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Jai Bhagwan v. Om Parkash
Factual and Procedural Background
The dispute arises from an execution proceeding in which Lal Singh obtained a money decree for Rs. 500 against Jai Bhagwan on 29 May 1959. In execution, a shop alleged to belong to the judgment-debtor was attached and auctioned for Rs. 4,500 in favour of Om Prakash; the sale was confirmed on 29 December 1960. Relatives of the judgment-debtor (Daulat Ram and others) objected under Order 21, Rule 58, claiming three-fourths ownership; those objections were dismissed on 5 October 1960. They then filed a suit under Order 21, Rule 63 on 6 May 1961; on 3 January 1962 the suit was decreed holding that the objectors owned three-fourths of the shop and the judgment-debtor only one-fourth, making three-fourths not attachable or saleable.
On 15 January 1962 Om Prakash (auction-purchaser) applied under Sections 144 and 151 CPC for refund of the auction price. On 16 April 1962 the parties compromised: three-fourths of the price (Rs. 3,375) to be returned to Om Prakash; from the remaining Rs. 1,125, the decretal amount (Rs. 500) be satisfied and Om Prakash would retain one-fourth of the shop in lieu of Rs. 1,125. The judgment-debtor, Jai Bhagwan, later filed (12 June 1963) an application under Sections 47, 114, 144, 151 and Order 21, Rule 91 CPC seeking payment of the balance of auction money. That application was dismissed by the trial Court on 1 February 1964 and that dismissal was affirmed in appeal on 22 February 1965.
Jai Bhagwan filed the present execution second appeal in this Court on 12 July 1965. The respondent (Om Prakash) raised a preliminary objection that the appeal was barred by limitation because the certified copies of the appellate and trial court judgments, filed on the last date of limitation, bore insufficient court-fee stamps; the deficiency was rectified only on 28 July 1965, after limitation. The appellant conceded the factual correctness of this objection but contended the appeal should not be dismissed on that ground and additionally argued that the petition might be treated as a revision or that the auction-purchaser was not a party to the suit. The Court analyzed statutory provisions, authorities, and the facts and ultimately dismissed the appeal as time-barred, leaving parties to bear their own costs.
Legal Issues Presented
- Whether the execution second appeal is barred by limitation because certified copies of the judgments of the two Courts below were insufficiently stamped on the last date of limitation and were made good only after limitation.
- Whether the deficiency in court-fee stamps can be remedied after limitation where no application under Section 149 CPC (seeking permission to make up deficiency) was filed before limitation expired.
- Whether the impugned order of the Senior Subordinate Judge (dated 22 February 1965) was appealable to this Court or only revisable under Section 115 CPC (i.e., whether the present proceeding could be treated as a revision application instead of an appeal).
Arguments of the Parties
Respondent's (Om Prakash) Arguments
- A preliminary objection that the appeal must be dismissed as barred by limitation: the appeal was filed on 12 July 1965 (the last date of limitation) but the certified copies of the appellate and trial court judgments bore insufficient court-fee stamps (appellate copy had Rs. 1.25 instead of Rs. 2.65; trial court copy also insufficient).
- The insufficiency was pointed out by office and rectified only on 28 July 1965, which is after the date of limitation; therefore, no legally effective appeal was filed within time.
- Relied on a series of precedents (beginning with Shahadat v. Hukam Singh) supporting the proposition that an appeal not properly stamped does not constitute a legal appeal and should be dismissed for non-compliance.
Appellant's (Jai Bhagwan) Arguments
- Conceded the factual situation as described by the respondent but urged that the appeal should not be dismissed on that ground.
- Relied on the decision in Custodian of Evacuee Property v. Rameshwar Dayal (AIR 1968 Delhi 183), which allowed making good of deficient court-fee when an application under Section 149 CPC was made attaching the deficiency, arguing that judicial discretion could favour hearing matters on merits rather than dismissing on technical grounds.
