H.N. Tilhari, J. - (1.) - This is a petition by Chandra Bhan Singh who claims to have purchased the property in dispute under a private transaction of sale from the judgment-debtor. This transaction is alleged to have taken place on 27.7.1978. The petitioner has claimed the following reliefs: (a) that a writ in the nature of certiorari or an order in the nature of certiorari be issued quashing the judgment and order dated 19.1.1980 passed by opposite party, party No. 2 i.e. III Additional Munsif, Gonda (Annexure-2) as well as for quashing of the order dated 10.12.1980 passed by opposite party No. 1, III Additional District Judge, Gonda, a copy of which is Annexure-3 to the writ petition. The facts of the case, in brief, are that in a suit being R.S. No. 194 of 66, the claim made in suit having been decreed finally, the execution had been moved and the execution application is numbered as Execution Case No. 52 of Fib. In pursuance of execution proceedings the property in dispute i.e. grove plot Nos. 1438 and 1441 situated in village Sahjanvan, district Gonda, had been out to auction and had been auctioned on 7.1.1979. Against the said auction the judgment-debtor filed objection under Order 21 Rule 90 of he Civil Procedure Code. By order dated 28.7.1979, a copy of which has been annexed as Annexure-4. When the case was fixed for disposal of objections under Order 21 Rule 90 of the Code, the trial Court i.e. III Addl. Munsif issued a direction to the decree-holder to implead Chandra Bhan Singh, the present petitioner, as party in the execution case as the petitioner had claimed to have purchased the properties in dispute sometime in 1979 and fixed the case for 10.8.1979 without disposing off the objection. The decree-holder, opposite party No. 3 did neither implead the present petitioner as party in the execution case nor did file any revision from that order. On 10.8.1979 the execution case was dismissed for non-prosecution. Thereafter an application C-3 was moved by the decree-holder for restoration of the execution case purporting to have been made under Section 151, of the Code. The trial Court by order dated 19.1.1980 set aside the order of dismissal of the execution case and restored it to its original number. By order dated 5.2.1980 the learned Munsif observed that vide order dated 28.7.1979 Chandra Bhan Singh, the present petitioner, had been directed to be impleaded as party to the execution case but the same not having been done, the case had been dismissed for non-prosecution and now in view of the terms of High Court's Order 20 Rule 90 of the Code have yet to he disposed of but before disposal thereof the trial Court ordered vide its order dated 5.2.1980, that Chandra Bhan Singh be made a party to the execution case and the steps to be taken by 11.2.1980. Against the order dated 5.2.1980 as well as against the order dated 19.1.1980 two revisions were filed i.e. revision No. 45 of 80 Chandra Bhan Misra, the decree-holder v. Suraj Prasad and the others Revision No. 71 of 80, Ram Sukh Singh and others v. Chandra Bhan Singh and others. The revision, that had been filed by the petitioner, was against the order dated 19.1.1980 whereby the execution case had been restored and the order for dismissal had been set aside while the opposite parties have filed revision against the order dated 5.2.1980 whereby it was ordered that subsequent purchaser be made a party i.e. purchaser who had purchased the property independent of the Court auction be impleaded. Learned Additional District Judge, Gonda, allowed the revision No. 45 of 80 filled by Chandra Bhan Misra, namely, Chandra Bhan Misra v. Suraj Prasad and set aside the order dated 5.2.1980 to the extent it called upon the decree holder to take steps for the impleadment of the petitioner as a party in the execution case and the learned Additional District Judge directed the execution Court to expedite the proceedings and the disposal of objections under Order 21 Rule 90 of the Code and to either confirm or to pass appropriate orders with respect to sale in the matter of confirmation. Learned Additional District Judge, Gonda by the same order dated 10.12.1980 dismissed the Revision No. 71 of 80 filed by Ram Sukh i.e. judgment-debtor whereby judgment-debtor had challenged the order dated 19.1.1980 whereby the execution case had been restored.
(2.) Feeling aggrieved from the order of learned Additional District Judge dated 10.12.1980 the petitioners who claimed to have purchased the property, subject-matter of dispute sometimes in 1978, particularly, the property which h already been auctioned in the Court auction on 7.1.1969 have filed the present writ petition under Article 226 of the Constitution.
