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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Judges
  • Devadoss
Acts
  • Section 647 corresponding to Section 141 of the present Code
  • Section 617 of the Code of 1882. By Act VI, Section 4, of 1882
  • 8 Ind. Dec. (N.S.) 393 (P.C.) decided on Section 647
  • Rules 100 and 101 of Order XXI.
  • Order IX, Rule 4 of the C.P.C.,
  • Section 141 of the C.P.C.
  • Order XXI, Rule 63, C.P.C."
  • Section 47 of the C.P.C.
  • Order XX, Rule 13, C.P.C.
  • Section 2 of the Code
  • Order XXI, Rule 100,
  • Rules 97, 98, 99, 100
  • Order XXI, Rule 90,
  • C.P.C. Section 141
  • Order IX, Rule 13
  • Section 47, C.P.C.,
  • Order XX, Rule 9
  • Order IX, Rule 4
  • Rules 97, 99, 100
  • Order IX, Rule 9
  • Order II, Rule 2
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Judges
  • Devadoss
Acts
  • Section 647 corresponding to Section 141 of the present Code
  • Section 617 of the Code of 1882. By Act VI, Section 4, of 1882
  • 8 Ind. Dec. (N.S.) 393 (P.C.) decided on Section 647
  • Rules 100 and 101 of Order XXI.
  • Order IX, Rule 4 of the C.P.C.,
  • Section 141 of the C.P.C.
  • Order XXI, Rule 63, C.P.C."
  • Section 47 of the C.P.C.
  • Order XX, Rule 13, C.P.C.
  • Section 2 of the Code
  • Order XXI, Rule 100,
  • Rules 97, 98, 99, 100
  • Order XXI, Rule 90,
  • C.P.C. Section 141
  • Order IX, Rule 13
  • Section 47, C.P.C.,
  • Order XX, Rule 9
  • Order IX, Rule 4
  • Rules 97, 99, 100
  • Order IX, Rule 9
  • Order II, Rule 2
See more information ...
Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The District Munsif of Namakal passed an ex parte order on 26 October 1922 directing delivery of property free from obstruction. On 9 November 1922 Defendants Nos. 5 and 6 applied to set aside that ex parte order. The District Munsif set aside his original ex parte order and passed a fresh order (dated 30 November 1922). The auction-purchaser, who was also the decree-holder, preferred a civil revision petition challenging whether the District Munsif's order setting aside his earlier ex parte order was passed without jurisdiction. The legal question before the revisional court was whether Order IX, Rule 13 of the Code of Civil Procedure applies to execution proceedings (and, as discussed in the opinion, whether Order XX applies to certain Rules of Order XXI).

Legal Issues Presented

  1. Whether Order IX, Rule 13 applies to execution proceedings (i.e., whether the general provisions for setting aside ex parte orders/decrees apply in execution proceedings).
  2. Whether the District Munsif's order setting aside his previous ex parte order was passed without jurisdiction (in light of the applicability or inapplicability of the procedural provisions to execution proceedings).

Arguments of the Parties

Petitioner's Arguments

  • The opinion records the contention of Mr. Varadachariar for the petitioner that Rule 13 (Order IX) does not apply to execution proceedings. The opinion treats this contention as advanced on behalf of the petitioner.

Opposing or Other Counsel References

  • The opinion records that Mr. Veeraraghavier relied upon the decision in Kali Shettathi v. Shama Rao, but the court states that that decision did not assist Mr. Veeraraghavier because the point was not decided there. (The opinion does not provide a detailed exposition of any further arguments advanced by opposing counsel.)

