B.U. Wahane, J.
1. The appeal from order is directed against the order passed by the Civil Judge, Senior Division, Margao on 30th April 1992 in an Inventory Proceedings No. 18910/75/A. By the impugned order the trial Court has revoked its order granting five days time to the appellant Shri Damodar Ramnath Alve to deposit the owelty money, cancelled earlier auction and has ordered a fresh auction to be held in respect of assets taken on auction by the appellant Shri Damodar.
2. The Inventory Proceedings not being akin to the provisions of other enactments, except in the territory of Goa, Shri Usgaonkar, the learned Senior Counsel for the appellant, has apprised this Court with the Portuguese Civil Procedure Code. Articles 1369 to 1447, under Chapter XVII, deal with Inventory Proceedings. Inventory proceedings are like that of succession. It deals with the succession, partition among the legal heirs. In the partition, if the parties are not given equal shares, under those circumstances to avoid jointness, they used to be offered a bid from the interested legal heirs to the other member/members. The purpose and the object of the inventory proceedings is that the property be retained in the family and the strangers should not create any interest in the property left by the deceased member of the family.
3. Being overwhelmed by the Portuguese Civil Procedure Code, I feel it my duty to quote the purpose and object behind the Portuguese Civil Procedure Code ( it be referred as P.C.P.C.). The P.C.P.C. is commonly known as 'The Code Napoleon'. It is stated that the Code is the outcome of teachings of the contemporaneous French, German and Italian jurists. Civil Code regulates matter relating to family, contracts, succession and property. This was universally followed by all communities, Hindus, Muslims and Christians. This Code has the unique distinction and the privilege of already having a 'Uniform Civil Code', as envisaged by the Founding Fathers of the Constitution under Article 44 of the Constitution of India, which equally governs and regulates the juridical relations of its citizens, irrespective of their race, sex, caste or creed.
The Code has, thus, proved to be a powerful weapon to create and forge a cohesive, well-knitted and homogeneous society with its citizens living in peace and harmony, as well as to strengthen that basic unit of the society - the family - by safe- guarding the interests of the children and of the widows. To some extent, therefore, the Code has fulfilled in the Territory of Goa, Daman and Diu that resolve so eloquently expressed in the Preamble of our Constitution to constitute India into a Secular Republic and to secure social and economic justice to all the citizens, equality of status and of opportunity and fraternity assuring the dignity of the individual. Justice Dr. G.F. Couto, Bombay High Court, on 19th December 1986 has rightly quoted in the 'Foreword' to the book 'Family Laws of Goa, Daman and Diu - Volume II' written by Shri M.S. Usgaonkar, Advocate :---
'The State shall endeavour to secure for the citizens a uniform Civil Code throughout the territory of India' so reads Article 44 of the Constitution, consistently following the resolve solemnly expressed in its preamble to constitute India into a Sovereign socialist Secular Democratic Republic and to secure to all its citizens social, economic and political justice, liberty of thought, expression, belief, faith and worship, equality of status and opportunity and to promote among them all fraternity, assuring dignity of the individual and the unity and integrity of the Nation. More than 35 years after, this salutary, far reaching and very important directive principle enshrined in the Constitution is yet to bear fruits and it unfortunately seems that this cherished goal so highly conducive to and decisive for the National integration still remains, despite all the efforts, in the realm of dreams and distant possibilities.'
The Hon'ble the then Chief Justice of India, Shri Y.V. Chandrachud while delivering the Inaugural Speech at the Conference held by the Goa, Daman and Diu Advocates Association on 'The Family Laws of Goa, Daman and Diu', stated as follows :-
'It is heartening to find that the dream of uniform Civil Code in the country finds the realization in the Union Territory of Goa, Daman and Diu only.'
4. After the Liberation of Goa on 19th December 1961, the Parliament of India passed the Goa, Daman and Diu Administration Act, 1962.
Section 5(1) of which reads as under :-
'All laws in force immediately before the appointed date in Goa, Daman and Diu or any part thereof, shall continue to be in force therein until amended or repealed by a competent legislature or other competent authority.'
