Smt. Mala Rana Patra v. State Bank of India

Judgment

Sid September 2004. ±±P9MEfll a QBBEB Tlicsc t.hrcc c,iscs involved common question of facts and laws an(I intcrrclatc(I each other and, that being the position, thcsc cases werc taken up for hearing joint].y an(I accordingly, these cases are fmally disposed of with the following common judgment and order.

#2. 'I`hc fact.a or the cases, in a short compass, are as follows: - i) The state Bank of lndia asplaintiffs, for short, the respondent Bank herein, initially instituted three money suits against the defendant Himalindia Photo Offset (Himalindia Publications Pvt. Ltd.) represented by the petitioner, Smt. Mfil€L l{fiiifi I'!itr{I, I.{jr S]it)I-l t!]c Ju(lgi]icnt DCL)I(» Iicrciii, under Civil Suit Nos.60 of 1988, 61 of 1988 and 62 of 1988

which were decreed on 218t August i2000 dy the trial Court in the following order: - "(i) Decree for Rs.2,85,506.04 with pl and FI @ 12.5% per annum with effec`t from 4.5.1988 in Civil Suit No.6o or ig88. (ii) Decree on atlmission for Rs.I,48,537.98 plus pl an(I FI (ci) 12.5`}{t per annum uJith effect from 4.5.1988 in civiisuit NO.61 ori988. , (iii) Decree on admission for Rs.3,67,741.69 plus pl and FU @ 12.5`%i per annum w.e.f. 4.5.1988 in Civil Suit No.62 of 1988." : ii) In the mcantine, the Judgment Debtor Mr. Ram Patra, the owner and proprietor of the said Himalindia Photo Offset, died. His wife, the present petitioner namely, Smt. Mala Rana Patra and his (laughter, Miss Ekta Pat]-a were made parties in the connectc{l execution cases, namely Civil + F,xcciilion C{isc Ntis.7 tif 2000, 8 ttf 2000 nntl tJ or 2()()() respectively. In the course of the execution proceedings, the properties within the press premises were attache(I antl in that regard, an attachment report was filed in the executing Court and thereafter, on the prayer of the decree holder (the respondent 13ank hcrcin) sale order wias passed and Pleadcr Commissioner was appointe(I for inventory and valuation of the properties by an approved valuer anq accordingly, the Commissioner submitted his report on 28th November 2002 and the Court below passed the proc`.lamation of sale order in respect of the attached properties of the Judgment Debtor on i 16th Dcccmbcr 2002 an(I, as the property could not be sold due to shortage of time, another date of issue of fresh sale order was fixed on 24th February 2003 and apart from that the sale order was returned unexccuted and accordingly, the case was fKed on 7th March 2003 for taking steps. However, on 7th March 2003, no step `vas taken by the Decree I]older and thcrcforc, those three cxccu[ion cases were tdismissed on the same day, i.e. on 7th March 2003. .Thereafter, the Decree Holder ffled applications on 16th July 2003 before the Court below for res.`tor.ition of those lhrcc cxccution cases an{l those petitions were registered as C.M.C. Nos.20 of 2003, 21 of 2003 and 22 of 2003. The Ju(lgment Debtor, petitioner herein, rcsistctl the pctjtions by riling written objcclions. The I)ccrcc [Iol(lcr .|lso file(I .|nolhcr sfp€iralc ill)I)licat].tins on 7`'1 November 2003 in support of the said thrcc restoration petitions already `filed on loth July 2003 to which the Judgment Dcblor, thc I)cliti()ncr hcrcin, also file(I writtcn objections.

#3. Upon hearing ,the parties, the learned Court below passed the impugned orders tlated 13th February 2004 in the connected Civil Misc. Case Nos.20 of 2003, 21 of 2003 and 22 of 2003 thus setting aside the orders dated 7tl` March 2003 passed in lhc conncctc(I Civil Execution Case Nos.7 of 2000, 8 of 2000 and 9 of 2000 respectively thus restoring the same to its original execution cases. Being aggrieved by the related impugned orders dated 13th February 2004, the Judgment Debtor, petitioner herein, ned these three revision petitions.

