Chandra Bhan Singh vs III Additional Judge and Others

H.N. Tilhari, J.—This is a petition by Chandra Bhan Singh who claims to have purchased the property in dispute under a private transaction of sale from the judgment debtor. This transaction is alleged to have taken place on 27.7.1978. The Petitioner has claimed the following reliefs:

(a) that a writ in the nature of certiorari or an order in the nature of certiorari be issued quashing the judgment and order dated 19.1.1980 passed by opposite party, party No. 2 i.e. III Additional Muasif, Gonda (Annexure-2) as well as for quashing of the order dated 10.12.1980 passed by opposite party No. 1, III Additional District Judge, Gonda, a copy of which is Annexure-3 to the writ petition.

The facts of the case, in brief, are that in a suit being R.S. No. 194 of 66. The claim made in suit having been decreed finally, the execution had been moved and the execution application is numbered as Execution Case No. 52 of 68. In pursuance of execution proceedings the property in dispute i.e. grove plot Nos. 1438 and 1441 situated in village Sahjanvan, district Gonda, had been out to auction and had been auctioned on 7.1.1979. Against the said action the judgment-debtor filed objection under Order XXI Rule 90 of he Code of Civil Procedure. By order dated 28.7.1979, a copy of which has been annexed as Annexure-4. When the case was fixed for disposal of objections under Order XXI Rule 90 of the Code, the trial Court i.e. III Addl. Munsif issued a direction to the decree-holder to implead Chandra Bhan Singh, the present Petitioner, as party in the execution case as the Petitioner had claimed to have purchased the properties in dispute sometime on 1979 and fixed the case for 10.8.1979 without disposing off the objection. The decree-holder, opposite party No. 3 did neither implead the present Petitioner as party in the execution case nor did file any revision from that order. On 10.8.1979 the execution case was dismissed for non prosecution. Thereafter an application C-3 was moved by the decree-holder for restoration of the execution case purporting to have been made u/s 151, of the Code. The trial Court by order dated 19.1.1980 set aside the order of dismissal of the execution case and restored it to its original number. By order dated 5.2.1980 the learned Munsif observed that vide order dated 28.7.1979 Chandra Bhan Singh, the present Petitioner, had been directed to be impleaded as party to the execution case but the same not having been done, the case had been dismissed for non-prosecution and now in view of the terms of High Court''s Order XX Rule 90 of the Code have yet to be disposed of but before disposal thereof the trial Court ordered vide its order dated 5.2.1980, that Chandra Bhan Singh be made a party to the execution case and the steps to be taken by 11.2.1980. Against the order dated 5.2.1980 as well as against the order dated 19.1.1980 two revisions were filed i.e. Revision No. 45 of 80 Chandra Bhan Misra, the decree-holder v. Suraj Prasad and the Ors. Revision No. 71 of 80 Ram Sukh Singh and Ors. v. Chandra Bhan Singh and Ors. The revision, that had been filed by the Petitioner, was against the order dated 19.1.1980 whereby the execution case had been restored and the order for dismissal had been set aside while the opposite-parties have filed revision against the order dated 5.2.1980 whereby it was ordered that subsequent purchaser be made a party i.e. purchaser who had purchased the property independent of the Court auction be impleaded. Learned Additional District Judge, Gondii, allowed the revision No. 45 of 80 filed by Chandra Bhan Misra, namely, Chandra Bhan Misra v. Suraj Prasad and set aside the order dated 5.2.1980 to the extent it called upon the decree holder to take steps for the impleadment of the Petitioner as a party in the execution case and the learned Additional District Judge directed the execution Court to expedite the proceedings and the disposal of objections under Order XXI Rule 90 of the Code and to either confirm or to pass appropriate orders with respect to sale in the matter of confirmation. Learned Additional District Judge, Gonda by the same order dated 10.12.1980 dismissed the Revision No. 71 of 80 filed by Ram Sukh i.e. judgment-debtor whereby judgment-debtor had challenged the order dated 19.1.1980 whereby the execution case had been restored.

Feeling aggrieved from the order of learned Additional District Judge dated 10.12.1980 the Petitioners who claimed to have purchased the property, subject matter of dispute sometimes in 1978, particularly, the property which had already been auctioned in the Court auction on 7.1.1969 have filed the present writ petition under Article 226 of the Constitution.

