M. Ramachandra Rao (Dr.) v. Papayya Sastry

1. This is an application filed under section 115 C.P.C to revise the order dated 21-6-1972 passed by the learned Subordinate Judge, Visakhapatnam in an unregistered E.A of 1972 (G.R No. 1610/23-2-1972 in E.P 127 of 1971 in O.S 55 of 1965 on his file.

2. The petitioner filed the above application under Order 21 Rule 58 C.P.O praying the lower court that the court may be pleased to investigate into the claim of the petitioner and raise the attachment to the extent of the undivided half share of the petitioner. In the petition it has been alleged that the petitioner and the 2nd respondent are the joint owners and are in joint possession of a Cinema. Theatre known as Prabhat Talkies at Visakhapatnam, that the second respondent is not the absolute owner and is not exclusively entitled to the entire property, that the petitioner is entitled to and is in possession of his undivided half share in the property, that the petitioner came to know that the first respondent had obtained a money decree against the second respondent on the basis of a partnership business in O.S 55 of the 1965 on the file of Subordinate Judge's Court, and in execution thereof got attached the said cinema theatre on 25th August, 1965, that the said attachment is not valid and binding on the petitioner, so far ??? his share is concerned, that the first respondent got a proclamation of sale for the entire property, without excluding the petitioner's half ??? made and it is therefore illegal and cannot bind the petitioner, that the petitioner came to know about the attachment recently when ??? came to the court in connection with other matters and hence the petition could not be filed earlier as the petitioner was not aware of he alleged attachment or proclamation till he was informed about the are in the court that as the sale is posted to 8-3-1972 this petition as filed for stay of further proceedings, including sale etc. The petition was dated 14-2-1972, but actually it appears to have been led on 23-2-1972 in the court. From the endorsements on the petition we find the following:

“???-1972:

Returned 1. The petitioner should file documents, if any to show that he has got title and possession by the date of attachment.

2. The date of attachment may be noted.

Time 7 days.

Represented on 6-3-1972.

1. It is submitted that the petitioner filed similar application of claim and the same is pending in the High Court. The High Court was pleased to grant stay of the very same property in C.R.P No. 1402 of 1971, which is pending and the records of the petitioner are with the High Court advocate and as such they could not be filed now.

2. The petitioner came to know of the sale of the property a week before filing the petition.

Returned on 14-3-1972.

1. Objections dated 3-3-1972 should be complied with properly.

Represented on 21-3-1972.

The petitioner could not file the documents for the present as they are with the High Court advocate.

2. The subject matter of the property was attached on 3-12-1965.

Returned: 25-3-1972.

The date of attachment furnished is not correct. Correct date should be given.

Represented: 3-4-1972.

The property was attached before judgment on 3-12-1965 on I.A No. 313 of 1965 as was noted by the office.

Returned: 19-4-1972.

The date of attachment furnished is not correct. Correct date should be furnished.

Represented on 14-6-1972;

The date of attachment known to the petitioner is submitted by the petitioner.

23-6-1972.

Petitioner prays the court to investigate into the claim and raise the attachment to the extent he got title and possession by the date of attachment. But it is represented that the documents are with the High Court advocate.

Submitted.

Rejected as it is belated one.”

3. The certified copies of the order and decree furnished by the lower court mention in the cause-title portion that the application came up for hearing in the presence of Sri P.V Satyanarayana, advocate for the petitioner. But the order of the learned Subordinate Judge is a very short one “Rejected as it is a belated one.” From the endorsement of representation Hated 14-6-1972, the petitioner stated that the date of attachment known to the petitioner was submitted by him already. It does not an Dear from the record that any opportunity was given to the petitioner to explain the delay, if the lower court had considered that there was any delay in filing the application. It is this order, which is now sought to be revised herein. Mr. C. Sadasiva Reddy, learned counsel for the petitioner urged before me that the order of the lower court amounts to a failure to exercise jurisdiction or at any rate the lower court acted in the exercise of its jurisdiction illegally or with material irregularity. He invites my attention to the wording of Order 21, Rule 58 C.P.C which is as follows:

“Where any claim is preferred to or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects, as if he was a party to the suit;

Provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed.”

