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Civil Procedure Code
Order XXIII Rule 3 and Order III Rule 1 of Civil Procedure Code- Arbitration proceedings – Arbitrator passed awards – challenged in District court – Compromise signed by Govt. Pleader on behalf of Govt. – Compromise decree was challenged by Govt. as Govt. Pleader is not authorised – High court set aside the decrees – Apex court held thatOrder XXIII Rule 3 and Order III Rule 1 of Civil Procedure Code as held in Jineshwardas (D) through L.R.s and Ors. v. Smt. Jagrani and Anr., (2003) 11 SCC 372, has held as under: “If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorization by vakalatnama, act on behalf of his client.” We find that in the present case the Government Pleader was legally entitled to enter into a compromise with the appellant and his written endorsement on the Memo filed by the appellant can be deemed as a valid consent of the Respondent itself. Hence the Counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII Rule 3 and such decree is perfectly valid.= CIVIL APPEAL NOS.7164-7166 OF 2014 (arising out of SLP (C) Nos. 23016-23018 of 2012) |Y. SLEEBACHEN ETC. |…..APPELLANT(S) | | | | |VERSUS | | |SUPERINTENDING ENGINEER |…..RESPONDENT(S) | |WRO/ PWD & ANR. | | = 2014 -Aug.part – http://judis.nic.in/supremecourt/filename=41803
Order XXIII Rule 3 and Order III Rule 1 of Civil Procedure Code- Arbitration proceedings – Arbitrator passed awards – challenged in District court – Compromise signed by Govt. Pleader on behalf of Govt. – Compromise decree was challenged by Govt. as Govt. Pleader is not authorised – High court set aside the decrees – Apex court held that Order XXIII Rule 3 and Order III Rule 1 of … Continue reading
Fraud on party also void one = Fraudulently obtained a consent decree with in 3 days on illiterate women = kept quiet for long time and again filed another suit for injunction against the same women basing on earlier decree – where the fraud came to light – All lower courts went on routine manner with out analyzing the evidence – how the decree will be passed against one sharers with out adding co sharers and how the court pass a decree with out hearing the parties under or.10, rule 1 C.P.C. – which clearly discloses a fraud = Allowed the civil appeal and set aside all decrees and judgement of lower courts = “Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indites the warrant for his own arrest.” 26. Ex consequenti, the appeal is allowed and the judgment and decree of the High Court in the Second Appeal as well as the judgments and decrees of the courts below are hereby set aside and as a natural corollary the judgment and decree dated 27.11.1973 is also set aside. There shall be no order as to costs. ““Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” Smt. Badami (Deceased) By her L.R. ….. Appellant Versus Bhali … Respondent = published in http://judis.nic.in/supremecourt/helddis.aspx
SUIT: Fraudulent suit – Suits for permanent injunction and possession – Based on an earlier compromise decree – Held: All facets of fraud get attracted to the case at hand – A rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in … Continue reading
Whether suit filed by appellant was barred in terms of Order XXIII Rule 3-A CPC – Held: A compromise forming the basis of the decree can only be questioned before the same court that recorded the compromise and a fresh suit for setting aside a compromise decree is expressly barred under Order XXIII Rule 3-A – However, in the instant case, the compromise decree alleged to be fraudulent was passed not by a civil court but by a revenue court in a suit u/s.176 of the Land Reforms Act – Revenue courts are neither equipped nor competent to effectively adjudicate on allegations of fraud that has overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the CPC – Further, under s.9 of CPC, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority – Nothing in Order XXIII Rule 3-A bars the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction – In the facts of the case, provision of Order XXIII not a bar against the suit filed by the appellant – Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 – ss. 176, 178, 182, 331 and 341 and Schedule II. = HORIL … APPELLANT VERSUS KESHAV & ANR. … RESPONDENTS = published in http://judis.nic.in/supremecourt/helddis.aspx
