Subhan Ganai & Ors. vs Ali Dar & others

This is an application for review of an order passed on 7101978 by an erstwhile learned Single Judge of this court disposing of a revision

petition. The events leadings upto this review petition may be briefly stated. One, Sh. Baij Nath and his minor sons owned an orchard measuring

166 kanals and 19 marlas situated in village Pohrupeth, Tehsil Handwara. Shri Baij Nath sold an area of 7 kanals aud 13 marlas out of his share to

Mohd Abdullah Ganai. For the remaining part of his share he entered into an agreement to sell with Subhan Ganai and others (hereinafter called the

'first party'). Before any sale deed, could be executed in pursuance of this agreement to sell, Shri Baij Nath sold off the entire land to Ali Dar and

others (hereinafter called 'the second party') This led to a dispute between the parties which became the subject matter of proceedings under

section 145 Cr. P. C. The trial Magistrate attached the property and gave it on superdanama In revision the proceedings were quashed by a

learned Single Judge of this court. But he did not make any further direction with regard to the disposal of the attached property. The parties filed

cross suits for declaration and injunction in the court of Sub Judge Handwara. The first party confined its claim to 78 canals and 16| marlas as,

according to them, Sh. Baij nath owned half share in the orchard out of which he had already sold 7 kanals and 13 marks. The second party used

for the entire land on the basis; of the sale deed in their favour. The trail court issued an interim order of injunction restraining the first party from

interfering with the possession of the second party. Aggrieved by the order the party preferred an appeal to the District Judge Baramulla. The

District Judge observed that a dispute existed with regard to possession and it could not be prime facie determined which party was in in

possession of the suit property. He opined that it was proper for the trail court to struck an issue with regard to possession and pass an order of

temporary injunction only after it had determined such issue. The District Judge passed the order accordingly and remanded the case to the trial

court. Against this order the second party came up in revision to this court. The revision wrs heard by a learned Single Judge of this court viz

Justice Mian JalaludDin (now retired). By his order dated 7.10.1978, he held that at the relevant time the property was in custodia legis and there

was no material on the record to determine the question of possession and consequently the proper thing to do would be to appoint a receiver in

order to safeguard the rights and interests of the parties. The Judge then proceeded to observe :

The next question is as to for'how muchland should the receiver be appointed. As already observed respondentsdefendants do not lay their claim

to 'one half of the property. In my opinion receiver can be appointed only with respect to the share of Baij Nath in the landed property for which

he could contract the agreement for sale. Thus Baij Nath's share as a proprietor in the land is only 40 kanals and odd marlas which he could

legitimately dispose of. The contract for sale in favour of the respondent is only by Baij Nath and not by other proprietors. Out of 40 kanals and

19 marlas, shares of Baij Nath have been sold 7 kanals and 13 marlas in favour of Abdullah Ganai. The remainder is 33 kanals and 6 marlas.

Therefore, in order to preserve the property and with a view to protect the rights and interests of the respondents and without prejudice to the

rights of the parties and without expressing any opinion on the merits in the main suits but only for the limited purpose of the decision of this case, it

is ordered that the land measuring 33 kanals and 6 marlas will vest in the receiver to be appointed. In respect of the remaining portion of land other

than 33 kanals and 6 marlass the order of interim injunction is made absolute. It is further ordered that the Tehsildar Hundwara will act as receiver

for 33 kanals and 6 marlas of land. He will secure the assistance of the Horticulture Assistant and will collect the fruits from these portions of land,

store them and dispose them of by sale. One representative of each side will be with him. defraying the expenses to be incurred thereon, the sale

proceeds will be deposited in the trial court and will be disbursed to the party who ultimately is found to be in possession or deemed to have been

in possession of this portion of the land. Meanwhile the Sub Judge, Handwara, will record a finding on the question of possession of these 33

kanals and 6 marlas of land after allowing the parties an opportunity to produce their respective evidence in this behalf.

By means of this application the first party has asked for review.

