Anandrao vs Krishnaji

Y.V. Chandrachud, J.—This revisional application arises out of proceedings which were initiated by the petitioner (judgment-debtor) u/s 3 of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956 (M.P. Act No. V of 1956), which will hereinafter be referred to as the Act. On the 16th of June 1960, the respondent filed a darkhast to execute the decree, which he had obtained against the petitioner for the refund of earnest money. On the 22nd of July 1960, the petitioner filed an application for stay of execution of the decree u/s 3 (1) of the Act, which reads thus:

All proceedings in execution of any decree for money, or proceedings for making final any preliminary decree for foreclosure or sale, or proceedings in execution of any final decree for sale, passed by a Civil Court on the basis of a liability incurred before this Act comes into force, in which a judgment-debtor or defendant, as the case may be, is, on the date this Act comes into force, an agriculturist, shall be stayed against such judgment-debtor or defendant, on an application made by him in this behalf during the period this Act remains in force.

On 21st of December 1961, the application was dismissed for default, as the petitioner was absent. After the application was so dismissed, the petitioner adopted two different but parallel proceedings, one of them being an application for the restoration of the application which was dismissed for default and the other being the institution of a similar but fresh application. The fresh application was filed on the 4th of January 1962, whereas the application for restoration was filed on the 12th of January 1962. On the 14th of February 1962, the application for restoration was dismissed partly on the ground that an application under Order 9, rule 9 of the CPC was not maintainable and partly for the reason that there was no sufficient cause for the absence of the petitioner on the 21st of December 1961. On the 27th of September 1962, the fresh application was also dismissed for the obviously inconsistent reason that Order 9, rule 9 would govern applications filed u/s 3 of the Act and as the petitioner had not preferred an appeal against the order dated 14th February 1962, the fresh application u/s 3 was not maintainable. It is against this order that the present revision application has been filed.

The main question, which arises in this revision application is whether the provisions contained in Order 9 of the CPC would apply to applications which are filed u/s 3 (1) of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956. If the proceedings initiated by an application filed u/s 3 of the Act are in the nature of execution proceedings, then it is indisputable that the provisions of Order 9 will not be attracted. On the other hand, if the proceedings, which a judgment-debtor takes u/s 3 of the Act, are not in the nature of execution proceedings, but are in the nature of substantive original proceedings, then it would be equally clear that the provisions of Order 9 would apply to the proceedings.

Mr. Ghate, who appears on behalf of the petitioner, contends that Order 9, rule 9 of the CPC has no application to the proceedings initiated by the judgment-debtor u/s 3 (1) of the Act, because, the proceedings which section 3 contemplates are in form and substance execution proceedings and it is settled law that the provisions contained in Order 9 do not apply to execution proceedings. Now, what is provided by section 3 (1) of the Act is that proceedings in execution of certain decrees shall be stayed if the decree is passed by a Civil Court on the basis of a liability which is incurred before the date on which the Act came into force, and if the judgment-debtor is an agriculturist. It seems to me difficult to take the view that the proceedings contemplated by section 3 of the Act are in substance execution proceedings. By the application, which a judgment-debtor files u/s 3, he raises a contention that by reason of independent and substantive rights, which are conferred by the Act, the executing Court loses its jurisdiction for a temporary period to execute a lawful decree or order. The application, in the first place, though called an application for stay of execution, does not concern itself with any one of the reliefs which a judgment-debtor may legitimately obtain. under Order 21 of the CPC which deals with "execution of decrees and orders". The Court is required to deal with the application as if it is a substantive proceeding because to be able to deal with the contentions raised by the judgment-debtor in his application, it is necessary for the Court to raise fresh issues with regard to the status of the judgment-debtor, the nature of the decree and with regard to the time when the liability which has merged in the decree, was incurred. In other words, the proceeding initiated by the judgment-debtor by an application u/s 3 of the Act, is more in the nature of a suit than in the nature of an ancillary application such as an execution proceeding is. What the Legislature has done by enacting section 3 is to confer special rights on a special class of persons with regard to decrees of a special description. In the enforcement of such rights, considerations which primarily weigh with an executing Court are out of place and such substantive applications are required to be dealt with as a trial Court would deal with a suit. It is not disputed, and indeed it is clear, that an application contemplated by section 3 of the Act, will not attract the provisions of any of the procedural rules which are contained in Order 21 of the Code of Civil Procedure. In my opinion, therefore, the proceedings which were initiated by the petitioner u/s 3 (1) of the Act on the 22nd of July 1960, are not in the nature of execution proceedings, their true nature being that by resorting to them a substantive right is sought to be exercised and a substantive relief is attempted to be obtained by the judgment-debtor.

Mr. Ghate contends that a clue to the nature of the proceedings undertaken by the judgment-debtor u/s 3 (1) of the Act is afforded by the very nature of the relief which the judgment-debtor is enabled to seek, namely, stay of execution of the decree or order. The argument is that the judgment-debtor can apply for stay of execution only if the decree-holder files an application for execution and that, therefore, the former application should, be deemed to be a part of the latter application. A clear answer to Mr. Ghate's contention is provided by sub-section (3) of section 3 of the Act which says that any judgment-debtor or defendant who is an agriculturist, may, notwithstanding that no proceedings of the nature referred to in sub-section (1) are pending against him, make an application for stay under that sub-section. The provisions of sub-section (3), in a sense, also throw a useful light on the true nature of the proceedings contemplated by sub-section (1). If by virtue of the provisions contained in sub-section (3) of section 3, an application for stay of execution can be filed even if no execution proceedings are pending, then it would be difficult to take the view that every application filed under sub-section (1) must be deemed to have been filed during the pendency of execution proceedings.

