High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.07.2007 CORAMTHE HON'BLE MR.A.P.SHAH, CHIEF JUSTICE and THE HON'BLE MR.JUSTICE P.JYOTHIMANI O.S.A.Nos.141 & 142 of 2007& M.P.Nos.1+1 of 2007-------------- Sreyas Sripal..Appellant in O.S.A.No.141/2007/2nd defendant T.P.Anand..Appellant in O.S.A.No.142/2007/3rd defendant Vs.M/s.Upasana Finance Ltd.,98A, Dr.Radhakrishnan Salai,Mylapore, Chennai – 600 004. ..Respondent in both the O.S.As/PlaintiffAppeals filed to set aside the order dated09.06.2007 passed in Appln.Nos.2284 and 2286 of 2006 inapplication Nos.2109 and 2110 of 2006 in E.P.Nos.193 and194 of 2000 in C.S.No.704 of 1998 on the file of thisCourt. ------------ For Appellants :: Mr.R.Yashodvardhan, Senior Counsel For Mr.AV.K.EzhilmaniFor Respondent:: Mr.B.T.Seshadri,------------ J U D G M E N T (Judgment of the Court was delivered by The Hon'ble The ChiefJustice) Admit. Learned counsel appearing for the respondents waivesservice. By consent, the appeals are taken up for hearing. 2. These appeals are directed against a common order passedby the learned single Judge dismissing Application Nos.2284, 2285,2286 and 2287 of 2006 in Execution Petitions Nos.193 and 194 of 2006.The facts giving rise to these appeals may be briefly stated asfollows: https://hcservices.ecourts.gov.in/hcservices/ The appellants are the judgment debtors/original defendantNos.2 and 3. The respondent/decree holder filed a suit in C.S.No.704of 1998 and a decree was passed by this Court on 30.01.1999 in termsof a Memorandum of Compromise signed by all the parties. Under thecompromise, defendant Nos.1 to 3, 5 and 6 were to pay to theplaintiff a sum of Rs.95,37, 103/- with further interest @ 33% perannum at monthly rests from the date of compromise i.e., 04.01.1999till the date of payment. Further, the defendants were permitted topay the amounts decreed along with interest @33% at monthly rests in78 weekly installments commencing from 08.01.1999 and ending30.06.2000 and if there being any delay in payment of theinstallments, it shall carry interest @ 36% per annum at monthlyrests from the due date till the date of payment of the installments.Further if the defendants fail to pay any three consecutiveinstallments on the due dates, the plaintiff shall be at liberty toexecute the decree for the entire amount and that would becomepayable irrespective of the period fixed for the payment of thedecree amount. As default was committed, the decree holder filedExecution Petitions Nos.193 and 194 of 2000 against the respectiveappellants. An order of arrest was passed by the Master on 07.11.2001against both the appellants. According to the appellants it came totheir knowledge only on 26.06.2006, as during the interregnum period,the appellants were discussing with the decree holder to arrive at asettlement, that too, without even knowing that the order of arrestwas already passed on 07.11.2001. Immediately, they filedapplications to recall the order of arrest, but the Master passed aconditional order to keep the warrant of arrest pending by directingthe judgment debtors i.e., appellants to pay a sum of Rs.10,00,000/-on or before 15.07.2006. Aggrieved by the order of the Master dated03.07.2006, Application Nos.2284 and 2286 of 2006 were filed by therespective appellants and Application Nos.2285 and 2287 of 2006 werefiled for stay of the execution proceedings pending disposal of theapplications. Learned single Judge, by the impugned order dated09.06.2007, dismissed all the applications. Aggrieved by the order ofthe learned single Judge, these two separate appeals are filed by theappellants. 3. Mr.B.T.Seshadri, learned Senior Counsel appearing for therespondent-decree holder raised a preliminary objection to themaintainability of the appeals. Learned Senior Counsel submitted thatthe appeals are not maintainable, in view of the clear bar created bythe amended provisions of Section 100A of the Code of CivilProcedure. He submitted that Section 100A of the Code of CivilProcedure provides that notwithstanding anything contained in anyLetters Patent or in any instrument having the force of law or in anyother law for the time being in force, where any appeal from an orderor decree is heard and decided by a single Judge of a High Court, nofurther appeal shall lie from the judgment and decree of such singleJudge. According to the him, the appellants filed appeals under OrderXIV Rule 12 of the Madras High Court Original Side Rules (hereinafterreferred to as 'O.S.Rules') which were numbered as applications asper practice, and against the order passed by the learned singleJudge in the said appeals, no further appeal would lie in view of theexpress bar contained in Section 100A of the Code of Civil Procedure. https://hcservices.ecourts.gov.in/hcservices/

