the Act is clear from Section 32(8) of the Act and the reasons stated above. It would also be so inasmuch as even otherwise once the order under Section 32 for sale is made executable by a District Judge in his capacity as District Judge and not persona designata the provisions of the Code which are exercisable by the District Judge in execution of a decree for sale of mortgaged property would getIn National Sewing Thread Co. Ltd., v. James Chadwick & Bros. Ltd., (1953 SCR 1028 : AIR 1953 SC 357 ) an appeal was filed before a Single Judge of the Bombay High Court under Section 76(1) of the Trademarks Act, 1940 which provides that an appeal shall lie from any decision of the Registrar under the Act or the rules made thereunder to the High court having jurisdiction. The Trademarks Act, however, did not make any provision with regard to the procedure to be followed by the High court in the appeal or as to whether the order of the High court was appealable. Against the judgment of the Single Judge and appeal was preferred under clause 15 of the letters patent. That appeal was allowed and the judgment of the Single Judge was reversed. Before the Supreme Court an objection was raised that the Letters Patent appeal was not maintainable. While repelling the said objection it was held : (SCR pp.after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provisions of the charter under which that court is constituted an which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L.C. in NationalTelephone Co., Ltd., v. Postmaster-General (1913 AC 546 : 82 LJKB 1197 : 109 LT 562in these terms"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewisesame view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar ((1947) 74 IA 264), wherein it wasa legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right ofin Secretary of State for India v. Chellikani Ram Rao (1916 ILR 39 Mad 617), when dealing with the case under the Madras Forest Act their Lordships observed aswas contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Codethe facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trademarks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the letters patent there being nothing to the contrary in the Trademarks Act."