#4. Supporting the case of the petjtioncr, Mr. N. K. P. Sarraf, lcarncd counsel sut)mitt,c{l that the learned Court below had acted illegally an{1 with material irregularity in exercise of its jurisdiction in restoring the relate(I execution cases whi;h were dismissed on 7UI March 2003 inasmuch as the peu.lions ftir rcsttira[ioii or llic c,xccution c.?ses filc{1 by t]ic J Decree Holder-Bank are not maintainable in the eye of law and even. the Decree llolder is aggricvcd by the dismissal or(1ers, I": ought to liavc pr(`ferl`{.tl an €ip|)cal un(lcr Or{lcr XLIII Rule lu.a) of the C.P.C. as the case of the Decree Hol(1er shall be covered up b.y the provisions of Rule 105 and loo of Order XXI,\ and that such petition is to be fled within 30 days from the date when the applicant had knowledge or the order, but in the case in hand, there is 130 days delay in fihig the said petitions as the sz]mc wcrc riled on 16tli July 2003 (petitions datctl 15th July 2003). According to Mr. Sarraf, the impugned orders dated 7th March 2003 are rmal orders and as such no question of restoration or revival of the case shall ever arise and the only rcme{l.y available to the Decree Hol(1er Bank is to file/and prefer an appeal under Order XLIII Rule lu.a) of the C.P.C. It was also contended by Mr. Sarraf, learned counsel that there js no whisper in tile saj(I restoration applications about any provision of law ulider which the Dccrcc IIolder Bank sought for rest, oration or the related cases which were dismissed on 7th March 2003 and that in the instant cases,J the Article 137 of the Limitation Act, 1963 cannot bc invokcd jn vicw {.r the existence of rcJatctl provisions pf law for an appeal or for tsetting aside the impugned orders withiii the prescribed period of limitation of 30 days as laid down under Order XLIII read with Order XXI of the C.P.C. It was also contcndcd by the learned counsel that the Decrcc Holder Bank took advantage on its oun wrong`B in filing rcsl()rf`tion I)cli(ions wliich is not pcrmissiblc •i!i.I(`i. !1i(. I.i`.. .ii!` 1' : I J'`."'n I)`- lt`r A|}ex Court in Ashok I.I ? qr`C • ts..

1.1_/{` -I 1`-`. Ail.ainiEfled Y. : \pe> i. Col t. &!a : ,-.`,.:.',,.`:,`,I :,-. !`1999! 7 STY, iia a+I-t, i.-I,I ,iai&.a-`:) ,-rl (1.. a-, Ji,.h... I 1=1`1` I '§C,i-,-.. .t.'_i tJ`J , lf``,I-`,-LL-;riit.i(,,, -,.- I:-:titiollrp: . ,I.i I,-.i:e=.(;jsed 1, `; -I-_-`, iui-1. t.:.f?4`_ \.,r :-il(i:t,[C„- star-i: t ; .,,, i `+I.1 ex{-` J:`-`- -I,. t:,.:'t_, .` ,` ` Jld€r 81 ' : ` .. L I,I:. L . i I i, /``1. G_| . .-"4.2 . ''..(, :.r _,,+ following {lccisions or tlic law laltl clown by the tliffcrcnt IIigh Courts of the countr}': - i) Bajrang Hal a ors. v. Ismall Mlan 8B ors. reported in AIR 1978 Patna 339. ii) Bhaktlsara Ramanuj Dan v. Botlri Bandhu Panda reported in AIR 1963 0riasa 160. iii) Smt. Blmla Devi v. Ashore Chandra Mallick & ors. reported in AIR 1975 Calcutta 80. iv) Khoobcband Jaln GB anr. v. Kashi prasad & ors. reported in AIR 1986 Madhya Pmdesh 66.

