GAJADHAR RAMCHANDRA AGARWAL Vs. ABDUL MUNAF MAHEMUDMIYA

JUDGEMENT

(1.) THE question raised in this revision application is whether if any proceeding under Order XXI, Rule 58, of the Code of Civil Procedure involves issues which are required to be settled, decided or dealt with by any authority competent to -settle, decide or deal with such issues under the Bombay Tenancy and Agricultural Lands Act, 1'958, the Civil Court has to stay the proceeding and refer such issues to such competent authority for determination.

(2.) THE applicant obtained a compromise decree against opponent No. 1 Abdul Munaf for the payment of the sum of Rs. 3,000 with interest. The amount was made payable by instalments. Before the first instalment was due, the judgment -debtor took proceedings under the Bombay Execution of Decrees (Temporary Postponement) Act, 1959 for the stay of execution. That application was rejected. The applicant thereafter filed an application for execution against opponent No. I for realising the amount tinder the consent decree. During the pendency of these proceedings, opponent No. 2 filed an application purporting to be one under Order XXI, Rule 58, of the Civil Procedure Code praying that pending his application, the sale be stayed. It was the contention of opponent No. 2 that he had taken the field on lease from opponent No. 1 three years before his objection and that he was a protected lessee of the said field and had become a statutory owner of the property in question long before the decree in the suit filed by the applicant came to be passed. He alleged that the property belonged to him and, therefore, it cannot be attached and sold in execution of the decree against opponent No. 1. This application under Order XXI, Rule 58, Code of Civil Procedure, was opposed by the applicant and the alleged tenancy was denied. The executing Court without making any enquiry referred the points to the Tenancy Court for a decision as to whether opponent No. 2 was a protected tenant and stayed the execution proceedings. It is against this order that the applicant has filed this revision application.

(3.) THE word 'suit' has not been defined in the Bombay Tenancy Act nor in the Code of Civil Procedure, However, a clue to the meaning of the word 'suit' can be found by reference to the provisions of the Code of Civil Procedure, where this term has been given a meaning. Particularly, reference can be made to Rule 1 of Order IV of the Code of Civil Procedure which states 'Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. From this provision, it is apparent that a suit has to be initiated by the presentation of a plaint to a Civil Court and when such a proceeding is initiated, that proceeding is a suit. An execution application for executing a decree of the Civil Court is not initiated by the presentation of a plaint, as the word is normally understood. Execution, application is an application made to the Court for working out the rights given in the decree, whereas by the initiation of a suit by filing of a plaint the rights between the parties have got to be determined. The other provisions in the Code of Civil Procedure, namely, those in Order V and at many other places give a similar clue. In the Bombay Tenancy Act itself Section 125 makes a reference only to the suit itself and not to any other proceeding and that too a suit instituted in any Cavil Court. In Section 127 of the same Act, words used are: 'No suit or other legal proceeding.' The Act, therefore, itself makes a distinction between a suit which is normally understood to be a proceeding instituted by the presentation of a plaint and other legal proceeding. The word 'suit', therefore, used in Section 125 of the Act would not include an execution proceeding which is filed under Order XXI of the Code of Civil Procedure.