Collector Balasore and ors Vs Sukadev Samal and ors - Citation 525248 - Court Judgment

Judgment:
ORDER

A.K. Padhi, J.

1. Judgment-debtors of O.S. No. 14 of 1986-1 are the petitioners. Civil Revision has been filed challenging the order dated 5-11-1993 arising out of Execution Case No. 7 of 1991.

2. Opposite parties as plaintiffs filed the suit praying for permanent injunction and for the direction not to interfere with their possession and with further prayer for mandatory injunction and removal of the constructions made by the defendants over their land and for other ancillary reliefs arraying the present petitioners who are Collectors, Balasore and others as defendants. In the aforesaid suit, the plaintiffs alleged that defendants had executed the work of construction of escape on the suit land of which plaintiffs were the owners. Since without any manner of right, title and interest defendants were trying to interfere in the right, title and interest of the plaintiffs' permanent injunction be granted directing them not to intefere with in the possession of the plaintiffs. Plaintiffs also had prayed for demolition of constructions made over their plot.

3. Defendants filed their written statement in the suit disputing the allegations and contended that no part of the escape was constructed on plot No. 106 of mouza-Korakada which was the disputed plot. It was further pleaded that the escape as a bi-pass drainage from the river Ganjuti situates in village Kanjiapal and Sukadevpur from the time of British regime. A portion of the old structure was of the escape was damaged for which reconstruction of the escape was taken up on the site on which it was existing and no part of the escape was constructed on plot No. 106 as claimed by the plaintiffs.

4. The plaintiff's suit was decreed and in the ordering portion of the decree it was directed :--

'..... The defendants are hereby directedto remove construction within one month from today if constructed on M.S. Plot No. 105 belonging to the plaintiffs and pro forma defendants failing which the plaintiffs and pro forma defendants are at liberty to pray Court for issuing a mandatory injunction directing the contesting defendants to demolish any construction made on M.S. Plot No. 106. The contesting defendants are further restrained permanently from coming upon the suit plot No. 106 belonging to the plaintiffs and pro forma defendants Nos. 6 to 33 and from creating any sort of disturbance whatsoever thereon.'

The decree passed in Q.S. No. 14 of 1986-I has become final. Thereafter the plaintiffs-Decree-holders filed Execution Case No. 7 of 1991 for execution of the mandatory injunction and thereafter filed an application under Rule 22 of Order 21, C.P.C. By order dated 5-11-1993 the executing Court directed as follows:--

'.....Therefore, considering the D.Hr.proving the construction of escape on M.S. Plot No. 106 under M.S. K.hata No. 199/1 of Mouza Korkoda, is entitled to demolish the said escape. The estimated costs for the same as under the petition of D.Hr. being of a total sum of Rs. 3,77,500/- the J.Drs. therefore, directed to deposit a sum of Rs. 1,00.000/-(Rupees one lakh only) towards the cost of the demolition of the construction of the escape made over plot No. 106 within three months hence, to enable the D.Hr. to furnish voucher for onward direction to the J.Drs. to pay the rest of the amount spent for the same; the depositing of the said Rs. 1,00,000/- by the Jr.Drs. is a condition precedent to the D.Hrs.' furnishing vouchers. In case of failure to deposit a sum of Rs. 1,00,000/- by the J.Drs., the accounts of J.Dr. No. 2, the Executive Engineer, Jaipur Irrigation, Jaipur, Cuttack at State Bank of India, Jaipur, shall remain attached until realisation of the cost.'

Challenging this portion of the order passed in Execution Case No. 7 of 1991, the defen-dant-J. Drs. have filed this Civil Revision on various grounds such as jurisdiction of the Court to pass such an order under Rule 32 of Order 21, C.P.C.

5. Mr. Naidu, appearing for the opp. parties took a preliminary objection regarding maintainability of the Civil Revision in view of the Orissa Amendment of Section 115, C.P.C. and submitted that since this Civil Revision has been filed challenging the order passed in Execution Case No. 7 of 1991 which arises out of O.S. No. 14 of 1986-1, the valuation of which was Rs. 100/- this Civil Revision is not maintainable in High Court and should have been filed before the District Judge.

