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Code of Civil Procedure, 1908 : Order 39, Rules 1, 2 and 3-Trial court granting interim ex parte injunction order without recording reasons and requiring applicant to perform duties as laid down in proviso to Rule 3-Consequence thereof-Held, injunction order deemed to contain such requirements by implication and the appellant should perform the duties. Order 39, Rule 3A-Section 104, Order 43, Rule 1-Trial court failing to pass final orders within 30 days-Held, the injunction order is deemed to be the final order on the date of expiry of 30 days and the aggrieved party is entitled to right of appeal. Section 104, Order 43, Rule 1-High Court entertaining revision petition when there were alternate remedies-Whether correct-Held, High Court should have directed the parties to avail the alternate remedies and should not have entertained the revision petition-Constitution of India-Article 227. Appellant-plaintiff filed a suit before the trial court for a decree of permanent injunction restraining the respondents from dispossessing him of the suit property. The appellant also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 for the grant of a temporary injunction, which was granted by the trial court. The respondents filed a revision petition under article 227 of the constitution before the High Court alleging that the respondents were in possession and enjoyment of the property. The High Court set aside the injunction order observing that the order could come into operation beyond thirty days under Order 39 Rule 3A of the Code. The High Court directed the trial court to take up the interlocutory application for injunction and pass orders on merits. In appeal to this Court, the plaintiff contended that the respondents had alternate remedies either by approaching the trial court for vacating the injunction order or filing an appeal against the order. The respondents contended that an injunction order without complying with the requisites envisaged in proviso to Rule 3 of Order 39 is void. Citation: 2000 AIR 3032,2000( 3 )Suppl.SCR 303,2000( 7 )SCC 695,2000( 6 )SCALE398 ,2000(10 )JT 599 Disposing of the appeal, the Court HELD: 1. An order passed under Rule 3 of Order 39 of the Code of Civil Procedure, 1908, is deemed to contain the requirements laid down in proviso (a) and (b) of the Rule by implication even if they are not stated expressly. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which has to be performed as required by the proviso, then the party must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. [310-C-D] 2.1. Rule 3A under Order 39 casts a protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing. [311-B] 2.2. The Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second, is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. It is only in very exceptional cases that the Court could by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. [311-D-E] 2.3. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule. [311-F-H; 312-A-C] 3. With regard to the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies, though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. [312-D] 4. As directed by the High Court the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law. Till the orders of the trial court, status-quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties. [312-F] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5102 of 2000.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6 PETITIONER: A. VENKATASUBBIAH NAIDU Vs. RESPONDENT: S. CHELLAPPAN AND ORS. DATE OF JUDGMENT: 19/09/2000 BENCH: K.T. Thomas & R.P. Sethi JUDGMENT: THOMAS, J. Leave granted. L…I…T…….T…….T…….T…….T…….T…….T..J When a plaintiff rushed to the civil court for an exparte interim order of injunction against some of … Continue reading
Order VI Rule 16 ,17CPC= whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable. 25. After giving our full consideration on the matter, we do not find any error in the impugned order passed by the High Court. Hence, these appeals have no merit and are accordingly dismissed. No order as to costs.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3914 OF 2013 [Arising out of SLP (C) No.12497 of 2008] S. Malla Reddy … Appellant(s) vs. M/s. Future Builders Co-operative Housing Society & Ors. … Respondent(s) WITH CIVIL APPEAL NO. 3916 OF 2013 [Arising out of SLP (C) … Continue reading
