Smt. Ajudhia Devi vs Shri Sohnu Ram and Others

R.S. Pathak, C.J.—A preliminary point with regard to the maintainability of the appeal has been raised by the learned Counsel for the Respondents.

This appeal is filed against the order dated May 29, 1975, passed by the learned single Judge of this Court while disposing of the execution petition No. 1 of 1970 with O.M.P.s 3 and 4 of 1975 in R.F.A. 1 of 1970. Sohnu Ram Plaintiff-Respondent had obtained a preliminary decree from the High Court in exercise of its original civil jurisdiction against Smt. Ajudhia Devi and others for possession of the property subject to the payment of Rs. 20,000/- with interest at the rate of 71/2% from 18-5-1966 till the date of payment by way of redemption with costs. Against this preliminary decree both the parties filed their appeals Nos. R.F.A. 1 of 1970 and R.F.A. 2 of 1970, which were decided by a Division Bench of this Court on November 23, 1974. The judgment and decree passed by the learned single Judge were modified. Thereafter it appears that the decree-holder had applied for passing of the final decree. On an application filed by the judgment-debtor along with the appeal, this Court on May 4, 1970, ordered the stay of the proceedings for the passing of the final decree subject to the condition that the Appellant furnished security in the sum of Rs. 6,000/- within three weeks to the satisfaction of the Deputy Registrar of this Court for the due performance of any decree or order which may ultimately be binding on the judgment-debtor. It appears that execution had also been taken out by the decree-holder and which remained pending due to the pendency of the appeals preferred by the parties.

After the decision of the appeals the execution and the other miscellaneous applications came up for hearing before the learned single Judge, who by this impugned order held:

The mortgagor-decree holders are, of course, entitled to immediate possession and there should be no difficulty in it. A warrant for possession be accordingly issued.

It was further held:

The final decree will, of course, reflect the ultimate accounting between the parties. The mortgagees have remained in possession of the property, and there is a claim of mesne profits from the side of the mortgagors. The question regarding mesne profits shall be decided by the Court and only thereafter it would be known if any mesne profits are due from the mortgagees and payable to the mortgagors. When the final decree will be prepared, this amount of mesne profits shall, of course, be disclosed in that decree. The case may be listed for decision regarding payment of mesne profits.

The submission made by the learned Counsel for the Respondents is that this is not a decree against which an appeal would lie. He invited our attention to Section 96 CPC and Section 10 of the Delhi High Court Act. It did not satisfy the requirements of Section 96 CPC and Section 10 of the Delhi High Court Act which was applicable to the cases decided by the High Court in its original civil jurisdiction. It was neither a decree nor a judgment and, therefore, the appeal was not maintainable. He has also referred to Section 104 and Order 43 CPC in this behalf with the object that these provisions will also not be available to the Appellant because the order is not a decree within the definition of Section 2(2) Code of Civil Procedure.

It will not be necessary to go into the question whether an appeal lies u/s 96 of the CPC (shortly called the Code) or Section 10 of the Delhi High Court Act or any other provision in the Code or under the Letters Patent Act. The learned Counsel for the Respondents who has raised the question of maintainability of this appeal admits that in case it is held that the order which is sought to be challenged is a decree then an appeal would lie to a Division Bench of this Court from the judgment and decree of a single Judge. The submission made by the learned Counsel for the Appellant is that it is a decree inasmuch as the objections raised u/s 47 of the Code were dismissed and it amounted to a decree within the meaning of Sub-section (2) of Section 2 of the Code. Sub-section (2) of Section 2 reads as under:

Decree means the formal expression of an 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 Section 47 or Section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

