Pehlad And Others v. Dalel Singh And Others, Punjab & Haryana High Court, Judgment, Law, casemine.com

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Case Number

Civil Misc. No. 1647.C-1 of 1977

Advocates

Mr. G.C. Mittal
Advocate.

Judges

Rajendra Nath Mittal, J.

Acts

Order 41, Rule 5 read section 151, Civil Procedure Code (hereinafter called the Act)
Order 41, Rule 1(3) and 5 of the Civil Procedure Code read with Section 151 C.P.C
provisions of Order 41, Rule 1(3) of the Code.
worse.7. Order 41, rule 6(2) of the Code
Order 41, Rule 1(3) and 5
Order 41, Rule 1, C.P.C
Order 41, rule 1(4)
Order 41, rule 6(2).

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Smart Summary

Factual and Procedural Background

Four civil suits originally filed by different plaintiffs against common defendants (Pehlad, Devi Sahai, Hari Chand, Bhim Singh and Surjan — appellants; and Gopi Ram — respondent) in the Court of Subordinate Judge 1st Class, Ballabgarh, were consolidated into Civil Suit No. 329 of 1973 for the purposes of recording evidence and were decided by one judgment (copies placed in each file). Decrees were entered in the four suits for a combined amount reported as Rs. 84,700/-. Five defendants appealed the trial Court's judgments and decrees to the present Court (appeal numbers provided in the record). The appellants filed Civil Miscellaneous applications in the R.F.As seeking a stay of execution under Order 41, Rule 5 read with Section 151, Civil Procedure Code. The learned single judge (R.N. Mittal, J.) dismissed those stay applications on 1 September 1977 but permitted the respondents to withdraw the decretal amount on furnishing security for refund to the satisfaction of the executing Court. The appellants appealed that order to the Letters Patent Bench but withdrew that appeal, indicating they would move the Court under Order 41, Rule 1, C.P.C.; the Letters Patent Bench dismissed the appeal on 7 October 1977.

The appellants subsequently filed the present application under Order 41, Rule 1(3) and 5 read with Section 151 C.P.C., asserting inability to pay the decretal amounts and seeking an order permitting them to furnish security for the decretal amounts impugned in the appeals.

Legal Issues Presented

Whether the appellants can be permitted by the Appellate Court to furnish security or deposit the decretal amount under Order 41, Rule 1(3)/(4) (i.e., the effect and operation of the provision that requires deposit or security in appeals against money decrees) so as to stay execution of the decree.
Whether the appellants' present application under Order 41, Rule 1(3) and 5 effectively amounts to an application for review of the earlier order dated 1 September 1977 and, if so, whether review is warranted.
Whether the appellants can obtain relief under Order 41, Rule 6(2) (stay of sale of immovable property on terms such as giving security) by approaching this Appellate Court rather than the executing Court which made the order of sale.

Arguments of the Parties

Appellants' Arguments

The learned counsel for the appellants contended that the Court when deciding the earlier applications (dismissed on 1 September 1977) did not take into account the provisions of Order 41, Rule 1(3) of the Code and should have accepted security from the decree-holders instead of permitting execution.
Appellants argued inability to pay the decretal amount and alleged they would suffer substantial and irreparable loss if not permitted to furnish security for the decretal amounts impugned in the appeals.
The appellants' counsel criticised the trial Court's judgment (i.e., attacked the merits of the decree itself) as part of the argument for relief.

Respondents' Arguments

The respondents' learned counsel argued that the present applications under Order 41, Rule 1(3) and 5 were tantamount to applications for review of the earlier order of 1 September 1977 and that the circumstances did not warrant review.
Counsel for the respondents (Mr. Sarin) conceded that a mistake had occurred in entering duplicate decrees across the consolidated files and gave an undertaking that the respondents would execute the decree only in Civil Suit No. 329 of 1973 (Dalel Singh & Satbir Singh v. Pehlad, etc.) decided on 6 April 1977 — i.e., they would not seek to execute duplicate decrees in the other three suits.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhagan Singh v. Teja Singh etc., (1974) 76 P.L.R. No. 49	Support for the proposition that an application under Order 41, Rule 6(2) (to stay sale of immovable property on terms such as giving security) must be made to the Court which made the order of sale (i.e., the executing Court), not to the Appellate Court in the first instance.	The Court relied on this decision to conclude that the appellants could not claim benefit under Order 41, Rule 6(2) before this Appellate Court and, if so advised, should make an application in the executing Court. The precedent fortified the Court's refusal to grant relief under Rule 6(2) in the present forum.