#6. Now, this court is to see and examine as to whether the impugned ortlcrs d€ilctl 7lli March 2003 sulrcr from iucgality or incorrectncss, or improprict.v or wheth'cr, the learned Court below ekerciscd its j.urisdiction vcstcd in law illcgall.y or with material irrcgul:u`i|y or, \`'ithout j.uriediction aritl whclhcr, the present petitioner, Judgment Debtor could make out a case to justify the intcrfercncc with the impugned orders or not?

#7. Forjust determination of the+cat points in controversies between the parties this Court require to see the relat.cd provision of law laid do`un under Order XXI C.P.C. In the cases in hand, the Chapter pertaining to resistance to tlclivery of possession to I)ccrcc IIol(Icr or purchaser contained in Rule 9.7 to 106 of Order XXI C.P.C. read with Rule 58 orit arc relcvanl and accordingly, the rclatcd rules arc quolcd below: - I * I<ESIST^NC`E '1`0 I)EI,IVI.:RY 01.` POSSESSION '1`0 DECREE I-IOLDER OR PURCI I^SER

#97. Ro®l.tanco or ob.tructlon to po..a..loo or I..`movabl® property (1) Where the holder of a decree for the possession of immovable property or the purc`haser or any suc`h property sold in execution or a dec`ree is rcsistetl or obstructed by any person in obtaining possession or the pro|.ell.v, he rna.v make an ap|.lic`fltion to the court complaining or such resistanc`e or obstluction. (2) Where an.`' applic.atjon is made under sub-rule (I), the court shall proceed to a{Ijudic`atc upon the application jn accordance with the provisions herein contained.

#98. Orderl after adjt]dlcatloD

#99. Dl8poeeeaelon by decree holder or pu.cbucr loo. Order to be 'pag.ed upon appueatloD complalnlng of dispo3seaslon

#101. Que8tlon to be deterinined

#102. Riiles not appucable to tmngrere-e penl]ente llte

#103. Orders to be treated as decrees

#104. Order under rule 101 or m]e loo to be Subject to the result or pending 8ult

#105. Hearing or apt.llcatlon (I) 'I.lie court, before `t.hich an application under an.v or the rorcgoing rul.s or this Order is pending. may rum a day for the hearing of the application. (2) Where on the da.`. rixed or on anyothcrday towhich the hc<|ring in,|y l]c a(ljoumc{l the .|piilicant does not aiip{.€ir ``'hcn the ciise is t.aJlt.{1 on for lit.`aring, tlie court may make an Ortlcr that the application be {lismissed. '(3) Where the applicant appears a]id the opposite party to wlhom the notice has I)con issued b.v ttie court does not appear, the court may hear the application ex parte and pass such Or(ler as it thinks rit. . Exp/ai]arl.on .. An ap|)lication rercrTed to in sub-rule (I) inclutlcs a cl. Tim or ol.jeclion ma{lr urider rule 58.

#106. Setting a8lde orders paused ex pa]te, etc. (I) Th{. appli(`:irit, €ig.|insl whom an ()I(lcr is m{i{le under sub-rule (2) or rule 105 or the opposite party ag{qinst whom an Order is passed ex parte under sub-rule (3) of that rule or under sub-rule (I) of rule 23, may apply to the court to set aside the ortlt.i., €`ntl ir hc s.|tisrics the court that tht.rc was sumcient cause for his non-appearance when the apphcation was c.alled on for hearing, the court shall set aside the order on such terms as to costs or otherwise as it thinks lit, and shall appoint a day for the further hearing or the a|.I)lirfltion. (2) No order shall be made on an application un{ler sub- rule (I) unless notic.e of the appucation has been served on the 'othcr party. (3) An application under sub-rule (I) shall bc rna(le within thirty days from the date or the order. or where, in the case of an cx parte order, the notic`e was not duly scrvcd, within thirty days froip the date when the apphicant had howledge of t.he order.„