The appointed date as per the Act is 20th December 1961 and the Civil Code of 1867 is an internal law. The Family Laws in force in Goa, Daman and Diu relating to marriage, divorce, children and succession are still in force. The Family Laws are primarily contained in the Civil Code of 1867. It is a self-contained Code containing the substantive law on the Civil side.
5. Articles 1369 to 1447, coming under Chapter XVII, deal with inventory proceedings. Inventory proceedings are not suits and they are distinct and separate proceedings from a suit as understood under the Civil Procedure Code. In suits, there are parties opposing each other. Unlike a suit where there is a plaintiff on one side and defendant on the other, in inventory proceedings all are only interested parties and either they are heirs or legal representatives or beneficiaries under gift or legatees under a Will. In Inventory, there is no decree passed, as in a suit. In the case of Zacarias Durate Domingos Pereira v. Camilo Inacio ` Pereira 1990(1) Goa LT 174, Hon'ble Mr. Justice G.D. Kamat, in paragraph 19 of the order at page 181 referred to the Judicial Commissioner, Shri Tito de Menezes' order dated 27th March 1980 in various Civil Appeals (including Apelacoes and Agravos), Review Applications, held that Inventory Proceedings as contained in Chapter XVII vide Articles 1369 to 1447 of the Portuguese Civil Procedure Code are not analogous to any proceedings under the Indian Code and Succession Act. He held that there is no part of the Indian Code which can correspond to that part of the Portuguese Civil Procedure Code which lays down the procedure for Inventory.
On page 181 of the Judgment cited supra, what is Inventory Proceeding has been quoted as :-
'Inventory proceedings are proceedings instituted for the administration of the estate of the deceased person. They provide for the preparation of the list of assets of the deceased, payment of debts, collection of credits of the estate, payment of legacies, distribution of liquid assets etc. These various steps cannot be carried out under the procedure laid down under the Indian Code, for suits.'
6. Shri Usgaonkar, the learned Senior Counsel, was kind enough to give the translated version of the definition of 'Inventory' from 'Treatise of Civil Code' by Dr. Luis da Cunha Gonsalves, Volume X page 590 :-
'The definition of Inventory is: Inventory is a complete description of assets and debts or of the estate of the inheritance and liabilities of the estate, in order that one or other, or the balance remaining after payment of debts, be divided amongst the successors of the deceased, or allotted to his sole heir.'
Further the translation was provided regarding the function of the inventory from the Manual - Forms of Delegate of Procurator of Republic, 1940 page 2 as under :-
'The function of the inventory is, it can be said, merely administrative, which means that its purpose is to divide and partition equally the estate amongst the interested parties, protecting the parties under disability against any causes which may be adverse to their interests.'
7. The brief facts leading to the Inventory Proceedings are as follows:
The Inventory Proceeding was instituted upon the death of the parents of the appellant, namely, Ramnath and Jankibai. They left many heirs. Amongst the properties, the properties listed under Item Nos. 1, 2 and 3 are immovable properties. For Item No. 1, highest bid was offered by Mangaldas. For Item No. 2, the appellant offered the highest bid. For Item No. 3, the bid was offered in the following manner :- 2/10 by appellant 4/10 by Laxmikant 3/10 by Ajit1/10 by Mangaldas
8. After auction, a chart was prepared and as per the chart, the appellant was to pay as owelty money a sum of Rs. 32,772.27 paise to Gajanan (respondent No. 2) and Rs. 69,392.58 paise to Gokuldas (respondent No. 1).
9. Undisputedly on 4th January 1989, learned advocate Shri C. Colaco representing Damodar R. Alve was notified for the purpose of Article 1417 of the Portuguese Civil Procedure Code (in short P.C.P.C.). The appellant Damodar made an application on 12th January 1989 (page 342) stating therein that he be exempted from the payment of owelty money until the decision of the Civil Suit No. 202/1986/A. The said application was dismissed by order dated 18th February 1989 by the learned trial Court and the appellant Damodar was notified of the said order on 22nd February 1989 through his advocate Shri Colaco. On 27th February 1989, the appellant Damodar made an application stating that the challans be issued to him to deposit the owelty money and the said challans were accordingly handed over to Damodar on 28th February 1989, which is apparent from page 352.
