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1998 Supreme(All) 1155
High Court Of Allahabad
D.K. Seth, J.
Minoti Mazumdar
Vs.
Tara Chand
Decided on: 13.10.1998
Advocate Appeared:
V.K. Burman, Vishnu Gupta
The explanation to Order XLI, Rule 17(1) of the CPC debars the High Court from dismissing the appeal on merit in the absence of the appellant.
Headnote:
Writ Petition - Recall of Order - Dismissal of Writ Petition on Merit in Absence of Appellant - Explanation to Order XLI, Rule 17(1) - Applicability - Revisional Jurisdiction - Scope and Extent - Article 226 and 227 of the Constitution of India - Order XLI, Rule 17(1) and Order IX, Rule 8 of the Code of Civil Procedure (CPC) - Applicability in Revision Proceedings - Order XXI, Rule 95 of the CPC - Applicability - Right under Section 53-A of the Transfer of Property Act - Nature and Scope - Auction Purchaser's Right to Possession - Delivery of Symbolic Possession - Effect - Second Application for Delivery of Possession - Maintainability.
Fact of the Case:
The petitioner filed a writ petition challenging an order passed by the revisional court, which had allowed the respondent auction purchaser's application for delivery of possession of the property sold in auction. The petitioner claimed that she was in possession of the disputed house in pursuance of an agreement for sale executed by the judgment-debtor on 3-8-1962, in part performance whereof the possession of the said property was delivered to the petitioner. The said objection was registered as Misc. Case No. 52 of 1965 which was ultimately dismissed on 23rd May, 1965 on merits, whereafter the auction sale was confirmed by issuing sale certificate on 23rd August, 1965. The petitioner filed original suit No. 88 of 1965 on 21st September, 1965 which was dismissed on 21-12-1996. First appeal No. 138 of 1967 preferred against the said decree dated 21-12-1966 was allowed by remanding the case for disposal with the direction for disposal of the substitution application and if the substitution application is allowed, the suit would be decided once again. But ultimately, the application for substitution was dismissed, against which a revision was filed and the said revision was also dismissed. Thereafter another revision was filed before this Court which was dismissed by an order dated 16th August, 1979. Thereupon, the respondent No. 1 filed an application under Order XXI, Rule 95 for delivery of possession of the property sold in auction to him. Against the said application, the petitioner filed his objection under Order XXI, Rule 63 opposing the delivery of possession and took several objections. The application filed by respondent No. 1 for delivery of possession was dismissed by an order dated 28-11 -1983, against which a revision being civil revision No. 26 of 1984 was moved. By order dated 15th September, 1992, the said revision was allowed and the order dated 28-11-1983 was set aside while directing the Court below to decide the petitioner's application dated 22-4-1966 for deciding the question of delivery of possession.
Finding of the Court:
The court held that the revisional court had correctly decided the case and the proposition laid down by it was in accordance with law. The court further held that the petitioner, as it appeared from the facts, had failed to establish that she is a person in occupation under a title created by the judgment-debtor before attachment. Therefore, at best she can be treated to be a person claiming a title proposed to be created by the judgment-debtor before the attachment capable of being enforced upon establishment of such right through appropriate legal proceedings and until it is so established and enforced, the same cannot be used as a shield in a proceeding under Order XXI, Rule 95. The court also held that the right conferred under Section 53-A is a right which is available to a defendant to protect his possession, was the view taken by the Calcutta High Court in the case of Promod Kumar v. Danta Mara Tea Company, 1940 (66) Indian Appeal 293 : AIR 1940 P. C. 1 and also by the Apex Court in the case of a ; Delhi Motor Company v. Basurkar, AIR 1968 SC 794, as well as various other High Courts. Admittedly, this Section does not create a title in the defendant. It merely operates as a Bar to the transferor or any person claiming through him asserting title. It is limited to a case where the transferee had taken possession and against whom the transferor is debarred from enforcing his right other than what is provided in the contract. This Section imposes a Bar on the transferor. The transferee gets a right only to resist the transferor or any person claiming through or under him. It confers only a right to the transferee to protect his possession against the transferor any one claiming under him, as was held in the case of Ram Pratap Karyan v. Industrial Petroleum Company, AIR 1950 Cal 23. Section 53-A imposes a statutory Bar on the transferor but it confers no title on the transferee. It was so held in the case of Girraj Narain v. Babu Lal, AIR 1975 Pat 58 and Sita Ram Rao v. Vibhisana Pradhan, AIR 1978 Orissa 222. This Section does not confer title on the defendant in possession. It was so held in the case of Kuchwar Lime Stone Company v. Secretary of State, AIR 1936 Pat 372. By virtue of this Section, the transferee cannot maintain a suit on title as was held in the case of S. M. Banerjee v. Kuchwar Lime Stone Company, AIR 1941 PC 128. This view was also approved in the case of Ram Gopal v. Custodian (supra). On the other hand, in the case of Technical Studio Private Limited, v. Lila Ghosh, AIR 1979 SC 2425, it was held that this Section does not confer any active title on the transferee except imposing a statutory Bar on the transferor. In the said case, on the basis of a compromise, the transferee was put into possession of the property for a period of 16 years on lease but no deed of lease was ever executed. In a suit for possession, the transferee sought to establish his right. Whereas, it was held that it created no interest in favour of the transferee though he could have protected his eviction for 16 years by reason of part performance, but on the expiry of the said period, he had no protection at all. Drawing analogy of the said decisions, it appears that the transferee cannot even protect his right after the period of specific performance is barred by time even as against the transferor. Since by reason of such possession, the transferee does not acquire any title, he could not claim title after his right to seek specific performance ceases/lapses on the expiry of the period of limitation. Then again it is a right only against the transferor and not against any person, who is not claiming through or under the transferor. The right is also a right to resist its possession, that too against a transferor or any person claiming under him with the exception as regards a person claiming as a transferee without notice. In the case of Audinarayudu v. Mamgamma, AIR 1943 Mad 706, it was held that a judgment creditor, who attaches the property of a judgment-debtor in possession or in tended purchaser is a person claiming under the transferor.
