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PATNA HIGH COURT
Sinha and Reuben JJ.
Laxmi Narayan Narayan Singh
Versus
Dipen Rai
A.F.A.O. No. 120 of 1948 ;
Decided On : JANUARY 31, 1950
CIVIL PROCEDURE CODE - ORDER 22, RULES 3, 4, 8, 11, 12 - ABATEMENT - APPLICATION UNDER ORDER 21, RULE 90 - WHETHER A PROCEEDING IN EXECUTION - INTERPRETATION OF WORDS "PROCEEDINGS IN EXECUTION" - INHERENT POWERS OF COURT TO ALLOW SUBSTITUTION OF PARTIES BEYOND THE PERIOD OF 90 DAYS.
Fact of the Case:
An appeal was filed against an order setting aside an execution sale under Order 21, Rule 90, Civil P. C. The decree-holder died during the pendency of the appeal, and an application for substitution of his legal representatives was filed beyond the period of 90 days prescribed under Order 22, Rule 3, Civil P. C. The District Judge dismissed the application as time-barred, holding that the provisions of Order 22 regarding abatement applied to the appeal.
Finding of the Court:
The Court held that the provisions of Order 22, Civil P. C., regarding abatement did not apply to the appeal before the District Judge. The Court interpreted the words "proceedings in execution" in Order 22, Rule 12, to mean a proceeding which relates to a period before the execution of the decree or order has been finally disposed of. The Court held that an application under Order 21, Rule 90, is an application in execution, as it attacks the sale and may result in the setting aside of the sale and the reopening of the execution proceedings.
Issues: 1. Whether the provisions of Order 22, Civil P. C., regarding abatement applied to the appeal before the District Judge. 2. Whether an application under Order 21, Rule 90, is a proceeding in execution.
Ratio Decidendi: 1. The Court held that the provisions of Order 22, Civil P. C., regarding abatement did not apply to the appeal before the District Judge because: a) Order 22, Rules 3, 4, and 8, in terms, relate to suits and speak of a suit, a plaintiff, and a defendant. An application under Order 21, Rule 90, may be made by various persons, including the decree-holder, any person entitled to a share in a rateable distribution of assets, or whose interests are affected by the sale. It is possible that persons who do not answer to the description either of plaintiff or defendant will be impleaded as parties to such an application. b) Order 22, Rule 12, expressly excluding proceedings in execution of decrees or orders, suggests prima facie that the provisions as to abatement are intended to apply to other proceedings. However, the Court interpreted the words "proceedings in execution" in Rule 12 to mean a proceeding which relates to a period before the execution of the decree or order has been finally disposed of. c) An application under Order 21, Rule 90, is a proceeding in execution because it attacks the sale and may result in the setting aside of the sale and the reopening of the execution proceedings. 2. The Court held that an application under Order 21, Rule 90, is a proceeding in execution because: a) The whole of Chapter 19, Civil P. C. (1883), consisting of 121 sections, is devoted to "procedure in executions." This Chapter corresponds to Part II comprising Sections 36 to 74, Civil P. C. (1908), and Order 21 of Schedule 1 and the whole of Schedule 3 to this Code. Proceedings under these provisions, therefore, should be regarded as proceedings in execution. b) The Court cited the observations of Das J. in Muhammad Taki V/s. Fateh Bahadur, 9 Pat. 372 at p. 881: (A. I. R. (16) 1929 Pat. 565 (F. B.)): "Reading the Code as a whole, it seems to me that there is a procedure for suits, a procedure for execution, and a procedure for appeals; and Rules 3, 4 and 8 apply to suits by their own force and to appeals by force of Rule 11; but they do not apply to proceedings in execution as contemplated by Chap, (Part.?) II and Order 21 of the Code."
Final Decision: The Court allowed the appeal, set aside the order of the District Judge, and remanded the case to the District Judge to be dealt with in the light of the above remarks.
Reuben, J.
1. This appeal is directed against an order of the District Judge of Saran, treating as abated an appeal directed against an order of the Munsif at Chapra setting aside an execution sale under Order 21, Rule 90, Civil P. C.
2. The sale which is challenged was held as long ago as 1942 in execution of a decree obtained in 1940, an area of 14 bighas 11 kathas being sold for Rs. 1,541. Delivery of possession was given in the year 1943. The application under Order 21, Rule 80 was filed in October 1946, and was allowed by the Munsif on the finding that there was fraud in the conducting of the execution, by which fraud knowledge of the sale was kept from the judgment-debtor till within thirty days of the finding of the application, and that by reason of this fraud the judgment-debtor had suffered substantial injury. The decree-holder appealed against this decision. In October 1947, he died and an application for substitution in his place was filed by the appellants, the son and the widow of the said decree-holder, in March 1948, that is to say, beyond the period of ninety days. The application has been dismissed as time-barred.
3. It is contended by the appellants that the provisions of Civil P. C. relating to abatement had no application to the appeal before the District Judge.
4. I reproduce below the relevant rules of Order 22, Civil P. C.:
"3 (1) Where one of two or more plaintiffs dies and the right to sue Does not survive to the surviving: plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate go far as the deceased plaintiff is concerned and, on the application of the defendant, the Court may; award to him the cost which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
11. In the application of this Order to appeals, so far as may be, the word plaintiff shall be held to include an appellant, the word defendant a respondent, and the word suit an appeal.
12. Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."
Rule 4 relates to substitution when a defendant dies and Rule 8 to the insolvency of a plaintiff.
5 At first sight, it would appear that the effect of Rule 11 is to apply Rule 3 to the appeal before the District Judge. But it has been held by the majority of a Full Bench of this Court (Das, J. dissenting) in Muhammad Taki V/s. Fateh Bahadur Singh 9 Pat. 372 (A. I. R. (16) 1929 pat. 666 that Rule 11 must be read subject to B. 12. Therefore, the applicability of the provisions regarding abatement to an appeal depends upon their applicability to the original proceedings gut of which the appeal has arisen. The learned District Judge held that a proceeding under Order 21, Rule 90, is not a proceeding in execution of a decree and, therefore is cot excluded from the operation of the provisions as to abatement by Rule 12.
6. This finding of the District Judge finds apparent support from the decision of Das and Ross JJ. in Jagdish V/s. Sureshwar, 6 Pat. L. J. 253: (A. I. R. (8) 1921 Pat. 107), dealing with the effect of a similar exemption as to proceedings in execution contained in Order 23, Rule 4, of the Code, and an apparently direct case on the point ia Govind Nath V/s. Pratap Udai Nath, 2 Pat. 243. (A. I. R. (10) 1923 Pat. 29) decided by Das and Adami JJ. The latter case arose out of an application under Sec.213, Chota Nagpur Tenancy Act for setting aside a sale held in execution of a rent decree. This section corresponds to Order 21, Rule 90, Civil P. C., but, unlike the Code of Civil Procedure, the Chota Nagpur Tenancy Act contains in Sec.265, Sub-section (3), Clause (a), an express directio
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