4. On the other hand, Mr.R.Yashodvardhan, learned SeniorCounsel appearing for the appellants submitted that the bar underSection 100A of the Code of Civil Procedure has no application to thepresent appeals. Learned Senior Counsel contended that by virtue ofthe Madras High Court Original Side Rules read with Section 128(2)(i)of the Civil Procedure Code, the power of the Court is delegated tothe Master in respect of certain matters including the execution ofthe decrees. He submitted that any order passed by the Master as adelegate would tantamount to an order by the Court and against suchan order, no appeal or revision is permissible under law. Hesubmitted that the word "appeal" used in Order XIV Rule 12 of O.S.Rules is clearly a misnomer and power is actually in the nature of areview of the order passed by the Master. Therefore, according to thelearned counsel, the bar under Section 100A of the Code of CivilProcedure is not attracted to the present case.5. In order to answer the issue of maintainability of appealsit would be necessary to refer to the relevant provisions of MadrasHigh Court O.S.Rules and the Code of Civil Procedure. Order I Rule 4of the O.S.Rules contains definitions, and Clause (3) thereofprovides that the term "Court"include a Judge, or Master, or FirstAssistant Registrar, original side. By virtue of Order XIV Rule 10(xxix) all applications for or relating to an order for transmissionor for the execution of a decree or order of arrest, attachment, saleor otherwise shall be made to the Master. Order XIV Rule 12 of theO.S. Rules provides that any person affected by any order of theMaster (except Court-fees) , in respect of all matters judiciallydealt with in exercise of the powers delegated to him by the ChiefJustice from time to time may appeal therefrom to a Judge. Order XXX,Rule 3 of O.S. Rules provides that all acts directed or permitted tobe done by these Rules, or orders passed by the Registrar, Master orTaxing Officer shall be deemed to be judicial, quasi judicial or nonjudicial acts, as the case may be, within the meaning of Section 128(2)(i) of the Code of Civil Procedure. Section 128 of the Code ofCivil Procedure inter-alia enumerates matters in respect of whichRules can be framed by the High Court. Clause (i) of sub rule 2 ofSection 128 of the Code of Civil Procedure provides for delegation toany Registrar, Prothonotary or Master or other official of the Courtof any judicial, quasi-judicial and non-judicial duties.6. On a plain reading of the relevant O.S. Rules in conjunctionwith Section 128 of the Code of Civil Procedure, it is clear that theMaster deals with these matters in exercise of the powers delegatedto him under the O.S. Rules. It is well settled that where a statuteitself has authorised the power to be conferred upon a specificauthority, the status of delegate is that of an agent (See Huth Vs.Clarke (1890) 25 QBD 391). It is equally well settled that when anauthority delegates its power, it does not completely divest itselfof its power but is, in the absence of any statutory bar, capable ofresuming it and, unless that is precluded by the terms of thedelegation, even exercising concurrent powers. Thus, in Godhavari Vs.State of Maharashtra, [(1966) 3 S.C.R. 314], the Supreme Court heldthat after delegating its power under Section 30 of the Defence ofIndia Rules to the District Magistrate, the State Government is still https://hcservices.ecourts.gov.in/hcservices/ competent to make an order of detention itself. As a necessarycorollary, since an agent has no independent power, but exercisesthe powers given to him by his principal, an act done by a delegateis nothing but the act of the principal. Therefore, if an appeal orrevisional power is vested in the delegator, to control itssubordinates, the delegator cannot entertain an appeal or revisionagainst the decision of its delegate, because the act of the delegateis that of the delegator and an authority cannot hear an appeal orrevision against an order made by itself.7. In Roop Chand Vs. State of Punjab, [1963 (1) Supp. SCR 539],the Constitution Bench considered the issue as to whether the Statecan hear the appeal against the order of the Officer passed by him inexercise of his delegated power. In that case, the ConsolidationOfficer decided against the petitioner, against which, the petitionerfiled an appeal before the Settlement Officer, but the appeal failed.Against this, the petitioner filed an appeal before the StateGovernment under Section 21(4) of the E.P.Holdings (Consolidation andPrevention of Fragmentation) Act, 1948, which was heard by theAssistant Director, Consolidation, to whom the power to hear suchappeals had been delegated under Section 41(1). The AssistantDirector allowed the appeal and the petitioner became entitled toretain certain plots. Respondent No.2 to whom these plots had beengiven on repartition moved the State Government under Section 42 torevise the order of the Assistant Director and the State Governmentset aside the order of the Assistant Director and restored that ofthe Consolidation Officer. The petitioner filed a writ petition inthe Supreme Court challenging the order of the State Governmentcontending that under Section 42, it could not interfere with anorder made by itself or by an officer exercising powers of theGovernment delegated to him under Section 41(1). The Court held thatwhere the State