#8. A bare reading of the above provision orlaw shows that the chapter deals with the matter or petitions rilcd by the Decree Holder or the purchaser before the executing Court complaining any resistance or obstruction to' delivery or possession of the property in question, and the related orders to be passed by the cxccuting Court after adjudicatjon an(I hearing of such applications and setting aside of ordcrs Passe{1 ex-partc ctc. ctc. in(`lu(ling an.y claims prcftTrrc(I t() {>r, any obj.ection to the attachment or, an.v property attached in cxccuti'on of a {Iccrcc an(I a{1ju{Iicatjon of such clailns all(I objections. Thcreford, a plain reading or these provisions or law shovys that the provisions of Rule 105 and loo of Order XXI arc` not applical)1c in the ilistant case, in otlicr words, the petitions for restoration of the execution cases rilcd by the respondent, Dcc`rcc IIol(lcr 13ank shall not be, governc{l b.y the i j ; i( 10 said Rule 105 €in(I loo of Or{lcr XX`I C.P.C. I'`Or proper adjudication of the present legal issue,, this Court require to 1 see the nature of .the orders of dismissal and accordingly, it is quoted below: - "Orders dated 7.3.2003 Decree Holder present through L{l. ^dvoc.ate Miss Kessang Diki Bhuti,1. J.Ds. absent. Today the tlate is rixcd for taking steps by the decree holder. However no ste|)s have been taken by the {lecree holder. Case stands dismissed. Pronounced in open Court."