The argument of the learned counsel for the first party is that the learned single Judge has almost decided the entire controversy in the suit and

left nothing to be determined by the trial court inasmuch as the principal question involved in the litigation is, what exactly was the share of Baij

Nath in the orchard and, this question has been determined by the learned Single Judge in the impugned order. He contends that, sitting in revision,

the learned Single Judge could not determine this question which is a question of fact, He further contends that the order in its present form is not

capable of implementation and this is exactly what the receiver too has pointed out because there is nothing in the order to indicate as to how the

area intended to be taken over by the receiver should be carved out. There is merit in both these contentions. Once the learned Single Junge had

come to the conclusion that the appointment of receiver was imperative, it necessarily followed that the appointment should relate to the disputed

portion of the land. On the pleadings, the dispute, it may be pointed out, related to an area of 75 kanals 16 marlas only because the first party

claimed such an area on the basis of an agreement to sell and did not raise any dispute as regirds the remaining portion which they conceded had

been rightly transferred to the second party by virtue of sale in their favour. The learned Single Judge, however, proceeded to determine the share

of B.iij Nath and after having confined the same to 33 kanals and 6 marlas, directed that the appointment of the receiver shall relate to that much

area only, even without making any efforts to delineate the same. This is manifestly not a correct approach. So doing the learned Single Judge has

sit in judgment over the question of title as regards the shares of Baij Nath and his sons in the disputed property. This was a question of fact which

could be appropriately determined by the trial court. Sitting in revision, the learned Single Judge could not go into this question. That constitutes an

error. Moreover, the order is not capable of implementation in its present form because the area with regard to which the receiver has been

appointed has not been delineated. In fact, it could not be delineated because the agreement to sell did not relate to a specific portion of the

orchard. On the other hand it extended to the share h?ld by Shri Baij Nath in the orchard. In the circumstances there are good grounds for review,

The order requires modification to the extent that the appointment of the receiver is related to the disputed portion of the land moreover, the order

is so moulded that the income accruing from the disputed portion alone is preserved for the benefit of the successful party. On these premises, I,

therefore, direct that the receiver shall take charge of the entire orchard and manage the same in the usual manner with the assistance of an expert

in Horticulture, if necessary. He will sell the usufruct each year by auction in which the parties shall also be allowed to participate. He will apportion

the auction money as between the disputed and undisputed portions of the orchard in proportion to their areas after excluding the expenses of the

management and expenses of maintenance of the orchard in the same proportion and then pay the portion of income relating to the undisputed

portion to the first party and deposit the income relatable to the disputed portion in the trial court, and the court, in its turn shall deposit the same in

a recognized bank for a fixed term and renew the same from time to time, if necessary. The order shall remain operative till the final conclusion of

the suit and the court shall'hold the deposit subject to the result thereof. The fee of the receiver shall be determined by the trial court each year after

taking into consideration the amount of work put in by the receiver, Lest there should be some misunderstanding, let me make it clear that while

taking over the charge of the orchard the reciever shall not dispossess the occupier of any residential house standing over the land included in the

orchard. The review petition in disposed of accordingly,

In what, I have stated above, I have assumed that a review petition would lie against an order passed in revision. But the argument on behalf of the

second party was that no such review would lie. In this, reliance has been placed on the decisions reported as Dokku Bhushayya v. Katragadda

Ramakrishnayya and ors AIR = 1962 S. C: 1886) and Ram Chandra Aggarwal and another Vs. The State of Uttar Pradesh and another (AIR

1966 S. C : 1888). On behalf of the first parity it was, however, contended that a review petition is competent in relation to an order passed in

revision. In support of this argument reliance was placed on the decision of this court in Rahim Vs. Karim (AIR 1967 J & K: 93). In that case, a

learned Single Judge of this court has held that section 141 CPC covers proceedings in revision, being proceedings in the court of Civil

Jurisdiction. It necessarily follows that under O. 47 R. 1 read with Sec 141 C. P. C. review is legally competent against an order in revision. The

argument on behalf of the second party however is that the law laid down in this authority cannot be said to be a good law because the decision

runs counter to the view expressed by Supreme Court in the decisions mentioned above. In my opinion the argument is misconceived. In the case

of Dokku Bhushayya (supra) the Supreme Court has observed :

Lastly it was contended that by reason of S. 141 of the Code, the procedure provided under Order XXXII, R. 7, should be extended to an

agreement or a compromise entered into by a guardian in respect of an application to set aside a sale under Order XXI, R. 90 of the Code, The

argument is that an application under Order XXI, R. 90, is an independent proceeding, and as agreement for withdrawing the said proceeding

affects the rights created by the sale, it falls within the meaning of the said rule, Section 141 of the Code reads ;

The procedure provided in this Code, in regard to suits shall be followed, as for as it can be made applicable, in all proceedings in any court of

Civil Judrisdiction.

