Report No. 54
Order 21, rule 102
21.50. With reference to Order 21, rule 102, the earlier Report1 discussed one point. Order 21, rule 102 provides that nothing in rules 99 and 101 shall apply to resistance or obstruction, etc. by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. The earlier Commission noted that the words "a person to whom the judgment-debtor has transferred the property" had created a conflict as to whether an involuntary sale is caught by these words. One view is that they are caught.2-3
It has also been held that the proper remedy of such a person is to raise the matter under section 47, and that he has no locus standi to maintain an application under rule 100 or to sue under rule 103.4-5
A contrary view, however, has been taken by the Patna High Court,6 on the ground that since old section 333 of the Code of 1882 was adopted at a time when the doctrine of lite pendente had not been extended to a transfer in execution, rule 102 cannot be given the extended interpretation which section 52 of the Transfer of Property Act had received.
1. 27th Report, note on Order 21, rule 102.
2. Nagendra Nath v. Ram Krishna, AIR 1960 Cal 209.
3. Bepin Chandra v. Hem Chandra, AIR 1939 Cal 709.
4. Khem Chand v. Moo! Chand, AIR 1934 Lah 457.
5. Rajaratnam v. Sheikh Hasan Bi, AIR 1926 Mad 968.
6. (a) Hariher Prasad v. Lakhanlal, AIR 1933 Pat 230.
(b) Guna Durga Prasad Rao v. Krishna Rao, ILR 24 Pat 696: AIR 1946 Pat 134.
21.51. The previous Commission, however, did not suggest a change, as it was of the opinion that the former view could prevail.
21.51A. We agree with the previous Commission that the wider view will prevail, but we would like to codify the view. Accordingly, we recommend that the following explanation should be inserted below Order 21, rule 102-
"Explanation-In this rule, 'transfer' includes a transfer by operation of law".
Order 21, rule 103
21.52. Under Order 21, rule 103, a party (not being a judgment-debtor) against whom an order is made under rule 98, rule 99, or rule 101, may institute a suit to establish the right which he claims to the possession of the property; but, subject to the result of such suit, if any, the order shall be conclusive. The period of limitation for such suit is one year1. Now, the question to be considered is, whether it is necessary to institute .a suit within one year, or whether a decision in a pending suit can be availed of, if it involves the same question.
According to one view, the policy underlying Order 21, rule 103, Civil Procedure Code is to have speedy settlement of the question of title raised in execution-sales, and what makes the order conclusive under Order 21, rule 103, is not the failure to institute a suit, but the failure to have the right established. Where a suit or an appeal already filed by the claimant is pending at the time when an order under Order 21, rule 98, C.P.C. dismissing his claim is made, it is not, according to this view, obligatory to file a suit under Order 21, rule 103.
Two single Judges' decisions of the Madras High Court2-3 took this view, holding that the institution of a suit under Order 21, rule 103, is not the only remedy against the Order under Order 21, rule 98, and that the rule only contemplates the establishment of a right to the property to supersede the order. But these decisions, it has been stated4 should be deemed to have been over-ruled by the Full Bench decision of the Madras High Court,5 which has held that the provisions of Order 21, rule 103, are mandatory, and the decision in a claim petition is final unless the party aggrieved takes the course indicated in the rule by instituting a suit.
1. Article 11, Limitation Act, 1908 and corresponding Article in the 1963 Act.
2. Palanippu v. Ramaswamy, AIR 1937 Mad 382.
3. Ummanath v. Pedru Souza, AIR 1950 Mad 19: 1949 MIJ 286.
4. Sitaraman v. P.M.S. Mudaliar, AIR 1969 Mad 166.
5. Seethamma v, Kotoreddi, AIR 1969 Mad 586 (FB).
21.53. In a Calcutta case1 the Court stated that Order 21, rule 103, does not at all refer to the necessity of obtaining a decree of a court within one year, and all it requires is the filing of a suit within one year. It was held in the Calcutta decision that the summary order was superseded by the decree passed by the trial court in a pending suit within a year. In the Madras case of 19692, it has been observed that the Calcutta decision would lead to an anomalous result. If the passing of the decree is delayed beyond one year by one day, the party would suffer through no fault of his own.
1. Gopiram v. Sewantdal, AIR 1960 Cal 580.
2. Supra n. 1.
21.54. In this state of the case-law, it is necessary to make a clarification. The Madras view and the Calcutta view represent partial truths. On the one hand, the Calcutta view may, it is true lead to, difficulties where the judgment of the court of first instance is given within a year, but the proceedings are prolonged by reason of appeal and the appellate judgment is pronounced beyond the period of one year. But, on the other hand the Calcutta view has the merit of avoiding duplication of proceedings, because it is illogical to expect a person to file another suit when he has already filed a suit for the very relief contemplated by the rules. The whole difficulty is caused by the rigidity of the present provisions, whose language leaves out of consideration a situation where a suit is already instituted and pending. That lacuna should be remedied1 by providing that where the person affected has already instituted a suit to establish his right, the order shall be subject to the result of any such suit.
1. Similar amendment may be desirable in Order 21, rule 63, which contains an analogous provision.
21.55. We recommend that Order 21, rule 103, should be revised so as to read as follows:-
"103. Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of property, but, subject to such suit (if any), and subject to the result of any suit which may be pending on the date on which the order is made and in which such right is in issue, the order shall be conclusive"1.
1. Similar amendment be made in Order 21, rule 83.
Order 21, rules 104, 105 (New)-Hearing of execution proceedings
21.56. It is now well settled that owing to the non-applicability of the provisions of section 141 to execution proceedings, Order 9, also does not apply to execution proceedings. The result has been that the courts have found it difficult to "decide the circumstance in which an application for execution can be dismissed for non-appearance, or if a court has dismissed an application for non-appearance whether the court, in the absence, of any specific provision regarding the restoration in the C.P.C., restore such application. The situation has been proposed to be dealt with by the earlier Report1 where two new rules were inserted to deal with the bearing of applications for execution. We agree with this recommendation. No other amendments are necessary in this regard.
1. 27th Report, draft Order 21, rules 104-105 (New).