Code of Civil Procedure, 1908 – Or.XXIII, r.3-A – Suit – Maintainability – Appellant filed suit seeking declaration that decree passed by the Assistant Collector, Class-I, in a suit u/ss.176, 178 and 182 of the Land Reforms Act was fraudulent, inoperative and not binding upon him – Allegation that decree passed by Assistant Collector was … Continue reading
Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975: s.4 – Execution of money decree against agriculturist – Attachment of property – Execution application closed in view of s.4 of the Act staying the execution against agriculturist – After moratorium period ended, initiation of execution proceedings by decree-holder – Auction sale of attached property – Validity of – Held: Auction sale was valid – There was no withdrawal of attachment, nor any question of `eclipse of attachment’ during the period of the statutory stay under the Act – Attachment in execution already effected, continued and was in effect, during the entire period of stay and on expiry of moratorium period, the decree-holder became entitled to continue the execution by proceeding with the sale – Sale of attached property during subsistence of attachment by the judgment-debtor was void – Code of Civil Procedure, 1908 – s.51(b), O.21, rr.54, 55, 57, 58. Code of Civil Procedure, 1908: s.51(b), O.21, rr.54, 55, 57, 58 – Attachment of immovable property effected in execution of a decree – Determination/removal of – Legal position discussed. O.21, r.57 – Closure of execution application – Held: Is not dismissal of execution application. The appellant obtained a money decree against the judgment-debtor (M). In the execution of the money decree, the properties belonging to `M’ were attached on 29.12.1974. On 10.1.1975, the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 came into force, by virtue of which all the proceedings in applications for execution of decrees in which relief was claimed against the agriculturists were stayed until the expiry of one year from the date of commencement of the said Act. As `M’ was an agriculturist, the execution proceedings in regard to the decree obtained by the appellant against her were closed on 15.2.1975. The moratorium period of one year under the Debt Relief Act was extended from time to time till 14.7.1979. After the moratorium period ended, the appellant initiated execution proceedings afresh. In the said execution proceedings, the attached suit property was brought to auction sale on 6.6.1984 and in that auction, the appellant purchased the sale property. `M’ filed an application under Section 47, CPC to set aside the sale. The trial court set aside the sale. The first appellate court reversed the order of trial court and upheld the validity of sale. The High Court upheld the same. In the meanwhile, on 17.2.1978, `M’ had sold the attached property and the purchaser further sold the property and ultimately the attached (suit) property came to the respondent. In 1985, the respondent filed a suit for declaration of title over the suit property against the appellant. A decade later, the respondent filed an additional document. As per the document, the order dated 15.2.1975 was corrected twenty years later on 19.7.1995 converting the attachment which was to continue without any specific time limit, as one to end on the expiry of six months. The said correction was by way of an office note and without notice to the appellant. The appellant challenged the amendment before the High Court. The High Court held that a clerical mistake cannot be converted behind the back of parties and remitted the matter to lower court with direction to give notice to both the parties in respect of the clarification required and the amendment to be made. On 18.9.1996, the District Munsif addressed a communication to the counsel of the appellant for making correction in the suit register as well as in the certified copies. The trial court dismissed the suit. The first appellate court upheld the order of trial court. It was concurrently found by both the courts that the attachment effected on 29.12.1974 was not raised/withdrawn/determined and it continued till the sale of the property in the court auction on 6.6.1984 and, therefore, the sale in favour of appellant was valid and the sales effected by `M’ during the subsistence of the attachment were invalid. The High Court allowed the appeal holding that that when the Debt Relief Act came into force, the executing court had closed the execution proceedings on 15.2.1975 with an observation that the