Dhanamma Vs. Kamalamma - Court Judgment

Excerpt:
civil procedure code, 1908 (central act no. 5 of 1908) - order 22 rule 9 - 'assignee' includes mortgagee: application by mortgagee maintainable - order refusing to set aside abatement: appeal lies - order allowing application: revision.;(i) the word 'assignee' includes the mortgagee. thus, the application filed by the mortgagee under order xxii rule 9 of the code of civil procedure is maintainable. ;(ii) it is needless to say that whenever the judgment is passed there cannot be a revision, it can be challenged only by way of an appeal. it is not in dispute that the order refusing to set aside the abatement be construed as a final one. hence there cannot be any revision but only an appeal. but where the trial court considers the application filed under order xxii rule 9 and allows it, it is to be held that it is an order not a final one. hence the revision is maintainable ;- section 115 - discretion exercised by trial court in holding cause as sufficient in application under order 22 rule 9: not proper under section 115 to interfere therewith. - section 17 & security interest (enforcement) amendment rules, 2007, rule 13 (as amended): [anand byrareddy, j] payment of prescribed court fee auction sale-appealed against under section 17 - question as to payment of court fee for appeals amendment to security interest (enforcement) rules, 2003 and introducing or rule 13 -court fees payable for applications and appeals - petitioner sought for the benefit of security interest rule, 2002 as amended - consideration of held, the imposition of liability to pay court-fees being a fiscal legislation it would be governed by the normal presumption that it is not retrospective, unless the wise provided expressly or by necessary implication. the above rule, however, applies to substantive provisions and does not apply to machinery or procedural provisions which are generally retrospective and apply even to pending proceedings. but even a procedural provision, as far as possible, will not be construed to open up liability which had become barred. further, as on the date of the petitioner filing the appeal, the petitioner has the benefit of a reprieve in view of the issue of court-fee pending before the supreme court and the petitioner had undertaken to pay the same depending in the result in the matter before the apex court. ultimately, when the petitioner did indeed pay the court-fees the security interest (enforcement) amendment rules, 2007 had come into effect and court-fees was aid in accordance with the same. the petitioner has paid the court fee as per the security interest rules prescribing a lesser court fee on the date the actual payment is made. this principle is well established in the working of fiscal legislation. further it cannot be said that the rules are given any retrospective effect as the court fee is paid on a matter pending prior to the amendment of the rules. on the other hand court-fee is paid for the first time when the amendment to the rules had come into operation. impugned order is quashed. - according to the petitioners herein/objectors, the setting aside of abatement can be sought only by legal representatives of the deceased and not by person/s like the applicant/respondent who is claiming under a registered mortgage deed. 2. the trial court after taking into consideration the rival contentions of both sides, came to the conclusion that the cause shown by the applicant/respondent to file an application for setting aside abatement and reasons given in the interlocutory application filed under section 5 of the limitation act seeking condonation of delay in filing applications, establish that the applicant has made out a sufficient cause for her non-approaching the court well in time for the relief to set aside the abatement. 3. challenging the same the objectors/petitioners have preferred this revision petition, contending that the persons like the mortgagee cannot seek for setting aside the abatement and for permitting them to come on record as mortgagee. rule 10 of order 22 of the civil procedure code clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. - writ petition -abatement for failure to bring legal representatives of deceased respondent on record within time -petitioners even though knew about death of respondent taking no steps to bring his lrs. 5 on record because the appellants are admittedly from the rural area and in a country like ours where there is no much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. section 5 of the limitation act, on the other hand, empowers the court to admit an application, to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. in revision the high court disagreed with the subordinate judge and held that the plaintiff had entirely failed to make out any good cause for the delay: held that the trial court had jurisdiction to determine whether there was sufficient cause for the plaintiff for not making the application for setting aside the abatement in time, and if so satisfied, to admit it, and the high court fell in error in interfering with that finding of fact.hanumanthappa, j. 1. on 23-2-1991, the respondent kamalamma filed an application under order xxii rule 9 of cpc requesting the trial court to set aside the order of abatement passed in o.s. no. 801 of 1981, contending that she came in possession of the suit property by usufructuary mortgage deed dated 26-2-1973. the said application was opposed by the learned counsel for the respondents contending that the respondent has perfected his title over the property by way of adverse possession. it was also objected by the petitioners herein contending that-(1) the applicant was not entitled to seek for setting aside the abatement;(2) the application filed by the applicant seeking setting aside abatement has not made out sufficient cause; and(3) the application filed under order xxii rule 9 as not maintainable. according to the petitioners herein/objectors, the setting aside of abatement can be sought only by legal representatives of the deceased and not by person/s like the