BARKAT RAM Vs. BHAGWAN SINGH

JUDGEMENT

(1.) The question which falls to be determined in this case is whether a certain order made by the High Court of Lahore can be regarded as a decree or final order within the meaning of Section 109, Civil P.C.

(2.) The facts of the case appear sufficiently from the judgments recorded in Bhagwan Singh V/s. Barhat Ram A.I.R. 1943 Lah. 129 and Barhat Ram V/s. Bhagwan Singh A.I.R. 1943 Lah. 140. It appears that as long ago as the year 1923 the Senior Subordinate Judge of Ambala passed a decree for the recovery of a sum of Rs. 68,000 odd in favour of Rai Bahadur Benarsi Das against the Bbarat National Bank Limited, Ambala, as principal debtor and against Lala Barkat Ram and certain other persons as sureties. The decree-holder presented the first application for execution on 26 April 1927, but this application was consigned to the record- room in 1931. On 19 August of that year, the decree-holder assigned the decree to one Sardar Bhagwan Singh and about a year later one Senior Subordinate Judge of Ambala transferred the decree to the Senior Subordinate Judge of Delhi without complying with the formalities of Rule 5 of Order 21, Civil P.C. On 12 January 1933 the assignee presented an application for the execution of the decree and on 21 October 1935 "the right, title and interest" of Barkat Ram in a partnership between himself and one Sardar Dharam Singh was sold. On 22-4- 1939, Barkat Ram presented an application under Section 47 in which he raised two objections. The first was that all proceedings taken in the Court of the Senior Subordinate Judge at Delhi were wholly without jurisdiction as the decree passed by the Senior Subordinate Judge, Ambala, had not been transferred to the District Judge, Delhi, for execution in that Province as it should have been under Order 21, Rule 5, but had been transferred direct to the Senior Subordinate Judge, Delhi, in contravention of the express provisions of that rule. The second objection was that the application for execution presented on 12 January 1933 was barred by time inasmuch as the first application filed on 26 April 1927 had been presented more than three years after the High Court decree. The Senior Subordinate Judge overruled these objections and confirmed the sale. Lala Barkat Ram appealed to the High Court. Din Muhammad, J. allowed the appeal holding (a) that the objection in regard to jurisdiction was well founded inasmuch as the provisions of Order 21, Rule 5 had been clearly contravened; (b) that the plea that the first application was barred by time could not be raised after the lapse of six years during: which proceedings in the second application had been going on; (c) that the proclamation of sale was defective and (d) that the petitioner had been materially prejudiced by the irregularities committed. He accordingly set aside all proceedings taken on the transfer certificate in the Delhi Court including the sale which he declared to be null and void and dismissed the execution application. The decree-holder was dissatisfied with the order and preferred a Letters Patent appeal which came up for consideration before Tek Chand and Beckett, JJ. The learned Judges came to the conclusion that it was not a case of inherent lack of jurisdiction but merely of an irregularity in the initial procedure and that Lala Barkat Ram was not entitled after the lapse of so long a period to dispute the jurisdiction of the Delhi Court. They upheld the finding of the learned Single Judge that the plea of limitation was belated and could not be allowed to be raised at that stage. They held further that the proclamation of sale was absolutely misleading and that a sale conducted in pursuance of a proclamation of this kind was nothing but a farce. As a result of these findings, the learned Judges reversed the decision of the Single Judge, set aside the sale and remanded the case to the District Judge of Delhi for issuing a fresh proclamation and holding a fresh sale: Bhagwan Singh v. Barkat Ram A.I.R. 1948 Lah. 129.

(3.) Lala Barkat Ram was dissatisfied with this order and applied for permission to appeal to His Majesty in Council. He alleged that although the judgment had not finally determined the execution application and the case had been remitted to the executing Court for further proceedings, it was really a composite judgment consisting of (a) an order that the proceedings in. the Delhi Court were without jurisdiction, (b) an order that execution was within time, and (c) an order setting aside the sale held on 21 October 1935 and directing a fresh sale to be held. It was argued on his behalf that the orders in (a) and (b) were each tantamount to a decree and that so much of the judgment as dealt with these matters was appealable to His Majesty in Council. The Full Bench (Tek Chand and Bhide, JJ., Beckett, J. dissenting) came to the following con elusions, that is to say: (a) that the judgment of the Letters Patent Bench could not be split, up in the manner suggested so as to treat the findings on some of the points, namely, those of limitation and jurisdiction as decree and those on the others namely, objections to publication and conduct of sale as mere orders; (b) that the findings on the questions of jurisdiction and limitation even if they could be regarded as separate entities distinct from the rest of the judgment, could not be treated as decrees; (c) that the order of Letters Patent Bench was not a decree within the meaning of Clause (a) of Section 109, Civil P.C., and (d) that as the execution application was still pending and was a "live" application the order of the Letters Patent Bench could not be regarded as final order within the meaning of Section 109(a), Civil P.C. In view of these findings; the Full Bench held that although the value of the subject-matter in dispute in the Court of first instance as well as in the proposed appeal was over Rs. 10,000 and the order of the Division Bench was one of reversal of that of the learned Single Judge, Lala Barkat Ram had not been able to establish that the order of the Division Bench was a "decree" or a "final order" within the meaning of Clause (a) of Section 109. The application for leave to appeal to His Majesty in Council was accordingly dismissed; Barkat Ram v. Bhagwan Singh A.I.R. 1943 Lah. 140. Barkat Ram then applied direct to His Majesty in Council for special leave to appeal but this application too was refused.