4. It is the contention of Mr. Sadasiva Reddy that the court can reject the application on the ground of delay, only if the proviso to rule 58 of Order 21 C.P.C is attracted, i.e the court must be satisfied on the evidence or otherwise that the claim or objection was designedly or unnecessarily delayed.” According to the learned counsel it is not a subjective satisfaction of the lower court by a mere perusal of the petition that is required under this provision. According to him the court must give an opportunity to the petitioner to satisfy the court that it was not designedly or unnecessarily delayed. Without giving that opportunity the court cannot, by its own accord come to that conclusion, because what is contemplated by the legislature is a designed delay or a delay which is not necessary in the circumstances. In this particular case, the learned counsel says that the lower court has not given such an opportunity to the petitioner on the representation endorsement made by the counsel on the petition. The order appears to have been passed in the chambers in the manner it did. In any event the learned counsel says that the order does not specify the requirement of law and that the lower court has not stated that it was designedly or unnecessarily delayed. It is merely dismissed as belated one and that is not a sufficient requirement according to him. He also further contends that the dismissal of an application under rule 58 of Order 21, C.P.C on the ground of mere delay is not permissible and that the lower court's order requires interference.

5. On the other hand the learned counsel for the respondents contends that it cannot be said that the order was passed in chambers, as the cause title in the order shows that it came up for hearing in the presence of the counsel for the petitioner and therefore he must have been heard. Secondly he urges that it is not necessary for the lower court to state that it was designedly or unnecessarily delayed if it dismissed it as a belated one. Thirdly he contends that this is an order in a claim petition under Order 21 Rule 58 C.P.C and as there is a remedy by way of a suit available to the petitioner under Order 21 rule 63 C.P.C it is not necessary for this court to interfere in a revision under section 115 C.P.C The learned counsel for both sides have cited some authorities and I will consider them presently.

6. From the wording of the proviso to rule 58 of Order 21, CPC it appears to me that the court cannot dismiss the application as ablated one unless it gives an opportunity to the petitioner to explain or satisfy the court that the delay, if any, is not a designed one or a necessary one. In order to arrive at this conclusion it is not enough for the court to merely look into the petition the endorsement of return and the endorsement of representation. The petitioner should be given an opportunity to show cause by adducing some evidence or otherwise that he has not designedly, wantonly or intentionally delayed filing the application under Order 21, Rule 58 C.P.C He may also explain and satisfy the court that it was a delay, which was unavoidable and necessary in the circumstances of the case. In case, the court intenrls to proceed under the proviso to rule 58 of Order 21, it is incumbent upon the court to not only give an opportunity to the petitioner to satisfy the requirement but also to indicate in its order that it has given sufficient opportunity and that it was satisfied that inspite of the opportunity being given to the petitioner that the application was designedly or unnecessarily delayed. Without following this procedure if the petition is merely dismissed on the ground that it is belated one and the order ex-facie does not, show that such an opportunity was given, it cannot be held that it is a proper disposal of the application under Order 21, Rule 58 and it would be a case where the court has failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of its jurisdiction. It is no doubt true that in a case where there is alternative remedy by way of suit available to a party, this court should not ordinarily interfere with such orders. That is not an absolute and inflexible rule as laid down in many decisions. There may be exceptional cases in which this court may be satisfied that the lower court has acted illegally and with material irregularity in the exercise of its jurisdiction, thereby warranting interference under Section 115. C.P.C In this connection. I may refer to the Full Bench decision of the Allahabad High Court in Lila v. Mahange . AIR 1931 Allahabad 632. wherefrom the following passage may be extracted:—

“Section 115 is no doubt discretionary and therefore it is open to the High Court to decline to interfere in particular cases. As a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower court. But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. The remedy by way of a separate suit would involve a protracted litigation through several courts and is not always a convenient remedy when more effective and Steady remedy is available. There is no justification for restricting the power conferred upon the High Court under Sec. 115 by laying down that no revision should be entertained when a remedy by suit lies. Each case must be considered on its own merits and if the court below has acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interests of justice, there is no reason why we should drive the applicant to a more circuitous remedy by way of a separate suit.”

