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SUPREME COURT OF INDIA
Shah, Mr. Sikri and Mr. Shalat, JJ.
Baidyanath Dubey - Appellant
Versus
Deonandan Singh and another – Respondents
Civil Appeal No. 59 of 1965
Decided On : 27-09-1967
CIVIL PROCEDURE CODE - SECTION 151 - INHERENT POWERS OF THE COURT - RECALL OF ORDERS OBTAINED BY FRAUD - JURISDICTION OF THE COURT - SALE OF MOVABLE PROPERTY - ORDER 21, RULE 78 - APPLICATION UNDER ORDER 21, RULE 58 - MAINTAINABILITY.
Fact of the Case:
The judgment debtor filed a petition under section 151, Civil Procedure Code, to set aside the sale of cinema machinery held in execution of a decree. The Munsif rejected the petition on the ground that it was not maintainable. The High Court allowed a revision petition and set aside the sale.
Finding of the Court:
The Supreme Court held that the High Court was entitled to interfere with the order of the Munsif because he had refused to exercise a jurisdiction vested in him. The Court further held that the Munsif should have remanded the case to the trial court for trial of the issue whether fraud had been practiced on the Court.
Issues: 1. Whether the High Court had jurisdiction under Section 115, Civil Procedure Code, to set aside the orders? 2. Whether a petition under section 151, Civil Procedure Code, was maintainable in law? 3. Whether Order 21, Rule 58 applied to the facts of the case?
Ratio Decidendi: 1. The Court held that the High Court had jurisdiction under Section 115, Civil Procedure Code, to set aside the orders because the Munsif had refused to exercise a jurisdiction vested in him. 2. The Court held that a petition under section 151, Civil Procedure Code, was maintainable in law because the orders had been obtained by fraud practiced on the Court. 3. The Court held that Order 21, Rule 58 did not apply to the facts of the case because the sale had become absolute under Order 21, Rule 77 (2).
Final Decision: The Supreme Court set aside the orders of the High Court and remanded the case to the Munsif to go into the question whether the impugned orders were obtained from the Court as a result of fraud practiced on it, and decide the case in accordance with law.
JUDGMENT :
Sikri, J.
1. This appeal by special leave is directed against the judgment of the Patna High Court, dated December 4, 1963, allowing a revision under Section 115. Civil Procedure Code, against the order of the Munsif, First Court, Chapra dated January 10, 1963 and directing that the orders dated April 16, 1962. and May 21, 1962, passed by him be recalled, thereby setting aside the sale.
2. The learned counsel for the appellant, Mr. B.P. Jha, submitted three propositions before us: (1) That on the facts the High Court had no jurisdiction under Section 115, Civil Procedure Code, to set aside the orders; (2) That a petition under section 151, Civil Procedure Code, was not maintainable in law for the reason that the Court had become functus officio; and (3) That, as the sale had become absolute under, Order 21, Rule 77 (2), the sale could be set aside only under Order 21, Rule 78 , Civil Procedure Code, and Order 21, Rule 58 did not apply to the facts of the case because admittedly the petition was filed by respondent No. 1 who had been held to be the judgment-debtor.
3. In order to appreciate the points raised before us it is necessary to set out the facts out of which this appeal arises, M/s. Chapra Electric Supply Works, respondent No 2 before us brought a money suit against Durga Talkies and Daonandan Singh, proprietor of Durga Talkies, respondent No. 1 before us for realisation of the electricity dues, The suit was decreed. In execution of this decree (Execution Case No, 117 of 1960) some movable machinery of the cinema was sold on May 21, 1962, and was purchased by Baidyanath Dubey, appellant before us for Rs.1018/-, and it is this sale which has been set aside by the High Court.
4. It is necessary here to set out the various steps leading to the sale. On November 7, 1960, respondent No. 1 -hereinafter referred to as the judgment debtor filed a petition praying for stay of the issue of attachment on the ground that the execution case had not been properly filed and the talkies belonged-to Deonandan Singh son of Bhujhawan Singh and not Deonandan Singh son of Bhagwan Singh. This petition was rejected on January 12, 1961. The attachment order was issued on January 25, 1961 returnable by February 18, 1961. On December 16, 1961, the judgment debtor filed a miscellaneous case (No. 211 of 1961) under Order 21, Rule 58 . By March 30, 1962, attachment had not been made. It was ordered to be re-issued fixing April 16, 1962 for return. On April 16, 1962, the following order was passed :
5. On April 16,1962, the following order was recorded :
Requisites for issue of S P (Sale proclamation) under Order 21, Rule 6 , Civil Procedure Code filed and fee deposited but petition of encumbrance not filed.”
Order
6. Issue S.P. fixing 2-5-1962 for sale at 8 a.m., at the spot on fitness cost deputation of peon at once.
7. The order passed on May 2, 1962, reads:
"2-5-1962 Petition of encumbrance filed. Issue S.P. fixing 18-5-1962 for sale at 8 a.m., as ordered at once notifying encumbrance. Let the sale be published in 'Nerad’
Amount
Previous amount 977.92
Further Ex. case 10.80
Total 988.72"
8. On May 5, 1962, following two orders were passed:
70. Do J, Dr. files a petition
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