Sachida Prasad Singh vs Giraja Prasad Singh and Nagendra Narayan Singh

U.C. Sharma, J.—These three applications on behalf of the three purchasers from the judgment debtors are directed against the order dated 26.7.1975, passed by the Subordinate Judge, Gaya in Misc. Case Nos. 6, 8 and 7 of 1975. Since these applications arise out of a common order and against the same opposite party; they have been heard together and this judgment shall govern them all. The facts of the cases are common. One Srichand Sao obtained a money decree against several persons including one Chandrika Singh alias Chando Singh. The decree was put in execution in Execution Case No. 1 of 1964 and the lands given in Tallka were attached on 3.2.1964. Thereafter the decree-holder transferred the decree to Girja Prasad Singh and Nagendra Narayan Singh who were substituted in the execution as decree-holders in place of Srichand. On 9.10.63 Sachida Prasad Singh (petitioner in C.R. 1088/75) purchased a piece of land from the judgment-debtor Chando Singh by virtue of a registered sale deed and since the date of his purchase he claims to be coming in cultivating possession thereof. On the same date Smt. Bachi Devi (petitioner in C.R. 1135/75) purchased some lands from the judgment-debtor by means of a registered sale deed and came into possession thereof. Similarly, on the same date Satya Narain Singh (petitioner in C.R. 1134/75) purchased some land from the Judgment-debtor by virtue of a registered sale deed and came into cultivating possession. The lands purchased by these petitioners form part of the attached lands. In order to get the lands released from attachment, the purchasers (petitioners) preferred claims on 26.3.75 and 8.4.75 under Order 21 Rule 58 of the CPC (hereinafter to be called as "the Code") giving rise to Misc. Case Nos. 6, 7 and 8 of 1975. The decree-holders filed rejoinder substantially on the ground that the purchases of the claimants were fictitious and inoperative and they were not in possession.

Both the parties examined a number of witnesses and filed documents in support of their respective cases. The court below after hearing the parties and discussing the evidence on the records, came to the conclusion:--

In face of the sale deeds of the applicants and the rent receipts it is very difficult to rely on the oral testimony of the opposite party that Chandrika Singh the judgment debtor is in possession over the lands claimed by the applicants and that these sale deeds are bogus transactions. Thus upon a careful consideration of the facts and circumstances I am of the opinion that the applicants are in possession over their respective lands and as such the lands are liable to be released from the execution proceeding.

Having recorded the above finding, the court below proceeded to consider the arguments advanced on behalf of the decree-holder based on the proviso to Order 21 Rule 58(1) and found:--

Thus, upon a certain consideration of the facts, evidence both oral and documentary and circumstances my considered opinion is that the petitioners have made unnecessary delay in filing their applications and as such they are not entitled to get any relief from the court.

On the basis of this last finding, the court below dismissed the miscellaneous cases. The applicants have, therefore, come up to this Court in revision.

The learned counsel appearing on behalf of the petitioners contended that the court below having entertained the claims, Investigated Into them and came to a finding after discussing the evidence before it that the lands were liable to be released; had no jurisdiction to entertain the plea based on the proviso and to dismiss the claims of the petitioners. No body appeared to oppose the applications on behalf of the opposite party. This case was first placed before the learned single Judge for hearing. Having regard to the importance of the points involved in this case, his Lordship was pleased to refer these cases to a Division Bench for hearing and disposal. This is how these applications have come up before us.

It will be relevant at this stage to examine Rule 58 of Order 21 of the Code which reads thus:--

Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of decree on the ground that such property is not liable for such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit.

Provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed.

The argument of the learned counsel is that under the proviso the executing court has to decide, as a preliminary point, whether it would make investigation into the claims or objections or not on the ground of delay. Having not done that, he had no power to take resort to the proviso after it had investigated into the claims or objection. He relied upon the case of (1) Nga San Balu V. Mi Thaik and another [AIR 1918 Upper Burma 32 (1)]. The facts of that case were that the Township Judge after holding an investigation under Older 21 Rule 58 of the Code and reviewing the evidence, dismissed the application on the ground that it had been made too late. It was held by the High Court:--

........Be that as it may, if the Township Judge had only read this proviso; he would have seen that it did not apply because the investigation had already been made.