#9. F`rom the available materials on record as weu as the orders dated 7th March 2003 mentioned above, it is seen tliat the executing Court had already issued proclamation and sale order in respect of the attached properties or the Judgment Debtor for which the I)ccrcc Ilol{lcr was rc(iuirc(I to lakc steps, but, the Decree I-Iolder did not take steps and accordingly, the cases wcrc dismissed despite the presence of the learned counsel for the Decree Holdqr on 7tll March 20Q3. According to me, there is no specific provision in the Code of Civil Procedure for rccauing such type of dismissal or(lers or for restoration of the cxccutjon cases which were (lismisscd, or for setting asi~de the dismissal orders when the Decree lloldcr fallc{l lo take ncccssary steps as dircctcd by the Executing Court. It may bc mcntioncd that those rclatcd ® three c*ccutjon cases wcrc not dismissed on the (late fixcd for hearing of any application. Considering the nature of the petitions riled by the Dccrec Holder for restoration of those execution cases, I an of t.he view that those applications shout be treated as an application under Section 151 of the C.P.C. and accordingly, those petitions are maintainable rii the eye ol. law. The submissions of Mr. N. K. P. Sarral, learned counsel that the Decree Holder ought t.o have preferred an appeal under Order XLIII, Rule lo.a) of the C.P.C. or, revisions or that, the cases or lhc Dccrce I.Ioltlcr shall bc covered up.by the provisions of Rule 105 and 106 of Order XXI and {in.y pet.it.ion in th€it rcgartl ,is to bc rilcd within 30 days etc. holds a little water. Accor(ling to mc, tJie case-laws cited and relied upon by the learned counsel, Shri N. K. P. Sarraf do` not help the case of the petitioner-Judgment Debtor. So far the question of delay in filing those restoration petitions as cont.cmded by Mr. Sarraf, 1earne(1 counsel, I an of the view that the Dccrec IIol(lcr had shown cogent and sufficient reasons for certain delay of.about 130 days from the date of the order of the dismissal in the restoration pet.itions an{l .`parl froin th€it, the c€iscs or the DccrcL. llol(lL`r shall bc covered up by the provision of the law laid down under Article 137 of the Limitation Act, 1963 which provides and prescribes lhc pt:rjt]tl tjr liiTiil{ilitjiT tir 3 (1hrL.a) .yctLrs i.n rcapcct or only '2 olhcr €ipplic€ititm for wliicli no I)crio(1 of limil€ition i`s I)rovj(l{.(I clscwhere, when thi- right to apply accrues. I an also of llu. view that a mere omission of provisions of law or non- mentioning of specific scc`tions of law like Scdt.ion 1`51 of the C.P.C. in the related petitions, i.e. the restoration petitions in I the instant cases sham not defeat the judicial proceedings antl it shau also not cause any prcju(lice to tht opposite party when the petitions contained the detailed facts and circumstances of the cases. The Patna mgh Court had also dealt with a similar matter/legal issue in a case between Smt. Renu Kumarl v. Vishwanath Chaudhary a anr. report.ed in AIR 1983 Patna 66 whcrcin the Patna I]igh court held thus - "2. The only ground, on which the executing Court has refused to exercise its j.urisdictjon has been given in the Impugned order as the non-maintainability of the restoration application under Sc.tjon 151 of the Civil P.C. (hereinafter referred to as the Code). The learned Execution Munsir has %,e^==,^uLn^de_I_.=_±.p`Tcs.s.iintri-±tjds-=iipit=io"nuu#o`r``r'eus`t\=\r`atEoa= would be governed dy the provision or Order 21, Rule 106 (1) of the Code and therefore, Scetion 151 cannot be attracted. Order 21, Rule loo (I) lays down, inter alia, that athe a|)plicant. against whom an order is made under sub-rule (2) of R. 105 ....... may apply to the Court to set aside the order (e.i partc order), an(1 ir he satisfies lJic Court tJiat there is s3ufricfcnt cause for his non-appearance when a,,fT=,,:^_+ ,` .--. __ r , , Was ljc.ation (underlining is mine for the sake of 1, ____ -----. I.J, OCIJ\|_ uJ sis), the Court shall set asi(le the or.1er on §uc.h term.s __ _ .--.. `,.. `)u\,, '(_I,J|.|i on for called i:Srt:h`:'S;:#e°rt'`i.::'LS;.g€`S;i':L]:nkaspfi`j'c:?jt; ris.}a"Ti]h''ep°j:i:c]t'a;Y` l'imitatlon of thirty (lays has been presc.nbed in sub-rule (3) of Rule loo for the flling of an application under sub-rule (1). It Lasnn#=.n+i:I:=t^=_o.,_n_i+3e.,`aTgu±E.c__6F_i::`.`tb€ur;;u:ch::,.a:i application contemplated by this provision is, inter alia, with regard to the setting aside of an ex party order under the provisions of R. 10`5 (2). It is pehinent, therefore, to quote the language of the aroresai(I provision. It reads thus: - •Wherc on the (Ia.v fi,`e(I or on any other (1a.v to which the hearing in.|}' I)a a(ljoum.tl lli. a|7plicnnt do.s liot appt`ar when tl`.'t`i`sc is (.:iHt..I oil I.." lioiliiig, llic Ct)url ln{iy lil€ikt. an oi-(1". 13 that the application be dismissed.. There can be no ambiguity ' about the interpl.etation of this particular statutory provision. It envisages the dismissal or an application for default if on the date rixctl for the hcar].ng or the applic.atjon the n|.pli.cant fails to appear. The date of tlismissal therefore, In this provision is :i:erfanbs[tea::Facsedattheefi€:€efoornthwehT:hari£EoefxTceu:::,i::::n;:: dismissc{1 namely, 2-6-I(J81 was not the date rixcd for the hearing of any ap|)Iic`ation. The execution case was dismissed simply on the groun(I that Talbana etc., attachment processes and sale proclamation processes had not been duly filed by the petitioner-decree hol(Ier. Mr. Tara Kant Jha, learned Counsel ;0:sthneoi::8Tt:n;-edehbet:rd°ap:d°Sif,:#gyw::n{:nbdeeddot::tw¥ser: mere technical proc.e{1ural requirement what had not been cqmplied with on uiat date. Assuming this argument to be correct, on submissions made by the leamed Counsel, it is quite clear that the dismissal on 2n.I June, 1981 was not on account of any ground mentioned in Rule 105 (2), for ir there was anything to be hcart] no date could have been rixed for hearing. But I am afraid, the a]-gument of Mr. Jha is fallacious. It may not alwa.ys be a mere tec`hnjcal procedural responsibility to be disc`harged by the petitioner, but after the filing of the valuation list, if any, the Court below rna.y have to hear the parties on such a matter at least as provided in Rule 105. Therefore, it cannot be said that in cases of this nature, iri, no circumstance, can sub-rule (I) of Rule 105 be applicable. t 3. Be that as it may, 1eame{l Counsel for I)oth the I)arties are agrccd th€" on the facts and in the circ`umstances, as discussed above, Rule 105 (2) has absolutely no a|)plication and therefore, the petitioher `vas not enjoined in law to rile any application under sub-rule (I) or Rule loo within the period of LEE.i,%fi5:I.Fro_s.c.I?e^di.npuiF'1-6i-iii.`v#.:=i5|`i.``TEfncn.onadg: Section 151 of the Code is, therefore, legally maintainable and the Court below must be held to have railed to exerc`].se its juristlit`li.tli vt.slt.tl in I:w in lio! going ilito t]ic mc.tit of the application riled by the petitioner."