10. On 10th March 1989, the appellant Damodar filed an application (at page 355) stating that he is a transport contractor by profession and he is required to go with his truck to various places not only in Goa but in the neighbouring States, such as, Karnataka, Maharashtra and Andhra Pradesh etc. He further stated that the challans were issued to him, but during that period, the truck No. GDZ 7784 met with an accident and the challans issued to him by the Court were misplaced in transit with the result he could not deposit money in the Bank in time and, therefore, he prayed for 15 days time to deposit the money as also prayed for issuance of fresh challans. From the record it appears that on 10th March 1989 the notices were ordered to be given to the parties to give their say. From page 356 of the record, Advocate Borges (representing Gajanan Alve) and Advocate Abel Noronha (representing Gokuldas alve) conceded that the said Damodar be given time of 5 days to deposit the owelty money. The endorsement of the learned Counsel is dated 13th March 1989. Consequently the learned trial Court on 14th March 1989 at about 11.00 a.m. passed the order that the challans be issued, payable within five days. Subsequently on the very day an application was made by the learned Counsel of Gokuldas Alve for cancellation of the order passed by the Court at 11.00 a.m. After considering the contents of the application and hearing the learned Counsel representing Gokuldas Alve, at about 12.50 p.m., the trial Court rescinded the order passed at 11.00 a.m. and thereby declared the auction null and void.
11. The order passed by the trial Court on 14th March 1989 at about 12.50 p.m. being illegal as it had been passed behind the back of the appellant Damodar and without affording an opportunity to him, was challenged in this Court. This Court (Hon'ble Mr. Kamat, J.) allowed the Appeal from Order Nos. 49 and 55 of 1990 on 1st July 1991 with following directions :-
'The impugned order dated 14th March, 1989, made at 12.50 p.m. which is challenged in Appeal from Order No. 55/90 is quashed and set aside. The trial Court to give notice of the application filed by the respondent to the appellant and other interested parties and decide the matter in accordance with law.'
12. After remand the respondent No. 1 Gokuldas examined himself and his brother respondent No. 3 Ajit. The appellant Damodar examined himself, one lady by name Vency Almeida and a neighbour. After considering the evidence led by the parties and hearing the Counsel for the parties, the Civil Judge, Senior Division, Margao by the order dated 30th April 1992 held that the order passed on 14th March 1989 at 11.00 a.m. shall stand rescinded. Consequently, a fresh auction will have to be held in respect of the assets taken on auction by the said Damodar. This order dated 30th April 1992 is under challenge.
13. Shri Usgaonkar, the learned Senior Counsel for the appellant, Damodar, strenuously submitted that the trial Court has not assessed the evidence in true and correct perspective and has arrived at the erroneous finding to the effect that appellant Damodar has not proved the loss of the documents in the accident of the truck as stated in the application. It is further submitted that the respondent No. 1 Shri Gokuldas Ramnath Alve introduced the case to the effect that after the grant of time of 5 days to deposit the owelty money by order dated 14th March 1989 passed at about 11.00 a.m., the appellant Damodar came to his residence, threw the challans at him saying that they are of no use to him any more as fresh challans have already been issued. According to Gokuldas, he immediately contacted his Counsel, apprised him with the facts and hurriedly prepared the application, presented it before the Court and obtained the order at 12.50 p.m. rescinding the earlier order passed at 11.00 a.m. The evidence led by Gokuldas is highly improbable. According to the learned Counsel, since the challans were with Gokuldas the respondent No. 1, the onus was on him to show as to how the challans came in his possession. Further it is submitted that the trial Court was influenced by extraneous circumstances or considerations which is clear from the last paragraph of the order wherein the learned trial Court has considered the earlier proceedings of 14th March 1989. The only point before the trial Court was either to grant extension or not on the basis of the application filed on 10th March 1989.
