Nanha vs Baroo and others

Teja Singh, C.J.—This second appeal arising out of execution proceedings has been referred to the Division Bench by my learned brother because it involves an important legal question. The facts briefly stated are as follows:

Baru and others obtained money decrees against Nanu in five suits. On the other hand, Nanu and his brother Hemraj sued Baru and others who had obtained money decrees against Nanu, with the exception of Kalu Ram for possession of certain land. The case for Nanu and Hemraj was that the land belonged to them and the defendants had taken possession of it without any right. The trial Court dismissed the suit but the District Judge on appeal passed a decree in favour of Nanu and Hemraj and the High Court upheld the appellate decree of the District Judge. Baru and others preferred a further appeal to the Judicial Committee of the erstwhile Patiala Slate. By his order dated 7-11-1947, the learned President, of the Judicial Committee (Sir Jai Lal, held that, while the decree for possession of the land passed in favour of Nanu and Hemraj should be maintained : "It should be subject to the condition that the decree-holders, Nanu and another, snail not be entitled to execute it unless they have first paid by deposit in the trial Court within fix months from the date of this order the decretal amount of the decrees passed in favour of Baru, etc., against them or have proved to the satisfaction of the Court that they have otherwise satisfied those decrees for money passed against them." and further that "the parties shall bear their own costs of the suit throughout." In pursuance of the law and the practice that prevailed then in Patiala State the case was submitted by the President to His Highness Shri 108 Maharajadhiraj Mahendra Bahadur for orders, and in accordance with the advice tendered by the President of the Judicial Committee- the Ijlas-i-Khas on 21-5-1948. passed the final order the operative part of which was identically the same as the concluding part of the order of the Judicial Committee, reproduced above.

It may here be mentioned that after the decree passed in their favour by the High Court and during the pendency of the proceedings and before the appeal could be finally disposed of by the Judicial Committee and the Ijlas-i-Khas, Nanu and Hemraj had taken possession of the land in execution proceedings. On 15-3-2005 E. (284-1948), Nanu made an application to the Executing Court requesting that the amount that he and Hemraj had to deposit in Court in accordance with the orders of the Judicial Committee of the Ijlas-i-Khas be determined. It was also stated in the application that the amount that was due to Baru,. one of the persons who had obtained money decrees against Nanu, had been deposited in Court on 10-3-2005 B. (23-6-1948.) The Court ordered a notice of the application to issue to the other side but before the notice could be served the other side made an application, u/s 144, C.P. Code on 32-3-2005 B. (15-7-1948), praying that the possession of the land which Nanu and Hemra) had taken in execution of the decree should be restored to them. On 25-4-2005 B. (9-8-1948), Ram and others appeared in response to the notice issued to them on Nanu''s application of 15-3-2005 B. (28-6-1948.) They opposed the application on the ground inter alia, that since time for deposit of the amount started to run from the date of the order of the Judicial Committee the application was barred by time. The Executing Court accepted this objection, dismissed Nanu''s application and ordered possession of the land to be restored to Baru and others. From this order Nanu and Hemraj appealed to the District Judge but failed. This second appeal is by Nanu alone.

Before dealing with the merits, it is necessary to dispose of a preliminary objection raised by the respondents that Nanu alone cannot prefer the appeal. Counsel''s argument is that since the order of the Court below affects Nanu as well as Hemraj and they were both appellants in the Court of the District Judge appeal by Nanu clone is not competent. I have no hesitation in. holding that the contention is wholly devoid of force, it is laid down in Order 41, Rule 4, that when there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. This principle is applicable to second appeals and since the appeal preferred by Nanu proceeds on the ground common to him as well as Hemraj he was competent to appeal from the whole order and when such appeal is before us it is open to the Court to reverse it in favour of both should we consider that such a reversal is called for.

The first question to be determined is from which date the time for deposit of the amount which Nanu and Hemraj had to pay before they could obtain possession of the land decreed in their favour was to commence. The respondents'' Counsel argued that according to the law prevalent in the Patiala State the order of the judicial Committee was final and though it required the formal approval of the Ijlas-i-Khas which meant His Highness Shri 108 Maharajadhiraj Mahendra Bahadur, it was that order which was to be given effect to. The contention does not appear to me to be wholly correct. The constitution and functions of the Judicial Committee, the procedure to be followed by it and the binding nature of its orders are dealt with by Sections 4 to 25 of the Patiala Judicature Farm an of 1999. Of these only the following are relevant for purposes of the present discussion:

Section 15: The Judicial Committee after hearing such of the parties or their representatives as shall be present before it shall record its advice in the form of a judgment containing its conclusions and grounds for such conclusions on such of the matters raised before it which the Judicial Committee shall deem necessary for the decision of the appeal or reference before it end shall indicate how and by whom the costs of the proceedings before it and in subordinate Courts shall be paid and shall, where practicable, pronounce the same in open Court.

