- (1.)THIS revisional application arises out of proceedings which were initialed by the petitioner (judgment-debtor) under Section 3 of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956 (M. P. Act No. V of 1956), which will hereinafter be referred to as the Act. On the 16th of June, 1960, the respondent filed a darkhast to execute the decree, which he had obtained against the petitioner for the refund of earnest money. On the 22nd of July, 1960, the petitioner filed an application for stay of execution of the decree under Section 3 (1) of the Act, which reads thus:
"all proceedings in execution of any decree for money, or proceedings for making final any preliminary decree for foreclosure or sale, or proceedings in execution of any final decree for sale, passed by a Civil Court on the basis of a liability incurred before this Act comes into force, in which a Judgment-debtor or defendant, as the case may be is on the date this Act comes into, force, an agriculturist, shall be stayed against such judgment-debtor or defendant, on an application made by him in this behalf during the period this Act remains in force. "
On 21st of December, 1961, the application was dismissed for default, as the petitioner was absent. After the application was so dismissed, the petitioner adopted two different but parallel proceedings, one of them being an application for the restoration of the application which was dismissed for default and the other being the institution of a similar but fresh application The fresh application was filed on the 4th of January, 1962, whereas the application for restoration was filed on the 12th of January, 1962. On the 14th of February, 1962, the application for restoration was dismissed partly on the ground that an application under Order 9, Rule 9 of the Code of Civil Procedure was not maintainable and partly for the reason that there was no sufficient cause for the absence of the petitioner on the 21st of December 1961. On the 27th of September 1962 the fresh application was also dismissed for the obviously inconsistent reason that Order 9, Rule 9 would govern applications filed under Section 3 of the Act and as the petitioner had not preferred an appeal against the older dated 14th February 1962, the fresh application under Section 3 was not maintainable. It is against this order that the present revision application has been filed.
(2.)THE main question, which arises in this revision application is whether the provisions contained in Order 9 of the Code of Civil Procedure would apply to applications which are filed under Section 3 (1) of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956. If the proceedings initiated by an application filed under Section 3 of the Act are in the nature of execution proceedings, then it is indisputable that the provisions of Order 9 will not be attracted. On the other hand, if the proceedings, which a judgment-debtor takes under Section 3 of the Act, are not in the nature of execution proceedings, but are in the nature of substantive original proceedings, then it would be equally clear that the provisions of Order 9 would apply to the proceedings.
(3.)MR. Ghate, who appears on behalf of the petitioner, contends that Order 9, Rule 9 of the Code of Civil Procedure has no application to the proceedings initiated by the judgment-debtor under Section 3 (1) of the Act, because, the proceedings which Section 3 contemplates are in form and Sub-stance execution proceedings and it is settled law that the provisions contained in Order 9 do not apply to execution proceedings. Now, what is provided by Section 3 (1) of the Act is that proceedings in execution of certain decrees shall be stayed if the decree is passed by a Civil Court on the basis of a liability which is incurred before the date on which the Act came into force, and if the judgment-debtor is an agriculturist. It seems to the difficult to take the view that the proceedings contemplated by Section 3 of the Act are in substance execution proceedings. By the application, which a judgment-debtor files under Section 3, he raises a contention that by reason of independent and substantive rights, which are conferred by the Act. the executing Court loses its jurisdiction for a temporary period to execute a lawful decree or order. The application, in the first place, though called an application for stay of execution, does not concern itself with any one of the reliefs which a judgment-debtor may legitimately obtain under Order 21 of the Code of Civil Procedure which deals with "execution of decrees and orders". The Court is required to deal with the application as if it is a substantive proceeding because to be able to deal with the contentions raised by the judgment debtor in his application, it is necessary for the Court to raise fresh issues with regard to the status of the judgment-debtor, the nature of the decree and with regard to the time when the liability which has merged in the decree, was incurred. In other words, the proceeding initiated by the judgment-debtor by an application under Section 3 of the Act, is more in the nature of a suit than in the nature of an ancillary application such as an execution proceeding is. What the Legislature has done by enacting Section 3 is to conter special rights on a special class of persons with regard to decrees of a special description. In the enforcement of such rights, considerations which primarily weigh with an executing Court are out of place and such substantive applications are required to be dealt with as a trial Court would deal with a suit. It is not disputed, and indeed it is clear, that an application contemplated by Section 3 of the Act, will not attract the provisions of any of the procedural rules which are contained in Order 21 of the Code of Civil Procedure. In my opinion, therefore, the proceedings which were initiated by the petitioner under Section 3 (1) of the Act on the 22nd of July, 1960, are not in the nature of execution proceedings, their true nature being that by resorting to them a substantive right-is sought to he exercised and a substantive relief is attempted to be obtained by the judgment-debtor.