14. The learned Senior Counsel further submitted that none of the parties, that is, the respondents have preferred an appeal. Even in case of ex parte order of extension of time, the remedy is available to the aggrieved party by way of appeal under Article 1435 of the P.C.P.C.. By order dated 1st July 1991 passed by this Court setting aside the order passed by the trial Court on 14th March 1989 at 12.50 p.m., consequently, the order earlier passed on the very day at 11.00 a.m. is allowed or is in force, which is undoubtedly not challenged by any of the respondents - interested parties in the appeal or resisted within 5 days after the notice was received. The trial Court has no jurisdiction and consequently the power to review its order. The other respondents the interesting owners were not noticed of the application dated 10th March 1989 because the respondents 3, 4 and 5, Ajit, Laxmikant and Mangaldas respectively, not being the interested parties. The payment was to be made to the respondents 1 and 2 viz., Shri Gokuldas and Shri Gajanan. As no objection was given by their Counsel, Court ought not to have reopened the issue. In paragraph 3 of the application which was subsequently filed by respondent No. 1 to rescind the order passed at 11.00 a.m. it is specifically stated as under :-
'The applicant in order to safeguard the interest of the said Damodar and to avoid unnecessary delay in these proceedings which are pending from the year 1975, agreed in conceding him 5 days time.'
In view of the specific statement as reproduced, the respondents cannot blow hot and cold in the same breath.
15. The learned Counsel for the appellant further submitted that at no time the respondents 1 and 2 made any application demanding the payment. In case of non-payment, the other parties, that is, respondents 1 and 2 are only entitled to claim the interest. The right extinguishes only when party, that is, the creditor moves the Court. The Article 1417(c) of Family Laws of Goa, Daman and Diu (Volume II) reads as under :---
'Those who have not taken the properties in elicitation and who are to be allotted the owelty money due by those who were successful in the elicitation, shall be notified to demand within three days the payment, if they so desire. If the demand is made the successful bidder shall be notified to deposit the amount failing which the elicitation will be of no effect.'
In Clause (c) of Article 1417, the words 'If the demand is made the successful bidder' means that the creditor has to approach the Court. It is the option of the party whether to demand the money or not. It is not mandatory. In this case the interest is of only the respondents 1 and 2 to direct the payment to the appellant and no other co-sharer has any right to make a demand. Therefore, according to the learned Counsel for the appellant, by granting time, right of others not affected. It is the exclusive right of the creditor/creditors, in this case it is the right of the respondents 1 and 2, whether to grant time to make the payment.
16. Shri Usgaonkar, the learned Senior Counsel, has, therefore, submitted that the learned trial Court has not considered all the aspects while cancelling the earlier order passed at 11.00 a.m. on 14th March 1989 and directing fresh auction.
17. In reply to the submissions made by Shri Usgaonkar, the learned Senior Counsel, Shri Mulgaonkar, the learned Counsel for the respondents 1, 3 and 4, on the first proposition regarding the trial Court's powers to review its order if fraud is committed or the Court is misled, the Court which passes the order is competent to review its order. Reliance is placed on the case of Dadu Dayal Mahasabha v. Sukhdev Arya and another, reported in : (1990)1SCC189 . According to the Civil Procedure Code, the Court has inherent power under section 151 and in exercise of that power, can vacate its own order obtained by fraud or misrepresentation.
In the case of Basantgowda Hanmantgowda Patil v. Churchigirigowda Yogangowda I.L.R. 34 Bom. 408 equivalent to 12 Bom. L.R. 223 the Lordships observed that :
'It is the inherent power of every Court to correct its own proceedings when it has been misled.'
Similar was the view of the Calcutta High Court in several decisions mentioned in Sadho Saran Rai v. Anant Rai, reported in A.I.R. 1923 Pat 483.
I find considerable force in the submission made by Shri Mulgaonkar, the learned Counsel for the respondents and thereby, according to him, the learned trial Judge has not committed any illegality while exercising his power to correct his original proceedings.
18. In respect of second proposition regarding the last paragraph of the application filed by the respondent on 14th March 1989.
It is vehemently argued that the averments made in paragraph 3 amounts to admission. I have perused the original application. The application was filed by the learned Counsel who has given no objection on the application filed by the appellant on 10th March 1989. The averments made in paragraph 3 relates not to the admission of the party but depicts the opinion of the learned Counsel who has given 'no objection'. At the most it can be said to be a concession regarding the early disposal of the matter. No doubt the application was not happily drafted. The reason assigned for this is that there being urgency, all details or averments were not made. It is true that in this application dated 14th March 1989 no fraud is alleged against the appellant but the averments made on the second page of the application in paragraph 1 reads as follows :-
'However, the applicant came to know that all the facts alleged by the said Damodar are completely false and mischievous as also the fact that the challans issued by this Court were lost.'