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Tirthasami v. Annappayya (8 M. 131 : 6 Ind. Dec. (N.S.) 441) Held that Chapters VII and XIII of the old Code did not apply to execution proceedings; dismissal of an ex parte did not bar a fresh application for execution. Cited as an authority supporting the view that procedural provisions for suits do not necessarily apply to execution proceedings.
Thakur Prasad v. Fakir Ullah (Privy Council) (17 A. 106 : 5 M.L.J. 3 : 22 I.A. 44 : 8 Ind. Dec. (N.S.) 393) Held that Section 647 (prior numbering) did not apply to applications for execution but only to original matters in the nature of suits. Cited as a controlling Privy Council decision showing that Section 647 did not extend to execution proceedings; the opinion refers to this as significant in interpreting later statutory history.
Balasubramania Chetti v. Swarnammal (21 Ind. Cas. 32 : 38 M. 199) Held that Order II, Rule 2 did not apply to execution proceedings; observed the Legislature did not intend to apply suit-provisions to execution proceedings. Used to support the proposition that provisions framed for suits were not intended to govern execution proceedings.
Somasundaram Pillai v. Chokkalinga Pillai (38 Ind. Cas. 806 : 40 M. 780) Followed Balasubramania Chetti's decision on non-applicability of suit-provisions to execution proceedings. Noted as a follow-up authority endorsing the non-applicability approach.
Kajuluri Swami v. Chintalapati Suryanarayana Razu (81 Ind. Cas. 841 : 47 M.L.J. 269) Mr. Jackson, J., held that Order IX, Rule 9 did not apply to orders passed in execution proceedings. Cited as an authority supporting non-applicability of the particular provision of Order IX to execution orders.
Subbiah Naicker v. Ramanathan Chettiar (22 Ind. Cas. 899 : 37 M. 462) The learned judges were of opinion that Order IX, Rule 13 applied to execution proceedings; they treated ex parte orders in execution as ex parte decrees under Section 2. Cited as an authority taking the contrary view — i.e., that Order IX, Rule 13 could apply to execution proceedings; the court records this as one of the conflicting authorities.
Chindambara Chetty v. Kandasami Goundan (74 Ind. Cas. 155 : 46 M. 768) The point whether Order IX applied was not decided; the chief justice confined the decision to particular facts. Noted by the court as a case where the broader question remained undecided and where the decision was expressly confined to facts.
Kali Shettathi v. Shama Rao (37 Ind. Cas. 229) The point regarding applicability of Order IX to execution proceedings was not decided; some judges held Order IX did not apply. Referenced by opposing counsel (Mr. Veeraraghavier) but the court finds that the case does not aid him because the point was not decided there.
Hari Charan Ghosh v. Manmatha Nath Sen (19 Ind. Cas. 683 : 41 C. 1) Held Order XX, Rule 13 was not applicable to proceedings under Rules 100 and 101 of Order XXI; reviewed statutory history and Privy Council decision. Cited as a direct authority for the contention that Rule 13 (Order XX in that context) does not apply to execution proceedings; relied on in support of non-applicability.
Bhubaneswar Prasad Singh v. Tilakdhari Lal (49 Ind. Cas. 617 : 4 P.L.J. 135) Full Bench held Order XX, Rule 9 did not apply to an order dismissing for default an application under Order XXI, Rule 90 — collected cases on the question. Cited as a Full Bench authority gathering decisions and supporting non-application of Order XX to execution proceedings.
Sheonandan Chowdhury v. Debi Lal Chowdhury (71 Ind. Cas. 484 : 2 Pat. 372) Held Order IX, Rule 4 applied to an application under Order XXI, Rule 100 dismissed for default; the present opinion expresses inability to follow that reasoning. Discussed and expressly disagreed with by the court — the opinion criticizes the reasoning that such post-sale proceedings are not execution proceedings.
Diljan Mihha Bibi v. Hemanta Kumar Roy (29 Ind. Cas. 395) Held an application to set aside an execution sale is in the nature of an original proceeding and not excluded from Section 141; such applications could be restored under Order IX, Rule 9. Noted as part of the line of authorities treating certain post-sale applications as original matters; the present court rejects that characterization for Rules 97–101.
Bhuben Behari Nag Mazumdar v. Dhirendra Nath Banerji (33 Ind. Cas. 581) Held similarly that certain applications connected to execution sale are not excluded from Section 141. Noted by the court as a decision adopting the view that such applications could be treated as original matters; the court contrasts with its own conclusion.
Ramappa Cheitiar v. Ekambara Padayaahi (79 Ind. Cas. 818 : 47 M.L.J. 13) Held a petition to restore a claim petition dismissed for default was maintainable and not barred by Order XXI, Rule 63. Cited as an authority holding that restoration petitions may be maintainable despite certain Order XXI provisions; recorded among the conflicting authorities.

Court's Reasoning and Analysis

The court begins by identifying a clear conflict in the authorities: various High Court decisions and a Privy Council decision have taken differing views on whether the general provisions of the Code applicable to suits (and certain Orders and Rules such as Order IX and Order XX) extend to execution proceedings (generally governed by Order XXI).

