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IN THE HIGH COURT OF ALLAHABAD
H. N. Seth, J.
ATAL SINGH - Appellant
Versus
KESHO RAM - Respondents
Ex. Second Appeal 1776 Of 1973
Decided On : 11/24/1980
EXECUTION OF DECREE - RESTORATION OF EXECUTION CASE DISMISSED FOR DEFAULT - APPEALABILITY OF ORDER - ORDER REJECTING APPLICATION FOR RESTORATION - WHETHER APPEALABLE - ORDER PASSED BY EXECUTING COURT - WHETHER IN SUBSTANCE AN ORDER REJECTING APPLICATION FOR RESTORATION OR AN ORDER DISMISSING EXECUTION CASE ON MERITS - INTERPRETATION - CIVIL PROCEDURE CODE, 1908 - SECTIONS 47, 151.
Fact of the Case:
Decree-holder filed an execution application under Order XXI, Rule 32 of the Civil P. C. alleging that the judgment-debtor had disobeyed the decree for injunction and had misappropriated decree-holders crops standing on certain plots. The judgment-debtor filed objections to the prayer made in the laid application which were rejected by the executing Court. The executing court directed that the properties, detailed at the foot of the execution application, belonging to the judgment-debtor be attached and that the attachment was to remain in force for a period of one year. The properties belonging to the judgment-debtor were in pursuance of the order dated 28th august, 1969 actually attached on 16th Oct., 1969 and, as stated above, this attachment was to continue to remain in force for one year from the date of attachment. The decree-holder claims that on his return from Allahabad on 2nd Feb., 1971 his brother-in-law Ram Saran informed him about the notice issued by the court. Thereupon he went to the court, made enquiries and came to know that his execution application had been struck off on 23rd Jan., 1971 for want of prosecution. He accordingly filed an application on 20th Feb., 1971 praying that the order dated 23rd Jan., 1971 be recalled and the execution case be restored to its original number. The executing court accepted the decree-holders case that he had sufficient cause for not appealing before the court of 23rd Jan., 1971, and for his failure to take steps in pursuance of the notice issued by the court. It, however, dismissed the restoration application mainly on the ground that the decree-holder ought to have applied for sale of the attached property immediately after three months of the date of attachmeat or within reasonable time thereafter. Aggrieved, the decree-holder went up in appeal before the Additional District Judge, muzaffarnagar.
Finding of the Court:
The appellate court held that the executing court was not justified in rejecting the restoration application filed by the decree-holder. It observed that after finding that the decree-holder had shown proper and sufficient cause for his failure to attend the court on 23rd Jan., 1971 as also for his failure to take steps in pursuance of the court notice sent to him (the finding with which the appellate court fully agree) the restoration application filed by the decree-holder should have been allowed. The appellate court, without expressing any opinion on the merits of the question as to whether the decree-holder was entitled to any relief in the execution case initiated by him, allowed the appeal, set aside the order passed by the executing court refusing to recall it order dated 23rd jan., 1971 and directed that the execution case be restored to its original number and that it be proceeded with in accordance with law.
Issues: 1. Whether an order passed on an application for restoring execution application dismissed for non-prosecution is an order relating to execution, discharge or satisfaction of a decree? 2. Whether an order passed by the executing court rejecting the execution application may fall within the purview of Section 47 of the Civil P. C. as a matter relating to execution, discharge or satisfaction of a decree and may, as such, be appealable? 3. Whether an order passed on an application refusing to restore an execution application dismissed for non-prosecution can be said to relate to execution, discharge or satisfaction of a decree felling within the purview of Section 47 of the Civil P. C.? 4. Whether the order dated 11th Jan., 1972 passed by the executing court is an order rejecting an application, for restoration of an execution case dismissed for default?