(3.) I have heard learned counsel for the petitioner Shri H.S. Sahai as well as Shri P.C. Rastogi, learned counsel for the opposite parties at length. Shri H.S. Sahai, learned counsel for the petitioner first submitted that the order dated 19.1.1980 had been illegally passed, hereby the execution case had been restored, after setting aside of the order dated 10.8.1979, as such, is illegal and without jurisdiction. Shri Sahai, learned counsel for the petitioner submitted that Order 9 of Code and, in particular the provisions of Order 9 Rule or Order 9 Rule 13 of the Code did not apply to the execution case or execution matter. He submitted that when Order 9 of the Code did not apply and particularly Order 9 Rule 9 or Order 9 Rule 13 of the Code did not apply to the execution proceedings, the learned execution court acted illegally and without jurisdiction in passing the order restoring the execution case to its original number. Shri Sahai made a reference to a Full Bench decision of this Court in the case of Moradhwaj v. Bhundar Das, AIR 1955 Allahabad 353, Shri P.C. Rastogi, learned counsel for the opposite parties disputed the correctness of the submission of the petitioner's learned counsel in this regard. Shri P.C. Rastogi, learned counsel for the opposite parties submitted that firstly, even if for a moment the order be taken to be under Section 151, of the Code, as if Order 9 Rule 9 of the Code did not apply, then in the interest of justice and to avoid multiplicity of the proceedings the Court exercised its inherent power and no illegality has been done, as such revision under Section 115 of the Code, challenging that order, either by the judgment-debtor or even by the purchaser could not be maintainable in view of the decision of the Supreme Court in the case of Keshardeo Chamria v. Radha Kishen Chamria, reported in AIR 1953 Supreme Court 23 at page 28. In alternative Shri P.C. Rastogi further submitted that really Order 9, Rule 9 of the Code did apply to execution cases even, particularly on 10.8.1979, in view of the provisions of Section 141, of the Code and, therefore, Shri Rastogi submitted that the learned counsel for the petitioner is wrong in submitting that Order 9 Rule 9 of the Code did not apply. I find much force in the contention of Shri Rastogi. The argument advanced by Shri H.S. Sahai, learned counsel for the petitioner completely ignores the amended section 141, of the Code and it appears to have been based on the law that might have existed prior to amendment of Section 141 of the Code, in particular the explanation. it will be just and proper on my part to make a reference to the provisions of Section 141, of the Code as it existed prior to its amendment by Civil Laws Amendment Act, 1976, as well as to make a reference to Section 141, of the Code as amended by Civil Laws Amendment Act, 1976. The amended Section 141, of the Code reads as under : "141. Miscellaneous proceedings - The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. (Explanation.- In this section, the expression "proceedings" includes proceedings under Order 9, but does not include any proceeding under Article 226 of the Constitution.)" Section 141 of the Code as contained in the Civil Procedure Code prior to amendment of 1976 reads as under: "141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far it can be made applicable, in all proceedings in any Court of civil jurisdiction". Section 141, as introduced in the Act of 1908 did not contain any such explanation as has been introduced in Section 141, by Act of 1976. Earlier to the Civil Procedure Code of 1908 Section 647 existed which had been analogous to Section 141 of the Civil Procedure Code of 1908. In the case of Sarju Prasad V. Sita Ram and Fakir Ullah v. Thakur Prasad, ILR 12 Allahabad ILR 10 Allahabad 179 , Section 647 of the Civil Procedure Code of 1882 has been subject-matter of interpretation and on the basis thereof it was laid down by this Court that the procedure provided and applicable to suits shall also be applicable and did apply to execution proceedings by virtue of Section 647, while a contrary view was expressed by Calcutta High Court in the case of Banke Behary Gangopadhya v. Nil Madhab (1891) ILR 18 Calcutta 635 , and matter having gone in appeal from the decision of Fakir Ullah's case (supra), the Privy Council held that the procedure for suit did not apply to execution proceedings. It may be mentioned that when the appeal had been pending before the Privy Council an explanation had been added to Section 647, of the Civil Procedure Code of 1882 that explanation reads as under : "This section does not apply to application for execution of decrees which are proceedings in suit. ;