Bilaspur (Chhattisgarh) (Now Dead) v. Mus. Ramjan Bi, aged
Case Details
1NIH1HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION N0. ^6 /2012 CIVIL REVISION UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE 1908. APPLICANTS: Laxmi Prasad, aged-S^years, 90 L^ Decree Holder S/o. Shri Shivshankar Prasad Petitioners R/o. Village Pamgarh, Tahsil Janj'gir Dist. Janjgir- Champa (Chhattisgarh); ^^^•^a::^ r^^ ^^.' '0^e'ovl''1:"t^ , A^^: o^ i. ^^ RESPONDENTS Judgment Debtors Badri Prasad, a^jed 21 yeot^, S/o Shivshankar Prasad, R/o Village - Pamgarh, Tahsil - Janjgi District - Bilaspur (Chhattisgarh) (Now Dead) VERSUS Mus. Ramjan Bi, aged .?.S v^T W/o Gulam Ali Musalman, R/o, Chandipara - Pamgarh, Tahsil - Janjgir, District - Bilaspur ( Now Dead) Through : Legal Representatives (i) (ii) ? ^ Bhakku S/o Gulam Ali, Gulam Ali S/o Sahadat Ali Kurban Ali S/o Gulam Ali, ^ ? ^5 "v) r-^ v) Usman Ali S/o Gulam Ali, Hdmid Ali S/o Gulam Ali, ® (vi) Rasida Begum D/o Gulam Ali, All (i) to (viii) are R/o Village - Chandipara, Tahsil - Pamgarh .^^.•2.^rt pf-F+t •^^^21^^-^^^-- Jamila Begum W/o Nasiruddin, Balco Nagar, Palimarg, Tahsil - Katghoro, ^(•A-M. hc^rlq CC-*^^) ^<»lt')l^AU&?< ^<^)' (vii) -(viii) Munni Begum W/o Yakub Khan, ^ Operator, R/o Junadih, Tahsil - Katghora ^W' HovU (c^-J ^i^- ^.rt-^l^ C.R.No.46oF2012 Page 1 oF5 ^
Legal Reasoning
HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision No. 46 of 2012 APPLICANTS Decree Holder RESPONDENTS Judgment Debtors 1 2 1 Laxmi Prasad Badri Prasad (died & deleted) Versus Mus. Ramjan Bi (i) Bhakku (ii) Gulam (iii) Kurban (iv) Usman (v) Hamid (vi) Rasida Begum ; (vii) Jamila Begum (viii) Munni Fegum rcivil Revision under Section 115 of the Code of Civil Procedure. 19081 Present:-
Legal Reasoning
Mr. Sudeep Agrawal, Advocate For fche applicants. Mr. Shri Kumar Agrawal, Sr. Advocate vvith Mr. Anand Kumar Gupta, Advocate For bhe respondenbs. (SB: Hon'ble Mr. T.P. Sharma, J.)
Decision
ORDER (Passedon 24/07/2013) 1. By this revision, the applicant has challenaed the legality and propriety oF the order dated 02.12.2011 passed by fche Civil Judge Class - II, Pamgarh District: - Janjgir-Champa in ExecuUon Proceeding No. 4-A/70, whereby the execuUon applicaUon Filed by the applicant has been dismissed on the ground that it has been Filed aFter the period oF 12 years From the date of originaljudgment and decree passed by t:ha trial Court (i.e. dabed 5.5.1971) by allowing the application relating fco mai^tainability oF the revision under Section 47 read with Section 151 oF the Code oF Civil Procedure, 1908 (for short 'bhe Code') Filed by the respondenL ..^ C.R.No.46oF2012 Page2of5 \/n 1 have heard leamed cpunsel for the parties and perused the order impugned, copy oFjudgment and decree dabed 5.5.1971 passed by the First Civil Judge Class-11, Janjgir in Civil Appeal No. 4-A/1970, copy ofjudgmenl: and decree dated 13.10.1972 passed by the 3rd Additional District Judge, Bilaspur in Civil Appeal No. 24-A/1972, copy oFjudgment: and decree dated 23.07.1979 passed by the High Court: Madhya Pradesh, Jabalpur in Second Appeal No. 985/1972, order dated 22.2.2012 passed in W.P.(Art. 227) No. 68/2012. Leamed counsel For the applicant submits that Final judgment in S.A. No. 985/1972 has been passed on 23.07.1979 and execution applicaUon has been Filed on 16.08.90 i.e. within 12 years From the last judgment and decree in accordance wifch Article 136 of the Limitation Act, 1963 (for short 'the Act'), therefore, Executing Court ought: not fco have dismissed the execution proceeding on the ground of limitaUon and by dismissing bhe execution application on the ground of limitation the Executing Court has committed an illegality. On the obher hand, Leamed Sr. Counsel opposes the revision and submits that revision by itselF is not maintainable in bhe light: oF proviso bo Section 115(1) oF the Code because iF the reyision will allow, then execuUon proceeding will revive i.e. at present nothing is pending beFore the Court below, thereFore, if revision is allowed, then suit or proceeding will not be terminated Finally. Leamed Sr. Counsel placed reliance in the matter of Shiv Shakti Co-op. Housing Society, Nagpur v M/s. Swaraj Developers and others (2003 AIR SCW 2445) in which Hon'ble Supreme Court has held that iF the order impugned is of interim in nature or does not Finally decide the lis, the revision will not be maintainable. Order interim in nature canot be the subject matter oF revision under SecUon 115 oF the Code. Leamed Sr. Counsel Further submits that Court below has nol: committed any illegality by dismissing the applicabion For execuUon oF decree Filed aFter j:4:^V!S^ .; "%-:^^ •^' "^Sss&^i VQ_J C.R.No.46oF2012 Page3of5 lapse oF 12 years. Execution applicabion has been Finally terminated, aforesaid order is not: appealable under Order 41 or 43 oF the Code. This is revision under Section 115 oF the Code. Section 115 oF the Code reads thus: 115. Revision. - [(1)] The High Court may call For the record oF any case which has been decided by any Court