Mrs. Vasanthi vs K. Karuppanna Gounder and Others

K.M. Natarajan, J.—This revision is filed by the 4th respondent in the claim petition E.A. 581 of 1985 in E.P.55 of 1983, against the Judgment of the Sub Judge, Dharapuram in C.M.A. 4 of 1987 confirming the order passed by the District Munsif, Dharapuram, in E.A. 581 of 1985 petition under O.21, R.58 C.P.C. The facts which are necessary for the disposal of the revision are briefly as follows: Respondents 1 to 3 in this revision petition filed the claim application E.A. 581 of 1985 under O.21, R.58 C.P.C. against the revision petitioner and three others (namely, the fourth respondent, the decree holder, the deceased judgment debtor Karuppanna Gounder, his wife Karuppammal and his daughter Kaliammal). For the sake of convenience, the array of parties as in the claim petition is adopted in this revision also. The first respondent-decree-holder-attached the properties in execution of the decree obtained by him against the second respondent Karuppanna Gounder. After his death, his wife Karuppammal was impleaded as the second respondent in his place. It is the case of the claimants that claimants 1 and 2 purchased two acres out of 5 acres 39 cents of the petition mentioned property on 13-6-1973, from the judgment debtor and the third claimant purchased 1 acre 39 cents from the wife and daughter of Karuppanna Gounder on 12-11-1982. The above sale deeds were executed without disclosing the attachment over the property. But the petitioners-claimants have been in possession in pursuance of the said sale deeds. The remaining property which is in the name of the judgment debtor, namely 2 acres 10 cents is sufficient to satisfy the decree debt. Hence, they prayed for release of the attachment in respect of 3 acres 39 cents purchased by them.

The said application was resisted by the first respondent and in his counter it is stated that the attachment over the property was made absolute even on 3-2-1973. The claimants are relatives of the judgment debtor and they are aware of the attachment. As such, the sales in their favour, subsequent to the attachment, are not valid and hence the petition is liable to be dismissed.

On the side of the claimants, the sale deed in favour of the third petitioner (Ex.A1) and the sale deed in favour of the petitioners 1 and 2 (Ex.A2) were marked and the first petitioner was examined as P.W.1. On the side of the respondents, the decree holder was examined as R.W.1 and one Muthusami Gounder was examined as R.W.2. The learned District Munsif for the reasons a signed in his order came to the conclusion that though the sale deeds in favour of the petitioners came into existence after the attachment, the remaining property now in the possession of the heirs of the judgment debtor namely, 2 acres 10 cents, would be sufficient to satisfy the decree debt of the first respondent and as such, those properties are directed to be sold first and if the same is not sufficient, then the property purchased by the claimants can be proceeded. Aggrieved by the same, the fourth respondent, the daughter of the judgment debtor filed the appeal in C.M.A. 4 of 1987 and she was unsuccessful. Hence this revision.

The only point raised in this revision is, whether the lower appellate Court is justified in dismissing the appeal on the ground that, as against the order passed in the claim petition under O.21, R.58 C.P.C. only a second appeal lies under S.96 C.P.C. read with O.41 C.P.C. and not civil miscellaneous appeal, as if it was an order under S.104 C.P.C. read with O.43(1) C.P.C. The learned counsel for the revision petitioner drew my attention to the provisions of O.21, R.58 sub-R.(2) and (4) and submitted that an appeal has been provided under the said sub-R.(4). Sub-R (4) of the R.58, O.21 C.P.C. reads as follows�

Whether any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

According to the learned counsel, when once the rule itself provides an appeal, only an appeal against the order is to be filed under S.104, C.P.C. and not under S.96 C.P.C. In this connection, the learned counsel drew my attention to S. 104(1) (i) C.P.C. which read as follows�

An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this code or by any law for the time being in force, from no other orders�

(i) any order made under rules from which an appeal is expressly allowed by rules.

The learned counsel also drew my attention to the definition of ''rules'' under S.2(18) C.P.C. which reads:�

"Rules" means rules and forms contained in the First Schedule or made under S.122 or S.125.