attachment to continue for a period of six months, and at the end of six months the attachment came to an end and was not revived or renewed and auction sale in favour of the appellant was not valid and consequently when `M’ sold the suit property, it was not subject to any attachment and consequently, the respondent who purchased the suit property was the owner of the suit property. In the instant appeal, it was contended for the appellant that on 15.2.1975, the executing court, while closing the execution in view of the stay of execution proceedings by the Debt Relief Act, had made it clear that the attachment would continue. Allowing the appeal, the Court HELD: 1.1. An attachment of an immovable property in execution of a decree is made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge (Order 21 Rule 54, CPC), and it continues until the said property is sold and the sale is confirmed, unless it is determined or removed on account of any of the following reasons: (i) By deemed withdrawal under Rule 55 Order 21, CPC, that is, where the attachment is deemed to be withdrawn on account of (a) the amount decreed with all costs, charges and expenses resulting from the attachment being paid into court; or (b) satisfaction of the decree being otherwise made through the court or is certified to the court; or (c) the decree being set aside or reversed. (ii) By determination under Rule 57 Order 21, CPC, that is, after any property has been attached in execution of a decree, the court passes an order dismissing the application for execution of the decree, but omits to give a direction that the attachment shall continue. (iii) By release of the property from attachment under Rule 58 Order 21, CPC, that is, when any claim is preferred to the property attached in execution, or any objection is made to the attachment, on the ground that the property is not liable to such attachment and the court, on adjudication of the claim or the objections, releases the property from attachment. (iv) By operation of law, that is, on account of any statute declaring the attachment in execution shall cease to operate, or by the decree (in respect of which the property is attached) being nullified, or by the execution being barred by the law of limitation. (v) By consent of parties, that is, where the decree holder and the judgment debtor agree that the attachment be withdrawn or raised. [Paras 8, 9] 1.2. It is not the case of the respondent that there was determination of the attachment on account of any of the grounds specified in Rule 55 or Rule 58 of Order 21, CPC. There was also no agreement to raise the attachment nor any application for withdrawing the attachment. It is clear from Rule 57 of Order 21, CPC that where the court `dismisses’ the application for execution of the decree, the attachment effected in execution, shall cease unless the court indicates that the attachment shall continue. But where the execution petition is adjourned `sine die’ or closed on account of any moratorium or stay of the execution under a statute, or by an order of stay by any court, there is no “dismissal” of the execution application. Similarly, where the execution application is closed without any specific cause, apparently for purposes of statistical disposal, there is no `dismissal’ of the execution application. An execution application is `dismissed’ when (i) the execution is dismissed as a consequence of the decree being found to be null and void or inexecutable (as contrasted from any temporary eclipse of the decree); or (ii) the execution is dismissed on the ground of any default on the part of the decree-holder. [Paras 10, 11] 1.3. The execution application of the appellant was closed on 15.2.1975 in view of Section 4 of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 staying the executions against agriculturists. What was stayed or kept in abeyance during the period when the statutory stay of execution operated under the Act, was not the attachment, but the further proceedings in pursuance of the attachment, that is, sale of the attached property. The stay was only for a specified limited period. On the expiry of the moratorium period under the Debt Relief Act on 17.10.1979, the decree holder became entitled to continue the execution by proceeding with the sale. Thus, there was no question of determination or withdrawal of attachment, nor any question of `eclipse of attachment’ during the period of the statutory