Section 16: The Judicial Committee shall prepare a formal order containing concisely its conclusions and the effect thereof on the decree or order against which the appeal is preferred or the reference is made and as to the manner in which the costs in the Judicial Committee and in the subordinate Courts shall be paid. Three copies of the order so prepared and the judgment of the Judicial Committee shall be submitted to us for formal approval; the three formal orders shall be signed by the Secretary in the Ijlas-i-Khas and the seal of the Ijlas-i-Khas shall be affixed to the same, and two of them shall be returned to the Judicial Committee when the judgment shall be pronounced.

Section 18: A certified copy of the judgment of the Judicial Committee along with a copy of the formal order bearing the seal of the Ijlas-i-Khas and also a copy of the statement of costs prepared as hereinbefore provided shall then be transmitted to the High Court of Judicature at Patiala and the said High Court shall substitute the judgment of the Judicial Committee for its own judgment and shall amend its decree accordingly and execute the same in the manner provided for the execution of its decrees.

In view of the words of Section 16, there can be no denying the fact that the operative part of the order is to be drawn by the Judicial Committee and the approval of the Ijlas-i-Khas is formal, but the tact remains that until the approval is given the order can have no effect. This is made further clear by the words of Section 18 according to which it is only on the receipt of the certified copy of the judgment of the Judicial Committee along with a copy of the formal order bearing the seal of the Ijlas-i-Khas that the High Court has to substitute the judgment of the Judicial Committee for its own judgment and amend its decree accordingly. This means that unless and until the order drawn up by the Judicial Committee receives the approval of the Ijlas-i-Khas and that approval is conveyed to the High Court, the decree of the High Court stands and if that decree has to be amended in view of the judgment of the Judicial Committee no such amendment can take place. It also follows from this that if a person is to execute the decree of the High Court as amended by that of the Judicial Committee he cannot do so unless and until a copy of the judgment of the Judicial Committee along with a copy of the formal order bearing the seal of the Ijlas-i-Khas is received by the High Court.

It may be that ordinarily this does not make any difference in practice and even if the order of the Judicial Committee does not receive the formal approval of the lilas-i-Khas for sometime the rights of the parties are not affected thereby. But the question assumes real importance in a case like the present where it is to be decided what is the exact date from which time is to commence for doing something which the Judicial Committee requires a party to do.

As I have mentioned above though the Judicial Committee gave its judgment on 22-7-2004 Bk. (7-11-1947), the approval of the Ijlas-i-Khas, to its judgment was not given till 21-5-1948. According to the judgment of the Judicial Committee the amount in question was to be deposited by Nanu and Hemraj within six months of the date of its order, that is to say, by 7-5-1948. Now if the formal order containing the conclusions of the Judicial Committee and the operative part of its judgment to be submitted to the Ijlas-i-Khas u/s 16 had been drawn up carefully and instead of merely copying word for word a part of the judgment it would have been mentioned therein that the time that Nanu and Hemraj were given to deposit the amount in question was to commence from the date of the judgment of the Judicial Committee, there would have been no trouble. But what happened was that the order cantoned the words "within six months from the date of this order" which clearly meant the order of the Ijlas-i-Khas.

It was stressed by the respondents Counsel that since according to law the Ijlas-i-Khas could not change the judgment of the Judicial Committee and it was just to approve it formally the words ''this order" appearing in the order of the Ijlas-i-Khas meant the order of the Judicial Committee. I have no doubt regarding the functions of the Ijlas-i-Khas and also agree that ordinarily the Ijlas-i-Khas did not go against the judgment of the Judicial Committee but there was nothing to prevent it from doing so if it so desired. In any case I cannot accept the contention that the words "this order" appearing in the order of the ljlasi-Khas can mean any other order than that order. It may also be mentioned that the time for the deposit of the amount given to Nanu and Hemraj being only six months, if the words "this order" were meant to refer to the order of the Judicial Committee it had already become Impossible... for them to make the deposit by the time the judgment of the Judicial Committee was approved, for the simple reason that six months had expired. Then we have to take the order of the Ijlas-i-Khas as it stands and not what it should have been, if the correct procedure had been followed, and I have already shown that according to that order the appellants were given six months from the date on which it was made and not from the date on which the Judicial Committee gave its judgment. If the respondent''s position was that the order of the Ijlas-i-Khas was not correctly drawn up and it was erroneous the proper course for them was to have it corrected, but they took no steps in this direction.

Accordingly I hold that the time given to the appellants for deposit of the amount started to run from 21-5-1948 and the last date for the deposit was 21-11-1948. This means that on 15-3-2005 (28-6-1948), when the appellants applied to the Executing Court that the amount to be deposited by them be determined so that they should be in a position to make the deposit they had still about 44 months for making the deposit. The Executing Court instead of ordering the appellants to deposit the amount framed issues about the question of limitation, etc., on 25-4-2005 and finally threw out the application as barred by time on 2-12-2005. It is true that the appellants were also to blame to some extent inasmuch as it was open to them to obtain copies of decrees and to find out how much amount they had to deposit but instead of doing this they approached the Executing Court to find out the amount due to them. It should, however, be remembered that the respondents took up the definite position that time for deposit of the amount had already expired and the appellants had no right to make the deposit. In view of these circumstances and also in view of the fact that the Executing Court took considerable time in giving decision on the point of limitation we cannot hold that the appellants should be altogether debarred from complying with the order of the Judicial Committee.