Issues: 1. Whether the explanation to Order XLI, Rule 17(1) of the CPC bars the High Court from deciding the appeal on merit in the absence of the appellant? 2. Whether the provisions of Order XLI, Rule 17(1) and Order IX, Rule 8 of the CPC are applicable in revision proceedings under Section 115 of the CPC? 3. Whether the right under Section 53-A of the Transfer of Property Act can be used as a shield against the auction purchaser in a proceeding under Order XXI, Rule 95 of the CPC? 4. Whether a second application for delivery of possession is maintainable under Order XXI, Rule 95 of the CPC after symbolic possession has been delivered?
Ratio Decidendi: 1. The explanation to Order XLI, Rule 17(1) of the CPC debars the High Court from dismissing the appeal on merit in the absence of the appellant. 2. The provisions of Order XLI, Rule 17(1) and Order IX, Rule 8 of the CPC are not applicable in revision proceedings under Section 115 of the CPC. 3. The right under Section 53-A of the Transfer of Property Act can be used as a shield against the transferor or any person claiming through or under him, but not against the auction purchaser in a proceeding under Order XXI, Rule 95 of the CPC. 4. A second application for delivery of possession is maintainable under Order XXI, Rule 95 of the CPC after symbolic possession has been delivered.
Final Decision: The writ petition was dismissed.
D.K. Seth, J.
1. By an order dated 17-4-1998 the writ petition was dismissed on merit. The said order has been sought to be recalled by the present application for recalling the said order dated 17-4-1998.
2. MR. VK. Burman, learned Counsel for the petitioner has based his claim on the ground that though the name of Shri R. K. Shukla, learned Counsel for the petitioner was printed in the list of 17-4-1998 but the name of MR. VK. Burman was not shown in the list and therefore, he could not appear when the matter was called on. MR. Shukla also did not appear. Therefore, in such circumstances, the revisional application could have been dismissed in default but it could not have been decided on merit. In support of his such proposition he relies on the provisions contained in Order XLI, Rule 17 of the Code of Civil Procedure (hereinafter called as the Code).
Mr. Burman had also contended that this writ petition was filed by the petitioner through Mr. R.C. Shukla on 15-10-1992. He had returned the brief before 14-12-1992. On account thereof Mr. V.K. Burman was engaged which fact appears to have been recorded in the order sheet on 14-12-1992 that Shri VK. Bur man had put in appearance on behalf of the petitioner. Therefore, when the matter appeared on 17-4-1998 Shri Shukla did not take any interest nor had informed Mr. Burman about the listing of the case. Since 2-3-1998, on account of a fracture in the hip bone of left leg, all cases
5. ORDER XLI, Rule 17 prescribes that 'where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the Appeal is called on for hearing, the Court may make an order that the appeal be dismissed. "Explanation to Rule 17 provides that "nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits." Relying on the explanation Mr. Burman, learned Counsel for the petitioner had contended that the dismissal of the writ petition on merit is wholly without jurisdiction and void abinitio.
6. MR. Vishnu Gupta, learned Counsel for respondents had countered this submission on the ground that Order XLI applies to an appeal provided in the Code of Civil Procedure and governed under Order XLI. It had no application on application in a writ proceeding.
Admittedly, the scope of Order XLI, is limited to an appeal within the meaning of the Code of Civil Procedure. Apart from Order XLI, Rule 17, Order IX, Rule 8, provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall dismiss the suit unless the defendant admits the claim or part thereof. In case the defendant admits the whole of the case, the suit may be decreed as a whole. In case the defendant admits part of it then the suit would be decreed only to the extent of the admitted part and be dismissed so far as it relates to the remainder. Thus, it appears that similar procedure has been provided even for original proceeding apart from appeals.
7. BUT however, there is a distinction to the extent that when by adding explanation to Rule 17 (1) of Order XLI, the jurisdiction of the Court has been taken away to dismiss the appeal on merit. Whereas in Rule 8 of Order IX, no such explanation has been added. Whereas in Order IX, Rule 8 the Court has been empowered to dismiss the suit-the dismissal may be in default or may be on merit. When the legislature itself had specifically provided that in the absence of appellant the appeal cannot be dismissed on merit by adding on explanation with specific legislative intent in Order XLI, no such explanation or otherwise have been added m Order IX, Rule 8. In the absence of any such explanation expressing the legislative intent when the legislature itself had made a distinction on in Rule 17 (1) of Order XLI in between dismissal in default and dismissal on merit, the same proposition cannot be invoked in Order IX, Rule 8. The suit may be dismissed either on me