stay under the Debt Relief Act, nor any `revival’ of attachment thereafter. Attachments in execution, already effected, continued and were in effect, during the entire period of stay of execution by the Debt Relief Act. The alienations by `M’ were, therefore, void as against the claim enforceable under the attachment obtained by appellant, having regard to Sec. 64 of the Code. As the attachment obtained by the appellant continued, the sales by `M’ were invalid and the sale in favour of the appellant was valid. [Paras 11, 12] 2.1. If the order of the executing court while closing the execution, was `attachment to continue’, the attachment would have continued in spite of the closing of the execution proceedings. Even if the executing court had closed the execution, in view of the statutory stay, without any specific order continuing the attachment, the attachment would not have ceased as there was no `dismissal’ of execution under Order 21 Rule 57, CPC. But if the order dated 15.2.1975 had stated `attachment to continue for six months’, whether right or wrong, the attachment would have come to an end on the expiry of six months from 15.2.1975, unless it was continued by any subsequent order, or had been modified or set aside by a higher court. [Para 14] 2.2. The High Court erred in proceeding on the basis that by order dated 15.2.1975, the executing court had closed the execution proceedings in view of the enactment of the Debt Relief Act and continued the attachment only for six months and thereafter there was no attachment and, therefore, the sales by `M’ on 17.2.1978 and 8.12.1980 were valid and the court auction sale in favour of the appellant was invalid. When the Debt Relief Act clearly indicated that the attachment would continue during the period when the execution proceedings were stayed, it is ununderstandable how the executing court could make an order that the attachment would continue only for six months. Moreover, when the order dated 15.2.1975 stated “attachment to continue”, it is ununderstandable how the said order could have been amended after 20 years without notice to the plaintiff-decree holder on the basis of some private clarification letter dated 29.10.1985 allegedly written by the District Munsif stating that the order made on 15.2.1975 was not “attachment to continue” but “attachment to continue for six months”. Also, when the order dated 19.7.1995 amending the order dated 15.2.1975 was set aside by the High Court by order dated 22.12.1995 with a direction for fresh disposal in accordance with law after notice to the parties, it is ununderstandable how the District Munsiff, instead of complying with the order of the High Court, could have issued a notice dated 18.9.1996 to both counsel stating that the said correction adding the words “for six months” was required to be made in the certified copies, if any obtained by the Advocates, and that both side Advocates should produce the certified copies for making the correction. The notice dated 18.9.1996, by no stretch of imagination, could be construed as an order. The notice dated 18.9.1996 was apparently issued under an erroneous impression that the High Court had accepted the correction, but had directed making of the correction in the certified copies after notice to the parties. The amendment made pursuant to the office note dated 19.7.1995 having been set aside by order dated 22.12.1995, and no further order having been made thereafter by the executing court, the unauthorized addition of the words “for six months” in the order dated 15.2.1975 have to be ignored and excluded. Therefore, the attachment dated 29.12.1974 continued till the property was sold by public auction on 6.6.1984 and confirmed on 30.7.1985. Consequently any sale by `M’, during the subsistence of the attachment was void insofar as the decree obtained by the appellant. Therefore, neither the purchasers from `M’ nor the respondent who is the subsequent transferee, obtained any title in pursuance of the sales, as the sales were void as against the claims enforceable under the attachment. The order of the High Court is set aside and the order of the first appellate court confirming the dismissal of the respondent’s suit stands restored. [Paras 18, 19, 20] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5798 of 2002. P. Vishwanath Shetty, V. Ramasubramanian, V. Balachandran for the Appellant. K.S. Ramamurthy, A.T.M. Sampath for the Respondent.