applicant/respondent who is claiming under a registered mortgage deed.2. the trial court after taking into consideration the rival contentions of both sides, came to the conclusion that the cause shown by the applicant/respondent to file an application for setting aside abatement and reasons given in the interlocutory application filed under section 5 of the limitation act seeking condonation of delay in filing applications, establish that the applicant has made out a sufficient cause for her non-approaching the court well in time for the relief to set aside the abatement. regarding the delay, it said that the reason given by the applicant-respondent as reasonable hence accepted. consequently, it held that the application filed by the applicant-respondent as maintainable.3. challenging the same the objectors/petitioners have preferred this revision petition, contending that the persons like the mortgagee cannot seek for setting aside the abatement and for permitting them to come on record as mortgagee. learned counsel relied on a decision reported in krishan sharma v. shital prasad : air1979all345 . while explaining the scope of order xxii rules 3 and 10, it is held that such an application cannot be allowed. sri ramakrishna, learned counsel for the petitioners/objectors also relied upon a decision reported in abdul jabbar v. manonmani pictures, : air1976mad368 in support of his contention that the application of the respondent cannot be entertained. on the same point, he further relied upon another decision sobha ram v. bahadur singh reported in sri ramakrishna contended that the approach of the trial court in disposing of the application filed by the respondent under order xxii rule 9 of the code of civil procedure; that there was sufficient cause in not approaching that such an application as maintainable etc., as not correct; and for these reasons, he submitted that the crp be allowed.4. as an answer to this, sri surana, learned counsel for the respondent submitted that -(1) the petitioner has not established that the order passed by the trial court as arbitrary;(2) according to him, there was a delay and that does not mean that the respondent was not entitled to seek relief of setting aside the abatement as requested in the application filed under order xxii rule 9 of the code of civil procedure that too when he had shown sufficient cause for the delay caused in filing the said application.(3) merely because she is a mortgagee that does not preclude the respondent from seeking setting aside of the abatement, as law permits. in support of his contention, the learned counsel relied upon some of the authorities namely, gafoor ahmed khan v. basheer ahmed khan, : air1983sc123 and khermchand shankar choudhary and ors. v. vishnu hari patil and ors., : [1983]1scr898 . in : air1983sc123 their lordships observed thus:'6. section 52 of the transfer of property act no doubt lays down that a transferee pendente lite of an interest in an immoveable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. such a transferee is a representative in interest of the party from whom he has acquired that interest. rule 10 of order 22 of the civil procedure code clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. it may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. but if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. he can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. the position of a person on whom any interest had devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. an heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. if they apply to the court to be impleaded as parties they cannot be turned out. the collector who has to effect partition of an estate under section 54 of the civil p.c. has no doubt to divide it in accordance with the decree sent to him. but if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? he need not do so. he may proceed to allot the share of the deceased party to his heirs. similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. in the case of insolvency of a party, the official receiver may be allotted the share of the insolvent. in the case of transferees pendente lite also, if there is no dispute, the collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. a transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. there is no dispute that a party can ask for an equitable partition. a transferee from him, therefore, can also do so. such a construction of section 54 of the civil p.c. advances the cause of justice. otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. in any such case where there is no dispute if the collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. his action would not be ultra vires. on the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares.'learned counsel also relied upon the decision of this court reported in rajamma v. chandrasekharaiah, 1975(1) klj sn 39, which reads thus:'any decision given under order 22, rule 5 does not operate as res judicata or is conclusive. such decision is only for the limited purpose of continuing the suit.the high court can interfere in revision against an order under order 22 rules 4 and 5 only where the court does not hold an enquiry. when an enquiry is held and an order is made, such an order cannot be questioned under section 115.' for these reasons, learned counsel submitted that the revision be dismissed.5. after hearing both sides and going through the records, i am of the view that the order passed by the trial court has to be held as correct, for the following reasons.6. before opining on the points involved, the court has to decide whether the application filed under order xxii rule 9 of the code of civil procedure by the respondent, a mortgagee, is maintainable or not. it is relevant to know about the scope of order xxii rule 9. rule 9 of order xxii reads thus:'9(1) where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.(2) the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement of dismissal upon such terms as to costs or otherwise as it thinks fit.