Case: Bathina Ramakrishna Reddy Vs. The State Of Madras

1. These are two cross-appeals from the decision of the High Court at Calcutta in its appellate jurisdiction, dated 17-2-1947, modifying the order of the Subordinate Judge of Howrah in Title Execution Case No. 68 of 1936.2. The litigation culminating in these appeals commenced about thirty years ago. In the year 1923, one Durga Prasad Chamria instituted a suit against the respondents, Radha Kissen Chamria Motilal Chamria and their mother Anardevi Sethani (since deceased) for specific performance of an agreement for sale of an immovable property in Howrah claiming a sum of Rs. ll,03,063-8-3 and other reliefs. The suit was eventually decreed on compromise on 19-4-1926. Under the compromise decree the plaintiff became entitled to a sum of Rs. 8,61,000 from the respondents with interest at 6 3/4 per cent. with yearly rest from the date fixed for payment till realization. Part of the decretal sum was payable on the execution of the solenama and the rest by installments within eighteen months of that date.3. Within fifteen months from the date of the decree a sum of Rs. 10,00,987-15-6 is said to have been paid towards satisfaction of it. No steps were taken either by the judgment-debtors or the decree-holder regarding certification of most of those payments within the time prescribed by law. The judgment-debtors after the expiry of a long time made an application for certification but the decree-holder vehemently resisted it and declined to admit the payments. The result was that the Court only recorded the payment of the last three installments which had been made within ninety days before the application and the judgment debtors had to commence a regular suit against the decree-holder for recovery of the amounts paid, and not admitted in the execution proceedings. In the year 1929 a decree was passed in favour of the judgment-debtors for the amount paid by them and not certified in the execution. In the meantime the decree-holder had realized further amounts in execution of the decree by taking out execution proceedings on two or three occasions. The amount for which a decree had been passed against the decree-holder was also thereafter adjusted towards the amount due under the consent decree.4. On 17-3-1933 the decree was assigned by Durga Prasad to the appellant Keshardevi Chamira. The execution proceedings out of which these appeals arise were started by the assignee on 10-8-1936 for the realization of Rs. 4,20,693-8-9 and interest and costs. This execution had a chequered career. To begin with, the judgment debtors raised an objection that the assignee being a mere benamidar of Durga Prasad Chamria had nolocus standito take out execution. This dispute eventually ended in favour of the assignee after about five years fight and it was held that the assignment wasbona fideand Keshardeo was not a benamidar of the decree-holder.5. On 17-7-1942 Keshardeo made an application for attachment of various new properties of the judgment-debtors and for their arrest. Another set of objections was filed against this application by Radha Kissen Chamria. He disputed the correctness of the decretal amount, and contended that a certain payment of Rs. 1,60,000 should be recorded and certified as made on 28-5-1934, and not on the date the sum was actually paid to the decree-holder. This objection was decided by the Subordinate Judge on 11-9-1942 and it was held that the judgment-debtors were liable to pay interest on the sum of Rs. 1,60,000 up to 12-8-1936, and not up to 4-7-1941 as claimed by the assignee. On appeal the High Court by its judgment dated 22-6-1943 upheld the decree-holders contention, and ruled that the judgment-debtors were liable to pay interest up to 4-7-1941 on this sum of Rs. 1,60,000. The judgment-debtors then applied for leave to appeal to the Privy Council against this decision and leave was granted. On 13-2-1945 an application was made to withdraw the appeals and withdrawal was allowed by an order of the Court dated 20-2-1945. Thus the resistance offered by the judgment-debtors to the decree-holders application of 17-7-1942 ended on 20-2-1945.6. The records of the execution case were then sent back by the High Court and reached the Howrah Court on 28-2-1945. The decree-holders counsel was informed of the arrival of the records by an order dated 2-3-1945. The hearing of the case was fixed for 5-3-1945. On 5-3-1945 the Court made the following orderprays for time to take necessary steps. The case is adjourned to 10-3-1945 for order. Decree-holder to take necessary steps by that date positively."The decree-holder applied for further adjournment of the case and on the 10th the. Court passed an order in these termsprays for time again to give necessary instructions to his pleader for taking necessary steps. The Petition for time is rejected. The execution case is dismissed on partthe decree-holder was apprised of this order, he on 19-3-1945 made an application under s. 151, Civil P. C., for restoration of the execution and for setting aside the order of dismissal. On this application notice was issued to the judgment debtors who raised a number of objections against the decree-holders petition to revive the execution. By an order dated 25-4-1945, the subordinate Judge granted the decree-holder prayer and ordered restoration of the execution. The operative part of the order is in these terms10-3-45 the decree-holder again prayed for time for the purpose of giving necessary instructions to his pleader for taking steps. That petition was rejected by me. On 10-3-45 by the same order-I mean the order rejecting the petition for adjournment-I dismissed the execution case on part satisfaction. The learned counsel on behalf of the present petitioner wants me to vacate the order by which I have dismissed the execution case on part satisfaction. He has invoked the aid of s. 15l, C. P. C., for cancellation of this order and the consequent restoration of the execution case. I would discuss at the very outset as to whether I was justified in dismissing the execution case in the same