subordinate to such lies thereto, and IF such High Court and in which no appeal subordinate Court appears - to have exercised a jurisdicUon not vested in it by law, or to have Failed to exercise a jurisdicUon so vested, or to have acted in the exercise oF ibs jurisdicUon (a) (b) (c) illegality or with material irregularity, the High Court may make such order in the case as it thinks fil:: [Provided that the High Court shall not, under this section, vary or reverse any order inade, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour oF the party applying For revision, would have finally disposed oF the suit or other proceedings.] [(2) The High Court shall not, under this section, vary or reverse any decree or order against: which an appeal lies to the High Courb or bo any Court subordinate either thereto. [(3) A revision shall not operate as a stay of suit or other proceeding beFore the Court except where such( suit or other proceeding is stayed by the High CourL] case which Explanation.- In this section, the expression has been decided" includes any order made, or any order deciding an issue, suib or other proceeding.] in the course oF a "any As per Section 115 oF the Code, Final order passed by the Courts below not the subject matter oF appeal can be challenged in revision. Order passed in the course ofsuit or other proceedings may also be challenged in revision in accordance with proviso to Secdon 115(1) of the Code, only under the drcumstances that in case oF allowing the revision, suil: or other proceeding pending beFore the Court below would be Finally disposed oF/ terminated. Provision is crystal clear and is related to bhe order / decision passed in the pending sujt or proceeding and not relatedto final order. '^"% -A^.. :/RQSis. C.R.No.46oF2012 Page4of5 In case of Shiv Shakti (supra) the Apex Court has observed in para 32 which reads thus: "32. 'no' A plain reading oF S.115 as it stands makes it clear that the stress is on the quesbion whether the order in Favour oF the party applying For revision would IF the have given Finality tosuit or other proceeding. answer is 'yes' then the revision is maintainable. But on fchen the revision is not the conbrary, iF the answer is maintainable. Therefore, iF the impugned order is of interim in nature or does not Finally decide the lis, the revision will not be maintainable. The legislative intent: is crystal clear. Those orders, which are interim in nature, cannot: be the subject: matter oF revision under There is marked distinction in language oF S. 115. S.97(3) of the Old Amendment Act and S. 32(2)(i) oF the Amendmenl: AcL While in the Former, there was clear legislaUve inbent: bo save applications admitted or pending beFore bhe amendment: came into Force. Such an intent The amendment: relates to procedures. No person has a vested right: in a course oF procedure. He has only the right oF proceeding in the manner prescribed. IF by a statutory change the mode oF procedure is altered the parties are to proceed according to the altered mode, without a different stipulation." is significantly absent: in S. 32(2)(i). exception, unless fchere is 7o and has specifically observed that if fche impugned order is of interim in nafcure or does not Finally decide the lis, \ the revision would not: be maintainable. By this present revision, the applicant has not challenged any order passed in the suit or proceedings pending beFore the Court below, but has challenged the final order passed in execution proceeding, which is subject matter oF First part of sub-Section (1) of Section 115 of the Code and not the subject: matter oF proviso to sub-Section (1) of the Section 115 of the Code, thereFore the only remedy available to the applicant: is to assail the order by Filing revision and revision filed against such final order is maintainable under the law. 8. As regard the question oF legality and propriety oF the order impugned is concemed. Execution applicabion has been Filed by the applicanl: witrhin 12 years From Finaljudgment passed by the High Court in second appeal, final i.^- C.R.No.46of2012 Page5of5 judgment and decree passed by the appellafce Court: is required fco be executed by the Court, which has passed the decree in accordance with Section 37 of the Code. The applicant has Filed the application for execution of decree before the Court, who has passed the decree within 12 years From the Finaljudgment passed by second appellate Court which was within limitation in accordance with Article 136 of the AcL Consequendy, by dismissing the execution application on the ground oF limitation, the Executing Court has committed an illegality and has ignored the provisions contained under Section 36 and 37 oF the Code. 9. Consequently, the revision deserves to be allowed and is hereby allowed. Order impugned is hereby quashed. 10. Case remitted to the Court oF First instance For execution oF decree impugned. Party shall remain in attendance beFore the ExecuUng Court on 27.08.2013. 11. No order as to costs. Chandra Sd/- T.P. Sharma \ Judge