(3) the provisions of section 5 of the indian limitation act, 1877, shall apply to applications under sub-rule (2).explanation - nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this order.' it is in these circumstances, it has to be seen whether the word 'assignee' includes a 'mortgagee'. this has been made clear in mannaluri yegnanarayana murthi and anr. v. mannaluri balakrishnayya, air 1933 madras 411 thus:'mortgagee of deceased plaintiff's share is entitled to continue appeal.a suit by a plaintiff was dismissed and an appeal was filed against the decree by his widow, the plaintiff having died in the meanwhile. the widow died pending appeal and the mortgagee of the rights of the plaintiff in the suit filed an application to be allowed to continue the appeal:held: that the petitioner being a mortgagee of the deceased plaintiff's share in the suit properties, an 'interest' as contemplated by order 22, rule 10, has devolved on him and he may therefore be allowed to continue this appeal.' in view of the above interpretation, according to me, the word 'assignee' includes the mortgagee. thus, the application filed by the mortgagee under order xxii rule 9 of the code of civil procedure is maintainable.7. the next point for consideration is as to whether against an order passed on an application filed under order xxii rule 9 of cpc, a revision lies or an appeal. it is needless to say that whenever the judgment is passed there cannot be a revision, it can be challenged only by way of an appeal. it is not in dispute that the order refusing to set aside the abatement be construed as a final one. hence, there cannot be any revision but only an appeal. but where the trial court considers the application filed under order xxii rule 9 and allows it, it is to be held that it is an order, not a final one. in the impugned order there is no finding on merits so as to say it a 'judgment'. hence, the revision is maintainable. in respect of this position, there are earlier decisions of the high court of calcutta and also of the supreme court. in nurwal hoda and ors. v. amir hassan and anr., : air1972cal449 , the full bench of the calcutta high court while interpreting the 'judgment' held as follows:'9. in the case of laxminarayan tamkorwalla v. udairam khemka - : air1961cal386 , the division bench of this court had occasion to consider some of the decisions referred to herein before. the division bench felt that according to the supreme court in the case of : [1953]4scr1159 (supra) any order to be 'judgment' the adjudication need not be on the merits of the controversy between the parties, but it must be a decision affecting the merits of the case. the division bench was concerned with an order under rule 5, order 9 of the code of civil procedure with which we are not concerned in the instant case. in the case of t. bhagwandas v. sitaram srigopal, 63 cal wn 300 : air1959cal389 , the division bench held that an order setting aside a decree and restoring suit to file was not a 'judgment' and therefore not appealable. such an order decided nothing as to the merits in controversy between the parties but merely reopened the controversy. in the case of smt. tara nevatia v. s.c. dhur, (1963) 67 cal wn 18 the division bench of this court following the decision in the case of air 1922 cal 335 (supra) and the decision in the case of : air1961cal386 held that an order setting aside an abatement of a suit was a 'judgment' under clause 15 of the letters patent. the division bench did not give any independent reason.10. for the reasons indicated hereinbefore we are of the opinion that the calcutta decisions, so far as they have held that order setting aside abatement is a 'judgment' under clause 15 of the letters patent, are not correct and an order setting aside abatement is not a 'judgment', as it does not relate to the merits of the dispute, but only a step towards final adjudication of the dispute and as such is not a 'judgment' within the meaning of clause 15 of the letters patent.' likewise, in sushil kumar mondal and anr. v. s.k. guljar and ors., : air1979cal265 , it is held as follows:'during the pendency of an ejectment suit against the tenant, the latter died. some of the heirs were substituted by the plaintiff landlord within the period of limitation while others, after the expiry of limitation. the plaintiff was not aware of their existence at the time of the first application for substitution. later on at the instance of one of the legal representatives impleaded earlier, the court passed an order dismissing the suit on the ground that the said suit had abated as a whole as some of the legal representatives had not been brought on record within the period of limitation. against the said order the plaintiffs filed a revision application:held that: (i) the order of abatement was virtually an order recalling the earlier order allowing the applications for substitution and as such in any event though it disposed of the suit, it did not adjudicate upon the rights of the parties with respect to matters in controversy. the revision application was maintainable in the high court even if an order of abatement simpliciter was a decree and as such appealable.' from this it is clear that an order refusing to set aside the abatement order under order xxii rule 9, is an appealable one. whereas in the case to allow the application and to set aside the abatement, what the court would intend by such approach is that it desires to adjudicate the rights of both the parties at a later stage. hence, it cannot be said that it is a judgment but a mere order, thus the revision is maintainable.8. the next points to be considered are -(a) whether the application filed by the respondent, though belated, was maintainable in requesting the court to allow her application as, according to her, she has made out sufficient cause for condonation of delay?