order after rejecting the petition of the decree-holder for an adjournment without giving him an opportunity to his pleader to make any submission he might have to make after the rejection of the petition for time. It is clear from the order that the fact that the petition for time filed by the decree-holder on 10-3-45 was rejected by me was not brought to the notice of the pleader for the decree-holder. It seems to me that there was denial of justice to the decree-holder in the present execution proceeding inasmuch as it was a sad omission on my part not to, communicate his pleader the result of this petition he made praying for an adjournment of this execution proceeding and at the same time to dismiss the execution case on part satisfaction which has brought about consequences highly prejudicial to the interest of the decree-holder. I think S. 151, Civil P. C., is the only section which empowers me to rectify the sad omission I have made in not communicating to the pleader for the decree-holder as to the fate of his application for an adjournment of the execution case and as such I would vacate the order passed by me dismissing the execution case on part satisfaction. The ends of justice far which the Court exists demand such rectification and I would do it. The learned Advocate-General on behalf of the judgment-debtor Radha Kissen has argued before me that this Court has no jurisdiction to vacate the order passed by me on 10-3-45 dismissing the execution case on part satisfaction. His argument is that s. 48, C. P. C., stands in my way inasmuch as the law of limitation as provided in the above section debars the relief as sought for by the decree-holder in the present application. I do not question the soundness of this argument advanced by the learned Advocate-General. The facts of this case bring home the fact that in the present case I am rectifying a sad omission made by me which brought about practically a denial of justice to the decree-holder and as such the operation of s. 45, C. P. C., does not come to the assistance of the judgment-debtor Radhawould have saved considerable expense and trouble to the parties had the dismissal for default chapter been closed for ever by this order of the Judge; the proceedings, however, took a different course. A serious controversy raged between the parties about the correctness of, this obviously just order arid after seven years it is now before us. An appeal and a revision were preferred to the High Court against this order. By its judgment dated 24-8-1945, the High Court held that no appeal lay against it as the question involved did not fall within the ambit of s. 47, Civil P. C. It, however, entertained the revision application and allowed it, and remanded the to the subordinate Judge for reconsideration and disposal in accordance with the observations made in the order. The High Court took the view that the Subordinate Judge was in error in restoring the execution without taking into consideration the point whether the decree-holders pleader could really take any step-in-aid of the execution if he had been apprised of the order of the Court dismissing the adjournment applications. This is what the High Courtground put forward by the Subordinate Judge in support of his order for restoration is that the order rejecting the adjournment petition should have been communicated to the pleader for the decree-holder but this was not done. We will assume that this was an omission on the part of the Court. The question now is whether it was possible for the decree-holder to take any further steps in connection with the execution of the decree and thereby prevent the execution case from being dismissed for default. No evidence was taken by the learned Subordinate Judge on this point and even the pleader who was in charge of the execution case on behalf of the decree-holder was not examined. . . . . . . . ... If really the decree-holder was not in a position to state on that day as to what was the amount due under the decree for which he wanted the execution to be levied and if according to him it required elaborate accounting for the purpose of arriving at the proper figure it was not possible for him to ask the Court to issue any process by way of attachment of the property on that date. It seems to us that the learned Judge should have considered this matter properly and he should have found on proper material as to whether the decree-holder could really take any steps after the application for adjournment wassharp contrast to the opinion contained in the order of remand is the view now expressed by the High Court on this point in its final judgment under appeal :important circumstance which, in our opinion tells in favour of the decree-holder is the fact we have noticed before, namely, that after the petition for time was rejected the Court did not call on the execution case and otherwise intimate its decision to go on with it. In one sense, this might be regarded as a mere error of procedure on the part of the Court which it would be wrong to allow the decree-holder to take advantage of, but an error it was, as was admitted by the learned judge himself who had dealt with the matter, and we do not think his opinion can be lightly brushed aside. There can be no doubt that the learned judge was in the best position to speak as regards the actual proceedings in his Court on 10-3-1945, and if he thought that it amounted to a denial of justice to have rejected the petition for time and by the same order to dismiss the execution case, it is not for us to say that he was not right. It may well that even if the case was called on the decree-holders pleader would even then have been absent, but having regard to all the facts and circumstance of the case, we think the Court might yet give the decree-holder the benefit of doubt in this matter, and assume in his favour that his pleader would have appeared before the learned judge and tried to avert a peremptory dismissal of the execution case even, though he or his client might not have been fully ready with all necessary materials for continuing