Answering to this preliminary objection, Mr. S. S. Rao, Additional Government Advocate submitted that though the suit was valued at Rs. 100/- since direction has been issued by the executing Court to deposit a sum of Rs. 1,00,000/- in favour of the opp. parties against the estimated value of Rs. 3,77,300/-for demolition of the construction, the Civil Revision has to be valued at Rs. 3,77,500/- and, therefore, the revision is maintainable in this Court.

6. From the preliminary objection, the moot question which arises for consideration is as to whether the valuation of this Civil Revision on which order passed by the executing Court has been challenged which is sought to be executed is to be valued on Rs. 100/- at which the suit was valued or the Civil Revision is to be valued taking into consideration the direction issued by the executing Court for the purpose of jurisdiction.

7. Section 115 of the Code of Civil Procedure was amended by Orissa Amendment, 1991 reads as follows: --

'115. The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees, and the District Court, in any other case including a case arising out of an original suit or other proceedings instituted before the com-mencement of the Code of Civil Procedure (Orissa Amendment) Act, 1991, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies the rate, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit :

Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or theDistrict Court shall not, under this section,vary or reverse any order, including an orderdeciding an issue, made in the course of a suitor other proceedings except where-

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

Explanation-- In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceeding.'

8. Relying on Section 8 of the Suit Valuation Act and the case of Mahendra Singh Jaggi, Proprietor, M/s. Jaggi Mqtor Accessories v. M/s. Dataram Jagannath, (1985) 2 Orissa LR 457 : (AIR 1986 Orissa 110) and C. G. Ghanshamdas v. Collector of Madras, AIR 1987 SC 180, Mr. Rao submitted that though the Civil Revision hasbeen filed challenging the order of the executing Court and the value of the suit for the purpose of jurisdiction and Court-fee was Rs. 100/- since the order of the executing Court directing the judgment-debtors to deposit Rs. 1,00,000/- with further assessment that the cost of demolition of the structure shall be to the tune of Rs. 3,75,000/- the Civil Revision shall be maintainable only in the High Court and not before the District Judge. Section 8 of the Suits Valuation Act, 1887 reads as follows :--

'Court-fee value and jurisdictional value to be the same in certain suits:-- Where in suits other than those referred to in the Court-fees Act, 7 of 1870, Section 7, paragraphs (v), (vi) and (ix), and paragraph (x), Clause (d) Court-fees are payable ad valorem under the Court-fees Act, 1870 the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same.'

In Mahendra Singh Jaggi's case (AIR 1986 Orissa 110) (supra) the question arose as to what will be the value of appeal for the purpose of computation of Court-fee and jurisdiction in a suit arising out of decree claiming Rs. 10,723,63. Defendant denied the claim and preferred a counter claim praying for mutual accounts in his favour. Plaintiff paid ad valorem Court-fee while defendant paid Rs. 100/- as Court-fee on the counterclaim praying for rendition of accounts. The decree passed in the First Appeal arising out of the suit was to the following effect (at p. 111 of AIR) :--

'In the result, we allow the appeal, set aside that part of the judgment and decree of the Court below directing the plaintiffs to render accounts and order that the cross claim made by the defendant in his additional written statement be dismissed with costs throughout.'

Special Leave Application was preferred by the defendants in the Supreme Court. Supreme Court restored the preliminary decree passed by the trial Court which was for rendition of accounts. Thereafter final decree proceeding was started. Commissioner wasappointed and on consideration of the report final decree was passed. Challenging this order passed in the final decree First Appeal was preferred in this Court and the First Appeal was valued at Rs. 84,533.57 for the purpose of jurisdiction and for the purpose of Court-fee it was valued at Rs. 100/-. The Taxing Officer after hearing both the parties, came to the conclusion (at p. 112 of AIR): --

'(1) The appeal shall have to be valued at Rs. 5206-63 both for the purpose of jurisdiction and for the purpose of Court-fee.

(2) Section 7(iv)(f) of the Court-fees Act is applicable to the case.'

