Judgment:
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE6H DAY OF APRIL, 2015 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR EXECUTION SECOND APPEAL NO.2/2015 BETWEEN: B.KASHINATH CHOUDHARY S/O.BYADAGI GANGADHARAPPA CHOUDHARY, AGED ABOUT65YEARS, TILAR ROAD, SAGAR. LR OF RATHNAMMA SHOWN AS JD IN EX. PETN. 45/2011 AND HE HAS FILED RA342013 …APPELLANT (BY SRI.ANANT V. ALBAL, ADV.) SMT.SAVITHRAMMA W/O.K.MUKUNDAPPA AGED62YEARS GOVINDA S/O. K.MUKUNDAPPA AGED ABOUT40YEARS DATTATRAYA S/O. K.MUKUNDAPPA AGED ABOUT38YEARS SMT.SUMA D/O.K.MUKUNDAPPA AGED ABOUT30YEARS SMT. VANI.K. D/O.K.MUKUNDAPPA AGED ABOUT28YEARS AND:
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5. 2 SRI.MOHAN SHET S/O.KESHAVA SHET AGED ABOUT61YEARS R/O. TILAK ROAD, SAGAR. ALL ARE RESIDENTS OF JAYBHARATH RICE & FLOUR MILLS, HOSPET ZHAKKALU, SORABA TOWN.
6. 7.
8. SRIDHAR GUPTA S/O.SHESHAPPA AGED ABOUT65YEARS NAGARESHWARA TRADERS TILAK ROAD, SAGAR. SRI.KASHINATH S/O.KESHAVA SHET AGED ABOUT59YEARS R/O. TILAK ROAD, SAGAR TOWN, SAGAR. ... RESPONDENTS (BY SRI.HARISH KUMAR.M.S., ADV. FOR C/R1-R5) EXECUTION SECOND APPEAL IS FILED U/SEC.100 OF CPC R/W CHAPTER VI A OF KARNATAKA HIGH COURT RULES, 1959, R2b), AGAINST THE JUDGMENT
DATED1103.2013 PASSED IN EXECUTION CASE NO.45/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR. DN.), SAGAR, ALLOWING THE EXECUTION PETITION FILED BY THE DECREE HOLDERS THEREIN. EXECUTION SECOND APPEAL COMING ON FOR ORDER
S THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORDER
S ON OFFICE OBJECTIONS Heard Sri.Anant V. Albal, learned counsel appearing for appellant. 3 2. Registry has raised following objection: “(1) How Ex.SA is maintainable against an order dt:
11. 3/13 passed by Prl. C.J.
and JMFC at Sagar in Ex 45/11 filed U/O21rule 11 of CPC to be clarified.” 3. In reply to said objections, learned counsel appearing for appellant has endorsed to the following effect: “Originally the matter was filed as Writ Petition I No.4967/2015 (GM-CPC) and was posted before CH-19 – Hon’ble Justice Sri.L.Narayan Swamy. When the Advocate Shri.Hairsh Kumar contended that only Ex.S.A. is maintainable as per Kar. H.C. Rules. Accordingly, the Writ Petition was withdrawn on 12.03.2015 before that Court with Liberty to move as Ex.S.A. and it was granted. Accordingly this Ex.S.A. is filed. Kindly refer to H.C.Rules pertaining to RSA & one sub section specifically states that from orders in Ex. petition RA lies and Ex.S.A. lies treating order is Ex. Petition as decree.” 4. In furtherance to above endorsement, he would draw the attention of this Court to The High Court of Karnataka Rules, 1959 (as amended) (hereinafter referred to as “Rules” for short) and in particular to Rule (2)(b) of Chapter VI to contend that present second appeal is maintainable and as such, he 4 seeks for rejecting the office objection and upholding the reply submitted to office objection and prays for examining the second appeal on merits and in accordance with law.
5. In the background of contention raised by Sri.Anant V. Albal, learned counsel appearing for appellant, it would be necessary to state few facts which has led to filing of this second appeal.
6. Appellant herein is the judgment debtor in Execution No.45/2011 and objected to the decree passed in O.S.No.28/1986 put into execution in Execution case No.45/2011, contending interalia that he has preferred a regular second appeal in RSA No.2695/2011 and complicated questions of law are involved and they will be put to great loss and hardship if decree passed in O.S.No.28/1986 is executed. Said plea was opposed to by the decree holder and as such, Executing Court having examined as to whether objection raised by judgment debtor is tenable in the eye of law, negatived the said contention by order dated 5 11.03.2013 after noticing that RSA No.2695/2011 had been dismissed by this Court on 30.07.2012.
7. Being aggrieved by this order an appeal came to be filed in R.A.No.34/2013 before Senior Civil Judge, JMFC, Sagar. After considering the rival contentions Lower Appellate Court has rejected the appeal and affirmed the order passed by the Executing Court by its order dated 22.11.2014. Correctness and legality of these two orders has been assailed in this second appeal. As already noticed hereinabove, registry has raised an objection with regard to maintainability of this second appeal.