Benami Transaction (Prohibition) Act, 1988 = whether the facts disclosed would indicate that even after coming into force of the Act the defence under Secion 4 can be available. Admittedly, the transaction in question was registered on 24th August, 1970. The suit was filed on 5th of July 1984 which was long before coming into force of the Act. It is an admitted position that the written statement in the suit taking plea of benami was also filed by the appellant long before the Act had come into force. Therefore, it was not a case where Section 4(2) of the Act will have a limited operation in the pending suit after Section 4(2) of the Act had come into operation. It is true that the judgment of the trial court was delivered after the Act had come into force but that could not fetter the right of the appellant to take the plea of benami in his defence. Since the Act cannot have any retrospective operation in the facts and circumstances of the present case, as held by this Court in the aforesaid decision, we are therefore of the view that the appellant was entitled to raise the plea of benami in the written statement and to show and prove that he was the real owner of the suit property and that the respondent was only his benamidar. ;sub-section (2) of Section 3 clearly says that nothing in sub-section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and it shall be presumed, unless the contrary is proved, that suit property had been purchased for the benefit of the unmarried daughter. = Section 3 deals with Prohibition of benami transaction. Sub-section (1) clearly prohibits that no person shall enter into benami transaction. However, sub-section (2) of Section 3 clearly says that nothing in sub-section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and it shall be presumed, unless the contrary is proved, that suit property had been purchased for the benefit of the unmarried daughter. Section 3(2) makes it abundantly clear that if a property is purchased in the name of an unmarried daughter for her benefit, that would only be a presumption but the presumption can be rebutted by the person who is alleging to be the real owner of the property by production of evidences or other materials before the court. In this case, the trial court as well as the appellate court concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under section 3(2) of the Act arose because of purchase of the suit property by the father ( in this case appellant ) in the name of his daughter ( in this case respondent ), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property was purchased in the benami of the respondent for his own benefit. ;whether the concurrent findings of fact could be set aside by the High Court in the second appeal. = From the judgment of the High Court we further find that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned Advocate of the respondent. This was also not permissible to the High Court in Second Appeal to come to a contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. (See [2002(9) SCC 735, Gangajal Kunwar (Smt.) and Ors. Vs. Sarju Pandey (Dead) by LRs & Ors.] ). It is equally settled that High Court in second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning.
CASE NO.: Appeal (civil) 2867 of 2000 PETITIONER: G.Mahalingappa RESPONDENT: G.M. Savitha DATE OF JUDGMENT: 09/08/2005 BENCH: D.M. DHARMADHIKARI & TARUN CHATTERJEE JUDGMENT: J U D G M E N T TARUN CHATTERJEE, J. This is an unfortunate litigation between a father and his married daughter on the right of ownership of a house measuring … Continue reading
Order XXII Rule 4 is accordingly reproduced hereunder:- “4. Procedure in case of death of one of several defendants or of sole defendant – (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where- 20Page 21 (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.” This could only have been done, on the satisfaction that the parameters postulated under Order XXII Rule 4(4) of the Code of Civil Procedure, stood complied. The fact that the aforesaid satisfaction was justified, has already been affirmatively concluded by us, hereinabove. We are therefore of the considered view, that the learned Single Judge committed no error whatsoever in proceeding with the matter in CS (OS) no.2501 of 1997 ex-parte, as against the sole defendant Sushil K.C., without impleading his legal representatives in his place. We therefore, hereby, uphold the determination of the learned Single Judge, with reference to Order XXII Rule 4(4) of the Code of Civil Procedure. 27. For the reasons recorded hereinabove, we find no merit in the instant appeals and the same are accordingly dismissed.
Page 1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.2600-2601 OF 2013 (Arising out of SLP (C) Nos. 3307-3308 of 2012) Sushil K. Chakravarty (D) Thr. LRs. …. Appellant Versus M/s. Tej Properties Pvt. Ltd. …. Respondent J U D G M E N T Jagdish Singh Khehar, J. 1. Leave … Continue reading
“Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to “fair trial”, whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Special Leave Petition (C) No. 25848 of 2011 Noor Mohammed … Petitioner Versus Jethanand and another …Respondents J U D G M E N T Dipak Misra, J. In a democratic body polity which is governed by a written Constitution and where Rule of Law is … Continue reading