Court's Reasoning and Analysis

The Court proceeded by addressing the factual and procedural matrix and then interpreting the relevant Code provisions in light of those facts.

Consolidation and mistake — The Court noted that the four suits were consolidated for evidence and decided by a single judgment. Copies of that judgment were placed separately on each file, and a mistake had thus crept into the entry of decrees across the separate suit files. The respondents' counsel conceded the mistake and undertook to execute the decree only in Civil Suit No. 329 of 1973. Given that undertaking, the objection based on the appearance of a cumulative decree for Rs. 84,700 across all four suits lost force.
Policy and practical considerations — The judge explained the practical difficulties decree-holders face in executing money decrees: appellants often file appeals primarily to obtain stays, raise frivolous objections at execution (post-attachment and post-sale), and thereby delay recovery. The Court emphasized that execution of money decrees involves attachment and sale, and that allowing stays before attachment could enable debtors to dispose of property, frustrating recovery.
Order 41, Rule 6(2) — The Court observed that Rule 6(2) authorises a stay of sale of immovable property, on terms (such as giving security), but only upon an application by the judgment-debtor to the Court which made the order of sale. The tenor of the sub-rule indicates the protection is intended after attachment has been effected, and the Court held that the present Appellate Court could not grant relief under Rule 6(2) because the proper forum for such an application is the executing Court which ordered the sale. This conclusion was fortified by the cited decision in Bhagan Singh v. Teja Singh.
Order 41, Rule 1(4) (referred to in the opinion as Order 41, Rule 1(4) introduced by the Legislature) — The Court set out the text requiring that, in appeals against decrees for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security as the Court may think fit. The judge interpreted this provision as authorising the appellate Court to direct deposit or security for the benefit of the decree-holder. However, the Court concluded the sub-rule is not mandatory in the sense of supplying a statutory sanction (such as dismissal of the appeal) for non-compliance; the Code does not provide that an appeal is liable to be dismissed if the ordered deposit or security is not furnished. On that basis, the Court found that the applicants could not claim an automatic benefit from that provision to compel a stay in their favour.
Application-as-review argument — The respondents argued that the appellants' present applications were tantamount to a review of the earlier order dismissing their stay application. The Court considered the submissions and, noting the circumstances and the concession by respondents' counsel regarding the mistaken decrees and the undertaking about executing only Suit No. 329, found no grounds to review the earlier order or to grant the relief sought by the appellants.
Conclusion of analysis — Given the undertaking, the nature of the statutory provisions, the limitations on the Appellate Court's power under Order 41, Rule 6(2), and the non-mandatory character (as interpreted by the Court) of Order 41, Rule 1(4), the Court rejected the appellants' contentions and refused to grant the requested order permitting them to furnish security in the manner sought.

Holding and Implications

Holding: The application filed by the appellants under Order 41, Rule 1(3) and 5 read with Section 151 C.P.C. is dismissed.

Implications and direct effects:

The appellants' prayer to be permitted to furnish security/deposit the decretal amount in this Appellate Court so as to stay execution has been refused.
The Court accepted the respondents' concession that the decretal amount was entered as a result of a mistake arising from the single judgment being placed on multiple files and took the respondents' undertaking that execution would be pursued only in Civil Suit No. 329 of 1973; this concession removed the practical force of the appellants' objection about duplicate decrees.
The Court held that Order 41, Rule 1(4) empowers the Appellate Court to require deposit or security but is not mandatory in the sense of providing an automatic sanction (e.g., dismissal of appeal) for non-compliance; therefore appellants could not claim a compulsory benefit under it in the present circumstances.
The Court ruled that relief under Order 41, Rule 6(2) (stay of sale on security) must be sought in the executing Court which ordered the sale; the Appellate Court declined to grant such relief in this forum, relying on precedent (Bhagan Singh v. Teja Singh).
The immediate practical consequence for the parties is that the application is dismissed and the appellants remain obliged to pursue any remedy (if available) by applying to the executing Court; the respondents retain the right to execute in the one acknowledged suit (No. 329 of 1973) pursuant to their undertaking.