8. Sri.Anant V. Albal, learned counsel appearing for appellant has sought for over ruling said office objection on the ground that Chapter VI of Rules framed by this Court enables an aggrieved party namely a person who is aggrieved by a decree or deemed decree passed by the Executing Court in exercise of its power under Section 47 CPC, to file a second appeal against 6 such order and draws his support from Rule (2)(b) Chapter VI of Rules, 1959.
9. In that view of the matter, it would be necessary to extract Rule (2)(b) of Chapter VI of The Karnataka High Court Rules, 1959, which came into effect from 06.10.1959 and it reads as under: “CHAPTER VI Appeals [1. Appeals presented to the High Court shall be classified as follows: (1) (a) xxxx (2) (b) Execution First Appeals, that is, First Appeals against original orders determining questions under Section 47 of the Code of Civil Procedure deemed to be decrees; xxxx (a) (b) Execution Second Appeals, that is, Appeals against appellate orders determining questions under section 47 of the Code of Civil Procedure deemed to be decrees.” (emphasis supplied) 10. A bare reading of Rule 1(b) would indicate that against original decrees determining questions 7 under Section 47 of CPC, Execution First Appeals lies and against Appellate Orders determined in Appeals, Execution Second Appeals lies. The words used in these two rules is with reference to decrees i.e., “deemed to be decrees”. The word “decree” has been defined under Section 2(2) of Code of Civil Procedure, 1908 as under: “2. Definitions.—In this Act, unless there is anything repugnant in the subject or context- (1) (2) xxxx “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [Omitted by Act 104/1976, w.e.f. 1.2.1977]. or Section 144, but shall not include -- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.” Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely 8 It is disposed of. final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; 11. The Code of Civil Procedure has undergone amendment namely, Parliament by amending the Code of Civil Procedure by Act 104 of 1976, with effect from 01.02.1977 has deleted the words “Section 47 or” from definition clause Section 2(2). Prior to said amendment the words “Section 47 or” was found in the definition clause of Section 2(2) of CPC and it came to be omitted by Act 104 of 1976 or to put it differently said words has not remained in the statute with effect from 1.2.1977.
12. The Scheme of Chapter VI of said Rules provides for filing of appeals which also includes its classification thereunder. Rules 1(a) (b) and (c) would indicate the classification of Regular First Appeals, Execution First Appeals and Misc. First Appeals. Rule 2(a) (b) & (c) would indicate the classification of Regular Second Appeals, Execution Second Appeals and Misc. Second Appeals. In the instant case this Court is 9 concerned with Rule 2(b). A bare perusal of said Rule would indicate that against appellate orders, determining questions under Section 47 of the Code of Civil Procedure which are deemed to be decrees, an Execution Second Appeal lies to this Court. In other words said rule provides for filing a second appeal against the appellate order passed by the First Appellate Court determining questions under Section 47 of CPC. The definition Clause in Section 2(2) of CPC having undergone amendment and the words “Section 47 or” having been omitted from the said definition clause w.e.f 1.2.1977 then necessarily Rule 2(2) of High Court Rules will have to yield to substantive law, since Rule is a procedural law. As such, this Court is of the considered view that mere presence of words “deemed to be decrees” in Rule 2(b) of Rules, ipso-facto does not enable an aggrieved person to file an appeal against the order passed by the Appellate Court determining questions under Section 47 of CPC, particularly when the words “Section 47 or” having been consciously deleted by the Parliament from the definition clause “decree”. Hence, 10 this Court is of the considered view second appeal would not be maintainable under Rule 2(b) of Rules against an order passed by the Appellate Court determining questions under Section 47 of CPC.
13. Above view is also fortified by the law laid down by this Court in the case of BASAPPA vs. H.K.SATYANARAYA SETTY reported in ILR (1978) 2 KAR1712whereunder it came to be held as follows: “No appeal could have been filed against the order of the executing court after 1st February 1977. It is open to the petitioner if he is so advised, to file a C.R.P. against the order of the executing these observations this petition is rejection.” Court. With 14. Yet again this Court in the case of VEERAPPA.H vs CHANNABASAPPA LAKSHMESWAR reported in 1983 (1) KLJ210following Sathyanarayana Setty’s case has held as under: “4. Sri.M.R.Achar learned counsel for the revision petitioner, contended the appeal against the order of the Munsiff was not at all competent as the petition had been filed by the judgment – debtor under S. 47 CPC read with S. 4(a) of the Karnataka Debt Relief Act. There appears to be considerable that 11 force in this contention. The definition of ‘decree’ as it stood prior to the amendment of 1976 reads: “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and determination of any question within Section 47 or Section 144, but shall not include…” By the amendment Act 104 of 1976, the words ‘section 47” have been omitted from the definition of “the decree”. The learned author Mulla, in his Code of Civil Procedure, 14th Edn., Vol. I Page 23, says :
5. passed in only or was “These controversies whether an order execution proceedings was tantamount to a decree an interlocutory order arose by reason of the words “section 47” occurring in the definition of decree. The omission of these words by the Amendment Act, 1976 means that such orders even though they are made under Se. 47 are not decrees and therefore not appealable. (see Md. Khan of Travancore AIR1978Ker. 201; State Bank vs. 12 Mohan Das vs. Kamala Devi, AIR1978Raj. 127).