In the instant case the decree-holder had taken out execution of the preliminary decree during the pendency of the appeals and the execution petition was registered as No. 1 of 1970 but the same was stayed. After the decision of the appeals the execution proceedings were started and the decree-holder moved an application, O.M.P. 3 of 1975 with a prayer for grant of possession of the mortgaged property and for the refund of the amount deposited in excess of the judgment in appeal and for mesne profits. The judgment-debtor moved an application, OMP 4 of 1975 under the provisions of Section 151 read with Order 47 Rule 1 of the Code. By this application it was pleaded that after the decision of the appeals by the Division Bench no preliminary decree was drawn up by the office in accordance with the judgment, dated 23-11-1974. The judgment-debtor had also filed an O.M.P. 123 of 1974, and, in para 7 of the same it was averred that no preliminary decree had been prepared by the office and that despite the above, the learned single Judge on 26-12-1974 gave a direction to the office to prepare a final decree immediately. The office reported that a draft final decree had been prepared on 2-1-1975. The judgment-debtor further pleaded that the orders passed on 26-12-1974 deserved to be reviewed for the grounds mentioned under Clauses (a), (b) and (c) of para 6 of the petition. It was contended that unless the preliminary decree was prepared the preparation of the final decree by the office was meaningless, that the rights of the parties are firstly to be fixed in the preliminary decree and thereafter on failure of parties to comply with that a final decree is to be drawn up and that the judgment-debtor was being deprived of knowing his rights and liabilities in accordance with the preliminary decree. Therefore, the judgment-debtor prayed for review of the order with a further prayer to direct the office to prepare a final decree and till the final decision of the application, the judgment-debtor prayed, further proceedings in the execution be ordered to be stayed. This application was opposed. The learned single Judge after hearing the parties disposed of the O.M.P.s 3 and 4 filed in the execution petition and ordered the delivery of possession of the land to the decree-holder.

The submission made by the learned Counsel for the Appellant is that the dismissal of his objections filed u/s 47 is a decree within the meaning of Sub-section (2) of Section 2 read with Section 47 of the Code.

On the contrary the learned Counsel for the Respondents contends that it was not a decree because nothing has been decided in the execution petition and everything had been decided in the preliminary decree passed by the learned single Judge and also in the appeals filed against the decree. It is urged that under the preliminary decree the decree-holders were held entitled to possession on payment of Rs. 23,000/- and odd and that the judgment-debtor had already deposited that amount even after the decree and on that account nothing was left to be decided and, therefore, this order passed by the learned single Judge for delivery of possession did not amount to a decree.

The Court at this stage is not to enter into the merits of the case whether the preliminary decree could be passed in terms of Order 34 Rule 7 of the Code for delivery of possession or that possession could be delivered only after the final decree had been passed and drawn up. The only question with which this Court is concerned at the present is whether this order whereby the objections purporting to be u/s 47 of the Code were disposed of and the order made for the delivery of possession to the decree-holders amount to a decree within the meaning of Sub-section (2) of Section 2 read with Section 47 of the Code.

The very definition of the decree as given under Sub-section (2) of Section 2 makes it clear that it includes the determination of any question within Section 47. From the order it is evident that possession has been ordered to be delivered and that amounts to the discharge or satisfaction of the decree within the meaning of Section 47 of the Code. If possession is delivered then that part of the execution is conclusive and final and to that extent there is a final discharge and satisfaction of the decree, and the order would, therefore, fall within the definition of a decree set out in Section 2(2) of the Code. It will be noticed that the effect is the same as if a final decree had been passed and possession was ordered to be delivered pursuant to it. Accordingly in my opinion the appeal would lie.

The learned Counsel for the Appellant has tried to draw support from a few authorities that when the objections u/s 47 relate to the discharge or satisfaction of a final decree or any part thereof then that order passed by the Court amounts to a decree against which an appeal is maintainable.

The first authority is Lachiram v. Bholu Ram and Anr. AIR 1925 Nag 132. It says that a suit on a mortgage remains pending till the final decree. Questions arising in proceedings for making a preliminary mortgage decree final are not covered by Section 47. That section applies only to questions regarding the satisfaction of a decree. In fact this case is not of much help. The only thing that can be deduced from this authority is that Section 47 applies only to questions regarding the satisfaction of the decree.

Prafulla Chandra Bezbaruah v. Calcutta Credit Corporation and Anr. AIR 1965 Gau 21 says that in order to determine whether or not an order falls u/s 47 of the Code the Court must first see whether the order decides a question arising between the parties to the suit in which the decree was passed and whether there was a judicial decision binding on the parties in a subsequent proceeding.

To the same effect is Bukkan Singh and Anr. v. The District Board Ludhiana AIR 1933 Lah 41, which says that the question whether a decree is or is not capable of execution falls within the scope of Section 47.