I have heard learned Counsel for the Petitioner Shri H.S. Sahai as well as Shri P.C. Rastogi, learned Counsel for the opposite- parties at length. Shri H.S. Sahai, learned Counsel for the Petitioner first submitted that the order dated 19.1.1980 had been illegally passed, hereby the execution case had been restored, after setting aside of the order dated 10.8.1979, as such, is illegal and without jurisdiction. Shri Sahai, learned Counsel for the Petitioner submitted that Order IX of Code and, in particular the provisions of Order IX Rule or Order IX Rule 13 of the Code did not apply to the execution case or execution matter. He submitted that when Order IX of the Code did not apply and particularly Order IX Rule 9 or Order IX Rule 13 of the Code did not apply to the execution proceedings, the learned execution court acted illegally and without jurisdiction in passing the order restoring the execution case to its original number. Shri Sahai made a reference to a Full Bench decision of this Court in the case of Moradhwaj Vs. Bhudar Das, . Shri P.C. Rastogi, learned Counsel for the opposite parties disputed the correctness of the submission of the Petitioner''s learned Counsel in this regard. Shri P.C. Rastogi, learned Counsel for the opposite parties submitted that firstly, even if for a moment the order be taken to be u/s 151, of the Code, as if Order 9 Rule 9 of the Code did not apply, then in the interest of justice and to avoid multiplicity of the proceedings the Court exercised its inherent power and no illegality has been done, as such revision u/s 115 of the Code, challenging that order, either by the judgment-debtor or even by the purchaser could not be maintainable in view of the decision of the Supreme Court in the case of Keshardeo Chamria Vs. Radha Kissen Chamria and Others, . In alternative Shri P.C. Rastogi further submitted that really Order IX, Rule 9 of the Code did apply to execution cases even, particularly on 10.8.1979, in view of the provisions of Section 141, of the Code and, therefore, Shri Rastogi submitted that the learned Counsel for the Petitioner is wrong in submitting that order IX Rule 9 of the Code did not apply. I find much force in the contention of Shri Rastogi. The argument advanced by Shri H.S. Sahai, learned Counsel for the Petitioner completely ignores the amended Section 141, of the Code and it appears to have been based on the law that might have existed prior to amendment of Section 141 of the Code, in particular the explanation, it will be just and proper on my part to make a reference to the provisions of Section 141, of the Code as it existed prior to its amendment by Civil Laws Amendment Act, 1976, as well as to make a reference to Section 141, of the Code as amended by Civil Laws Amendment Act, 1976. The amended Section 141, of the Code reads as under:

Miscellaneous proceedings - The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. (Explanation.- In this section, the expression "proceedings" includes proceedings under Order IX , but does not include any proceeding under Article 226 of the Constitution.

Section 141 of the Code as contained in the CPC prior to amendment of 1976 reads as under:

Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far it can be made applicable, in all proceeding sin any Court of civil jurisdiction.

Section 141, as introduced in the Act of 1908 did not contain any such explanation as has been introduced in Section 141, by Act of 1976. Earlier to the CPC of 1908 Section 647 existed which had been analogous to Section 141 of the CPC of 1908. In the case of Sarju Prasad v. Sita Ram and Fakir Ullah v. Thakur Prasad ILR 12 All.10 All. 179, Section 647 of the CPC of 1882 has been subject matter of interpretation and on the basis thereof it was laid down by this Court that the procedure provided and applicable to suits shall also be applicable and did apply to execution proceedings by virtue of Section 647, while a contrary view was expressed by Calcutta High Court in the case of Banke Behary Gangopadhya v. Nil Madhab ILR (1891) Cal. 635, and matter having gone in appeal from the decision of Fakir Ullah''s case (Supra), the Privy Council held that the procedure for suit did not apply to execution proceedings. It may be mentioned that when the appeal had been pending before the Privy Council an explanation had been added to Section 647, of the CPC of 1882 that explanation reads as under:

This section does not apply to application for execution of decrees which are proceedings in suit.