The first Schedule contains O.1 to O.51. On the other hand, ''decree'' has been defined under S.2(2) C.P.C. which reads as follows�

"Decree" means the formal expression of 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 S.144, but shall not include�(a) any adjudication from which an appeal lies as an appeal from an order...

The learned counsel also submitted that it is clear that when an appeal lies as an appeal from an order, it is not a decree as per the definition of decree under S.2(2) C.P.C. Only if it is a ''decree'', the question of filing an appeal under S.96 C.P.C. arises.

S.96(1) C.P.C. reads as follows �

Save where otherwise expressly provided in the body of this Code or be any other law for the time being in force, an appeal snail lie from every decree passed by any court exercising original introduction to the court authorised to near appeals from the decision of such courts.

It is also submitted by the learned counsel that even in cases of non-executable order passed, a decretal older is also prepared, that only by nomenclature it is so called and that it does not mean that merely because it is called a decretal order, a regular appeal alone will lie. According to the learned counsel, decree means that it should be an executable one and that an order raising the attachment or making the attachment absolute, is not an executable one. But on the other hand, it only means that further proceedings are to be proceeded in execution.

The learned counsel in support of his contention drew my attention to various decisions on this aspect. In Avinash Chander Vs. Mohan Lal and Another, in para 14, it has been held�

The conjoint reading of the various provisions of the Code as amended in 1976 leads to the conclusion that all claims to property, or objections to attachment of any, (sic), attached in execution of a decree, on the (sic) that such property is not liable to attachment, whether preferred by the parties to the suit or their representatives, or third parties, are to be adjudicated under O.21, R.58 and all questions including questions relating to right, tide of interest in the property attached, raised by such parties therein under this rule, are required to be determined by the court dealing with the claim or objection, and not by a separate suit. Further the order made on such determination is to have the same force as if it were a decree, but not being a decree itself Furthermore, the order is subject to some conditions as to appeal or other wise, as it were a decree without being a decree itself.

In B.M. Aishabi Vs. A. Yakub and Others, it was held that the remedy of appeal under sub-R.(4) of R.58 of O.21, C.P.C. is reserved only for orders adjudicating upon claims or objections and that the determination of the question would have the force of a decree and the remedy of the parties wishing to challenge the order is only by way of appeal. In Bollapalli Venkat Rao Vs. Chaturvedula Subbaiah and Another, , a Division Bench held that as the order is passed in the claim application, civil miscellaneous appeal is maintainable and as against that, civil miscellaneous second appeal is competent and no revision is maintainable under S.115(2). Accordingly, the revision petition in that case was converted into one of civil miscellaneous second appeal against the order passed in civil miscellaneous appeal. In Kumarika Subarna Rekha Mani Devi and Others Vs. Ramakrishna Deo and Others, , the distinction between ''order'' and ''decree'' has been considered in paras 22 and 23. It was held�

The importance of making a distinction between an order and a decree lies in the fact that whereas in an adjudication which is a decree an appeal invariably lies therefrom and second appeal also on the grounds mentioned in S.100 C.P.C. No appeal lies from an order unless it is expressly provided under S. 104 or O.43. C.P.C., and in any event no second appeal lies.

It is further held:�

It may further he seen that what a by a deeming provision the CPC takes, in the above orders within the meaning of decree, it in terms excludes certain other (sic) which may otherwise come under this definition such as orders passed from which appeals he as appeals from orders and any order of dismissal for default. If that were not so the clause but shall not include would be without meaning. Not only this, in its various provision certain adjudications partaking stated to he only orders, e.g., orders under O.9 R.2 etc Further, there are also cases where certain orders have been given the force of a decree treating them as if they were decrees by making express provision in that behalf, but without including them in the definition e.g., orders under O.21 Cl.(2) of R.50, which are reckoned in Cl.(3) as though they are decrees. They are, indeed, impressed with the incidents of a decree though they are not brought within its definition in S.2(2) C.P.C. It is thus clear that C.P.C., has determined the true limits and provinces of a decree by showing what is and what is not a decree and what is to which to has only the force of a decree.

