Run Bahadur Singh vs Bajrangi Prasad Singh

Jwala Prasad, J.—(After setting out facts, the judgment continued): The order in question purports to have been passed in a suit into which the proceeding originally instituted was converted by the Subordinate Judge. A decree also has been prepared in accordance with the said order. The opposite party had, under the direction of the Court, to pay Court-fee upon Rs. 7,000, the consideration money mentioned in his deed of assignment. Now, if the order of the Subordinate Judge is one passed in a regular suit and culminated in a decree regularly prepared and passed under the Code of Civil Procedure, then a first appeal would lie from that decree to this Court. If, on the other hand, the order is one passed u/s 47 of the CPC then also an appeal would lie to this Court.

It is, however, contended that the order in question was neither passed in regular suit nor u/s 47 of the Code for the question determined by the Court did not arise in a dispute between the parties to the original suit but between the representatives of one of the parties to the suit, namely, the decree-holder.

It is then contended that as the dispute did not come u/s 47 of the Code, the Court had no jurisdiction to convert the application made by Bajarangi Prasad Singh into a suit for it is said that under Clause (2) the Court could only convert a proceeding u/s 47 into a suit; but as the application was not a valid proceeding under the section the Court had no jurisdiction to treat the same as a plaint in a suit. The learned Vakil contends that the applications of the parties and the order of the Court below would come under Order 21, Rule 16 of the Code, under which the Court has to determine whether an assignee of the decree-holder should be permitted to proceed in execution. It is said that as the matter comes under that provision of the Code, there is no appeal, and, as there is no appeal, the present application is competent as an application in revision; but the learned Vakil has failed to show that the final order of the Court below directing Bajrangi Prasad Singh to proceed with the execution was not within the jurisdiction of the Court. Hence the order is not capable of revision. With this final order the learned Vakil has no grievance; but he impugns the procedure adopted by the Court below whereby the Subordinate Judge arrived at this conclusion. In short, his argument is that the Court below should not have tried the application of Bajrangi Prasad Singh as a suit, and should have simply determined the right of one of the rival claimants to execute the decree, leaving the matter to be fought out and determined in a regular suit instituted by Bajrangi Prasad Singh or by the petitioners. He considers the procedure adopted by the Court below to be a grave irregularity affecting the final order passed by the Court below. Now by whatever method the Court has arrived at its decision, it cannot be said that the Subordinate Judge acted without jurisdiction. In trying the matter as a suit perhaps the Subordinate Judge went more exhaustively than he would have done had the matter been treated only as an application u/s 47 of the Code.

Therefore we cannot accept the contention of the learned Vakil that the final order of the Court below was without jurisdiction even if it came under Order 21, Rule 16 of the Code. We cannot interfere with this order in revision. If, on the other hand, the matter came u/s 47 of the Code the application in revision is incompetent. Again, if it did not come u/s 47 but arose in the course of the trial of the application treated by the Court below as a suit, there is the final decree prepared by the Court below, and the question now raised cannot be determined except in a regular appeal filed against the decree. The present application, therefore, has to be rejected.

The learned Vakil, on behalf of the petitioners, then asks us to convert the application in revision filed in this Court into a memorandum of appeal against the decree passed by the Court below. This can be done upon the petitioners paying proper Court-fee and filing a copy of the decree.

In the circumstances of the case we are prepared to treat the application as an appeal upon the condition mentioned above which must be complied within a week of the determination of the amount of Court-fee payable upon the memorandum of appeal. Upon the requisite Court-fee being paid and copy of the decree filed, the appeal will be heard without the preparation of any paper-book, the appellants undertaking to supply typed copies of the papers necessary for determination of the appeal, which we do not think are many.

On the failure of the petitioners to comply with the conditions mentioned above, namely, the payment of the Court-fee and filing of a copy of the decree, the present application will be treated as dismissed with costs.

Kulwant Sahay, J.

I agree.