MEERA SAHIB LABBA MOHAMED ALI Vs. MEERAVU HAJEE

JUDGEMENT

(1.) The matter arises in execution of the decree and the decree holder auction purchaser is the appellant.

(2.) The decree in the case was on foot of a hypothecation bond executed by the defendants 1 to 3. In execution thereof, items 1 and 3 which belonged to the 2nd defendant judgment - debtor were sold in execution on 30-8-1950 when they were purchased by the plaintiff decree holder, in full satisfaction of the decree. Within 30 days of the sale, viz. on 28-9-1950 the 2nd defendant applied under O.21 R.87, Travancore Civil Procedure Code corresponding to O.21 R.90 of the Indian Civil Procedure Code, to set aside the court sale on ground of fraud and material irregularity. On the next day 29-9-1950, the respondent who had purchased the properties in execution of his own money decree filed similar application. These applications were however not proceeded with in view to a stay order obtained by the 2nd defendant in C. M. A. 84 of 1950, taken by him before the District Court against an order under O.9 R.13, refusing to set aside the ex parte decree as against him. The District Court, by order dated 5-2-1951, allowed the C.M. appeal on condition that a sum of Rs. 15 was deposited by the 2nd defendant towards the costs of the plaintiff. The 2nd defendant did not nuke the deposit as directed and so the C. M. Appeal was dismissed on 28-2-1951 This order was not communicated to the executing court. But about five months later, on 23-7-1951, the 2nd defendant filed a memo in that court stating that the C. M. Appeal stood dismissed. The executing court thereupon took up the petitions to set aside the sale filed by the 2nd defendant and the respondent and as the first step towards their trial called for payment of process fees for issue of notice to the 1st defendant. And because default was committed in spite of successive postings, the court dismissed both the petitions on 1-9-1951. The confirmation of the sale soon followed and the decree holder took delivery from the 2nd defendant on 19-11-1951. The 2nd defendant acquiesced in these proceedings but the respondent on 6-12-1951 applied to the court for restoration back to the file, of his petition to set aside the sale, on the plea that he had no notice of the earlier postings and there was really no default on his part. The executing court found that the circumstances under which the respondents petition had been dismissed were rather suspicious and so passed order restoring the petition on 11-10-1954. In appeal before the District Court, the decree holder auction purchaser took the point that the petition for restoration filed by the respondent on 6-12-1951 was not maintainable in the absence of any provision therefor in the Indian Civil Procedure Code which had come into force by 1-4-1951 even before such petition was filed. The District Court however held that with the change in the procedure introduced before the petition was disposed of, viz., on 14-5-1952, by the local amendment under O.21 R.104 and 105 in the First schedule of the Indian Civil Procedure Code, the restoration application could well be entertained, the delay in the filing thereof being also condoned. The appeal was accordingly dismissed. Hence this second appeal by the decree holder auction purchaser as abovesaid.

(3.) It will be convenient at this stage before dealing with the contentions on either side, to notice the changes in the law bearing on the matter, as and when they took place. In the Civil Procedure Code in force in the Travancore jurisdiction wherefrom the case arose, there was to begin with, no provision in O.21 (dealing with execution of decrees and orders) empowering the court to apply the provisions of O.9 (dealing with appearance of parties and consequence of non appearance). And the courts also held the view, along with most other High Courts that S.105 (corresponding to S.141, Indian Civil Procedure Code) could not enable such application. At the same time the courts did not feel themselves powerless to exercise their inherent powers in regard to the restoration of execution petitions dismissed for default. See Ouseph v. Varkey, 1946 TLR 481. But this resort to inherent jurisdiction was obviated by the introduction on 16-10-1120 of a new R.15 in O.9 of the Travancore Civil Procedure Code which provided that R.6, 13 and 14 shall apply mutatis mutandis to proceedings in execution falling within S.40 C P. C. (corresponding to S.47, Indian Civil Procedure Code) in which notice to the opposite side is required under the provisions of the Code. The number 6 was apparently a mistake for 9 in the above rule. The Civil Procedure Code Amendment Act II of 1951 (Central) which came into force on 1-4-1951 repealed the Travancore Civil Procedure Code subject however to certain savings contained in S.20 thereof. On 14-5-1952, two new R.104 and 105 were introduced in O.21 of the Indian Civil Procedure Code as applicable to the State. These rules provided that dismissals for non prosecution could be had in respect of petitions in execution but that such dismissals could themselves be set aside on petitions therefor if sufficient cause was shown and further that S.5 of the Indian Limitation Act should apply to these petitions for restoration. It is clear from the above narration that at the time when the execution proceedings which led to the court sale and the petition to set it aside, were initiated, O.9 R.15 of the Travancore Civil Procedure Code was in force; that the Indian Civil Procedure Code unaffected by any local amendment was in force when the respondent filed his restoration application and lastly the Travancore - Cochin R.104 and 105 of O.21 had come into force when the respondents petition for restoration was taken up for disposal and actually disposed of.