This order of the Taxing Officer was challenged before their Lordships. After considering the provision of Suits Valuation Act and Section 7(iv)(f) of the Court-fees Act, their Lordships came to the conclusion that so far as appeals arising out of suit for rendition of accounts are concerned for the purpose of jurisdiction and valuation for computation of Court-fee shall be the relief sought for in the appeal. This decision shall have no application to the case at hand in view of Section 7(iv)(f) of the Court-fees Act. 1870 which is to the following effect:--

'for accounts according to the amount at which the relief sought is vulued in the plaint or memorandum of appeal : in all such suits the plain-tiff shall state the amount at which he values the relief sought...

In C. G. Ghanshamdas's case (AIR 1987 SC 180) (supra), question arose before their Lordships as to what Court-fee is payable on the memorandum of appeal against on award determining the compensation payable for property under acquisition and their Lordships held that ad valorem Court-fee is payable. This case has no application to the present case.

9. Many other States such as Madhya Pradesh and Uttar Pradesh also have amended Section 115, C.P.C. So far as Uttar Pradesh is concerned, State Amendment is as follows:--

'115. Revision.-- The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before August 1, 1978, and the District Court in any other case, including a case arising out of an original suit or other proceeding instituted before such date, may call for the record of any case which has been decided by any Court, as the case may be, and in which no appeal lies thereto, and if such Subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdictionso vested: or

the High Court or the District Court, as the case may be, may make such order in the caseas it thinks fit;

Provided that in respect of cases arising out of original suits for other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where,--

(1) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or

(2) the order, if allowed, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.'

In the case of Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal, AIR 1979 All 218 (FB), considering the jurisdiction of District Court and High Court under Section 115, C.P.C. of the Uttar Pradesh State Amendment, their Lordships have observed (at p. 225 of AIR) : -

'With effect from 1st April, 1978, the revisional jurisdiction was again bifurcated.

The High Court was confined to cases arising out of original suits or other proceedings of the value of Rupees 2,.000/- or above, including such suits or other proceedings instituted before 1st August, 1978. The jurisdiction of the District Court was in respect of any other case including a case arising out of an original suit or other proceeding instituted before such date. The legislature has continued to use the phrase 'cases arising out of original suit.' The interpretation placed upon this phrase by the Full Bench in Har Prasad Singh's case. AIR 1973 All 390 will apply. The revisional jurisdiction would hence not extend to cases arising out of the disposal of appeals or revisions by the District Court. The proviso is also in the same terms as the proviso added in 1973 namely, it uses the phrase 'cases arising out of original suits or other proceedings.' As already seen, it will not cover cases arising out of disposal of appeals or revisions.

The words 'or other proceedings' in the phrase 'cases arising out of original suits or other proceedings' refer to proceedings of final nature. These words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which are not of the nature of suits, like arbitration proceedings. This phrase cannot include decisions or appeals or revisions, because then the legislature will be deemed to have contradicted itself. The words 'or other proceedings 'have to be read ejusdem generis with the words 'original suits'. They will not include appeals or revisions.

The phrase 'in any other case' used with reference to the District Court will refer to cases arising out of original suits of the value of less then Rs. 20,000/- and also cases arising out of other proceedings of an original nature of a valuation below Rs. 20,000/-.

In the case of Sri Vishnu Awatar v. Shiv Autar, (AIR 1980 SC 1575) approving the aforesaid Full Bench decision as referred to above, their Lordships of the Apex Court have observed (paras 8.10 and 13 at p. 1578 of AIR):

'The residuary power is with the District Court. The High Court has no revisional power under Section 115 unless the case arises out of an original suit or other proceeding, i.e. other original proceeding decided by the District Court or where the case arises from a suit of and above Rs. 20,000/- in value. If the District Court has decided, not in its original jurisdiction, then the case, be it a revisional or appellate order is not amenable to the High Court's revisional jurisdiction. Of course, if the case arises out of suits or other proceedings of the value of Rs. 20,000/- and above, the High Court has revisory power. All other cases fall outside and become final at the District Court level.

xxxxx

Schemetically, we are satisfied that decisions of District Courts rendered in appeal orrevision are beyond revision by the HighCourt, if the suit is of less than Rs. 20,000/- xxxxx

The short test to refuse revisory jurisdiction to the High Court is to ascertain whether the decision sought to be challenged is in a case arising out of a suit of the valuation of Rs. 20,000/- and more. If the answer is 'Yes' then the High Court has revisory power, but if the suit from which the case arises and in which the decision is made to one where the valuation is less than Rupees 20,000/- then the litigation cannot travel beyond the District Court except in that class of cases where the decision is taken for the first time by the District Court itself in a case arising out of an original proceeding. xxxxx.'