- Contended (alternatively) that no appeal lay against the order of the learned Senior Subordinate Judge and that the present proceeding should be treated as an application for revision (to avoid the court-fee/stamp limitation issue). Also contended that the auction-purchaser was not a party to the suit which ended in the decree.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shahadat v. Hukam Singh, AIR 1924 Lah 401 | Held that where an order appealed against is not properly stamped there is no legal appeal; counsel filing an appeal must ensure documents are properly stamped and cannot absolve himself of responsibility for clerk's carelessness. (Relies on Sections 4 and 28 of the Court-fees Act as discussed.) | The Court regarded this authority as supporting the respondent's preliminary objection that an insufficiently stamped certified copy defeated the filing of a legal appeal within time. |
| Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2) | Followed the principle in Shahadat that insufficiency of court-fee on documents defeats the appeal. | Noted by the Court as a follow-up authority reinforcing the rule relied upon by the respondent. |
| Har Narain v. Jai Gopal, 1937-39 Pun LR 502 | Placed reliance on Shahadat principle regarding stamping and invalidity of appeal if not properly stamped. | Recognized by the Court as another authority supportive of the respondent's objection. |
| Balwant Singh v. Jagjit Singh, AIR 1947 Lah 210 (Division Bench) | Approved the Shahadat principle that an improperly stamped appeal document means no legal appeal is filed. | Counted among the authorities that bolster the respondent's position and were considered by the Court. |
| Punjab v. Parbhu Dayal Chhajan Lal, AIR 1960 Punj 298 | Relied on Shahadat and related decisions concerning insufficiency of court-fees and the resulting incompetency of appeal. | Referenced by the Court as continuing judicial support for the proposition that insufficiently stamped papers invalidate appeals. |
| Custodian of Evacuee Property v. Rameshwar Dayal, 1968-70 Pun LR (Delhi Section) 7 : (AIR 1968 Delhi 183) | Held that when the deficient amount of court-fee was actually attached to an application under Section 149 CPC, it is an appropriate exercise of discretion to allow the deficiency to be made good so the controversy can be heard on merits rather than dismissing the appeal; court-fee is largely a matter between the State and the Court though a litigant may urge incompetency on that ground. | The Court distinguished this authority: in Rameshwar Dayal an application under Section 149 CPC had been made attaching the deficient fee and the Court below should have granted it; in the present case no such application under Section 149 was made when the deficiency was made good after limitation, so Rameshwar Dayal was held not to apply. |
| Jagat Ram v. Misar Kharaiti Ram, AIR 1938 Lah 361 (Full Bench) | Held that discretion under Section 149 CPC is normally to be exercised in favour of the litigant except in cases of contumacy or positive mala fides; bona fides to be construed as in the General Clauses Act. | This Full Bench decision underpinned Rameshwar Dayal but the present Court observed that its authority had been shaken by a subsequent Supreme Court decision (Madhavrao). The present case did not involve a Section 149 application, so the Full Bench approach was not applied to permit post-limitation remedying here. |
| Madhavrao Narayanrao v. Ram Krishna Govind Bhanu, AIR 1958 SC 767 | Clarified that the Limitation Act contains its own definition of 'good faith' (Section 2(7)) which requires due care and attention and distinguished that definition from the General Clauses Act definition; courts below had misdirected themselves in applying the General Clauses Act definition in limitation contexts. | The Court observed that this Supreme Court decision had tended to undermine the Full Bench authority (Jagat Ram) relied upon in Rameshwar Dayal; the observation factored into the Court's assessment of whether discretionary relief (post-limitation stamping) should be allowed. |
Court's Reasoning and Analysis
The Court proceeded in a sequence of legal determinations grounded in the facts and the authorities cited:
- Acceptance of Basic Facts: The Court accepted the undisputed chronology — appeal filed on 12 July 1965 (last date of limitation), certified copies then bore insufficient court-fee stamps, and the deficiency was made good only on 28 July 1965 (after limitation). The appellant conceded the factual correctness of these points.
- Survey of Authorities: The Court reviewed a line of authorities beginning with Shahadat v. Hukam Singh (AIR 1924 Lah 401) holding that an improperly stamped order results in no legal appeal and that counsel is responsible for proper stamping. The Court noted subsequent cases that followed or approved that rule, thereby creating substantial judicial support for the proposition that insufficient stamping defeats an appeal.
- Consideration of Counter-Authority: The appellant relied on Custodian v. Rameshwar Dayal (AIR 1968 Delhi 183) which favoured allowing the deficiency to be made good where an application under Section 149 CPC had been filed attaching the deficient amount — thereby exercising discretion to hear the controversy on merits. The Court examined that decision and observed that it turned on the existence of a Section 149 application in time, and that it rested on a Full Bench approach in Jagat Ram which was later questioned by the Supreme Court in Madhavrao.
- Distinguishing Rameshwar Dayal: The Court emphasized that in the present case no application under Section 149 CPC was made when the deficiency was rectified; consequently the rationale of Rameshwar Dayal (permitting cure where Section 149 application made) did not apply to the facts before the Court.
- Appeal vs Revision Question: The Court addressed the appellant's submission that the impugned order might be non-appealable and only revisable. The Court concluded that the order was appealable: the appellant had founded his application on Sections 47 and 144 CPC and the Explanation to Section 47 (added in 1956) treated purchasers at a sale in execution as parties to the suit; further, Section 2(2) CPC defines 'decree' to include determinations under Section 47 or 144. Hence an appeal lay to this Court, and Section 115 (revision) could not be invoked where an appeal was competent.