The next question that falls for determination is whether the time fixed by the Judicial Committee can be extended now. The appellants'' Counsel argued that though the judgment of the Judicial Committee does not refer to the provisions of Order 34, in view of the fact that one of the reasons given by it for requiring the appellants to deposit the decretal amount in Court before they could obtain possession of the land was that the possession of the appellants on the land had its origin in the creation of a charge or a mortgage in favour of the respondents in lieu of the money which was due to them from the appellants, the decree passed by the Judicial Committee was tantamount to a decree passed in a suit for redemption under Order 34, Rule 7 and hence time fixed for payment can be extended. I do not agree that the decree can be regarded as a mortgage decree, but it appears to me that it is of the nature of a preliminary decree and hence time could be extended u/s 148, Civil Procedure Code. "What is important to note is that though the Judicial Committee gave the appellants six months to deposit the amount and ordered that they can get the possession of the land only if the deposit is made the judgment is silent as regards the effect of the appellant''s failure to deposit the amount. This makes me think that time fixed for the deposit was not the essence of the matter, and even though the deposit was not made within time the appellants'' right to obtain possession was not altogether lost. Different, however, would have been the condition if it had been laid down by the Judicial Committee that if deposit was not made within time the appellants'' suit for possession of the land shall stand dismissed or that they would be debarred from taking the possession.

It was urged by the respondents'' Counsel that when time is once fixed for performance of a certain act in a decree it cannot be extended u/s 148. This is no doubt the general rule, but ''there are exceptions to it. In this connection I cannot do better than to refer to a Bench decision of the Patna High Court. Surajmal Marwari and Another Vs. Bhubaneshwar Prasad and Others, . It was held that though the general rule is that where a party is required to do something under a decree and time-limit Is prescribed for doing it, the Court which passed the decree has no jurisdiction to extend the time limit but it is subject to the qualification that where the decree or order which fixes the time is not intended to be final and the Court still retains control over the proceedings, the Court may extend time u/s 148. It was further held that Whether the Court till retains control over the proceedings or not must be determined upon the nature of the proceedings and the order passed therein. In the present case, absence of any order on the part of the Judicial Committee that if the appellants do not deposit the amount within time they would lose right to obtain the possession of the land makes me think that; its intention was that their direction in so far as it related to the time fixed for the deposit of the amount was not final and it was intended that the Court should still retain control over the proceedings.

Reference might also be made to ''ABDUL SHAKER v. ABDUL RAHIMAN'', 46 Mad 148. This was a suit for specific performance of a contract for sale of land in which the trial Court had passed a decree directing the defendant to execute a conveyance on the plaintiff''s paying the price within a certain time. The defendant preferred an appeal from the decree and the plaintiff applied to the original Court for extension of time given by the decree before such time had expired and the Court had ordered the application to lie over pending the appeal. It was held by the High Court that the decree was in the nature of a preliminary decree where the Court kept control over the action and had full power to make any just or necessary order therein, including the extension of time limited by the decree. It was also held that the appellate Court had power to extend time limited by the original decree and that the original Court had still jurisdiction in the matter and had full power to deal with any point that might arise, including an application for further time. As in the present case in that case also emphasis was laid down on behalf of the defendant on the delay of which the plaintiff had been guilty in making the deposit. Schwabe, C.J., disposed of this plea in the following words:

Lastly it was contended, and this is a more difficult point, that as two years had elapsed from the date of the original offer of the money, the plaintiffs were too late in bringing this suit. It is a well-established principle that persons who desire the assistance of the Court in obtaining equitable relief must come quickly. In each case it is a question to be decided on the facts whether the delay on the part of the plaintiff is such that the Court ought not to exercise its powers. In this case, on the facts, I think that the delay should be excused, for on the evidence.

the plaintiffs were put off for sometime by the first defendant himself. The case has been brought very late, but in my judgment not late enough to compel us to refuse relief, it not being shown that the defendant has been prejudiced.

These remarks can apply to the present case, because it was mostly because of the objections raised by the respondents that time for deposit of the amount had elapsed that the Court did not call upon the appellants to deposit the amount when they applied for its directions and their application was thrown out as barred by limitation. Following these authorities I hold that time for deposit of the amount in this case could be extended.

The last question is whether the time can be extended by this Court. The case being of an exceptional nature, no clear authority is available to guide us but applying the principles enunciated in the Madras case and in view of the fact that though the time was fixed by the Judicial Committee it did so on the ground that this is what should have been done by the trial Court and consequently the proceedings remained under the control of the trial Court I hold that that Court as well as the Court of appeal had the power to extend the time. Since the trial Court did not take into consideration this aspect of the matter at all, in my judgment the power to extend time can be exercised by the Court in appeal.

In the result I would allow the appeal, set aside the orders of the Courts below and allow the appellants to make the deposit in question within one month from today. Taking into consideration the peculiar circumstances of the case I would leave the parties to bear their own costs throughout.

Gurnam Singh, J.

I agree.