In Merla Ramanna Vs. Nallaparaju and Others, , it has been laid down that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application u/s 47, and not in a separate suit.

Here in the instant case the submission made by the Appellant before the learned single Judge was that the decree could not be executed unless a final decree had been passed and to that effect he had filed an application u/s 47 and which had been decided against him and possession was directed to be delivered. Thus it follows on the basis of this authority that it being an application u/s 47, any order passed on those objections is a decree especially when it relates to the partial or full satisfaction of a part of the decree. In the these circumstances, in my opinion, this order amounts to a decree. It is conceded by the learned Counsel for the Respondents that if it is held to be a decree then an appeal is maintainable.

According to learned Counsel for the Respondents the impugned order does not decide anything and the decree-holders have been held entitled to possession under the preliminary decree in terms of Rule 7 of Order 34 of the Code. In order to support his submission that it is not a decree in terms of Section 47 the learned Counsel for the Respondents has relied on a number of authorities.

The first authority is (Kamraja) Pandia Naicker v. S. Kamarajapandia Naicker and Ors. AIR 1933 Mad 500. In that case during the execution the Appellant had raised two legal objections besides other objections. The first was that the Court had no jurisdiction to execute the decree and the second was that the execution petition was barred by the twelve years'' rule of limitation. Both these objections were repelled. An appeal was filed and a preliminary objection was taken in the High Court that no appeal lay from the order of the learned Subordinate Judge. It was held that no final order had been passed in execution by the learned Subordinate Judge. He had merely dealt with the two legal objections which were raised in the course of the execution proceedings and by that order he had not stopped execution proceedings from going on. What he had done quite obviously was to make an order that they were to go on to a final determination. But this is a case quite distinguishable on facts, inasmuch as in the case before us a decree has been satisfied in so far as it relates to the delivery of possession of the land.

The second authority is Maya Devi Vs. Telu Musadi, . This authority is also distinguishable because in this case only a preliminary issue had been decided and the execution application filed was still pending and, therefore, it was held that it could not be said that the effect of the order of the Executing Court was to conclusively determine the rights of the parties. The matter could only be determined conclusively after a decree on issues of fact was given by the Executing Court. Then the aggrieved party would be at liberty to file an appeal and challenge its decision on any or all of the findings given by it, including the finding given on the preliminary issue.

Barkat Ram, General Manager, Bharat National Bank Ltd. v. Sardar Bhagwan Singh AIR 1943 Lah 140, which is a Full Bench case of the Lahore High Court also says that the expression "the determination of any question" in Section 2(2) is used ejusdem generis with the phrase "conclusively determines", etc. It was observed that when the effect of an order is to conclusively determine the rights of the parties with respect to a matter material to the due execution of the decree, the question would fall u/s 47 and the order would amount to a decree within Section 2(2) from which an appeal would lie. This is an observation which in fact supports the Appellant before us.

Rudra Pratab Singh and Others Vs. Sarda Mahesh Prasad Singh, is distinguishable on facts because in this case an enquiry was directed to be made by the Court in terms of Order 20, Rule 12 with regard to the liability of rents and mesne profits to which the Plaintiff may be entitled. That enquiry was made in the course of a proceeding which was virtually a proceeding in continuation of the original suit, and under Rule 12, Clause (2), a final decree has to be prepared in respect of the mesne profits which had to be awarded in accordance with the result of such an enquiry. Therefore, this authority will not help the Respondents.

Murali Panda Vs. Kholli Naiko and Others, also is distinguishable. There under the Orissa Moneylenders Act of 1939, objections by the creditor in an application under Sections 11 and 12, were filed and the Court passed an order that it had power to scale down the debts. The actual scaling down was done at a later date. Therefore, it was held that the order did not finally decide the matter between the parties and as such no appeal lay against it under the provisions of the Code.

The further authority is Mangat Rai and Others Vs. Babu Ram , That is also distinguishable on facts. In that case the application for stay of sale of property was rejected and it was held that it did not involve any question relating to the execution of the decree which could amount to an adjudication conclusively determining the rights of the parties with regard to any of the matters in controversy.

In my opinion, the impugned order amounts to a decree and an appeal is maintainable. The preliminary objection, therefore, has no merit and is over-ruled.

R.S. Pathak, C.J. :

I agree.