- Conclusion on Limitation: Given the precedents supporting dismissal where an appeal has not been properly stamped and given that the deficiency was remedied only after the date of limitation with no Section 149 application made in time, the Court found itself constrained to dismiss the appeal as barred by limitation.
- Costs: The Court ordered that parties bear their own costs.
Holding and Implications
Holding: The Court's final decision was to dismiss the execution second appeal. The core ruling is as follows:
DISMISSED
Implications:
- Direct effect on the parties: The appeal is dismissed as being barred by limitation because the certified copies of the judgments filed on the last date of limitation were insufficiently stamped and the deficiency was made good only after limitation. The parties are ordered to bear their own costs.
- Scope and precedent: The opinion rests on existing authorities holding that an improperly stamped appeal document does not constitute a legal appeal; the Court distinguished contrary authorities (notably Rameshwar Dayal) on the ground that there was no Section 149 application in the present case. The opinion does not announce or purport to create a new legal principle beyond application of the cited authorities to the facts; the decision's direct consequence is dismissal of this appeal—no broader, novel precedent is declared in the text.
Order reference in the opinion: "12. Appeal dismissed." The Court left parties to bear their own costs.
1. A preliminary objection has been raised by the learned Counsel for respondent Om Prakash, auction-purchaser, that this execution second appeal should be dismissed on the ground that it had been filed beyond limitation. The submission was that the appeal had been filed on 12th of July, 1965, which was the last date of limitation, but on that date the certified copy of the appellate judgment given by the learned Senior Subordinate Judge, Kamal, had not been stamped with proper court-fee. It bore a Court-fee stamp of Rs. 1.25 Paise only, while in fact Court-fee Stamps of Rs. 2.65 P. should have been affixed thereon. Similarly, the certified copy of the judgment of the trial Court also had been insufficiently stamped. This deficiency, when pointed out by the office, was made good after limitation, on 28th July, 1965. It was conceded by the learned Counsel for the appellant that the facts stated in the preliminary objection were correct. He, however, contended that the appeal should not be dismissed on that ground. The objection raised by the learned Counsel for the respondent finds support from a number of judicial decisions. The first one to which reference was made was Shahadat v. Hukam Singh, AIR 1924 Lah 401, where it was held by Scott-Smith, J.—
“Having regard to Sections 4 and 28 of the Court-fees Act there is no legal appeal filed if the order appealed against is not properly stamped. A counsel when filing an appeal ought to see that all the documents which require stamp are properly stamped. He cannot shelter himself, behind his clerk, and if his clerk has been guilty of any carelessness he is responsible for that.”
2. This decision was followed by Din Muhammad, J., in Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2). Then Bhide, J., in Har Narain v. Jai Gopal, 1937-39 Pun LR 502, placed reliance on it. A Division Bench of the Lahore High Court approved of it in Balwant Singh v. Jagjit Singh, AIR 1947 Lah 210. Then again, D.K Mahajan, J., in Custodian, Evacuee Property, Punjab v. Parbhu Dayal Chhajan Lal, AIR 1960 Punj 298, placed reliance on it and on the subsequent decision in AIR 1935 Lah 124 (2).
3. As against these rulings, learned Counsel for the appellant relied on the decision of I.D Dua, C.J, in Custodian of Evacuee Property v. Rameshwar Dayal, 1968-70 Pun LR (Delhi Section) 7 : (AIR 1968 Delhi 183) where it was observed—
“When the deficient amount of Court-fee to be affixed on the copy of the decree of order appealed from was actually attached with the application under Section 149 of the CPC, it would be a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits, rather than to throw out the appeal on this ground. The question of Court-fee is by and large a matter between the State and the Court, though of course the incompetency of the appeal on the ground of absence of or inadequacy of Court-fee Stamp is always open to the litigant to urge.”
4. In that case, it would be noticed, that an application under Section 149 of the CPC had been made attaching the deficiency in the amount of Court-fee to be affixed on the copy of the order appealed from, and under those circumstances it was held by the learned Chief Justice that the Court below should have granted that application. No such application had been made in the instant case when making up the deficiency in the Court-fee. Besides, that authority was based on a Full Bench decision of the Lahore High Court in Jagat Ram v. Misar Kharaiti Ram, AIR 1938 Lah 361 (FB), where it was held—
“The discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act.”
5. The authority of this Full Bench decision seems to have been shaken by the decision of the Supreme Court in Madhavrao Narayanrao v. Ram Krishna Govind Bhanu, AIR 1958 SC 767, where it was observed—
“Both the Courts below have viewed the controversy under Section 14 of the Limitation Act, as if it was for the defendant to Show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that Court. In our opinion, both the Courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of ‘good faith’ as contained in the General Clauses Act, to the effect that ‘A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.’ But the Indian Limitation Act contains its own definition of good faith to the effect that ‘nothing shall be deemed to be done in good faith which is not done with due care and attention’— (Section 2(7)).”