Arbitration and Conciliation Act, 1996; Ss. 35-36/Presidency Towns-Insolvency Act, 1909; S. 9 and 9(2): Arbitration award-Nature of-Issuance of an insolvency notice in pursuance of an award-Correctness of-Held: Since 1909 Act is a statute weighed down with grave consequence of civil death for a person adjudged as an insolvent, it has to be construed strictly-Since an arbitration is not an adjudication, an award is not a decree/order for payment-Therefore, it could not be enforced as a decree-Issuance of Notice under the Insolvency Act is fraught with serious consequences-Such a notice, therefore, could be issued in pursuance of decree/order for payment of money passed by a Court/Judicial organ established for dispensation of justice-Notice under 1909 Act is not a mode of enforcing debt-Enforcement could be done in terms of provisions of CPC-No insolvency notice could be issued under Section 9(2) of the 1909 Act on the basis of an Arbitration Award-Hence, notice so issued and order passed by the Division Bench of the High Court in Notice of motion set aside-Code of Civil Procedure, 1908-S. 2(2) and 2(14)-Indian Arbitration Act, 1899-Ss. 4(a), 11 & 15. Words and Phrases: ‘Decree’, ‘order’ and ‘an award’-Distinction between. ‘Courts’, ‘tribunal’ and ‘arbitrator’-Distinction between. Words ‘Litigation’, ‘as if-Meaning of. The questions which arose for determination in this appeal were as to whether an arbitration award is a “decree” for the purpose of section 9 of the Presidency Towns Insolvency Act, 1909 and as to whether an insolvency notice could be issued under section 9(2) of the 1909 Act in pursuance of an arbitration award. Appellants contended that the Presidency Towns Insolvency Act (PTI Act) is a statute fraught with the grave consequence of ‘civil death’ for a person sought to be adjudged an insolvent, therefore, it has to be construed strictly; that it is impermissible to enlarge or restrict the language of the Act having regard to supposed notions of convenience, equity or justice; that the Indian Arbitration Act, 1899 clearly draws the distinction between Courts and Arbitrators; that only for the purpose of enforcement of the award, it is treated as if it were a decree of the Court; that issuance of a notice under the Insolvency or Bankruptcy statutes is not a mode of enforcement of a decree; that it is settled law that where the arbitration is governed by the Arbitration Act, 1899, the Second Schedule will not apply thereto; that PTI Act does not define ‘decree’ or ‘order’ for the simple reason that the meaning of these terms had been well-known since the enactment of Civil Procedure Code; that the words ‘suit or other proceeding in which the decree or order was made’ mean a suit in which a decree is made or a proceeding under the CPC which results in an order by a Civil Court which is not a decree; that the word ‘proceeding’ does not refer to arbitrations because they do not result in an ‘order’ but an ‘award’, much less an order of a Civil Court; that the ‘proceeding’ means a proceeding such as appellate or execution proceedings or applications under the CPC during the pendency of the suit or appeal; that the words ‘or other proceedings’ were added not for covering arbitrations but by way of abundant caution to make it clear that other proceedings in relation to or arising out of suits were to be included; that “Litigation” has been held to mean “a legal action, including all proceedings therein, initiated in a court of law”; that Arbitrators are not tribunals set up by the State to deal with special matters as they are not part of the judiciary exercising the judicial power of the State; that the legislative intendment was that only if a debt found due by the Courts and was not paid in spite of notice, it would amount to an act of insolvency; that the Legislatures never contemplated that a mere award given by persons chosen by parties to resolve their disputes should lead to an act of insolvency; that it is impermissible to substitute the word ‘Court’ with ‘arbitrators’ and the words ‘decree’ or ‘order’; that the Insolency Notice shall be in Form 1-B; that Form 1-B unambiguously points to the fact that the decree or order has been obtained from a Court in a suit or proceeding; that since the Parliament has amended the Act of 1909 in 1978 on the lines of the Bombay Amendment, it has expressly provided that the Notice ‘shall’ be in the prescribed form; and that there is no room left for the argument that variations according to circumstances can bring in arbitrators and awards when the form uses the words Court, decree and order. Respondents submitted that if an Award rendered under the Arbitration and Conciliation Act, 1996 is not challenged within the requisite period, the same becomes final and binding as provided under Section 35 of the Act, thereafter, the same can be enforced as a Decree as it is as binding and conclusive as provided under Section 36 of the Act; that there exists no distinction between an Award and a Decree, in view thereof, there is no impediment in taking out Insolvency Notice as contemplated under Section 9(2) of the Presidency Towns Insolvency Act; that the provisions of Section 9(2) to 9(5) of the PTI Act which are brought in by the amending Act of 1978 in the Presidency Towns Insolvency