Key steps of the court's analysis (expressed in the opinion) are:

  • Review of the statutory and historical background, including the Privy Council's decision in Thakur Prasad v. Fakir Ullah and the Explanation to the earlier section (Section 647 of the pre-1882 Code), which bear on whether certain general provisions were meant to apply to execution proceedings.
  • Survey of conflicting case law from various High Courts: some decisions hold that provisions like Order IX (or particular Rules) do not apply to execution proceedings; other decisions treat some post-sale applications as original matters and applicable by force of Section 141.
  • Examination of the specific scheme of Order XXI: the court stresses that Order XXI is headed "execution of decrees and orders" and contains detailed procedures for applications in execution (citing Rules 97, 98, 99, 100 and 101 in particular).
  • Emphasis on Rule 103 of Order XXI, which expressly gives a right to persons against whom an order is made under Rules 98, 99 or 101 to institute a suit to establish their claimed right to possession; the court treats this as significant evidence that post-sale applications remain within the execution framework rather than becoming original suits for procedural purposes.
  • On that basis the court holds that applications under Rules 97, 98, 99, 100 and 101 are applications to the executing court in the course of execution and are properly characterised as execution proceedings.
  • Because these proceedings are execution proceedings, the court reasons that the general provisions (in particular, Order XX as mentioned in the opinion) do not apply to them; consequently the District Munsif's act of setting aside his earlier ex parte order was performed without jurisdiction.

The court explicitly states disagreement with cases that treated post-sale proceedings as original matters (for example, it records inability to follow the reasoning in Sheonandan Chowdhury v. Debi Lal Chowdhury and similar authorities).

Holding and Implications

The civil revision petition is allowed: the order of the District Munsif dated 30th November 1922 (setting aside his earlier ex parte order) is set aside as having been passed without jurisdiction, and the ex parte order dated 26th October 1922 is restored. Costs are awarded throughout.

Implications of the decision (as stated in the opinion):

  • The court holds that proceedings under Rules 97, 98, 99, 100 and 101 of Order XXI are execution proceedings and, therefore, Order XX does not apply to them (the opinion discusses the applicability of Order IX and Order XX provisions in this context and treats the Rules cited as governed by Order XXI).
  • Direct effect on the parties: restoration of the original ex parte order (26 October 1922) in favour of the decree-holder/auction-purchaser; the District Munsif's later order (30 November 1922) is quashed and costs are granted.
  • The opinion resolves the specific dispute between the parties and declares the executing-court procedure under Order XXI to be the proper framework for the described applications. The court draws a clear line between those authorities that treat post-sale applications as original matters and those that treat them as execution proceedings, siding with the latter for Rules 97–101.

Judicial Disposition and Concurrence

The opinion concludes with a brief note that Waller, J. gave a separate short judgment and that another judge concurred: "I agree and have nothing to add." The civil revision petition was allowed as set out above.

Show full summary ...

    Kalliakkal v. Palani Koundan And Anr.

    1. The only question in this revision petition is whether Order IX, Rule 13 applies to execution proceedings. The District Munsifof Namakal passed an ex parte order on 26th October 1922 directing delivery of property free from obstruction. Defendants Nos. 5 and 6 applied on 9th November 1922 to set aside the ex parte order. The District Munsif set aside the ex parte order and passed a fresh order. The auction-purchaser who is also a decree-holder has preferred this civil revision petition. The question for decision is, was the order of the District Munsif setting aside his previous ex parte order passed without jurisdiction?

    2. The answer to the question depends upon the wider question whether Order IX applies to execution proceedings. There are several cases on the point which are not all re-concileable. In Tirthasami v. Annappayya 8 M. 131 : 6 Ind. Dec. (N.S.) 441 Muthuswami Iyer, J., held that Chaps. VII and XIII of the old Code did not apply to execution proceedings. He rested his conclusion upon the Explanation to Section 617 of the Code of 1882. By Act VI, Section 4, of 1882 an Explanation was added to Section 647. This "Explanation was enacted on account of the view held:: by the High Courts of Allahabad and Bombay that Section 647 corresponding to Section 141 of the present Code applied to execution proceedings. The Explanation is in these terms: "This section does not apply to applications for the execution of decrees, which are proceedings in suits." The Privy Council held in Thakur Prasad v. Fakir Ullah 17 A 106 : 5 M.L.J. 3 : 22 I.A. 44 : 6 Sar. P.C.J 526 : 8 Ind. Dec. (N.S.) 393 (P.C.) that independently of the Explanation, Section 647 did not apply to applications for execution but only to original matters in the nature of suits, such as proceedings in Probates, guardianships, and so, forth. Muthuswami Iyer, J., held in Tirthasami v. Annappayya 8 M. 131 : 6 Ind. Dec. (N.S.) 441 that the dismissal of an ex parte did not bar a fresh application for execution. In Balasubramania Chetti v. Swarnammal 21 Ind. Cas. 32 : 38 M. 199 : (1913) M.W.N. 685 : 14 M.L.T. 196 : 25 M.L.J. 367 Benson and Sundara Iyer, JJ., held that Order II, Rule 2 did not apply to execution proceedings. They observe at page 201: Page of 38 M.--[Ed.]--"It could not have been the intention of the Legislature to apply to Execution proceedings provisions laid down with regard to suits only. The procedure to be followed in appeals and ex parte applications is specifically laid down in the C.P.C. Section 141 is intended to apply to other proceedings in Civil Courts, such as Probate, etc.," Justice Ayling and Justice Seshagiri Iyer, J J., followed this decision in Somasundaram Pillai v. Chokkalinga Pillai 38 Ind. Cas. 806 : 40 M. 780 : 5 L.W. 267. In Kajuluri Swami v. Chintalapati Suryanarayana Razu 81 Ind. Cas. 841 : 47 M.L.J. 269 : 20 L.W. 192 : (1924) M.W.N. 672 : (1925) A.I.R. (M) 126 Mr. Jackson, J., held that Order IX, Rule 9 did not apply to orders passed in execution proceedings.