The Court dismissed the application "with no order as to costs." The opinion does not purport to lay down a novel precedent beyond the interpretations and applications recorded above.

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Pehlad And Others v. Dalel Singh And Others

R.N Mittal, J.:— Briefly the facts of the case are that four suits were filed by different plaintiffs against Pehlad, Devi Sahai, Hari Chand, Bhim Singh and Surjan, defendant appellants and Gopi Ram defendant-respondent in the court of Subordinate Judge 1st Class, Ballabgarh, as detailed below:

Sr. No. Suit No. Amount of decree Appeal No. Plaintiffs 1. 329/1973 38350/- 8053/- 46403/- 84700/- 1134 of 1977 Dalel Singh & Satbir Singh S/o Dalel Singh

2. 319/1973 30000/- 6300/- 36300/- -do- 1135 of 1977 Mahabir So/Dalel Singh 3. 317/1973 22400/- 4704/- 27104/- -do- 1133 of 1977 Sis Pal S/o Dalel Singh 4. 318/1973 6000/- 1260/- 7260/- -do- 1132 of 1977 Rajkali w/o Dalel Singh

2. All the suits were consolidated in Civil Suit No. 329 of 1973 and evidence was recorded at one place. The suits were decided by one judgment though a copy of the judgment was placed separately on the file of each case. Five of the defendants came up in appeals against the judgments and decrees of the trial Courts to this Court. The numbers of the appeals have been given in the details already given above. They filed four Civil Misc. applications in the R.F.A praying that execution of the decrees under Order 41, Rule 5 read section 151, Civil Procedure Code (hereinafter called the Act) be stayed. The applications came up for hearing before me and I, after hearing the learned counsel dismissed the same vide order dated September 1, 1977. I however, directed that the respondents shall be entitled to withdraw the amount on furnishing security for refund of the same to the satisfaction of the executing Court. The appellants went up in appeal against my order before Letters Patent Bench. They, however, withdrew the appeal stating that they wanted to move the Court under Order 41, Rule 1, C.P.C The appeal was consequently dismissed by the Letters Patent Bench vide order dated 7th October, 1977.

3. The appellants have filed the present application under Order 41, Rule 1(3) and 5 of the Civil Procedure Code read with Section 151 C.P.C that they were unable to pay such a huge amount and they shall suffer a substantial and irreparable loss if the security for the money decree was not ordered. In the circumstances they prayed that the application be allowed and the appellants be ordered to furnish security for the decretal amount impugned in the appeal.

4. The first contention of the learned counsel for the appellants is that this Court while deciding the previous applications did not take into consideration the provisions of Order 41, Rule 1(3) of the Code. He submits that the Court should have accepted the security from the decree-holders. He also criticised the judgment under appeal. On the other hand, the learned counsel for the respondents vehemently argued that the applications filed by the appellants under Order 41, Rule 1(3) and 5 shall amount to an application for review and the circumstances of this case do not warrant that the order passed on September 1, 1977 be reviewed.

5. I have heard the learned counsel for the parties at a considerable length. It cannot be disputed that the plaintiff-respondents belong to the same family, as Rajkali respondent is the wife of Satbir, Mahabir and Sis Pal, respondents are the sons of Dalel Singh, respondent. The suits were filed against the same defendants, and were consolidated These have been decreed for a total amount of Rs. 84,700/-. No doubt it is true that in all the suits decree for the aforesaid amount Page: 127has been passed but it appears that the mistake has crept in as all the cases were disposed of by the Court by one judgment and copies of the judgment were placed on the files in all of them. In all fairness it has been conceded by Mr. Sarin, learned counsel for the respondents that there was mistake in passing of the decrees by the trial Court and that in fact, the total decretal amount in all the four suits was Rs. 84,700/-. He had also given an undertaking that the respondents would execute the decree only in Civil Suit No. 329/1973 entitled, “Dalel Singh Satbir Singh v. Pehlad, etc.” decided on April 6, 1977 against which R.F.A No. 1134/1977 had been filed and not in three others. Mr. Sarin, it may be mentioned, represents the respondents in all the appeals. In the circumstances, I had not stayed the execution of the decree in suit No. 329 of 1973.