Act have to be viewed in the light of the statement of objects and reasons; that an Insolvency Notice by itself does not lead to the adjudication of the Debtor as Insolvent but the non-compliance thereof only results in an act of Insolvency, which enable the creditor to file an Insolvency Petition against the Debtor for having him adjudicated Insolvent; that any order, which has become final and enforceable, irrespective of whether passed by any Court, judicial authority, quasi-judicial authority, Tribunal etc. could be the basis of an Insolvency Notice under Section 9(2) of the said Act; that in Section 9(1) clauses (c) and (h), the legislature has used the phraseology “Decree of any Court” in Section 9(2), the legislature has consciously omitted the prefix “of Court” and has added the words “or Order”. Thus the legislative intent being to make it necessary to have a Decree of Court for the purpose of conferring Act of Insolvency under Clause (e) and (h) of Section 9(1) of the said Act, that when two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sequence; that it will be doing injury/offence to the legislative intent if even for the purpose of taking out Insolvency Notice under Section 9(2) of the said Act “a Decree of Court” is made necessary; and that it will be a misconception to borrow the definition of “Decree” or “Order” from the provisions of Civil Procedure Code, while interpreting and giving effect to the provisions of PTI Act, in particular Sections 9(2) to (5) of the Act. Allowing the appeal, the Court HELD:1.1. The Presidency Towns Insolvency Act, 1909 is a statute weighed down with the grave consequence of ‘civil death’ for a person sought to be adjudged an insolvent and therefore the Act has to be construed strictly. The Arbitration Act was in force when the PTIA came into operation. Therefore there can be seen that the law makers were conscious of what a ‘decree’, ‘order’ and an ‘award’ are. Also the fundamental difference between ‘Courts’ and ‘arbitrators’ were also clear as back as in 1909. [195-d-e] 1.2. The Indian Arbitration Act, 1899 clearly draws the distinction between Courts and Arbitrators. The preamble of the Act shows that it is an Act for dealing with ‘arbitration by agreement without the intervention of a Court of Justice’. It is only for the purpose of enforcement of the award, the arbitration award is treated as if it were a decree of the Court. [195-e-f] 2.1. The words ‘Court’, ‘adjudication’ and ‘suit’ conclusively show that only a Court can pass a decree and that too only in suit commenced by a plaint and after adjudication of a dispute by a judgment pronounced by the Court. It is obvious that an arbitrator is not a Court, an arbitration is not an adjudication and, therefore, an award is not a decree. [196-e-f] Tribhuvandas Kalidas v. Jiwan Chand, (1911) 35 Bombay 196, Manilal v. The Bharat Spinning & Weaving (35) Bom. L.R. 941; Ramshai v. Joylal , AIR (1928) Calcutta 840 and Ghulam Hussein v. Shahban AIR (1938) Sindh 220, referred to. 2.2. Section 36 of the Arbitration & Conciliation Act, 1996 makes it clear that enforceability is only to be under the CPC. It rules out any argument that enforceability as a decree can be sought under any other law or that initiating insolvency proceeding is a manner of enforcing a decree under the Code of Civil Procedure. [199-f] 2.3. The fact that the Bombay Amendment and later the Central Amendment intended to refer only to decrees and orders as defined in the CPC is clear from the Statement of Objects and Reasons of the Central Amendment Act No. 28 of 1978 which introduced sub-sections (2) to (5) in Section 9 of the Presidency Towns Insolvency Act. [199-g-h] 2.4. The words ‘litigant’, ‘money decree’, judgment-debtor’, ‘decretal amount’ and ‘decree-holder’ plainly show that Parliament intended to deal with litigants who do not pay amounts decreed by Civil Courts. [201-e] 2.5. “Litigation” has been held to mean “a legal action, including all proceedings therein, initiated in a court of law”. Obviously therefore Parliament had in mind debts due to ‘litigants’. It is well settled that Courts, unlike arbitrators or arbitral tribunals, are the third great organ under the Constitution: legislative, executive and judicial. Courts are institutions set up by the State in the exercise of the judicial power of the State. [201-f-g] 2.6. It is clear that litigation is very different from arbitration. The former is a legal action in a Court of law where judges are appointed by the State; the latter is the resolution of a dispute between two contracting parties by persons chosen by them to be arbitrators. These persons need not even necessarily be qualified trained judges or lawyers. [203-a-b] Engineering Mazdoor Sabha & Anr. v. Hind Cycles Ltd., AIR (1963) SC 874 and Collector, Varanasi v. Gauri Shankar Misra & Ors., AIR (1968) SC 384, relied on. 2.7. All tribunals are not courts, though all courts are tribunals. The word ‘courts’ is used to designate those tribunals which are set up in an