Dohara Beevi vs Bhaskaran

John Mathew, J.—The revision Petitioner is the decree-holder in two suits. In both these suits the judgment-debtors are the same. The decrees are for arrears of rent for different periods for the same building, let out to the 1st judgment-debtor. In execution the decree-holder sought to consolidate the petitions for execution of the two decrees. By the order impugned in this C.R.P. the lower court allowed that petition. The only contention on behalf of the 1st judgment debtor, who is the revision Petitioner, is that the execution court has no jurisdiction to order consolidation of two execution petitions.

It is well settled that it is the duty of the court executing the decree to aid the decree-holder in realising the amount due under the decree, and it should therefore offer him all possible and reasonable facilities for realising the decretal amount in as short a time as possible-see Maharaj Bahadur Singh Vs. Mafizuddin Chowdhury and Another, and Damodar Das and Others Vs. Bindeshwari Singh and Another, .

There is no specific provision in the CPC for consolidation of different proceedings. However, it has been held that the court has inherent power to consolidate suits and appeals, as may be necessary for the ends of justice or to prevent abuse of process of the Court. See In Re: Sri Sree Raja Velugotti Sri Govind Krishnayachandrulu Varu Bahadur, Maharajah of Venkatagiri, at 379 Section 351 of the CPC indicates that the court has power to make such orders as may be necessary under its inherent power to do real and substantial justice. The contention, of Sri B. Krishnamani, learned Counsel for the revision Petitioner-judgment-debtor, is that consolidation of execution petitions cannot be ordered under the inherent power of court. Learned Counsel for the Respondent-Decree-holder, Sri C.S. Narayanan, on the other hand contended that the court has inherent power to order consolidation of execution petitions.

Vaidialingam, J., as he then was, in Philip v. Bata Shoe Co. Ltd. 1959 KLT 1346 relying on Bailey v. Curson of Kedleston (Marchioness) 1932 (2) K.B. 392, observed that the court has got ample jurisdiction in proper circumstances to consolidate suits when a common question has to be decided. In Hukum Chand Boid v. Kamalanand Singh ILR Cal 927. Woodroffe, J., rejected the contention that the court has no power in matters of procedure other than those expressly conferred by the court, in the following words:

This argument assumes that the Code was intended to be and is exhaustive. It is one with which in previous judgments I have had to deal, it having been then as now (and as appears not uncommonly to be the case) though that it is sufficient (without anything more) to defeat an application or to reverse as order, that no precise section of the Code can be cited as an authority for it. For my Part I am always slow to believe that the Court''s powers are unequal to its desire to order that which it believes to be just. As was said in Durga Dihal Das v. Anoraji (1894) ILR All. 29, 31 the Code is not exhaustive, there are cases which are not provided for in it, and to adopt the observations made in that case I decline to believe that those are cases where this Court must fold its hands and allow injustice to be done...The Court has, therefore, in many cases, where the circumstances require it, acted upon the assumption of the possession of ah inherent power to act ex debito justitiae and to do that real and substantial justice for the administration, for which alone it exists. It has thus been held that, although the Code contains no express provision on the matters hereinafter mentioned, the Court has an inherent power ex debito justitiae to consolidate; postpone pending the decision of a selected action;....

The Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, proceeded on the basis that the inherent power u/s 151 CPC can be exercised by an execution court. Bhaskaran, J., as he then was in Kockupennamma v. The Bank of Deccan Ltd. ILR 1973 Ker 214 held that the execution court may exercise inherent powers u/s 151 Code of Civil Procedure.

At the same time it should not be forgotten that the powers saved by Section 151 CPC are not substantive rights which a litigant possesses see Padam Sen and Another Vs. The State of Uttar Pradesh, and that Section 151 CPC does not confer any additional jurisdiction on the court see State of West Bengal v. Indira Debi, (1977) 3 SCC 559 . But the main factors to be examined are whether the order that is proposed to be passed u/s 151 is necessary for the ends of justice or to prevent abuse of the process of the court see Nain Singh Vs. Koonwarjee and Others, at 998. It cannot be said that the inherent power of court will depend upon the nature of the proceeding before a court, unless of course the statute under which the proceeding is taken specifies that the Presiding Officer of the court is to function as a person designata and not as a court. Whether the jurisdiction is exercised by the court under the CPC or some other statute like the Indian Succession Act, the court can exercise its inherent power see Chithalan v. C. Ammu Amma 1968 K.L.J. 123, in which a Division Bench of this Court proceeded on the basis that irrespective of the number of applications for probate there can only be one probate issued and that should be issued after consolidating all those proceedings and that when there is nothing in common in two petitions, no consolidation is possible without the consent of the parties to the petition. As held by the Supreme Court in The Newabganj Sugar Mills Co. Ltd. and Others Vs. The Union of India (UOI) and Others, , the inherent power has its roots in necessity and its breadth is co-extensive with the necessity. There is some indication in the CPC itself that the Code envisages that the execution court has power to consolidate proceedings before it. (See order 21 Rule 18 Code of Civil Procedure.)

Merely because the court is executing a decree it cannot be said that the court is precluded from exercising its inherent powers. Inherent powers are vested in the court and the exercise of that power will not normally depend on the nature of the proceeding before it. Under the circumstances I hold that in exercise of its inherent powers, the court can consolidate execution petitions also. In this case the court has exercised its powers properly. Hence there is no merit in this C.R.P. It is accordingly dismissed. However, there will be no order as to costs.