In Sidramappa v. Shangaralingappa AIR 1979 Kar. 89, it was held�

The claim or objection when it is adjudicated upon by the executing court under R.58 of O.21 C.P.C., is deemed to be a decree and it is appealable as provided for in sub-R.(4) of R.58 and no revision lies under S.115 C.P.C.

The learned counsel for the appellant submitted that the appeal provided under sub-R.(4) of R.58 of O.21 C.P.C. is clearly attracted by S.104(1)(i) C.P.C in Uma Datt v. R.K. Sardana AIR 1970 Del 56, while considering the scope of S.2(2). 47, 104 and 115 and O.21, R.90 and O.43, R.1(j) C.P.C. it was held �

By virtue of S. 104 C.P.C., read with O.43, R.1, Cl.(i) no second appeal against an order made in execution proceedings on objections raised by the judgment debtor under O.21 R.90 would be competent. Though the auction purchaser is covered by S.47 as amended, S.2(2) excludes from the definition of a ''decree'' any adjudication from which an appeal lies as an appeal from an order. The order of executing court being appealable as an ''order'', it cannot be considered as a ''decree''. Though the second appeal is thus incompetent, if there be no objection to the appeal being treated as a revision under S.115 and if no injustice results to any party, then it can be so treated.

It is clear from the above decision that S.2(2) C.P.C. which defines ''decree'' excludes from the definition of a decree any adjudication from which an appeal lies as an appeal from an order as in this case. The learned counsel drew my attention to the decision in Morlays (B''Ham) Ltd. Vs. Roshanlal Ramsahai and Another, wherein the meaning of the words as if has been considered with reference to S.44A and it was held�

The word ''as if'' are used in sub-S.(1) of S.44A to make the whole scheme of O.21 applicable in respect of execution of decrees of foreign courts mentioned in sub-S.(1). These words have no wider meaning and it cannot be contended on the basis of these words that a foreign decree falling within exception (a) to S.13. C.P.C., can nevertheless be executed in India as if it is a decree passed by a court of competent jurisdiction. Such a contention is contrary to and impossible having regard to the express provision in S.44A(3).

The learned counsel for the revision petitioner relied on the decision in Messrs. Venkateswara Stores, rep., by its proprietor, M. Seshiah v. State Bank of India, Madras Main Branch 1980 T.L.N.J. 203, wherein against an order passed under O.21 R.52 and 58 and under O.38 R.8 C.P.C., in respect of raising attachment before judgment, only an appeal was filed as if it were only an order and no regular appeal was filed. On a careful analysis of the relevant provisions of the definition of ''decree'' in S.2(2)(a), S.104(1)(i) read with O. 21 R.58 (4) CPC, and the ratio laid down in various decisions quoted above, no regular appeal is contemplated as provided under S.96 C.P.C. but a civil miscellaneous appeal alone is contemplated and as such the lower appellate Court is wrong in holding that a civil miscellaneous appeal is not maintainable and only a regular appeal would lie and consequently dismissing the appeal on that score. The Sub-Judge has not gone into the merits of the appeal in view of his above finding. Hence I feel that the matter should be remitted back to the court below for fresh disposal.

The learned counsel for the respondents submitted that in the instant case, all the transactions relied on by the claimants were only after the attachment, that the revision petitioner did not file any counter and that the revision petitioner has no case even on merits. It is a matter to be agitated before the lower appellate court as the learned counsel for the revision petitioner disputes the same and insists for hearing of the appeal on merits by the lower appellate court. In the result, the revision is allowed, the order passed by the lower appellate Court in C.M.A. 4 of 1987 is set aside and the matter is remitted back to the Sub-Judge, Dharapuram, who is directed to restore the appeal to file, give opportunity to both parties and dispose of the same on merits according to law as expeditiously as possible. However in the circumstances of the case, there will be no order as to costs.