organized State for the administration of justice. [202-g] 2.8. Arbitrators are persons chosen by parties to adjudge their disputes. They are not Courts and they do not pass orders or decrees for the payment of money; they make awards. [203-g-h] 3.1. The Insolvency Act of 1909 was amended by the Bombay Amendment of 1939 and also by Parliament in 1978 when two laws, namely, the Arbitration Act, 1899 and the Civil Procedure Code, 1908 were on the statute book. Parliament and the Bombay Legislature were well aware of the difference between awards on the one hand and decrees and orders on the other and they chose to eschew the use of the word ‘award’ for the purposes of the Insolvency Act. [204-a-b] 3.2. Section 15 of the Arbitration Act, 1899 provides for ‘enforcing’ the award as if it were a decree. Thus a final award, without actually being followed by a decree (as was later provided by Section 17 of the Arbitration Act of 1940), could be enforced, i.e. executed in the same manner as a decree. For this limited purpose of enforcement, the provisions of CPC were made available for realizing the money awarded. However, the award remained an award and did not become a decree either as defined in the CPC and much less so far the purposes of an entirely different statute such as the Insolvency Act. [204-b-c-d] 4.1. Issuance of a notice under the Insolvency Act is fraught with serious consequences: it is intended to bring about a drastic change in the status of the person against whom a notice is issued viz. to declare him an insolvent with all the attendant disabilities. Therefore, firstly, such a notice was intended to be issued only after a regularly constituted court, a component of judicial organ established for the dispensation of justice, has passed a decree or order for the payment of money. Secondly, a notice under the Insolvency Act is not a mode of enforcing a debt; enforcement is done by taking steps for execution available under the CPC for realizing moneys. [204-e-f] 4.2. The words “as if” demonstrate that award and decree or order are two different things. The legal fiction created is for the limited purpose of enforcement as a decree. The fiction is not intended to make it a decree for all purposes under all statutes, whether State or Central. [204-g] 4.3. No insolvency notice can be issued under Section 9(2) of the Presidency Towns Insolvency Act, 1909 on the basis of an Arbitration Award; an insolvency notice should be in strict compliance with the requirements in Section 9(3) and the Rules made thereunder. Hence, the Insolvency Notice issued under section 9(2) of P.T.I. Act cannot be sustained on the basis of arbitral award which has been passed under the Arbitration & Conciliation Act, 1996. [204-h; 205-a; 205-f; 206-b-c] V.A. Bobde, Shrikant Shah, Mahesh Agrawal and E.C. Agarwala, for the Appellant. L.Nageswara Rao,Subramonium Prasad, Kishore P. Jain, Raghavendra S. Srivastava, Gaurang P. Mehta, Vijay Sondhi and Karun Mehta for the Respondents.
CASE NO.: Appeal (civil) 4130 of 2006 PETITIONER: Paramjeet Singh Patheja RESPONDENT: ICDS Ltd. DATE OF JUDGMENT: 31/10/2006 BENCH: Dr. AR. Lakshmanan & Lokeshwar Singh Panta JUDGMENT: J U D G M E N T Dr. AR. Lakshmanan, J. This appeal was filed against the impugned interlocutory judgment and order dated 19.3.2003 passed in Notice … 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
whether the Coal Mines Provident Fund Commissioner is a public officer under the Union of India so as to attract the provisions of Order XXVII Rule 5A of the Code of Civil Procedure.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.41 OF 2012 (Arising out of SLP(C) No.5827 of 2011) COAL MINES P.F. COMMR. THR. BOARD OF TRUSTEE … APPELLANT Vs. RAMESH CHANDRA JHA … RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. The appellant … Continue reading
Code of Civil Procedure (Act 5 of 1908), O.41, r. 1- Preliminary decree in partition suit-Death of some parties- Redistribution of shares-No fresh preliminary decree drawn up-Appeal without copy of preliminary decree-If maintainable. Practice-If court could pass more than one preliminary decree in a partition suit. Hindu law-Agarwala Jains–Share given to mother in partition suit-Right, whether absolute or limited. Will-Circumstances showing genuineness of. =The appellant filed a suit for partition against his father, mother, brother (the -respondent) and the adopted son of a predeceased brother. The parties were Agarwala Jains. A preliminary decree was passed specifying the shares of the parties, but before the final decree could be passed, the father died., and soon after, the mother also died. The respondent claimed the father’s share under a will executed by the father in his favour, and the appellant claimed the mother’s share under a sale deed executed by her in his favour. The appellant challenged the genuineness of the will, and the respondent contended that as she was only a limited owner, the mother was not entitled to sell her share. The trial Court held in favour