1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5798 OF 2002 C.S.Mani (deceasad) by LR C.S.Dhanapalan … Appellant Vs. B.Chinnasamy Naidu (deceased) by LRs … Respondent JUDGMENT R.V.RAVEENDRAN, J. Appellant obtained a money decree for Rs.4200/- against one Mokshammal on 28.2.1972. He levied execution (EP No.466/1974) in respect … Continue reading
Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975: s.4 – Execution of money decree against agriculturist – Attachment of property – Execution application closed in view of s.4 of the Act staying the execution against agriculturist – After moratorium period ended, initiation of execution proceedings by decree-holder – Auction sale of attached property – Validity of – Held: Auction sale was valid – There was no withdrawal of attachment, nor any question of `eclipse of attachment’ during the period of the statutory stay under the Act – Attachment in execution already effected, continued and was in effect, during the entire period of stay and on expiry of moratorium period, the decree-holder became entitled to continue the execution by proceeding with the sale – Sale of attached property during subsistence of attachment by the judgment-debtor was void – Code of Civil Procedure, 1908 – s.51(b), O.21, rr.54, 55, 57, 58. Code of Civil Procedure, 1908: s.51(b), O.21, rr.54, 55, 57, 58 – Attachment of immovable property effected in execution of a decree – Determination/removal of – Legal position discussed. O.21, r.57 – Closure of execution application – Held: Is not dismissal of execution application. The appellant obtained a money decree against the judgment-debtor (M). In the execution of the money decree, the properties belonging to `M’ were attached on 29.12.1974. On 10.1.1975, the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 came into force, by virtue of which all the proceedings in applications for execution of decrees in which relief was claimed against the agriculturists were stayed until the expiry of one year from the date of commencement of the said Act. As `M’ was an agriculturist, the execution proceedings in regard to the decree obtained by the appellant against her were closed on 15.2.1975. The moratorium period of one year under the Debt Relief Act was extended from time to time till 14.7.1979. After the moratorium period ended, the appellant initiated execution proceedings afresh. In the said execution proceedings, the attached suit property was brought to auction sale on 6.6.1984 and in that auction, the appellant purchased the sale property. `M’ filed an application under Section 47, CPC to set aside the sale. The trial court set aside the sale. The first appellate court reversed the order of trial court and upheld the validity of sale. The High Court upheld the same. In the meanwhile, on 17.2.1978, `M’ had sold the attached property and the purchaser further sold the property and ultimately the attached (suit) property came to the respondent. In 1985, the respondent filed a suit for declaration of title over the suit property against the appellant. A decade later, the respondent filed an additional document. As per the document, the order dated 15.2.1975 was corrected twenty years later on 19.7.1995 converting the attachment which was to continue without any specific time limit, as one to end on the expiry of six months. The said correction was by way of an office note and without notice to the appellant. The appellant challenged the amendment before the High Court. The High Court held that a clerical mistake cannot be converted behind the back of parties and remitted the matter to lower court with direction to give notice to both the parties in respect of the clarification required and the amendment to be made. On 18.9.1996, the District Munsif addressed a communication to the counsel of the appellant for making correction in the suit register as well as in the certified copies. The trial court dismissed the suit. The first appellate court upheld the order of trial court. It was concurrently found by both the courts that the attachment effected on 29.12.1974 was not raised/withdrawn/determined and it continued till the sale of the property in the court auction on 6.6.1984 and, therefore, the sale in favour of appellant was valid and the sales effected by `M’ during the subsistence of the attachment were invalid. The High Court allowed the appeal holding that that when the Debt Relief Act came into force, the executing court had closed the execution proceedings on 15.2.1975 with an observation that the attachment to continue for a period of six months, and at the end of six months the attachment came to an end and was not revived or renewed and auction sale in favour of the appellant was not valid and consequently when `M’ sold the suit property, it was not subject to any attachment and consequently, the respondent who purchased the suit property was the owner of the suit property. In the instant appeal, it was contended for the appellant that on 15.2.1975, the executing court, while closing the execution in view of the stay of execution proceedings by the Debt Relief Act, had made it clear that the attachment would continue. Allowing the appeal, the Court HELD: 1.1. An attachment of an