The corresponding S. 646 of the Code of 1882 reads as follows :

The procedure here in prescribed shall be followed, as far it can be made applicable, in all proceedings in any court of civil jurisdiction other than

suits and appeals.

There was a conflict on the question whether the said section applied to proceedings In execution. To steer clear of the conflict the following

explanation was added to the Section by the Civil Procedure Code Amendment Act 6 of 1892 :

Explanation. This section does not apply to applications for the execution of decrees which are proceedings in suits, But the section was construed

by the Privy Council even without the aid of the explanation in Thakur Prasad Vs. Sheikh Fakir Ullah ILR 17 All 106 (PC), where in it observed :

It is not suggested that S. 373 of the Civil Procadure Code (Order XXIII, R. 1 of the present code) would of its own force apply to execution

proceedings. The suggestion is that it is applied by force of S. 647 (S. 141 of the present Code). But the whole of chapter XIX of the Code

consisting of 121 Sections, is devoted to the procedure in execution, and it would be surprising if the framers of the Code had intended to apply

another procedure, mostly unsuitable by saying in general terms that procedure for suits should be followed as far as applicable. Their Lordships

think that the proceedings spoken of in section 647 include, original matters in the nature of suits such as proceedings in probates, guardianships

and so forth and do not include executions"".

This view has eversince been followed. We have already held that the application by the judgment debtor to set aside the sale is a proceeding in

execution and therefore, section 141 of the Code will not apply for two reasons, namely, (1) as execution proceedings, were continuation suit

within the meaning of O. XXXII R 7 of the Code and as the Code provided specifically for suits section 141 could not be invoked ; and (2) as we

have held an application by a Judgmentdebtor to set a sale is a proceeding in execution and therefore section 141, which applies only to original

proceedings does not apply to such proceedings.

The argument on behalf of the second party was that, according to this decision, the Supreme Court has held that section 141 applied only to

original proceedings and since, the proceedings in in revision is not a original proceedings, an order passed in revision is not subject to review

under O. 47 R. 1 read with Section 141 C. P. C. In my opinion the argument is based upon misreading of the judgment of the supreme Court, The

court has quoted with approval the observations of the Privy Council which clearly do not confiine the operation of section 141 to original matters

only. If the court has subsequently said that the said section applies only to original proceedings, ithas done so simply to provide a contrast

between a proceeding in execution and original proceeding and tried to demonstrate that the proceeding in execution is not a original proceeding to

which section 141 would apply, Consequently the decision of the Supreme Cou;t in Djkku Bhushiyya (Supa) connot be treated as a decision to

the effect that section 141 applies to original matters only. On the other hand, it must be treated as a decision confining the operation of section

141 C. P. C. not only to original matters but also to the matters of independent nature akin to the original matter. To this view support is lent by the

later decision of the Supreme Court in the case of Ram Chandia (Supra). In that case the court referred to its decision in Munshi Ram V. Banwari

Lal, AIR 1962 S C : 903 and proceeded to obseive ;

Though there is no discussion, this court has acted upon the view that the expression 'civil proceeding' in section 141 is not necessarily cofined to

an original proceeding like a suit or an application or appointment of a guardian etc, but that it applies also to proceeding which is not an original

proceeding :

Thus, proceeding in revision being an independent proceeding of a supervisory nature, clearly falls within ambit of expression 'civil proceeding' in

section 141 C. P. C. and, if that be so an order passed in revision is obviously subject to review under O. 47 R. 1 CPC read with section 141 C.

P. C. The argument to the contrary of the learned counsel for the second party has no merit in it and is hereby repelled.

The parties are directed to appear before the trial court on