That being the position, thereafter this Code of 1908 was enacted came into being therein that explanation was not incorporated. Section 141 of the Code of Civil Procedure, 1908 reads as under:''

Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

The Legislature in 1976 added an explanation as has been mentioned above. What is not included in the expression ''proceeding'' has very clearly been specified by this new explanation and under this new explanation the proceedings under Article 226 of the Constitution have been declared not to be included within the frame-work of expression proceedings used in Section 141, of the Code. The explanation as under:

...but does not include any proceedings under Article 226 of the Constitution." There is nothing in Section 141, of the Code or explanation thereto to indicate or exhibit or show the legislative intent to exclude the execution proceedings from the ambit of expression "proceedings" used in the section. If the legislature would have intended or thought fit to exclude the proceedings for execution from the scope of application of Section 141, of the Code, it would have provided for that, as at one time it has been so provided as per explanation to Section 647, of the Code of 1882. At the time of the full Bench decision in the case of Moradhwaj (supra) relied upon by the learned Counsel for the Petitioner there was no explanation to Section 141, of the Code and there was no provision indicating what should not be included within the scope of expression "proceedings" under the section. Therefore, in view of the new explanation added in Section 141, of the Code which did not exist at the time when full Bench decision in the case of Moradwai v. Bhudhar Das (supra) was given in 1955 the decision cannot be taken to be of any help in interpreting Section 141, of the Code, and, as such, that case is distinguishable and is inapplicable to the instant case, and cannot be said to be helpful to the learned Counsel for the Petitioner. In this view of the matter, in my opinion, when it is provided that procedure provided in this Code in regards to suits shall be followed as far as the Code maybe applicable in proceedings in any Court of civil jurisdiction, by virtue of Section 141 of the Code, the procedure prescribed in regard to suits under the Code, so far as may be will apply to the proceedings other than suit as well before and in Civil Court unless expressly excluded as proceedings under Article 226 of the Constitution.

Thus considered, in my opinion, Order IX Rule 9 or Order IX Rule 13 of the CPC has been applicable to execution proceedings in view of Section 141, of the Code and the trial Court was within its competence in restoring the execution case to its original number and there is no jurisdictional error, as such, the revisional Court rightly held that the order of restoration was perfectly valid and dismissed the revision No. 7l of 1980. Even if otherwise as well it was open to the Court below to recall its order dated 10.8.1979 u/s 151 of the CPC in the circumstances of the case as it did as inherent powers u/s 151, of the Code are exercisable to prevent the abuse of the process of the Court, so order dated 19.1.1980 did not suffer from any jurisdictional or legal error.

The view I have taken finds support from decision of the learned Single Judge of this Court in Second Execution of Decree Appeal No. 8/73, Mr. Justice Prem Prakash (as he then was) observed therein as under:

I am unable to agree with the view taken by the two Courts below that Order IX, Rule 9 cannot be applied to dismissal of the application Under Order 21 Rule 90 of the CPC but there is inherent power in the Court u/s 151, to restore such application if good or sufficient cause is shown or made out.

In this view of the matter, in my opinion, trial Court acted within its jurisdiction and the revisional Court did not commit any jurisdictional error in dismissing the revision No. 71 of 80. The second contention of the learned Counsel for the Petitioner Shri Sahai has been that by order dated 28.7.1979 the decree-holder had been directed to implead the subsequent purchaser i.e. the Petitioner who had purchased the property in dispute outside the Court and no revision had been filed therefore and when, that order was not complied with the execution case had been dismissed and after restoration of that case the execution Court had again directed by its order dated 5.2.1980 that order dated 28.7.1979 complied with and that Petitioner Chandra Bhan Singh be impleaded as a party in the execution case. Shri Sahai submitted that order dated 28.7.1979 not having been challenged either in Revision No. 45 of 80 nor having been challenged earlier, the learned District Judge in exercise of revisional jurisdiction had no jurisdiction to interfere with the order of 5.2.1980 whereby the decree-holder was called upon the take steps for impleadment of Chandra Bhan Singh. The revisional powers are supervisory powers. Power u/s 115 of the Code being supervisory powers could be exercised by the superior Court either suo motu or on the application of the party on facts jurisdictional error otherwise coming to their notice. The revisional Court has considered that matter in detail. it has taken the view that grant of application 180-C was illegal and that the trial Court had not applied its mind to the question of necessary ingredients needed for exercise of power under Order 1 Rule 10 of the Code. The Court had observed that on 28.7.1979when the application under Order XXI Rule 90 of the Code was placed for order instead of disposing of the same the Court had passed orders without recording any finding whether the Petitioner was a necessary or proper party and ordered the decree holder to implead the Petitioner as party in the execution case and so there was an illegality in the order. Shri P.C. Rastogi, leaned counsel for opposite parties has challenged the correctness of submission of the Petitioner''s counsel. Shri Rastogi supported the judgment of the learned Additional District Judge on the ground that for the exercise of jurisdiction under Order 1, Rule 10 of CPC and for ordering impleadment of a person the condition precedent is that it should be shown and established by the applicant that he is either a necessary party or proper party in terms of law as laid down in many cases by the Supreme Court. In case under Order 1 Rule 10 of the Code only one can be added as a party to the suit or proceeding who either ought to have been included as a party or was necessary party or whose presence before the Court is necessary to enable the Court to effectively and completely adjudicate upon all the questions involved in the suit. Shri Rastogi further submitted that the Petitioner was neither a necessary party nor a proper party because in view of Section 52 of the Transfer of Property Act if he has purchased the property-during it is pending and particularly when the property has already been attached and auctioned no rights in respect of the property did pass on to the Petitioner. The property once attached could not be sold in course of attachment and particularly when it has already been auctioned then definitely no right or title could accrue to the Petitioner in respect of the property in dispute which had been auctioned and so the Petitioner was neither a necessary party nor a proper party. I find much substance and force in the contention of Shri P.C. Rastogi in this regard. Order 1 Rule 10 of the Code reads as under:

Suit in name of wrong Plaintiff. - (1) Where a suit has been instituted in the name of the wrong person as Plaintiff or where it is doubtful whether it has been instituted in the name of the right Plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as Plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties, - The Court may at any stage of the proceeding, either upon or without the application of either party, and on such terms as may appear to the Court to be just, whether as Plaintiff or Defendant, be struck out, and that the flame of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon nd settle all the questions involved in the suit, be added.

(3) No person shall be added as a Plaintiff suing without a next friend or as the next friend

(4) Where defendant added, plaint to be amended, - Where a Defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of plaint shall be served on the new Defendant and, if the Court thinks fit, on the original Defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as Defendant shall be deemed to have begun only on the service of the summons. "A reading of the provisions of Order 1 Rule 10 of the Code per se shows that the Court has been given power to order impleadment or addition of one who ought to have been made a party or whose presence the Court feels necessary to enable it to effectually and completely adjudicate upon and settle the dispute in issue. The expression "may" used in Rule 10 of Order 1 of the Code is not discretionary. The expression "may" here has been used as empowering provision that Court has been conferred power to do certain thing and when a power is conferred to do certain thing in the condition prescribed and if those conditions are shown to exist then that "may" may be read as "shall" and it becomes the duty of the Court to exercise that power on the fulfillment of that condition and "may" has to be read as "shall" and may be read as obligatory. (See Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 , and Legislation and interpretation by Jagdish Swaroop Chapter XII S.8.399.

This being the position the condition precedent in this case has not been investigated shown to be existing by the learned Munsiff when it passed order dated 28.7.1979 as to whether the Petitioner was a necessary or proper party and when this condition precedent was not shown to exist the Court before had no jurisdiction to order impleadment. That, as that order was without jurisdiction the subsequent order dated 5.2.1980 was also without jurisdiction because in that order also that question sine qua non i.e. condition precedent for exercise of jurisdiction under Order 1 Rule 10 of the Code has not been shown to be existing. That being the position, orders dated 28.7.1979 and 5.2.1980 were definitely erroneous and without jurisdiction, and as such, the learned Additional District Judge acted within its jurisdiction in exercise of power u/s 115 of the Code by interfering with the order dated 5.2.1980. The case before the learned Additional District Judge definitely was covered by Section 115 of the Code and the law thereunder as laid down as early as in 1949 in the case of AIR 1949 239 (Privy Council) . It has later on been followed with approval by the Hon''ble Supreme Court in many cases.

Thus, in my view, the orders impugned in this writ petition do not suffer from any error of law or of jurisdiction. The orders have been perfectly valid and substantial justice appears to have been done by restoring of the execution case and by the ordering of that application under Order XXI Rule 90 of the Code for being expeditiously disposed of. While finally disposing of the writ petition and dismissing the same as being without merits the execution Court is directed to dispose of the execution proceedings at the earliest possible i.e. not exceeding three months from the date of communication of this order. No order as to costs.