Government delegated its power to hear appeals underSection 21(4) to an Officer, an order passed by such an Officer is anorder passed by the State Government itself, because the power tohear the appeals is vested by the statute in the State Government andno one else. The result would be that since no one can interfere withhis own order in revision, an order passed by the State Government inrevision under Section 42 over the order of its delegate would be anullity. The Court held that Section 42 did not empower the StateGovernment to interfere with an order passed by the Officer to whomthe power to hear the appeals filed under Section 21(4) had beendelegated by it under Section 41(1). The words "any orderpassed .......... by an officer under this Act", in Section 42 didnot include an order passed by an Officer in exercise of powersdelegated to him by the State Government under Section 41(1).8. Applying the same logic, this Court cannot exercise the power ofappeal or revision against the order of the Master, which is passedby him in the capacity as a delegate of the High Court. It is wellsettled that ordinarily an appeal would lie from a lower Authority tothe higher Authority and an order passed by the delegate is inexercise of powers given by the delegator and such an order is notappelable or revisable. Therefore, we are inclined to accept thecontention of the learned Senior Counsel Mr.Yashod Vardhan that theword appeal in Order XIV Rule 12 is a misnomer, but it is actually apower of review of this Court. Therefore, such an order passed by the https://hcservices.ecourts.gov.in/hcservices/ Master is not appealable or revisable by the learned Judge under Rule12. The power conferred under Rule 12 is really in the nature ofpower of revision. Consequently, the bar under Section 100A of theCode of Civil Procedure is not attracted and the appeals areperfectly maintainable.9. Coming to the merits of the case, Mr.Yashod Vardhan invitedour attention to the provisions contained in Section 51 and OrderXXI Rules 37 to 40 of the Code of Civil Procedure. He submitted thatthe Master passed an order of arrest originally on 07.11.2001, butthat order has not been executed for nearly 5 years and it is only on16.06.2006 warrant of arrest has been re-issued by the Master on therequest of the decree holder. The contention of Mr.Yashod Vardhan isthat an order of arrest and detention in civil prison of the judgmentdebtor in a money decree can be passed by a Court, only in strictcompliance of the provisions contained in Section 51 of the Code ofCivil Procedure and the requirement as to the opportunitycontemplated to be given to the judgment debtor as to why he shouldnot be detained in civil prison and the reasons to be recorded inwriting by the Court as to its satisfaction with regard to theseveral matters mentioned in the provisio to Section 51 have to thefulfilled every time an order for arrest and detention in civilprison is made. In support of his contention, the learned counselrelied upon the decision of this Court in K.Venkatasubba Rao Vs.M.Sreeramulu, AIR 1949 Mad. 470 wherein it was observed as follows:"It was urged by the learned counsel for therespondent that this judgment debtor was on a formeroccasion, ordered to be arrested and that full reasonswere then given for his arrest and that the lower Courthad omitted to give the reasons now because of that.That order for arrest was not taken advantage of orcarried out. This is a fresh application made monthslater. My view is that reasons must be given every timea man is ordered to be arrested and in every proceedingwhere he is ordered to be arrested, even if it is on thesame day: for, cases differ and much depends on lapse oftime also."10. The learned Senior Counsel Mr.Yashod Vardhan also placedreliance on the decision of the Delhi High Court in Gopichand Vs.Smt.Brahmo Devi, AIR 1968 Delhi 101, wherein the Court held that whenthe order for arrest and detention in prison was not given effect toand subsequent application made after a long interval for passingfresh order, the Court must give opportunity to judgment debtor toshow cause and must be satisfied with the conditions mentioned inproviso are fulfilled at time when it is called upon to makesubsequent order. It was further held that such opportunity neednot, however, be given nor is it necessary for the Court to recordreasons in writing as to its satisfaction about the fulfilment ofconditions contained in the proviso where interval between firstorder and subsequent order is short. https://hcservices.ecourts.gov.in/hcservices/