If a Judge is of opinion that application under Order 21 Rule 58(1) has been designedly or unnecessarily delayed, he may refuse an investigation, but if he makes an investigation, he is bound to pass orders under Order 21 Rule 60 or under 21, Rule 61, Civil P.C. and the dismissal of the application on the ground of delay after investigation had been made, was illegal.

This case clearly supports the contention of the learned counsel. The learned counsel also referred to a Bench decision of the Calcutta High Court in the case of Surendra Nath Goswamy and Others Vs. Rajani Kanta Das, . That case is not directly in point. It was; however, observed in that case that where the court considers that the claim or objection was designedly or unnecessarily delayed, no investigation shall be made. That was preliminary Issue for the court to try as to whether there had been a delay of the nature mentioned in the proviso and if the court found that there was such a delay, it was unnecessary for the court to enter into or consider the other matters. This observation supports the contention of the learned counsel. In Allahabad, in the case of (2) Agrawal Pathshala Mohalla Mandi Bans, Moradabad Vs. Karim Bux and Others, ) the Court below had held that the objection was designedly or unnecessarily delayed without any evidence. His Lordship held that the Court acted illegally and with material irregularity in exercise of jurisdiction and set aside the order. That case also is not relevant for our present pun pose. In the case of (3) Anwar Alam Vs. Bibi Khadija Khatoon, a single Judge of this Court took the view that there was no merit in the contention that once the miscellaneous case was registered, it had to be investigated fully and even if at any time subsequent to the registering of the case, the Court came to the conclusion that the claim had been unnecessarily delayed, the investigation had still to be completed. It appears from the facts of that case that no investigation into the claim or objection had actually been made in that case. Only the case under Order 21 Rule 58 of the Code was registered. In the state of facts of that case it cannot be said that any view contrary to the contention raised by the learned counsel, was taken.

It would appear that what is barred under the proviso is the investigation into the claims or objection if delayed and not the registering of the case. The substantive provision of Rule 58 enjoins upon the Court to investigate into the claims and objections, if preferred. The proviso shows that no such investigation shall be made if the circumstances mentioned therein exist. But in either events, if a claim is preferred or objection is made, the cast has to be registered. After the case has been registered then and then alone, the question would arise whether claims or objections may or may not be investigated. The Court shall then examine and decide as a first question whether the claim or objection was designedly or unnecessarily delayed. If the Court comes to that conclusion, then no investigation shall be made, but where the court, after entertaining the claim or objection and not resorting to the proviso, proceeded to investigate and came to no me conclusion, there was no occasion thereafter for the proviso coming into play. The purpose of the proviso, so far as I can see, is that the execution should not be unnecessarily encumbered or unduly delayed by allowing frivolous objections from unconcerned quarters and, therefore, the moment any claim or objection is filed the court has to look into the circumstances mentioned in the proviso. If the design of the objectors is to delay the execution, the Court shall not investigate into their claims or objections. Barring that, the court has to investigate into the claims or objection and once the Court has investigated into the claims or objection it has passed the stage as provided in the proviso and the Court has to decide the claim or objection and not to look back to the proviso. It is not the purpose of Rule 58 of the Code that even if the claim or objection has been found to be valid or substantial, the court shall reject the same on the basis of the proviso. The proviso and the substantive provision of Rule 58 relate to two different stages of the case. The proviso relates to the first stage and the substantive provision relates to the next stage. The court below having not resorted to the first stage, was not entitled to call in aid the proviso after the investigation had proceeded and conclusion arrived at.

In the present case the court below thoroughly investigated into the claims of the petitioners and after reviewing the evidence, came to a definite conclusion that the objectors'' lands were liable to be released. Having come to that conclusion. It had no power to negative the claims on the basis of the proviso. This part of the order is clearly illegal and liable to be struck down. This is a case of illegal or irregular exercise of jurisdiction vested in the court by law. This Court is, therefore, entitled, in revision, to interfere with the impugned order. For the reasons stated above, the orders under revision, to the extent as they are based on the proviso, are set aside and the applications are allowed. On the tin dings of fact recorded by the court below, the petitioners'' claims are allowed and their lands are ordered to be released from attachment. No order as to costs.

Uday Sinha, J.

I agree.