15. In fact, Division Bench of High Court of Mumbai in the case of RAMESHKUMAR SWARUPCHAND SANCHETI AND ANOTHER vs. RAMESHWAR VALLABHRAM BHATWAL AND ANOTHER reported in AIR1983BOMBAY378has extensively delved upon the implication of the words as “Section 47 or” having been deleted from the definition clause of Section 2(2) of CPC and held as under: “2(2) the regards the “decree’ means “4. The ‘term’ decree is defined by S. 2(2) Civil P.C. The definition as it stood before amendment of 1976 read as under: formal expression of an adjudication which, so far as it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 47 or S. 144, but shall not include – expressing court (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation …….” 13 of decree the In our opinion there is much substance in the contention raised by Shri Jhaveri, the learned counsel for petitioners – plaintiffs. By the Amending Act No.104 of 1976 the words ‘S47or’ are omitted. The omission of words ‘S. 47 or’ from S.2(2) of the Code is not accidental but is deliberate and intentional. From the report of the Joint Committee it is clear that the committee took note of the fact, that since the definition included determination of any question under S. 47, an appeal and second appeal would lie against such a determination. Therefore in its report the Committee expressed the view that this provision of the Code was mainly responsible for the delay in execution of the decrees. This was reasons why Committee recommended that these words should be omitted, so that the determination of any question under S47may not amount to a decree. Even under unamended definition as status of decree was given to such determination, by creating a deeming fiction. Therefore as a result of omission of words ‘S. 47 or’ and S. 97 (3) by the Amending Act 104 of 1976, the said status is no more available to the order passed under S. 47 of the Code, hence no appeal is maintainable against such a determination,. Any other construction will defeat the very object and intention of the Legislature. Then comes S. 97 of Act No.104 of 1976 which is repealing and saving clause, and on which reliance is placed by Shri Abhyankar. The relevant provisions of the said sections read as under: “97 (1) Any Amendment made, or any provision inserted in the Principal Act by a State Legislature or (1) Repeal and Savings – 14 a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by the Act, stand repealed. “97 (2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-s. (1) has taken effect, and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897 (10 of 1897). “97 (2) (a) The amendment made in Cl. (2) of S. 2 of the Principal Act by S. 3 of this Act shall not affect any appeal against the determination of any such question as is referred to in S.47 and every such appeal shall be dealt with as if the said S. 3 had not come into force : Then comes S. 97(3) which reads as under: “97(3). Same as otherwise provided in sub-s. (2), the provisions of the Principal Act, as amended by this Act shall apply to every suit, proceeding appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, cause of action, in pursuance of which such suit proceeding appeal or application is instituted or filed, had been acquired or had accrued before such commencement.” 16. Thus, it cannot be said that after the amendment of Civil P.C.5 of 1908 by Central Act 104 of 1976 all pre-existing State and High Court amendments 15 stood obliterated unless fresh amendment, by the State Legislature or a High Court is made after February 1, 1977 reserved for consideration and received the assent of the President. The condition precedent to bring about repugnancy should be that there must be an amendment made to the Principal Act under Central Law and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Thus if the Central Law and the State Law or a provision made by the High Court occupy the same field and operate in collision course, the State Act or provision made in the Order by a High Court being inconsistent with or in other words being incompatible with the Central Act, it becomes void unless it is re- enacted, reserved for consideration and received the assent of the President after the CPC Amendment Act 104 of 1976 was made by the Parliament i.e., September 10, 1976”.
17. In the case on hand the decree holders have filed Execution Petition under Order 21 Rule 11 of CPC16for executing the decree obtained by them in O.S.No.28/1986 to which appellant has objected to as already noticed hereinabove. For the simple reason that first appeal or second appeal is not maintainable against an order passed by the executing Court allowing the execution petition, office objection could have been sustained. However, on account of such appeals being presented quiet often by judgment debtors contending it is an objection raised under Section 47 of CPC, it has become necessary for this Court, delve upon the applicability of High Court Rules, 1959 as discussed herein above.
18. In view of aforestated discussion, this court is of the considered view that neither 1st appeal nor 2nd appeal lies against an order passed under section 47 determined by the Executing Court or Appellate Court. In view of this legislative amendment having not been noticed by the High Court, registry is directed to place this matter before the Hon’ble Chief Justice to enable his lordship to consider the issue with regard to amending The High Court of Karnataka Rules, 1959, 17 Chapter VI by virtue of definition clause of Section 2(2) in Code of Civil Procedure having undergone amendment and words “Section 47 or” having been deleted.
19. For the reasons aforestated it is held that second appeal is not maintainable and as such, office objection requires to be sustained. Accordingly, it is sustained. Hence, I proceed to pass the following: ORDER
(i) Execution Second Appeal is hereby dismissed as not maintainable by upholding office objections. (ii) Appellant would be at liberty to initiate appropriate proceedings before appropriate forum for the reliefs claimed in this Execution Second Appeal. (iii) All contentions on merits are kept open. 18 (iv) Registry to take steps forthwith as observed in paragraph No.18 hereinabove. Sd/- JUDGE DR