Krishnaji Ramchandra Koshti v. Bhikchand Ramkaran Marwadi

N.J Wadia, J.:—

This appeal arises out of an application made by the appellant in execution proceedings which had been started by him to execute a mortgage decree obtained by him in suit No. 136 of 1923. The property involved in the suit had been mortgaged to the appellant-plaintiff by one Narayan Ramji on April 15, 1916. Subsequent to this the same property was mortgaged by Narayan to the respondent Bhikchand Ramkaran Marwadi on June 7, 1917. In 1921 Bhikchand filed a suit on his mortgage and obtained a mortgage decree on August 17, 1922, and in the course of the execution proceedings on that decree he himself purchased the property on March 3, 1931, the sale being confirmed on May 25, 1931. In the meanwhile the plaintiff filed his suit, No. 136 of 1923, and obtained a decree on August 4, 1923. To this suit Bhikchand had not been joined as a party. The plaintiff filed darkhasts in 1927 and 1930, but these were not prosecuted. Finally darkhast No. 360 of 1931, from which this appeal arises, was filed by him on March 21, 1931, prior to the confirmation of the sale of the property to Bhikchand. On April 5, 1933, the Court of Wards on behalf of the plaintiff applied in darkhast No. 450 of 1931 to add Bhikchand as a party. The learned trial Judge rejected the application holding that it could not be made under O. XXII, r. 10, of the Code of Civil Procedure, 1908, upon which the applicant relied, because in his view that rule did not apply to execution proceedings. He also held that Bhikchand being a purchaser at a Court sale was not the legal representative of the judgment-debtor. Against this order there was an appeal to the District Judge of Ahmednagar who dismissed it, and the applicant has come in second appeal.

A preliminary objection has been raised by Mr. Dharap for the respondent that no second appeal lies. His contention is that the appellant's application to add Bhikchand as a party to the darkhast is an application under O. XXII, r. 10, and against an order made under that rule an appeal lies under the provisions of O. XLIII, r. 1, sub-cl. (1) and under the provisions of s. 104, cl. (2), of the Code of Civil Procedure, no second appeal lies from any order passed in appeal under O. XLIII, r. 1. The question therefore is whether the provisions of O. XXII, r. 10, applied to the present application which was one made in the course of execution proceedings. For the appellant it is contended that O. XXII, r. 10, does not apply to execution proceedings. In support of that contention reliance is placed on the language of the rule itself which is as follows:

“In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.”

The marginal note to the rule shows that it deals with the “Procedure in case of assignment before final order in suit.” It is argued that the words “during the pendency of a suit” clearly indicate that the rule could not apply to execution proceedings after a decree has been passed. The question whether the provisions of this rule apply to execution proceedings is one not free from doubt and there have been conflicting rulings of the different High Courts on the point. Our attention has not been drawn to any decision of our own High Court on this question. Rule 12 of O. XXII says that “nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.” It would seem to follow from this express reference to rr. 3, 4 and 8, that the remaining rules of this Order including r. 10 would apply to proceedings in execution. Sir Dinshah Mulla in his Commentary on the Code, 10th edn., page 850, says that the provisions of O. XXII apply to execution proceedings except rr. 3, 4 and 8. The fact that the rule refers to “an assignment, creation or devolution of any interest during the pendency of a suit” would not necessarily mean that it could not apply to execution proceedings. Applications in execution are proceedings in the suit as was held in Virupakshappa v. Shidappa and Basappa and in that sense the assignment, creation or devolution of any interest during the pendency of execution proceedings could be said to be during the pendency of the suit. The question whether O. XXII, r. 10, applies to execution proceedings was considered by a full bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss and the view taken by the majority of the full bench was that it did apply. Wallis C.J in dealing with the contention that O. XXII, r. 10, did not apply to execution proceedings said (p. 923):

“Generally, an application for execution is a proceeding in a suit, as held in Virupakshappa v. Shidappa and Basappa and Shaik Davud Rowther v. Paramasami Pillai and I think that the present Code has been drafted on this basis. It expressly provides by Order XXII, rule 12, that nothing in rules 3, 4 and 8 of that Order, which, provide for abatements, shall apply to execution, and in Order XXIII, rule 4, that nothing in that Order shall apply to execution, while it contains no such provisions in Order XXXII, as to minors or persons of unsound mind which must none the less be equally applicable to execution.

“A further objection has been taken that an application in execution cannot be an application ‘during the pendency of a suit’, within the meaning of Order XXII, rule 10, but, if for the purposes of the Order applications in execution are applications in suits, they must in my opinion equally for the purposes of the Order be applications during the pendency of suit.”

The decision in Muthiah Chettiar v. Govinddoss Krishnadoss however was not rested upon this conclusion. In a subsequent decision of the Madras High Court in Srinivasa v. Pratapa Simha a division bench of that Court held that O. XXII, r. 10, applied only to pending suits. In Mayankutti v. Biyyathumma, which was a decision of a single Judge, the question again arose whether O. XXII, r. 10, applied to proceedings subsequent to a decree, and it was held, following the decision in Srinivasa v. Pratapa Simha that O. XXII, r. 10, would not apply to post-decree proceedings. The decision of the full bench in Muthiah Chettiar's case was referred to but was not followed on the ground that the decision of the case rested on other grounds and not on the view that O. XXII, r. 10, applied to execution proceedings. In Midnapore Zamindari Co. Ld. v. Naresh Narain Roy a division bench of the Calcutta High Court also expressed the opinion that the provisions of O. XXII, r. 12, would seem to imply, by the principle of exclusion, that all the rules of that Order, except rr. 3, 4 and 8, are applicable to proceedings in execution of a decree or order, and that r. 10 was therefore so applicable. But this was a mere expression of opinion, the actual decision being based on the view that the proceedings in that case, which were proceedings for assessment of mesne profits after a decree had been obtained in a suit for the recovery of possession of immoveable property, were proceedings in continuation of the original suit, and the case was therefore treated as a case of devolution of interest by sale during the pendency of the litigation.