Mr. Chandurkar, who appears on behalf of the respondent-decree-holder has drawn my attention to three decisions of the High Courts of Allahabad, Madras and Nagpur, which would lend support to the view, which I have indicated above. The first of these decisions is reported in Lala Har Narain Lal Bahal Vs. Mathura Prasad, in which a question of construction of provisions similar to those contained in the present Act arose before a Full Bench of the Allahabad High Court. An Act called the U.P. Temporary Postponement of Execution of Decrees Act, was passed in the United Provinces and section 3(1) of that Act is, for the present purposes, worded in the same terms as section 3 of the Madhya Pradesh Act. It was held in that case that an order passed on an application u/s 3 of the V.P. Act was an order which fell u/s 47 of the CPC and, therefore, an appeal would lie against the order. The importance of the decision consists not so much in the finding that the order fell u/s 47 of the Code, but the importance rather is that the application could not be treated as an application in the nature of execution proceedings. In Thummalapalli Viswanadham Vs. Sokalachand Chunnilal and Others, the question was whether the provisions of Order 9 would apply to petitions filed under the Madras Agriculturists Relief Act. The judgment-debtor filed an application u/s 23 of the Madras. Agriculturists'' Relief Act, for setting aside a sale on certain grounds mentioned in that section. That application was dismissed for default and a question arose whether the provisions of Order 9 would apply to the application or whether those provisions were inapplicable by reason of the application being in the nature of execution proceedings. It was held that the order by which the application u/s 23 was dismissed was truly an order under Order 9, rule 8 of the CPC and that, therefore, the provisions contained in Order 9, rule 9 must apply to such an application. The third decision on which Mr. Chandurkar relies is reported in AIR 1948 350 (Nagpur) . The view which was taken in that case was that proceedings u/s 11 of the C.P. Moneylenders Act are not execution proceedings and that the provisions of Order 9 of the CPC must apply to them. Mr. Ghate contends that the decisions of the High Courts of Madras and Nagpur are distinguishable, because the Madras and Nagpur Acts contained a specific provision that orders passed under the relevant sections shall be deemed to be orders passed u/s 47 of the Civil Procedure Code. It is true that in the Madras and Nagpur Acts there are express provisions by which orders passed under the respective sections were required to be treated as orders passed u/s 47 of the Code of Civil Procedure. But it is important to bear in mind that the decision of the Madras High Court does not turn on the question as to whether the order was by fiction of law deemed to be an order u/s 47 of the Code of Civil Procedure. As the learned Judge of the Madras High Court has observed in his judgment, on a true construction of the order, it was an order passed procedurally under Order 9, rule 8 and not u/s 47 of the Code of Civil Procedure. In so far as the Nagpur decision is concerned, there are observations in the judgment which clearly show that the learned Judge took the view that the application was not in the nature of execution proceedings, quite apart from the provision contained in section 11 of the C.P. Moneylenders Act by which orders passed under that section were required to be treated as orders passed u/s 47 of the Code of Civil Procedure.

In my opinion, the proceedings initiated by a judgment-debtor u/s 3 (1) of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, are not in the nature of execution proceedings but are in substance, independent original proceedings undertaken by the judgment-debtor for assertion of substantive rights. To such proceedings, the provisions of Order 9, rule 8 of the CPC would apply by reason of the provisions contained in section 141 of the Code which provides that the procedure provided in the Code with regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. It is well-settled that what section 141 contemplates is original proceedings and to all such original proceedings which fall under the section, the provisions of Order 9 must apply. In the result, therefore, the application which was filed by the petitioner on the 12th of January 1962 for the restoration of the application filed u/s 3 of the Act which was dismissed for default on the 21st December 1961, must be held to be competent.

If the application for restoration was maintainable and if the application was dismissed both on the ground that it did not lie and that the petitioner had no sufficient cause to remain absent on the 21st of December 1961, then the proper remedy for the petitioner to adopt was to file an appeal under Order 43, rule 1 (c) of the CPC and not to file a fresh application for restoration as the petitioner did on 24th January 1962. The present application, which is a fresh application u/s 3 of the Act cannot be held to be maintainable for the reason that if a suit is dismissed for default and an application for setting aside the dismissal is itself dismissed, a fresh suit on the same cause of action would be barred under the provisions of Order 9, rule 9 of the Code of Civil Procedure. As these provisions apply to applications also by reason of section 141 of the Civil Procedure Code, a fresh application must be held to be barred if the earlier application for setting aside dismissal for default is itself dismissed.

Mr. Chandurkar has also urged that an application filed u/s 3 of the Act must be deemed to fall u/s 47 of the CPC and that, therefore, an appeal will lie against an order passed on that application. It is unnecessary to decide the point as the question would have arisen only if the petitioner had preferred an appeal against the order by which his application u/s 3 of the Act was initially dismissed.

Mr. Ghate says that if the petitioner was now to file an appeal against the decision dated 14th February 1962, it would be time-barred. It is not for me to say whether, if such an appeal is filed, the delay caused in filing the same could not be excused by reason of the fact that the petitioner was pursuing parallel proceedings under a mistaken belief and as the petitioner may have teen misled by the decision given on the 14th of February 1962 by the trial Court that the application under Order 9, rule 9 was not maintainable.

For these reasons, the rule in this revision application will be discharged, but there will be no order as to costs.