immovable property in execution of a decree is made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge (Order 21 Rule 54, CPC), and it continues until the said property is sold and the sale is confirmed, unless it is determined or removed on account of any of the following reasons: (i) By deemed withdrawal under Rule 55 Order 21, CPC, that is, where the attachment is deemed to be withdrawn on account of (a) the amount decreed with all costs, charges and expenses resulting from the attachment being paid into court; or (b) satisfaction of the decree being otherwise made through the court or is certified to the court; or (c) the decree being set aside or reversed. (ii) By determination under Rule 57 Order 21, CPC, that is, after any property has been attached in execution of a decree, the court passes an order dismissing the application for execution of the decree, but omits to give a direction that the attachment shall continue. (iii) By release of the property from attachment under Rule 58 Order 21, CPC, that is, when any claim is preferred to the property attached in execution, or any objection is made to the attachment, on the ground that the property is not liable to such attachment and the court, on adjudication of the claim or the objections, releases the property from attachment. (iv) By operation of law, that is, on account of any statute declaring the attachment in execution shall cease to operate, or by the decree (in respect of which the property is attached) being nullified, or by the execution being barred by the law of limitation. (v) By consent of parties, that is, where the decree holder and the judgment debtor agree that the attachment be withdrawn or raised. [Paras 8, 9] 1.2. It is not the case of the respondent that there was determination of the attachment on account of any of the grounds specified in Rule 55 or Rule 58 of Order 21, CPC. There was also no agreement to raise the attachment nor any application for withdrawing the attachment. It is clear from Rule 57 of Order 21, CPC that where the court `dismisses’ the application for execution of the decree, the attachment effected in execution, shall cease unless the court indicates that the attachment shall continue. But where the execution petition is adjourned `sine die’ or closed on account of any moratorium or stay of the execution under a statute, or by an order of stay by any court, there is no “dismissal” of the execution application. Similarly, where the execution application is closed without any specific cause, apparently for purposes of statistical disposal, there is no `dismissal’ of the execution application. An execution application is `dismissed’ when (i) the execution is dismissed as a consequence of the decree being found to be null and void or inexecutable (as contrasted from any temporary eclipse of the decree); or (ii) the execution is dismissed on the ground of any default on the part of the decree-holder. [Paras 10, 11] 1.3. The execution application of the appellant was closed on 15.2.1975 in view of Section 4 of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 staying the executions against agriculturists. What was stayed or kept in abeyance during the period when the statutory stay of execution operated under the Act, was not the attachment, but the further proceedings in pursuance of the attachment, that is, sale of the attached property. The stay was only for a specified limited period. On the expiry of the moratorium period under the Debt Relief Act on 17.10.1979, the decree holder became entitled to continue the execution by proceeding with the sale. Thus, there was no question of determination or withdrawal of attachment, nor any question of `eclipse of attachment’ during the period of the statutory stay under the Debt Relief Act, nor any `revival’ of attachment thereafter. Attachments in execution, already effected, continued and were in effect, during the entire period of stay of execution by the Debt Relief Act. The alienations by `M’ were, therefore, void as against the claim enforceable under the attachment obtained by appellant, having regard to Sec. 64 of the Code. As the attachment obtained by the appellant continued, the sales by `M’ were invalid and the sale in favour of the appellant was valid. [Paras 11, 12] 2.1. If the order of the executing court while closing the execution, was `attachment to continue’, the attachment would have continued in spite of the closing of the execution proceedings. Even if the executing court had closed the execution, in view of the statutory stay, without any specific order continuing the attachment, the attachment would not have ceased as there was no `dismissal’ of execution under Order 21 Rule 57, CPC. But if the order dated 15.2.1975 had stated `attachment to continue for six months’, whether right or wrong, the attachment would have come to an end on the expiry of six months from 15.2.1975, unless it was continued by any subsequent order, or had been modified or set aside by a higher court. [Para 14] 2.2. The High Court erred in proceeding on the basis that by order dated 15.2.1975, the executing court had closed the execution proceedings in view of the enactment of the Debt Relief Act and continued the