#10. As discussc(I above, the related or(lers of dismissal dated 7th March 2003 passed b}' t.he executing Court in the connected Civil Execution Case Nos.7, 8 and 9 of 2000 are not appeal-able untlcr Order XLIII Rule lu.a) as the said restoratiori' petitions cannot bc treated as applications under sub~rule (I) of Rule loo of Order XXI or, under sub-rule (I) of 14 l<ule 105 of tliaL Order. Accoi.dilig I.o mc, the exccutjng Court rl.ghtl.v jnvol{c(I the provision of I.iw ]aj(I down un(lcr Scctjon 151 of the C.P.C. while passing the impugned order dated 13th February 2004 in t.he connected cases and there is also no delay in filing the said restoration petitions by the Decree Holder.

#11. '[`he case records and the related document.s show that the money (Iccrc..9 wcrL. p€`sse(I about 4 years I)ack, i.c. on 21st August 2000 and the Judgment Debtor is a defaulter who has taken public money for. their business and the said decree was an a(Imi, ssion-decree and c.Yen after the decree was passed, the present Judgment Debtor had for several times agreed to pay t.he dccrcetal dues on inslalinenl basis but, she never paid as alleged by the Decree Holder which is not confronted or disputed by the Judgment Debtor and the money involve(I in those t.hrec c.xccutjon cases is in terms or lakhs of rupccs which is public money and the Judgment Debtor has not aid an Cvcn towards of the dccrcetal Be that as it rna.y, suffice is made `vith the al)ovc observations an(I discussions to opine that the present Judgment Debtor, petitioner herein could ln{)I m{ikc tiut a case to justify ilitcrrcrcnce wit]i tlic impugnQtl oi.dcrs tlatcd 13th February 2004 passed by the 15 executing Court below. I an of the view that there is no infirmit.y ()r illcg€ility I.Ii tli.. jmpugncd or(Icrs. 1n tl": rcsuH these three revision petitions are devoid of merit an(] accordingly, these are dismissed with a cost of Rs.5,000/- (Rupees rive thousand), thus alrining the impugned orders passed by the learned Court below. It js made clear that the said cost of Rs.5,000/-shall be trcatcd as part of the funds of the Bar Asstici{`tion of Sikkim for whi.ch the pet.itjoncr shall depositthesajdcostofRs.5,000/-withtheGeneralSecretary of the said Bar Association within 2 (two) weeks from toda.v. Despite the dismissalJ of these three revision petitions, I an constrained to make the followhg directions and observations: -

#12. The executing Court is (lirccted to dispose of the related three execution cases expeditiously in accordance with the law and the J{cgislry or tJic Court is directed to transmit the relalcd case rccoJ-ds to Lhc Court below immediately. Sd/- ( N. S. Slngh ) Judge 11