Ratio Decidendi: 1. An order passed on an application for restoring execution application dismissed for non-prosecution is not an order relating to execution, discharge or satisfaction of a decree. It does not fall within the purview of section 47 of the Civil P. C. Such an order is made in exercise of powers under Section 151 of the Code of Civil Procedure and it is, as such, not appealable. 2. An order passed by the executing court rejecting the execution application may fall within the purview of Section 47 of the Civil P. C. as a matter relating to execution, discharge or satisfaction of a decree and may, as such, be appealable. 3. An order passed on an application refusing to restore an execution application dismissed for non-prosecution cannot be said to relate to execution, discharge or satisfaction of a decree felling within the purview of Section 47 of the Civil P. C. Since such an order is made in exercise of powers under Section 151 and is not covered by any provision of Order XLI Rule 1 of the Civil p. C. , no appeal would lie against such an order. 4. The order dated 11th Jan., 1972 passed by the executing court is in substance an order rejecting an application, for restoration of an execution case dismissed for default.
Final Decision: The appeal is allowed in part. The order dated 14th Aug., (973 pass- ed by the additional District Judge, Muzaffarnagar, is set aside and he is directed to proceed to decide the appeal filed by the decree-holder, treating it to be an appeal against an order rejecting the decree-holders execution application, on merits and in accordance with law.
( 1 ) THIS appeal by judgment-debtor is directed against the appellate order dated 14th Aug. , 1973 passed by the Additional District Judge, Muzaffarnagar.
( 2 ) BRIEFLY stated, the facts giving rise to the present appeal are that Kisho Ram (respondent in this appeal) filed Suit No. 106 of 1967 against Kapoor Singh and others for a permanent injunction restraining them from interfering with his possession over certain agricultural plots. The suit was decreed on 22nd Dec. , 1967. The decree-holder presented an execution application under Order XXI, Rule 32 of the Civil P. C. with the allegation that the judgment-debtor had disobeyed the decree for injunction and had misappropriated decree-holders crops standing on certain plots. The judgment-debtor filed objections to the prayer made in the laid application which were rejected by the executing Court vide its order dated 28th Aug. , 1969. The executing court directed that the properties, detailed at the foot of the execution application, belonging to the judgment-debtor be attached and that the attachment was to remain in force for a period of one year. The court further ordered that the file be put up for further orders after a year. It may be mentioned here that by an amendment made by the Allahabad High Court in Order XXI, Rule 32 (3) the words one year had been substituted by the words three months and it was also provided that this period could be extended by the court for good cause. The order passed by the executing court directing that the attachment of the property was to remain in force for a period of one year had thus been passed in ignorance of the amendment made by the Allahabad High court in Order XXI, Rule 32 (3) of the Code of Civil Procedure and was not fully in a con-lonance with the said provision.
( 3 ) THE properties belonging to the judgment-debtor were in pursuance of the order dated 28th august, 1969 actually attached on 16th Oct. , 1969 and, as stated above, this attachment was to continue to remain in force for one year from the date of attachment.
( 4 ) IN the meantime, the defendant filed an appeal against the original decree which appeal was dismissed by the District Judge on 6th Feb. , 1970. The defendant then came up in second appeal before this Court and this Court, by an order dated 3rd Mar. , 1970 directed that the operation of the order of the trial court was to remain stayed in the meanwhile. Eventually the second appeal was dismissed by this Court on 12th Jan. , 1971.
( 5 ) IN the period of one year from the date of attachment which had expired on 16th Oct. , 1970 the execution application, as had already been ordered by the executing court, was put up for orders on 26th Nov. , 1970. It was found that the decree-holder had not taken any step for prosecuting the execution application further and his Counsel reported that he had no instructions in the case. The court accordingly ordered that notices be sent to the decree-holder for taking further steps for prosecuting the execution case. When the process-server went to serve the notice issued by the court on the decree-holder on 5th Jan. , 1971, he was informed by sri Ram Saran brother of decree-holders wife, that the decree-holder had gone to Allahabad in connection with pairvy (advocacy) of the second appeal and that he would inform the decree-holder about the notice on his return from Allahabad. The execution application was put up for further orders on 23rd Jan. , 1971. The decree-holder was not present in court on that date as he had, by that time, not returned from Allahabad. The executing court, however, took the view that service of notice on decree-holders wifes brother was sufficient and struck off the execution case for default.
( 6 ) THE decree-holder claims that on his return from Allahabad on 2nd Feb. , 1971 his brother-in-law Ram Saran informed him about the notice issued by the court. Thereupon he went to the court, made enquiries and came to know that his execut
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