6. It is common knowledge that in most of the cases, the object of filing an appeal by the person against whom a decree has been passed for recovery of money, is to obtain stay, even though he knows that there is no substance in the appeal. The real trouble of the decree-holder starts after he has obtained a decree in his favour. The judgment-debtor tries his level best to cause delay in the execution of the decree by raising frivolous objections. He prefers to spend much more on the Court fees and meeting other expenses of litigation than to pay the decretal amount. The result is that the decree-holder is unable to execute the decree for a long time. The execution of money decree is more cumbersome than execution of other types of decrees. In the execution of a money decree, two main steps are involved; first attachment of the property and secondly its sale. The judgment debtor raises objections not only after the sale but even after attachment has been effected. If he himself fails in the objections, he sets up others to file objections. The result is that execution proceedings for recovery of decretal amount are unnecessarily prolonged and the decree holders, in a large number of cases, have to spend much more for recovery of decretal amount than the amount of decree. Thus in money decree the lot of decree-holders is still worse.

7. Order 41, rule 6(2) of the Code provides that where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on an application of the judgment-debtor to the Court which made the order, be Stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of the tenor of the sub-rule shows that the benefit of the aforesaid provisions can be given to the judgment-debtor after the attachment of his property has been effected. It has been seen in some cases that the judgment-debtor, after filing an appeal against a money decree, obtains stay of the execution and thereafter disposes of his property. In that eventuality it becomes difficult, rather impossible, to recover money from him, inspite of dismissal of his appeal. After the attachment of the property, the judgment debtor cannot sell the property and that gives some protection to the decree-holder. In the circumstances, it is proper that the execution of money decree may not be stayed till the attachment of the property has been effected. While dismissing the earlier application, all these matters were in my view.

8. The main grievance of the counsel for the applicants is that in all the four cases, a decree for recovery of Rs. 84700/- has been passed. I have already discussed above that Mr. Sarin has given an undertaking that the respondents would execute the decree in one case, in the circumstances this objection loses all its force. The objection is of a technical nature and it may not be necessary at the time of appeals to remand the cases to the trial Court for a fresh decision and the mistake may be rectified here.

9. Now the question to be determined is as to what is the effect of introduction of Order 41, rule 1(4) by the Legislature. Mr. Mittal has urged that the Court is bound to stay the execution in view of the aforesaid rule. In order to decide this question, it will be appropriate to read the sub-rule which is as follows:—

“Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.”

10. The rule authorises the appellate Court in money decree to direct the appellant to furnish security or deposit the disputed amount in an appeal as it thinks fit. The sub-rule has been introduced for the benefit of a decree-holder. I have already mentioned above that the decree-holder has to face the real difficulty in execution of his decree. Prior to the introduction of the rule, the Court had suo motu no power to order the judgment-debtor to deposit the amount or furnish security in order to lessen the hardship of the decree-holder, the Court has been given this power. The sub-rule, however, does not appear to be mandatory. The reason for coming to this conclusion is that the Code does not provide that if the decretal amount or security, as ordered by the Court, is not deposited or furnished by the judgment debtor, the appeal is liable to be dismissed, on this ground. In view of the aforesaid discussion, I am of the opinion that the applicants cannot take any benefit from the aforesaid provision. Mr. Mittal has urged that the property has been ordered to be sold by the executing Court and consequently the sale may be stayed on giving of security as provided in Order 41, rule 6(2). I regret my inability to accept the contention. I might have granted relief under the aforesaid provision, but it is not possible to do so. Under this rule, the application has to be made by the judgment debtor in the Court which has made the order of sale of immovable property. In this view, I am fortified by a decision of this Court in Bhagan Singh v. Teja Singh etc. (1974) 76 P.L.R No. 49 In the circumstances, the applicant cannot take benefit of the provisions of the sub-rule. They may, if so advised, file an application in the executing Court. Consequently I reject this contention of the learned counsel.

11. For the reasons recorded above, I dismiss the application with no order as to costa.

12. Application dismissed.

Pehlad And Others v. Dalel Singh And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Pehlad And Others v. Dalel Singh And Others

Comments