7. This decision has also been followed by the Gujarat High Court in B.D Shirif v. Govindbhai . AIR 1963 Guj. 117.. I may also, in this connection, refer to a decision of their Lordships of the Supreme Court in M.K.P Chettiar v. A.P Pillai . 1970 2 S.C 290 where their Lordships say that an error of law in the decision however gross, it may be the High Court could not interfere under section 115 C.P.C specially where there was no procedural error I therefore think that where there is a procedural error, in this case, it is certainly open to the High Court to interfere in cases of this type.

8. If an application filed under Order 21, Rule 58 is disposed of in chambers, without giving an opportunity to the petitioner to show cause, why it is not designedly or unnecessarily delayed, a Division Bench of the Allahabad High Court in Mt. Rajeswari Bibi v. V. Hari Rani . AIR 1933 All 751., consisting of their Lordships Sulaiman, C.J, and Young, J. held as follows:

“But it seems to us that a Court cannot come to the conclusion whether there has been an unnecessary delay without considering any explanation that might he offered on behalf of the objector. This cannot be known until the objector or his counsel has been heard and given an opportunity to explain the delay. We are of opinion that in the absence of any opportunity having been given to the objectors or their counsel to explain the delay, the court below acted with material irregularity in dismissing the objections summarily on the supposed ground that there was an unnecessary delay. We accordingly allow this decision (revision) set aside the order of the court below and send the case back to the court below to determine, after hearing the parties, whether there was any unnecessary delay or not, and if none, then to dispose of the objections on the merits”

9. This decision was followed by another bench in Bharati Mian v. Ramadhin . AIR 1937 Oudh. 268. wherein also an order was passed in chambers as in the present case. In two cases decided by Madras High Court, in an order passed on an application under Order 21, Rule 58, without considering the question of possession, which is necessary in such an application, the High Court interfered with, those orders. See the decision of the Mahadevan Nair J. In Appaswamy v. N. Balakrishna . AIR 1925 Madras 588. and the decision of Sankaran Nair, J. in Rangamal v. Sevugan Chetti . 28 1915 MLJ 327.. It may also be stated in this connection that their Lordships of Supreme Court have held in “Swami Singhai v. Union of India . AIR 1966 S.C 1068. that the scope of enquiry under Or. 9, rule 58 C.P.C is very limited and is confined to the question of possession as they are connected while the suit brought under Order 21 rule 63 C.P.C would be concerned not only with the question of possession but also with the question of title.” In another decision in Radha Kishan v. Firm J. Pratad S. Pasad . AIR 1966 Raj 219. Jagat Narayan, J. interfered with an order passed by the lower court, which rejected a document as inadmissible. In Smt. Saida Begum v. Sabir Ali . AIR 1962 Allahabad 9. the Allahabad High Court interfered with an order to release a property, wherein the petitioner has not shown his interest therein: In Abdur Rahman Bai v. Fathima Been . AIR 1960 AP 492. Munikanniah, J. has interfered with an order on an application, which was rejected as not in proper form. In Agrawal Patheshaia v. Karim Bux . AIR 1969 Allahabad 139.the lower court, after issuing a notice in an application under Or. 21, Rule 58 dismissed it on the ground that it was designedly and unnecessarily delayed, without recording any evidence and without applying his mind as to what would mean by that expression. S.N Singh, J. interfered with that decision and set it aside.