Further the applicant adverted in the application as follows:-
'To prove his assertion, the applicant produces herewith all the 4 copies of the challans issued by this Court, in xerox and undertakes to produce their original, as and when necessary. '
It is the case of the respondent No. 1 Gokuldas that after the order came to be passed on 14th March 1989 at 11.00 a.m., the appellant Damodar along with Ajit Ramnath Alve came to his house, threw the original challans at him (Gokuldas) and directed him to eat those challans. After considering the averments made by the learned Counsel for respondent No. 1 Gokuldas, the learned trial Judge passed the following order at 12.50 p.m. :-
'As original challans are produced by Gokuldas Ramnath Alve alleging that challans are not lost but they were thrown on him by said Damodar Ramnath Alve, I rescind order granting him 5 days passed on 14-3-89, i.e. today at 11.00 a.m.Auction declared null and void in above circumstances.
Sd/
M.D. Kamath,
C.J.S.D.
12.50 p.m.'
19. At this stage itself it needs to be mentioned that the appellant Damodar in the application presented on 10th March 1989 sought 15 days time to deposit the money and to issue fresh challans. In paragraphs 2 and 3 of his application he has specifically stated that he being a transport contractor, plying his truck not only in the Territory of Goa but also in the adjoining States, his truck No. GDZ-7784 met with an accident and the challans issued by this Court were misplaced in transit.
Shri Mulgaonkar has rightly submitted that no evidence was placed by the appellant Damodar to substantiate that his truck No. GDZ-7784 met with an accident. Even no details are given of the accident - the date, month and year and the place where the truck met with an accident. Though the challans were produced by respondent No. 1 Gokuldas in the Court, it was incumbent on the appellant to lead evidence how respondent No. 1 Gokuldas came in possession thereof, if not as stated by respondent No. 1 Gokuldas. It is definitely not the case of the appellant that when the truck met with an accident, the respondent No. 1 Gokuldas was either in the truck or thereafter arrived near the place of the accident. In absence of any evidence led by the appellant, the testimony of respondent No. 1 Gokuldas is trustworthy. As soon as the appellant Damodar received the order regarding issuance of fresh challans granting 5 days time to deposit the money, Damodar came to his house along with his brother Ajit and threw the challans at him. No circumstance brought on record to show that the respondent No. 1 Gokuldas is not a reliable witness, Ajit supported the version of Gokuldas.
20. As regards the submission of Shri Usgaonkar, the learned Senior Counsel, that the learned trial Court's findings are based on extraneous material, according to Shri Mulgaonkar, there is no substance in this submission. This Hon'ble Court in Appeal from Order Nos. 49 and 55 of 1990 directed the trial Court to enquire a-fresh and consequently the learned trial Court was bound to consider all the aspects according opportunity to the parties. It is further submitted that the trial Court inspite of particular directions by this Court of fresh enquiry, the complementary or supplementary application filed by respondent Gokuldas was rejected. Order paragraph 9 is as under :-
'9. In my opinion, the applicant Gokuldas R. Alve is not entitled to file any complementary (or supplementary) application, which he has filed on 2-8-1991 at page 408, since there is no scope for such an application pursuant to the order of the Hon'ble High Court, and as such, the same is liable to be dismissed.'
It is rightly submitted that in this regard the findings recorded in paragraph 9 of the order, by the learned trial Court are erroneous.
21. Shri Mulgaonkar, the learned Counsel for the respondents, submitted that the scheme of the Act does not provide extension of time alike in Civil Procedure Code, Limitation Act, etc.. In the Civil Procedure Code or the Limitation Act, if sufficient cause is shown, the time is extended. Such provision is unknown to the Code. If a party wants any extension for payment, he has to put a just cause or impediment as to why the money was not deposited within the stipulated time of 5 days. Article 146 reads as:-
'The term is dilatory or peremptory. The course of the peremptory term makes the extinguishment of the right to practise the respective act, save case of just impediment.
1973 L I.C. 1310
Shanmugham Chettiar and others,
Sankatha Singh and another,
48
151