Ratneswar Mitra vs Birendra Nath Ghose

P.N. Mookjerjee, J.—This Rule was obtained by the decree-holder against an order of the learned Subordinate Judge, refusing his application for revival of or continuation of his execution case. The application arose under the following circumstances:

The decree-holder, in or about the year 1956, obtained an attachment of a certain immoveable property in execution of the present decree, in Money Execution Case No. 29 of 1956. Thereafter, in the said Execution Case, there was a claim, filed by the judgment-debtor''s wife to the said attached property and, by the order of the executing Court dated October 30, 1957, that claim was allowed. On November 6,1957, the Court recorded the following order under the heading--''Money Executor T"-Case No. 29 of 1956''. The Misc. Case having been allowed the Execution Case cannot proceed. The stay order dated 7th January, 1957, is vacated. Decree-holder to take step, if any, by 23rd November, 1957.

Thereafter, in its following order, dated November 20, 1957, the Court observed as follows:

Requisites not put in. Decree-holder takes no steps.

ORDERED That the Execution Case be dismissed for default.

It now appears that the decree-holder has since succeeded in a suit under Order XXI, Rule 63 of the CPC with the result that his claim to attach the above property has been finally upheld. This suit was decreed on March 30, 1961, it having been filed on November 13, 1958. An appeal against the said decree was dismissed on September 11, 1961, and thereafter, the instant application for revival or continuation of the execution was filed on December 8, 1962. This was rejected by the present order of the learned Subordinate Judge on February 4, 1963, and, against the same, the present Rule was obtained on April 8,1963.

The learned Subordinate Judge has rejected the decree-holder''s prayer for revival of the Execution Case upon the view that, as the said Execution Case was eventually dismissed for default on account of the decree-holder''s not taking any steps after the lifting of the above attachment, his success in the suit under Order XXI, Rule 63 of the CPC can have no effect on the said execution and the instant application can only be treated as a fresh application for execution, which would prima facie and obviously, in the above content, be time barred.

In support of this Rule, Mr. Dutta has contended that the effect of the decree in the suit under Order XXI, Rule 63 of the CPC was to get rid of the Court''s order, lifting the attachment in question, with the result that the subsequent orders, including the order of dismissal for default, of the execution case in question, which were in the nature of consequential orders, cannot stand in his way. Mr. Mukherji, in opposing this Rule, has contended that, whatever might have been the position, had the Execution Case been merely struck off and not dismissed for default for the decree-holder''s inability to take further steps in the matter, dismissal of the Execution Case for default altered the whole situation and the entire complexion of the matter, and, after such dismissal, no question of revival or continuation of the said Execution Case in question can arise by reason of the decree of the suit under Order XXI, Rule 63 of the Code of Civil Procedure.

Before us, various decisions have been cited on behalf of the two parties, but none of them covers the instant question. The substance of the matter, however, on the said authorities, seems to us to be that the entire thing depends upon the construction of the order, by which the Execution Case in question was apparently brought to an end whether it really amounted to a final termination of the said Execution Case or whether the same was temporary or provisional and/or subject to the result of any other proceeding. In the Instant case, it is clear from the orders of the learned Subordinate Judge, quoted above, that the dismissal of the Execution Case was in consequence or on account of the allowing of the claim against the decree-holder. Indeed, the learned Subordinate Judge expressly observed that, in view of the allowing of the said claim, the Execution Case, by which he obviously meant the instant Execution Case No. 29 of 1956 could not proceed and the order of dismissal or the order on the decree-holder to take further steps in the matter, really followed from the said decision. In other words, dismissal of the Execution Case for default was really in the nature of a consequential order following from the allowing of the claim case. The effect of the decree in the suit under Order XXI, Rule 63 of the CPC was, however, to set aside in substance, the order of the executing Court, allowing the claim case, against the decree-holder, with the result that the basic order on which the consequential order of dismissal of the Execution Case for default was made, lost its existence and, accordingly, the said consequential order also cannot survive.

We would, accordingly, hold that on the merits, the Petitioner would have been entitled to revival of his Execution Case or continuance of the same in accordance with law and the learned Subordinate Judge''s order refusing him that relief, was an order, passed because of his failure to exercise a jurisdiction vested in him by law, on account of misconception of the legal position. This will thus clearly be an order, revisable by this Court in the exercise of its revisional powers and, accordingly, it would be liable to be set aside in this Rule, provided of course the exercise of such powers is not otherwise barred.

Mr. Mukherjee, however, in opposing this Rule, raised also a preliminary objection that the order in question or the learned Subordinate Judge, was in effect an order relating to the execution of the decree and, as such, it was an order u/s 47 of the CPC and, thus, appealable under the Code, with the consequence that no revision against it was maintainable u/s 115 of the CPC under the express terms thereof. For our present purpose, it is not necessary to examine this contention on its merits and in all its details, although it appears to us that the matter is one, on which there may be a serious controversy. We would, however, having regard to our above view and in the circumstances of this case, be inclined to interfere in this Rule in the exercise of our powers under Article 227 of the Constitution. Those powers, it is quite well-known now, may, in appropriate cases, well be exercised in spite of existence of the right of appeal against the impugned order. Indeed, this follows from the difference in the language of the Constitutional provision (Article 227) and the statutory provision under the Code (Section 115) as the latter expressly puts a limitation to the exercise of the revisional powers under the Code, in cases, where the order is subject to appeal while, under the former, there is no such limitation or restriction. This position has also been expressly recognised in judicial decisions, starting with Manmatha Nath Biswas v. Emperor 37 C.W.N. 201, which was a decision under the old Section 107 of the Government of India Act, 1915 which corresponded to Article 227 of the present Constitution and has since been re-affirmed by this Court in relation to this latter Article in Parish Nath Cloth Stores v. Nityananda Pal (1959) 64 C.W.N. 663 and Ronfaunnessa Bibi v. Union of India (1962) 66 C.W.N. 412.

In the above view, we would make this Rule absolute, set aside the impugned order and direct that the decree-holder''s application for revival or continuation of his Execution Case No. 29 of 1956 be allowed and the said Execution do proceed further in accordance with law.

There will be no order for costs in this Rule.

Let the records go down as quickly as possible.

A.N. Chakrabarti, J.

I agree.