10. The learned counsel appearing for the respondent relied upon three decisions of Madras High Court. In Kuppuswamy Pilliai v. Alwar Chettiar . AIR 1935 Madras 89. it was held by Beaslay, C.J, that interference under Section 115 shall not bring about injustice. I do not think that interference in this case would bring about any injustice at all. In Venkataratnm v. Ranganayakamma . I.L.R 41 Mad. 985. a Full Bench of the Madras High Court had considered the following questions (1) Where a court purports to make an order under the proviso to Rule 58, Order 21 CPC that is to say, an order refusing to investigate, does such an order come within the mischief of Order XXI, Rule 63, and Article 11 of the Limitation Act? (2) Is Exhibit Van order covered by Article 11 of the Limitation Act? The Full Bench answered those questions in the affirmative. It may be seen in this case, the first order passed on the application was as follows as this petition was filed late, this claim is ordered to be notified to the intending bidders.” A fresh petition was pat in before the same Judge and he passed another order as follow:— “The allegations of the Zamindarini will be notified to the bidders with the remarks that the Zamindarini did not take steps for her claim being enquired into during the last ten months.” The question that arose in that case was whether those were final orders necessitating a suit to be filed under Order 21 rule 63 C.P.C within the period provided by Article 11 of the Limitation Act. It is no doubt true that in that case their Lordships approved two decisions in Narasingh Chetty v. Vijia Pala Nainar . 1915 II Law Weekly 206. and ponnuswamy Pillai v. Sumuammali . 31 M.L.J 247.. In the first decision it was held:

“Order 21, Rule 63 of the Code of Civil Procedure, 1908 is much wider in its scope than the corresponding section 283 of the Code of 1882, and unlike the latter section covers cases in which there has been no investigation”

11. In the second case it was held “the language of Article 11 in the new Act is more comprehensive than that of the previous Act and has been construed in this court as covering orders after full investigation as well as orders passed on default.”

12. The ratio decidendi of the above Full Bench decision is that even orders passed without investigation on the ground of delay amount to final orders coming within the purview of Article 11 of the Limitation Act. Their Lordships were not concerned in that case with the question, which now arises here viz., whether it was an order passed in accordance with the proviso under rule 58 of Order 21 C.P.C or not. It does not appear that the point was ever mooted, agitated or decided. I do not, therefore, think that the decision of the fall Bench would come to the rescue of the respondent in any way. The third decision relied upon by Ramachandra Rao, learned counsel for the respondent is the one of Andhra Pradesh High Court in Sawnley Mini v. Zabunisa . ??? 1 An. W.R 261.. In that decision Kumarayya, J. (as he then was) observed that “where justice has been done to the parties, it is not proper to interfere with the finding of the lower court on the mere round that the suit tried on regular side was of a small cause nature I do not think that decision has any application here, on the acts of this case.

13. In view of the above authorities considered by me, I am of opinion that in a case under the proviso to rule 58 of order 21 it is incumbent upon the court to give an opportunity to the petitioner to show cause how it was not designedly or unnecessarily delayed and after taking such evidence thereon which the petitioner may adduce it must come to the conclusion before it arrives at a decision under the proviso that it was designedly or unnecessarily delayed. The Court cannot pass an order of dismissal on the ground of belatedness or delay casually or as a matter of course. It cannot be said that, such an opportunity to the party in an ??? formality. It is one thing to say that an opportunity has been given and the court has not been satisfied while it is a different thing to any that the court can reject ??? application even without giving such an opportunity. In the present case since I am satisfied that the ??? of the proviso have not been properly applied or satisfied by the lower court this is a matter in which interference is culled for. The petitioner's counsel no doubt argued that the mere use of the word that it is a belated one is not sufficient and the court must exactly use the words that it is designedly or unnecessarily delayed. In my opinion, it is not the form, but the substance that matters. In any event, the court must be satisfied that it was not designedly or unnecessarily delayed.

14. In these circumstances I set aside the order of the Lower Court and remand the application to the lower court for consideration on merits after giving an opportunity to the petitioner as well as the respondent, in the light of the observations in this order. There will be no order as to costs.