11. Mr.Yashod Vardhan also brought to our notice a decision ofthe Supreme Court in J.G.Verghese Vs. The Bank of Cochin, [(1980) 2SCR 913]. In that case the appellants were the judgment debtors whilethe respondent-bank was the decree holder. In execution of the decreea warrant for arrest and detention in civil prison was issued to theappellants under Section 51 and Order XXI Rule 37 of the Code ofCivil Procedure. On an earlier occasion there had been a similarwarrant for arrest in execution of the same decree. The decreeholders also proceeded against the properties of the judgment debtorsand in consequence all their immovable properties had been attachedfor the purpose of sale in discharge of the decree debts. A receiverwas appointed by the execution court to manage the properties underattachment. Even so, the court had issued a warrant for the arrest ofthe judgment debtors because on an earlier occasion a similar warranthad already been issued without any investigation as regards thecurrent ability of the judgment debtors to clear off the debts ortheir mala fide refusal, if any, to discharge the debts. Allowing theappeal the Supreme Court held that - "(1) the words in Section 51 which hurt are 'or hashad since the date of the decree the means to pay theamount of the decree'. Superficially read this impliesthat if at any time after the passing of an old decreethe judgment debtor had come by some resources and hadnot discharged the decree he could be detained in prisoneven though at that later point of time he was found tobe penniless. This is not a sound position, apart frombeing inhuman going by the standards of Article 11 ofthe International Covenant on Civil and Political Rightsand Article 21. A simple default to discharge is notenough. There must be some element of bad faith beyondmere indifference to pay, some deliberate or recusantdisposition in the past or alternatively current meansto pay the decree or a substantial part of it. Theprovision emphasises the need to establish not mereomission to pay but an attitude of refusal on demandverging on dishonest disowning of the obligation underthe decree. Considerations of the debtor's otherpressing needs and straitened circumstances will playprominently. (2) Unless there be some other vice or men reaapart from failure to foot the decree, international lawfrowns on holding the debtor's person in civil prison,as hostage by the court. India is now a signatory tothis Covenant and Article 51(c) of the Constitutionobligates the State to 'foster respect for internationallaw and treaty obligations in the dealings of organisedpeoples with one another'. Even so, until the MunicipalLaw is changed to accommodate the Covenant what bindsthe courts is the former not the latter."12. We are inclined to agree with the submission of Mr.YashodVardhan as the object of detaining a judgment debtor in a civilprison is not to punish him for any crime committed by him, but forenabling the decree holder to realise the money decreed in his favourand for the purpose of achieving this object, alone, the conditions https://hcservices.ecourts.gov.in/hcservices/ in the proviso to Section 51 have been formulated. The statutecontemplates sending to prison the judgment debtor who refuses orneglects to pay towards decree something which the Court has foundafter hearing him to be within his means to pay. It is not mereomission to pay but an attitude of refusal on demand verging ondishonest disowning of the obligation under the decree which isessential. Though at a particular point of time the conditionsmentioned in the proviso to Section 51 of the Code might have beensatisfied, but if that order was not taken advantage of or not giveneffect to within a reasonable time, the position of the judgmentdebtor may so change that the conditions mentioned in the proviso toSection 51 of the Code are no longer satisfied. Therefore, though wedo not share the view that every time an order for arrest anddetention in civil prison of a judgment debtor is made by a Courtwhether the interval between one order and a subsequent order is longor short, the Court must give an opportunity to the judgment debtorand give reasons in writing as to the satisfaction about thefulfilment of the conditions contained in the proviso to Section 51of the Code, if there had been a sufficiently long interval betweenthe original order which has not been given effect to and asubsequent application for passing a fresh order, the Court must givean opportunity to the judgment debtor to show cause and must besatisfied that the conditions mentioned in the proviso to Section 51of the Code are fulfilled at the time when the Court is called uponto make the subsequent order. In the case on hand, undoubtedly, therehas been sufficiently long interval between the original order andthe subsequent order, warranting a fresh examination of the positionof the judgment debtor with reference to the conditions mentioned inthe proviso to Section 51 of the Code. Therefore, we allow theseappeals and remand the matter to the Master with a direction todispose of the matter afresh in the light of this judgment, within aperiod of eight weeks from today. It is open to the parties to let inevidence before the Master in respect of means as well as otherissues.ssa/sm Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Sub Assistant Registrar,Original Side,High Court, Madras.2. The Master,High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. A. V. K. Ezhilmani, Advocate SR No. 41443+ 1 cc to Mr. B.T. Seshadri, Advocate SR No. 41765NG(CO)SR/31.7.2007OSA.No.141 & 142/2007