(b) when the trial court after taking into consideration the material made available held the cause shown as sufficient, whether the court under section 115 of the code of civil procedure can interfere?9. regarding 'sufficient cause', as long back as in the year 1972 the supreme court held that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. in the said judgment the supreme court has further observed that particularly when the proceedings were prosecuted before a wrong forum, the period so spent shall also be held as sufficient cause.10. it is not in dispute that one bakkaiah setty died on 19-3-1976; whereas smt. kamalamma filed an application under order xxii rule 9 of the code of civil procedure on 23-2-1981, nearly after eight years. this, according to me, is no doubt belated. in addition to this, the delay explained is not very much convincing. however, one thing has to be seen here that at no time the applicant/respondent was made known about the proceedings between bakkaiah setty and sanjeeva mandri and others. this kamalamma was not a party either to the proceedings in the original suit or to the execution proceedings. according to her, that she came to know only when an application was made on execution side seeking re-delivery of the property. only thereafter she filed an application under order xxii rule 9 of the code of civil procedure. in similar circumstances, the supreme court in ram sumiran and ors. v. d.d.c. and ors., : air1985sc606 held as follows:-'writ petition -. abatement for failure to bring legal representatives of deceased respondent on record within time -petitioners even though knew about death of respondent taking no steps to bring his lrs. on record for 6 years - subsequent application for setting aside abatement - held petitioners being persons from rural area application deserves to be allowed.'the supreme court further observed in the above judgment as follows:'but merely because no application was made by the appellants for bringing the legal representatives of the deceased respondent no. 5 on record we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent no. 5 on record because the appellants are admittedly from the rural area and in a country like ours where there is no much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. the ends of justice require that the application for bringing the legal representatives of the deceased respondent no. 5 should have been granted. we accordingly allow the appeal, set aside the order of the high court and direct that the abatement, if any, shall be set aside and the legal representatives of deceased respondent no. 5 shall be brought on record and the writ petition shall be remanded to the high court for disposal according to law. we may make it clear that in making this order we must not be presumed to have expressed any opinion on the merits of the controversy raised in the writ petition, it will be for the high court to decide the writ petition according to law. we would request the high court to dispose of the writ petition at a very early date and as far as possible before the end of february, 1985. the ex parte order of stay made by us will stand vacated.' (underlining supplied)11. now the next point to be considered is whether the delay can be a ground to reject the application filed under order xxii rule 9 of the code of civil procedure? and the next point is when once the discretion has been exercised by the trial court in holding the cause as sufficient, whether it is proper under section 115 of the code of civil procedure to interfere. in manindra land and building corporation ltd. v. bhutnath banerjee and ors., : [1964]3scr495 the supreme court has held thus:'it is not open to the high court in the exercise of its revisional jurisdiction under section 115, to question the findings of fact recorded by a subordinate court. section 115 applies to cases involving questions of jurisdiction, i.e., questions regarding irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved.under section 3 of the limitation act, it is the duty of the court not to proceed with the application if it is made beyond the period of limitation prescribed. the court has no choice and if in construing the necessary provision of the limitation act or in determining which provision of the limitation act applies, the subordinate court comes to the erroneous decision, it is open to the high court in revision to interfere with that contusion as that conclusion led the court to assume or not to assume the jurisdiction to proceed with the determination of that matter. section 5 of the limitation act, on the other hand, empowers the court to admit an application, to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. the question whether there was a sufficient cause is exclusively within the jurisdiction of the court and the court can decide it rightly or wrongly.an application under order 22 rule 9(2) for setting aside abatement of suit was made beyond the prescribed period. the trial court holding that the plaintiff was prevented by sufficient cause from continuing the suit allowed the application and set aside the abatement of the suit. in revision the high court disagreed with the subordinate judge and held that the plaintiff had entirely failed to make out any good cause for the delay:held that the trial court had jurisdiction to determine whether there was sufficient cause for the plaintiff for not making the application for setting aside the abatement in time, and if so satisfied, to admit it, and the high court fell in error in interfering with that finding of fact.' 12. for these reasons, i am of the view that (1) the revision petition is maintainable; (2) the order of the trial court on an application filed under order xxii rule 9 of the code of civil procedure, is not a judgment but an order and thus it is revisable one; (3) the application filed by the respondent - mortgagee - under order xxii rule 9 of the code of civil procedure seeking setting aside abatement is maintainable; and (4) the reasons given by the trial court in holding that the cause shown by the applicant seeking condonation of delay, as a sufficient cause, as correct one.13. hence, the civil revision petition is dismissed. however, all other contentions are left open. the trial court will proceed with the matter and dispose of the case on merits in accordance with law. no costs.