6. Faced with this difficulty, learned Counsel for the appellant submitted that no appeal lay against the order of the learned Senior Subordinate Judge in the instant case and this appeal should be treated as an application for revision. There is no merit in this submission. It was merely to overcome the preliminary objection raised by the learned Counsel for the respondent that the Counsel for the appellant made that submission after having himself filed an execution second appeal against the impugned order in this Court. It is undisputed that if the impugned order was not appealable and the same was only revisable by this Court, then the Court-fee Stamps affixed on the copies of the judgments of the appellate and trial Courts would be quite sufficient. In order to appreciate this submission it would be necessary to give a few facts which resulted in the filing of this appeal.
7. On 29th of May, 1959, Lal Singh obtained a money decree against Jai Bhagwan appellant for Rs. 500/-. In execution of that decree a shop in Panipat town, district Karnal, alleged by the decree-holder to belong to the judgment-debtor, was attached. The same was then auctioned for Rs. 4,500/- in favour of Om Prakash respondent No. 1. This auction sale was confirmed on 29th of December, 1960. During the execution proceedings Daulat Ram and others, relations of the judgment-debtor, filed objections under Order 21, Rule 58 of the CPC, to the effect that ¾th of the shop belonged to them and the judgment-debtor was the owner of the remaining ¼th only. These objections were dismissed on 5th of October, 1960. Daulat Ram and others then filed a suit under Order 21, Rule 63 of the CPC, on 6th of May, 1961. In that suit the auction-purchaser Om Prakash and the judgment-debtor were also made defendants. On 3rd of January, 1962, the suit was decreed and it was held that the judgment-debtor owned only ¼th share in the shop and the remaining ¾th belonged to the objectors and the same was, therefore, not attachable and saleable.
8. On 15th of January, 1962, Om Prakash filed an application under Sections 144 and 151 of the CPC, praying that the auction price paid by him be refunded to him. Notice of the application was given to the judgment-debtor and the objectors, namely Daulat Ram and others. On 16th of April, 1962, a compromise was effected between the parties and it was decided that ¾th of the auction price (Rs. 4,500/-), i.e, Rs. 3,375/-, be returned to Om Prakash while out of the balance of Rs. 1,125/- the decree of Lal Singh for Rs. 500/- be satisfied. It was further agreed that in lieu of Rs. 1,125/- paid by Om Prakash, he was to remain owner of ¼th of the shop. It might be mentioned that in the proceedings which led to compromise, Jai Bhagwan judgment-debtor though served, did not appear.
9. On 12th of June, 1963, the judgment-debtor filed an application under Sections 47, 114, 144 and 151 and Order 21, Rule 91 of the CPC, praying that the balance of the auction-money after payment of the decretal amount, i.e Rs. 4,000/-, be paid to him on a number of grounds that were mentioned in that application. The name was dismissed by the trial Court on 1st of February, 1964 and that decision was subsequently affirmed in appeal on 22nd of February, 1965. Against the latter, the present execution second appeal was filed by Judgment-debtor Jai Bhagwan in this Court on 12th of July, 1965.
10. It would thus be seen that the application of the appellant which gave rise to the present execution second appeal was filed both under Sections 47 and 144 of the CPC. The matter in dispute related to the execution, discharge and satisfaction of the decree and was between the parties to the suit. It was contended by the learned Counsel for the appellant that the auction-purchaser was not a party to the suit which ended in the decree. This objection overlooks the fact that an Explanation was added to Section 47 of the CPC, in 1956, according to which, for the purpose of that section, a plaintiff whose suit had been dismissed, a defendant against whom a suit had been dismissed and a purchaser at a sale in execution of the decree were parties to the suit. The appellant had himself filed an application under Sections 47 and 144 of the CPC. The order passed on that application by the learned Senior Subordinate Judge would be covered by the definition of ‘decree’ given in Section 2(2) of the CPC, where it was mentioned that a decree would be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144 of the CPC. I would, therefore, hold that an appeal was competent against the order of the learned Senior Subordinate Judge, dated 22nd of February, 1965. Since that order was appealable, no revision application was competent against it under Section 115 of the CPC, which in terms lays down that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto.
11. In view of the number of authorities Quoted above, I am constrained to dismiss this appeal on the ground that it was barred by limitation, inasmuch as the deficiency in Court-fee Stamps affixed on the certified copies of the judgments of the two Courts below was made good beyond limitation in the circumstances of this case, however, I leave the parties to bear their own costs.
HGP/D.V.C
12. Appeal dismissed.
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