    3. There are several cases which support the contrition that Order IX is applicable to execution proceedings. In Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas 899 : 37 M. 462 : 26 M.L.J 189 : (1914) M.W.N. 205 : 1 L.W. 251 Alying and Sadasiva Iyer, JJ., were of opinion that Order IX, Rule 13, applied to execution proceedings. The point did not directly arise in that case, but the learned Judges held "orders in execution which came under Section 47, C.P.C., are decrees as defined in Section 2 of the Code and hence ex parte orders passed in execution are ex parte decrees and Order IX, Rule 13 provides generally for the setting aside of ex parte, decrees and not only for the setting aside of those classes of ex parte decrees which are not also orders passed under Section 47 in execution proceedings." In Chindambara Chetty v. Kandasami Goundan 74 Ind. Cas. 155 : 46 M. 768 : (1923) M.W.N. 571 : 45 M.L.J. 346 : 18 L.W. 757 : (1924) A.I.R. (M.) 1 the point was not decided, though Old-field, J., in his referring order refers to the conflicting authorities on the point. The learned Chief Justice observed at page 780 Page of 476 M.--[Ed.] "I desire to say that our decision in this case must be taken to be confined to the particular facts of this case, that is to say, that where you have nothing more than the non-attendance at the hearing of an application to settle the terms of a sale proclamation, the respondent cannot be taken to be estopped by reason of that non-attendance on the principle of res judicata from thereafter denying the liability of the property to execution". The decision in Kali Shettathi v. Shama Rao 37 Ind. Cas. 229 : 5 L.W. 124 : 21. M.L.T. 297, relied upon by Mr. Veeraraghavier does not help him. For, in the former, the point was not decided and in the latter Oldfield and Sadasiva Iyer, J J., held that Order IX of the C.P.C., did not apply to execution proceedings.

