NIDHPAL SHARMA Vs. UNION OFINDIA
LAWS(ALL)-1965-12-8
HIGH COURT OF ALLAHABAD
Decided on December 21,1965

NIDHPAL SHARMA Appellant
VERSUS
UNION OF INDIA Respondents





Cited Judgements :-

DEVI DAYAL VS. SITA RAM [LAWS(DLH)-1968-4-5] [REFERRED TO]
M L SURYANARAYANA RAO VS. SPL TAHASILDAR MAGISTRATE MYSORE [LAWS(KAR)-1985-2-35] [REFERRED TO]
CHIMANLAL NARSIBHAI PATEL VS. AMRATLAL CHHOTALAL SHAH [LAWS(GJH)-1974-3-2] [CASES REFERRED]
K L ELUMALAI VS. P NATARAJAN [LAWS(MAD)-1995-4-90] [REFERRED TO]
N.S. Venkatachalaiah Setty VS. Adinath Jain Swetamber Temple and others [LAWS(KAR)-2001-6-66] [REFERRED TO]
CHARAN LAL VS. INDERMAN AND ANR. [LAWS(ALL)-1983-12-56] [REFERRED TO]
M.L. Suryanarayana Rao VS. Special Tahasildar and Magistrate, Mysore and others [LAWS(KAR)-1985-2-55] [REFERRED TO]


JUDGEMENT

Mathur, J. - (1.)THIS application under Article 133 of the Constitution of India by Nidhpal Sharma and two others, auction-purchasers, for a certificate to appeal to the Supreme Court has been referred to the Full Bench to resolve the conflict between two earlier decisions of this Court, namely, the unreported decision in Lala Devi Charan v. Smt. Duloo, Supreme Court Appeal No. 111 of 1958, dated 7-11-1958 (All) and Janki Prasad v. Kailash, AIR 1956 All 735.
(2.)THE facts of the case material for the decision of the present application are that in suit No. 404 of 1952 the Union of India obtained a decree against Messrs. Palson Soap Mills and Company through Vishwapal Sharma for Rupees Two Lacs and odd from the Court of the Subordinate Judge First Class, Delhi, and the execution thereof was transferred to the Court of the Civil Judge, Mathura, where many houses belonging to the judgment-debtor were attached and eventually auctioned. THEy were purchased by the present applicants for a paltry sum of a few hundred rupees. THE applicants are near relations of the Judgment-debtor, Vishwapal Sharma. Applicants Nos 1 and 2 are his sons, while applicant No. 3 is the widow of his predeceased son.
The Union of India applied to the Civil Judge, Mathura under Order XXI, Rule 90, C. P. C. to set aside the sale on the ground of material irregularity in publishing and conducting the sale, but the application was dismissed and the sale was confirmed. The Union of India preferred an appeal against this order and the High Court allowed the appeal and has set aside the sale under order dated 13-1-1964, The applicants desire to challenge this order before the Supreme Court, and consequently moved the present application under Article 138 of the Constitution of India, which was listed before a Division Bench of this Court and has now been referred to this Full Bench.

The final order passed in the two cases, Supreme Court Appeal No. 111 of 1958 (All) and AIR 1956 All 735 (supra) is in conflict, but no contrary finding on any point has been recorded in either. In fact, the points raised in the two cases were different. In AIR 1956 All 735 (supra) the only point in issue was the valuation for purposes of Article 133 of the Constitution of India. No one had pleaded that the order setting aside the sale did not amount to a "final order" and it not being a judgment or decree, no appeal lay to the Supreme Court. This question was, however, raised and decided in Supreme Court Appeal No. 111 of 1958 (All). Considering that the whole case has been referred to us for decision, it is but proper that we should, on consideration of the provisions of the Constitution and the case law, decide all the material questions involved.

(3.)THE material part of Article 133(1) of the Constitution of India runs as below: "An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies- (a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court. It is not in dispute that the value of the property auctioned and purchased by the applicants exceeds twenty thousand rupees. Consequently, the applicants can appeal, as a matter of right, to the Supreme Court, if the High Court's order dated 13-1-1964, sought to be challenged before the Supreme Court, is or amounts to a "judgment, decree or final order in a civil proceeding".
An application under Order XXI, Rule 90, C. P. C. is made during the execution proceeding, and it does not relate to the matters in controversy in the suit; hence the order passed on such an application does not amount to a "decree" as defined in Section 2(2), C. P. C. The term "judgment" is defined in Section 2(9), C. P. C. to mean the statement given by the Judge of the grounds of a decree or order; but because Article 133 makes a distinction between judgment and final order, judgment cannot include an order. In other words, an order passed on the application under Order XXI, Rule 90, C. P. C., whether by the executing court or in appeal, is not a judgment or decree. It is an order and an appeal shall lie to the Supreme Court only if the order amounts to a "final order in a civil proceeding."

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