10. Neither in the Suits Valuation Act nor in the Court-fees Act there is any indication as to what will be the valuation of a revision arising out of an order from an execution proceeding. Execution of a decree is only a continuation of the suit. Where the decree sought to be executed is passed by a competent Court, the Court will not be deemed to be incompetent to execute the decree merely by the reason of the amount of interest or mesne profits ascertained for a period subsequent to the institution of the suit, the pecuniary limitsof the jurisdiction of such Court are exceeded. (See (1925) 89 Ind Cas 726 : (AIR 1925 Cal 1076) (FB) Bidyadhar Bachar v. Manindra Nath Das). It, therefore, follows that the Court can execute the decree even when the decretal amount exceeds the limits of its pecuniary jurisdiction.

11. Section 38 of the Code of Civil Procedure mandates that a decree may be executed either by Court which passed it or by the Court to which it is sent for execution. Therefore, it is clear that an execution proceeding can only be filed before the Court which passed the decree. Execution of a decree is nothing but continuation of a suit to its ultimate finality i.e. implementation of an order passed in a decree. Therefore, the valuation of an execution proceeding can be only the valuation of the suit in which a decree has been passed. Section 115, C.P.C. as amended by Orissa Act 26 of 1991 which came into force on 7-11-1991, the jurisdiction of the High Court has been confined to cases arising out of original suit or other proceedings of the value of Rs. 1,00,000/ - or above and the High Court is not competent to exercise revisional jurisdiction in respect of any other cases including cases arising out of an original suit or other proceedings of the valuation less than Rs. 1,00,000/-. In the enactment the phrases which have been used are 'in case arising out of original suits or other proceedings.' The words 'or other proceedings' in the phrase 'cases arising out of original suits or other proceedings' refer to proceedings of final nature. Those words have been used to bring within the purview of the revisional jurisdiction orders passed in proceedings of original nature. Since an execution proceeding arises out of an original suit the valuation of an execution proceeding shall be the valuation of the original suit. Therefore, the irresistible conclusion will be the valuation of the Civil Revision challenging an order passed in an execution proceeding has to be the valuation of the original suit.

The present Civil Revision has been filed challenging an order passed in an execution proceeding, therefore, the valuation of the Civil Revision has to be valued at Rs. 100/-both the jurisdictional and Court-fees purpose which was the valuation of O.S. No. 14 of 1986 though the ultimate order of the executing Court is to deposit Rs. 1,00,000/-. In my opinion, this Civil Revision shall not be maintainable in High Court and shall only be maintainable before the District Court.

12. Since originally notice had been issued in the Civil Revision and question of jurisdiction was raised at the time of hearing of the Civil Revision, I feel it proper to return the memorandum of Civil Revision to the petitioners to be presented in the proper forum. The petitioners are directed to take return of the memorandum of the revision along with the impugned order within seven days from the date of passing of this order and they are permitted to present the same before the appropriate forum. The interim protection which was granted by this Court by order dated 10-2-1994 shall remain operative for eight weeks from today.

With the aforesaid direction, the Civil Revision is disposed of. There shall be no order as to costs.

Subject	Property;Civil
Court	Orissa High Court
Decided On	Sep-23-1994
Case Number	Civil Revn. No. 13 of 1994
Judge	A.K. Padhi, J.
Reported in	AIR1995Ori72; 1995(I)OLR50
Acts	Code of Civil Procedure (CPC) , 1908 - Sections 38 and 115; Orissa Amendment Act, 1991
Appellant	Collector, Balasore and ors.
Respondent	Sukadev Samal and ors.
Appellant Advocate	S.S. Rao, Addl. Standing Counsel
Respondent Advocate	A.S. Naidu, ;P. Mohanty, ;A.K. Rath and ;P.K. Mohapatra, Advs.
Cases Referred	B) Bidyadhar Bachar v. Manindra Nath Das). It

Collector, Balasore and ors. Vs. Sukadev Samal and ors. - Court Judgment