attachment only for six months and thereafter there was no attachment and, therefore, the sales by `M’ on 17.2.1978 and 8.12.1980 were valid and the court auction sale in favour of the appellant was invalid. When the Debt Relief Act clearly indicated that the attachment would continue during the period when the execution proceedings were stayed, it is ununderstandable how the executing court could make an order that the attachment would continue only for six months. Moreover, when the order dated 15.2.1975 stated “attachment to continue”, it is ununderstandable how the said order could have been amended after 20 years without notice to the plaintiff-decree holder on the basis of some private clarification letter dated 29.10.1985 allegedly written by the District Munsif stating that the order made on 15.2.1975 was not “attachment to continue” but “attachment to continue for six months”. Also, when the order dated 19.7.1995 amending the order dated 15.2.1975 was set aside by the High Court by order dated 22.12.1995 with a direction for fresh disposal in accordance with law after notice to the parties, it is ununderstandable how the District Munsiff, instead of complying with the order of the High Court, could have issued a notice dated 18.9.1996 to both counsel stating that the said correction adding the words “for six months” was required to be made in the certified copies, if any obtained by the Advocates, and that both side Advocates should produce the certified copies for making the correction. The notice dated 18.9.1996, by no stretch of imagination, could be construed as an order. The notice dated 18.9.1996 was apparently issued under an erroneous impression that the High Court had accepted the correction, but had directed making of the correction in the certified copies after notice to the parties. The amendment made pursuant to the office note dated 19.7.1995 having been set aside by order dated 22.12.1995, and no further order having been made thereafter by the executing court, the unauthorized addition of the words “for six months” in the order dated 15.2.1975 have to be ignored and excluded. Therefore, the attachment dated 29.12.1974 continued till the property was sold by public auction on 6.6.1984 and confirmed on 30.7.1985. Consequently any sale by `M’, during the subsistence of the attachment was void insofar as the decree obtained by the appellant. Therefore, neither the purchasers from `M’ nor the respondent who is the subsequent transferee, obtained any title in pursuance of the sales, as the sales were void as against the claims enforceable under the attachment. The order of the High Court is set aside and the order of the first appellate court confirming the dismissal of the respondent’s suit stands restored. [Paras 18, 19, 20] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5798 of 2002. P. Vishwanath Shetty, V. Ramasubramanian, V. Balachandran for the Appellant. K.S. Ramamurthy, A.T.M. Sampath for the Respondent.
1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5798 OF 2002 C.S.Mani (deceasad) by LR C.S.Dhanapalan … Appellant Vs. B.Chinnasamy Naidu (deceased) by LRs … Respondent JUDGMENT R.V.RAVEENDRAN, J. Appellant obtained a money decree for Rs.4200/- against one Mokshammal on 28.2.1972. He levied execution (EP No.466/1974) in respect … Continue reading
Civil Procedure Code, 1908, O. XLI, r. 27–Additional evidence –Improper admission–Finding based on such evi- dence–Whether conclusive–Interference–Punjab Custom Act (H of 1920), s. 7-Suit to contest alienation of non-ances- tral property–Maintainability. = The discretion to receive and admit additional evidence in appeal is not an arbitrary one but is a judicial one circumscribed by the limitations specified in O. XLI, r. 27, of the Civil Procedure Code, and if additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of im- proper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. 259 The legitimate occasion for admitting additional evi- dence in appeal is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made outside the court, of fresh evi- dence, and an application is made to import it. The true test is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced.Kessowji Issur v.G. 1. P. Railway (34 I.A. 115) and Parsotim v. Lal Mohan (58 I.A. 254) referred to. Though ordinarily a finding of fact, however erroneous, cannot be challenged in second appeal, a finding which is arrived at on the basis of additional evidence which ought not to have been admitted and without any consideration of the intrinsic and palpable defects in the nature of such evidence cannot be accepted as a finding which is conclusive on appeal. Under s. 7 of the Punjab Act II of 1920 no one can contest an alienation of non-ancestral immoveable property on the ground that such alienation is contrary to custom.
PETITIONER: ARJAN SINGH alias PURAN Vs. RESPONDENT: KARTAR SINGH AND OTHERS. DATE OF JUDGMENT: 02/03/1951 BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA FAZAL ALI, SAIYID MUKHERJEA, B.K. CITATION: 1951 AIR 193 1951 SCR 258 CITATOR INFO : RF 1963 SC1526 (9) F 1974 SC2069 (5) RF 1976 SC1053 (10) ACT: Civil Procedure Code, 1908, … Continue reading
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