I am with respect of opinion that the view expressed by the majority of the full bench in Muthiah Chettiar v. Govindoss Krishnadoss and by the Calcutta High Court in Midnapore Zamindari Co. Ld. v. Naresh Narain Roy that O. XXII, r. 10, applies to execution proceedings is correct. It is difficult to reconcile the opposite view with the provisions of r. 12 of the Order. If the Legislature had intended that r. 10 should not apply to execution proceedings, that rule would have been mentioned in r. 12 along with rr. 3, 4 and 8. It was argued that the language of r. 10 itself precluded its application to execution proceedings since it referred to suits. But there is a similar reference to suits in rr. 1, 2, 7 and 9 of the Order and it is not contended that these rules also do not apply to execution proceedings. The appellant's application must therefore be treated as an application made under O. XXII, r. 10, and that being so, no second appeal lies. The appeal must therefore be dismissed with costs.

We have been asked to treat this appeal as a revision application. But as the power to add the name of any person upon whom any interest has devolved as a party to the proceedings is one within the discretion of the Court, we see no reason to allow the application to be argued as an application in revision.

Wassoodew, J.:—I agree in holding that O. XXII, r. 10, of the Civil Procedure Code, applies to execution proceedings. In terms that rule lays down the procedure in cases of assignment, creation or devolution of any interest “during the pendency of a suit.” That expression has given rise to a conflict of opinion among the different High Courts: see Goodall v. The Mussoorie Bank, Limited, Midnapore Zamindari Co. Ld. v. Naresh Namin Roy, Musammat Gulab Kuer v. Syed Mohamed Zaffar Hassan Khan and Muthiah Chettiar v. Govinddoss Krishnado.. It is contended that the expression “during the pendency of a suit” in r. 10 implies the interval between the filing of the plaint and the passing of the final decree, and that therefore the Legislature contemplated that the rule would apply to an application made before the decree or final order in the suit. There is no reported decision of this Court on the application of that rule. It has been held in a series of decisions of this Court and other Courts,—see Virupakshappa v. Shidappa and Basappa and Shaik Davud Rowther v. Paramasami Pillai—that an application in execution is a proceeding in a suit, or, in other words, execution is a continuation of the suit. If that view is correct, an application in execution would necessarily be an application “during the pendency of the suit.” It has been urged that the contrary view is supported by the marginal note to the rule which says that it relates to the “procedure in case of assignment before final order in suit.” But the marginal note cannot be used to limit the construction of the provisions of the statute and it does not form part of it. The other provisions of O. XXII show, as my learned brother has pointed out, that the Legislature drafted those provisions on the basis that the execution was a continuation of the suit. Rule 1 of O. XXII as regards abatement necessarily applies to execution proceedings, and it has not been suggested that it does not. Wherever the application of the rules as to abatement to execution proceedings was considered objectionable, the Legislature has said so. That affords an explanation for the existence of r. 12 of O. XXII which excludes the operation of rr. 3, 4 and 8 of O. XXII to execution proceedings. Whenever the Legislature intended that certain rules of the Code which in terms apply to suits should not apply to execution proceedings, it has been expressly so provided. See O. XXIII, r. 4.

But the principal contention of the appellant is that inasmuch as the executing Court could pass orders upon the application in question under s. 47 of the Code, because that section confers jurisdiction to deal with questions as to representation, the application itself is referable to the provisions of that section. That section does not lay down the procedure by which an assigned of an interest of a party to a decree could be added as a party to the execution proceedings, although it confers jurisdiction on the Court to decide his representative character. There are several rules in O. XXII which confer jurisdiction to decide questions relating to the representative character of persons sought to be joined or already joined as parties. Rules 2, 3 and 4 deal with cases of devolution of interest on the death of a party to a suit. Ride 5 expressly confers power on the Court to determine the question as to legal representation. Rule 7 deals with the case of creation of interest on husband on marriage. The Legislature however considered it essential to lay down the procedure for adding persons as parties acquiring interest by other modes of assignment by framing r. 10. That was done for obvious reasons. Before the jurisdiction as to the determination of representation can be exercised every party has to follow the preliminary procedure of bringing the person whose representative character is to be determined before the Court. For that purpose rules laying down the procedure will be necessary; In the absence of any specific provisions in the Code to that effect relating to execution a party will be driven to invoke the inherent powers of the Court under s. 151. That may lead to difficulty, and in any opinion a strict construction of r. 10 may result in hardship. I think that consideration would justify the application of the rule to execution proceedings. If therefore an application to bring an assigned on the record in execution proceedings is an application in continuation of the suit and therefore during the pendency thereof, the application would fall under the provisions of O. XXII, r. 10. Consequently, I agree with the order proposed.

Appeal dismissed.

J.G.R