the execution. proceeding.As we have pointed out before, and as the Court below has also found, it was possible for the decree-holder or his pleader to have submitted to the Court some sort of an account of the decretal dues on that date after refusal of the adjournment but even if this could not be done, we. still believe that the pleader, if he appeared, could have done something, either by drawing the Courts attention to some of its previous orders or otherwise, by which a dismissal of the case might bewas not difficult to envisage what the counsel would have done when faced with such a dilemma. He would have straightaway stated that the execution should issue for an amount which was roughly known to him, and that the Court should issue a process for the arrest of the judgment-debtors. By such a statement, he Would have saved the dismissal without any detriment to his client who could later make another application stating the precise amount due and praying for additional reliefs.7. After remand on 13-3-1946, the learned Subordinate Judge restored the execution case in respect of a sum of Rs. 92,000 only and maintained the order of dismissal in other respects. He held that the decree-holder was grossly negligent on 5th and 10th March 1945 and that due to his negligence the execution case was dismissed in default ; that even if his pleader had been informed of the order rejecting the application for adjournment he could not have taken any steps to prevent the dismissal of the execution; that the execution being now barred by limitation the judgment debtors should not be deprived of the valuable rights acquired by them but at the same time they should not be allowed to retain the advantage of an acknowledgment of a debt of Rs. 92,000 made by the decree-holder.8. Both the decree-holder and the judgment debtors were dissatisfied with this order. The decree-holder preferred an appeal to the High Court and also filed an application under s. 115, Civil P. C. The judgment-debtors filed cross objections in the appeal and also preferred an alternative application in revision.9. The appeal, the cross-objections and the two revision applications were disposed of together by the High Court by its judgment dated 17-2-19

Reasoning:
13. It is unnecessary to consider all the points taken in these appeals because, in our opinion, the point canvassed on behalf of the decree-holder that the order of remand was without jurisdiction and that all the proceedings taken subsequent to the order of the executing Court reviving the execution were void, has force. The sole ground on which the Subordinate Judge had ordered restoration of the execution was that he had himself made a sad mistake in dismissing it at the same time that he dismissed the adjournment application without informing the decree-holders counsel that the request for adjournment had been refused and without calling upon him to state what he wanted done in the matter in those circumstances. As the Subordinate, Judge was correcting his own error in the exercise of his inherent powers, it was not necessary for him to investigate into the correctness of the various allegations and counter allegations made by the parties. He was the best judge of the procedure that was usually adopted in his Court in such cases and there is no reason whatsoever for the supposition that when the Subordinate Judge said that he had not given any opportunity to the decree-holders pleader to take any steps in execution of the decree after the dismissal of the adjournment application he was not right. It Could not be seriously suggested that such an opportunity was given to the decree-holder, the dismissal order of the execution having been made at the same moment of time as the order dismissing the application for adjournment. It is quite clear that the interests of justice demanded that the decree-holders pleader should have been informed that his request for adjournment had been refused, and further given opportunity to state what he wanted, done in that situation. It was wholly unnecessary in such circumstances to speculate what the pleader would have done when faced with that situation. The solid fact remains that he was not given that opportunity and that being so, the order dismissing the execution was bad and was rightly corrected by the Court on its own initiative in the exercise of its inherentis plain that the High Court had no jurisdiction in the exercise of its appellate jurisdiction to reverse this decision. In the remand order itself, it was held that it was difficult to say that the order by itself amounted to final determination of any question relating to execution, discharge or satisfaction of a decree and that being so, it did not fall within the ambit of s. 47, Civil P. C. We are in entire agreement with this observation. The proceedings that commenced with the decree-holders application for restoration of the execution and terminated with the order of revival can in no sense be said to relate to the determination of any question concerning the execution, discharge or satisfaction of the decree. Such proceedings are in their nature collateral to the execution and are independent of it.15. It was not contended and could not be seriously urged, that an order under s. 151 simpliciter is appealable. Under the Code of Civil Procedure, certain specific orders mentioned in s. l04 and O. 43, R. 1 only are appealable and no appeal lies from any other orders (Vide s. 105, Civil P. C.). An order made under s. 151 is not included in the category of appealable orders.We are therefore of the opinion that in reversing the order of the executing Court dated 25-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by s. 115 of the Code. It is plain that the order of the Subordinate Judge dated 25-4-1945 was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he bad committed an error in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holders pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25-4-1945 and set it aside in exercise of that jurisdiction and remanded the case for further enquiry.