of the appellant on both contentions, and passed an order redistributing the shares, but did not prepare a fresh preliminary decree. The respondent appealed to the High Court but was not in a position to file a copy of the decree with the appeal. Even when time was granted by the High Court and the respondent moved the trial Court for framing a formal decree, the trial Court refused to do so. The High Court disposed of the appeal holding that (i) the appeal was maintainable without a copy of the decree; (ii) the varying of the share,, by the trial Court, in the preliminary decree already passed by it was a decree in the circumstances of the present case, and the respondent could appeal from it; (iii) the mother was not entitled to sell her share and so the sale in favour of the appellant was invalid; and (iv) the will in favour of the respondent was genuine. In appeal to this Court. HELD:(i) Normally a copy of the decree must accompany the memorandum of appeal. But the defect in the filing of the appeal in the present case was not due to any fault of the respondent and it could not be held that be should be deprived of his right of appeal, simply because the trial Court did not do its duty. [157 D, H] Jagat Dhish Bhargava v. Jawahar Lal Bhargava, [1961] 2 S.C.R. 918, referred to. (ii) So far as partition suits are concerned, if an event happens after the preliminary decree and before a final decree is passed, and a change in the shares is necessitated, the trial court can and should pass a second Sup. C.1.167-11 154 preliminary decree correcting the shares; and, if there is a dispute in that behalf the order of the court deciding that dispute and making a variation in the shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. A partition suit is not finally disposed of till the final decree is passed and the court has jurisdiction to decide all disputes that may arise due to the death of some of the Parties after the preliminary decree and before the passing of the final decree. There is nothing in the Civil Procedure Code which prohibits the passing of more than one preliminary decree in a partition suit if circumstances justify it and if it is convenient and advantageous to do so. [158 E, F, H; 159 A, D-E] Kasi v. Ramanathan Chettiar, [1947] 2 M.L.J. 523, Raja Peary Mohan v. Manohar, (1923) 27 Cal. W.N. 989 and Parshuram v. Hirabai, A.I.R. 1957 Bom. 59, approved. Bharat Indu v. Yakub Hasan, (1913) I.L.R. 35 All. 159, Kedernath v. Pattu Lal, I.L.R. [1954] Luck, 557 and Joti Parshad v. Ganeshi Lal, A.I.R. 1961 Punj. 120, overruled. (iii)In the absence of a custom to the contrary a Jain widow takes a limited interest in her husband’s estate similar to the widow’s estate.A custom., however, to the contrary has been proved Agarwala Jains that the widow takes an absolute estate in the required property of her husband, with full powers of alienation. But there is no such custom entitling her to an absolute estate in ancestral property. [160 D-E] In the present case, the share allotted to the mother by the preliminary decree was out of ancestral property, and therefore, the appellant could not take advantage of the sale of that share by the mother, and it must descend equally to the three surviving parties namely, the appellant, the -respondent and the adopted son of the deceased brother. [160 E-F] Tulsiram Khirchand v. Chunnilal Panchamsao Parwar, A.I.R. 1938 Nag. 391, referred to. (iv) The will was duly executed by the father in favour of the respondent. It was genuine, and the testator was competent to will away not only his self-acquired properties, but also the share he got out of the joint family property by severance of status and specification of shares. [162 C-F] The will was executed after the partition suit had been filed and after a preliminary decree, by which shares were allotted to the members of the family, had been passed. Though the testator was 70 years old at the time of the execution of the will -and though the respondent took a prominent part in its execution, the testator lived for 7 years after its execution and he was mentally and physically competent at the time of its execution. Further, the will was registered. The will was also natural, because,, (a) the testator was disgusted with the conduct of the appellant; (b) he was pleased with that of the respondent; (c) he did not give any share to the adopted son of his deceased son, because, the adopted son was the natural son of the appellant; and (d) he did not provide for his wife for she had already been allotted one-fifth share by the trial Court’s preliminary decree. [161 C-H; 162 A] =1967 AIR 1470, 1967( 3 )SCR 153, , ,
PETITIONER: PHOOLCHAND AND ANR. Vs. RESPONDENT: GOPAL LAL DATE OF JUDGMENT: 10/03/1967 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. RAMASWAMI, V. CITATION: 1967 AIR 1470 1967 SCR (3) 153 CITATOR INFO : RF 1972 SC 414 (32) ACT: Code of Civil Procedure (Act 5 of 1908), O.41, r. 1- Preliminary decree in partition suit-Death … Continue reading
advocatemmmohan 