    4. There is a conflict of opinion in the other High Courts also. In Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 : 41 C. 1 : 18 C.W.N. 343 Jenkins, C.J. and Ray, J., held that Order XX, Rule 13, C.P.C. was not applicable to a proceeding under Rules 100 and 101 of Order XXI. The learned Chief Justice after going into the history of Section 647 and the reason for enacting Section 4 of the Act VI of 1882 observes: "But after this alteration in the law, the Privy Council by a case Thakur Prasad v. Fakir Ullah 17 A 106 : 5 M.L.J. 3 : 22 I.A. 44 : 6 Sar. P.C.J 526 : 8 Ind. Dec. (N.S.) 393 (P.C.) decided on Section 647 as it stoad before the Explanation was added, that the section did not apply to execution proceedings. The purpose of the Legislature in omitting that Explanation was to do away with that which was shown to be unnecessary by the Privy Council decision and to rely upon the terms of the section as interpreted by the Privy Council." This decision is a direct authority for the contention of Mr. Varadachariar for the petitioner that Rule 13 does not apply to execution pro-ceedirigs. A Full Bench of the Patna High Court in Bhubaneswar Prasad Singh v. Tilakdhari Lal 49 Ind. Cas. 617 : 4 P.L.J. 135 : (1919) Pat. 75 held, that Order XX, Rule 9 did not apply to an order dismissing for default an application to set aside, under Order XXI, Rule 90, a sale held in execution of a decree. In that case, all the cases bearing on the question whether Order XX applies to execution" proceedings, are collected., Though the learned Judges do hot discuss in detail all the cases, they give sufficient reasons for their conclusions that Order XX has no application to execution proceedings. In Sheonandan Chowdhury v. Debi Lal Chowdhury 71 Ind. Cas. 484 : 2 Pat. 372 : 4 P.L.T. 93 : 178 at L.R. 134 : (1923) A.I.R. (Pat.) 239 : (1923) Pat. 78 it was held that Order IX, Rule 4 of the C.P.C., applied to an application under Order XXI, Rule 100, which had been dismissed for default. With great respect, I am unable to follow the reasoning of the learned Judges. They observe 'at page 378 Page of 2 Pat.--[Ed.]. 'An application under Order XXI, Rule 100, is not an application in execution proceedings, but is an original matter, in the nature of a suit, and, in my opinion, the decision of the Judicial Committee in the case cited is an authority for the proposition that Order IX, Rule 4 would apply by force- of Section 141 to original matters in the nature of suits.'" All matters in execution are governed by Order XXI; Order XXI is headed "execution of decrees and orders" and applications under Rules 97, 99, 100 and 101 are applications to the Executing Court in the course of execution. It is difficult to understand why they cease to be proceedings in execution by the mere fact that the applications are made not by the decree-holder, but by other persons. It is the Court which executes the decree following the procedure laid down in Order XXI that entertains applications under Rules 97, 100 and 101. This view that after sale, proceedings in execution are not strictly execution proceedings is held by some of the learned Judges of the Calcutta High Court. In Diljan Mihha Bibi v. Hemanta Kumar Roy 29 Ind. Cas. 395 : 19 C.W.N. 758 it was held: "An application: for setting aside an execution sale is not an application for execution, but in the nature of an original proceeding which is not excludfed from the purview of Section 141 of the C.P.C. Such application, if dismissed for default, can be restored under Order IX, Rule 9 of the C.P.C." In Bhuben Behari Nag Mazumdar v. Dhirendra Nath Banerji 33 Ind. Cas. 581 : 20 C.W.N. 1203 the same view was held. In Ramappa Cheitiar v. Ekambara Padayaahi 79 Ind Cas. 818 : 19 L.W. 685 : 47 M.L.J. 13 : (1924) MW N 179 : 17 M. 651 : (1924) A.I.R. (M.) 5 : 31 M.L.T. 309 Venkatasubba Eao, J., held "A petition to restore a claim petition, dismissed for default of appearance, of the petitioner, is maintainable and not barred by Order XXI, Rule 63, C.P.C."

    5. When a decree-holder of an auction-purchaser is resisted in obtaining possession of immoveable property by a person in possession, he may make an application to the Court complaining of such resistance or obstruction under Rule 97. If the Executing Court is satisfied that the obstruction was caused by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property and if there is still further resistance, it may make the necessary order to enforce delivery of the property If the Court is satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming on good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application (Rule 99). Where any person other than the judgment-debtor is dispossessed of immoveable property by the holder of a decree for possession or by the auction-purchaser, he may make an application to the Court complaining of such dispossession. If the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put in possession of the property. Rule 103 gives the right to the person against whom an order is made under Rules 98, 99 or 101 to institute a suit to establish the right which he claims to the present possession of the property, but subject to the result of such suit, if any, the order shall be conclusive. In considering the question whether the general provisions of the Code apply to execution proceedings, we must not overlook the fact that a right of suit is given under Rule 103 to persons against whom an order is passed. In the case of parties to the decree, an appeal is provided under Section 47 of the C.P.C. and in the case of persons who are not parties to the decree, against whom an order is passed in execution, and in the case of the decree-holder or auction-purchaser against whom an order is passed in favour of persons not parties to the decree, a suit is provided. In the face of the clear wording of, Rule 103 it is difficult to understand why any' proceeding after the property is brought to sale should be considered as something; different from execution proceedings under Order XXI. On a careful consideration of all the cases, I have no hesitation in holding that proceedings under Rules 97, 98, 99, 100 and 101 are execution proceedings and, therefore, Order XX does not apply to them: The order of the District Munsif setting aside an ex parte order was passed without jurisdiction. The civil revision petition is allowed and the order, dated 30th November 1922, is set aside and that, dated 26th October 1922, is restored with costs throughout.

    Waller, J.

    6. I agree and have nothing to add.

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    Comments

    Kalliakkal v. Palani Koundan And Anr.
    (Oct 15, 1925)