# SITA RAM GOEL v. SUKHNANDI DAYAL & ANR

- **Citation:** [1972] 1 S.C.R. 836
- **Court:** Supreme Court of India
- **Decided:** 1971-09-20
- **Bench:** C. A. Vaidialingam, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sita-ram-goel-v-sukhnandi-dayal-anr-5475
- **Pages:** 10

## Headnote

Code of Civil Procedure (Act 5 of 1908), ss.'47, 105(2), 0. ~1. rr. 1
and 2 (as in force in Allahabad), 0. 41, r. 23 and 0. 43, r. l(u)-Scope
of-Application by judgment
debtor under
0. 21, r. 2-Question of
limitation decided and matter remanded regarding factunz of paymentsDecision by both subordinate courts in favour
of judgment debtorWhether question as to pay1nents \Vere in accordance with 0. 21, r. 1,
C.P. C. could be gone into by High Court in second appeal.
The respondent, who was the landlord under whom the appellant was a
tenant, obtained a decree for eviction and damages against the appellant.
The respondent
filed
an execution
application on July 19, 1960.
In
answer to it the appellant filed objections by initiating proceedings under
O. 21, r. 2(2) C.P.C. on September 3, 1960.
In that application,
the
appellant alteged that there was a compromise behvcen the parties
cm
July 25, 1957 that in pursuance of the compromise he made \•arious payments and that the last of the payments was made on June 16, 1960, and
prayed for recording an adjustment of the decree. The trial court, however, held that as the compromise was entered into on July 25, 1957 the
period of limitation for filing the app!ication would start from that .date,
and since the application was filed· beyond 90 dayi; from that date, it was
barred by lin1itation. The trial court dismissed the application on that sole
ground, without investigating into the truth of the compromise or. the.
payments.
On appeal, the appellate court accepted the contention of the
appellant that if he was able to establish that he had ma& the last payment on June 16, 1960 the period of limitation o'f three months for filing
an application under 0. 21, r. 2 would begin to run only from that date
and that his application would be in time.
The appellate court therefore
set a'>ide the order o'f the trial court and remanded the proceedings for·
investigation into facts, namely, whether the compromise and the payments·
alleged to have been made by the appellant on the basis of the compromise and particularly the payment said to have been made on June
16,
1960, were true.
After remand, the trial court accepted the plea of the
appellant regarding the truth of the compromise as well as the payments
said to have been made by him, including the payment of June 16, 1960,
he1d that the application filed was within time, and
ordered 1full adjustment and satisfaction of the decree.
On appeal, the findings of the trial
court were confirmed and the appeal was dismissed.
In.
second appeal.
the High Court acceoted the findirigs on the questions of compromise and
payments but held that as the appellant had not claimed to have made the
payments in compliance with 0. 21, r. 1, C.P.C., as amended and in forCe
in Allahabad, it wns not open to the appellant to ask for recording adiustment of the decree, and dismissed the application of the appellant filed
under 0. 21, r. 2.
,.
Allowing the appeal to this Court,
A
B
c
I)
E
F
G
HELD . In view of the decision of the appellate court when remandH
ing the matter, it was not open to the respondent to raise the objection
either of limitation or that the payments had not beeo made as per 0. 21,
r. 1, C.P.C. The parties and the courts had proceeded on the basis ihat
A
B
c
D
E
F
G
H
s. R. GOEL v. s. DAYAL ( Vaidialingam, J.)
83·7
.,
the entire qu~stion n.~lutcd 'to a controversy in' respect -or cx~cu~io:\, \l}s-'
charge or ·satisfactioni of the <lccrcc.
Under s. 47(2} ~C.P.C .•. J11e \..;'Ourt·
has po\ver lo treat the Sard proceeding as a suit. •Un,der b. 41~- r. 23, '3n
appellate court has po\vcr to remand a procccOing when .r s1fit has been
disposed_ of on. a prcli_n1ina~y Point! ~~n<l UJldCr o ..... 431 r_: 1 (u)., ~.!'.,(:. 3;0
appeal hes against an order rc1na1H.l1ng the case v..·hcrc an appeal \VOLl!d lie
a11ainst ... thc decree of ,,the aPpcllatc court.
The rCSPond"cnt sHoulU 'have
filed an 3ppcal against the order. b'f .. the rcma11d, and the conscq•H::r,f:e -o

## Text

836
SITA RAM GOEL
v.
SUKHNANDI DAYAL & ANR.
September 20, 1971
[C. A. VAIDIALINGAM AND P. JAGANMOHAN REDDY, JJ.J
Code of Civil Procedure (Act 5 of 1908), ss.'47, 105(2), 0. ~1. rr. 1
and 2 (as in force in Allahabad), 0. 41, r. 23 and 0. 43, r. l(u)-Scope
of-Application by judgment
debtor under
0. 21, r. 2-Question of
limitation decided and matter remanded regarding factunz of paymentsDecision by both subordinate courts in favour
of judgment debtorWhether question as to pay1nents \Vere in accordance with 0. 21, r. 1,
C.P. C. could be gone into by High Court in second appeal.
The respondent, who was the landlord under whom the appellant was a
tenant, obtained a decree for eviction and damages against the appellant.
The respondent
filed
an execution
application on July 19, 1960.
In
answer to it the appellant filed objections by initiating proceedings under
O. 21, r. 2(2) C.P.C. on September 3, 1960.
In that application,
the
appellant alteged that there was a compromise behvcen the parties
cm
July 25, 1957 that in pursuance of the compromise he made \•arious payments and that the last of the payments was made on June 16, 1960, and
prayed for recording an adjustment of the decree. The trial court, however, held that as the compromise was entered into on July 25, 1957 the
period of limitation for filing the app!ication would start from that .date,
and since the application was filed· beyond 90 dayi; from that date, it was
barred by lin1itation. The trial court dismissed the application on that sole
ground, without investigating into the truth of the compromise or. the.
payments.
On appeal, the appellate court accepted the contention of the
appellant that if he was able to establish that he had ma& the last payment on June 16, 1960 the period of limitation o'f three months for filing
an application under 0. 21, r. 2 would begin to run only from that date
and that his application would be in time.
The appellate court therefore
set a'>ide the order o'f the trial court and remanded the proceedings for·
investigation into facts, namely, whether the compromise and the payments·
alleged to have been made by the appellant on the basis of the compromise and particularly the payment said to have been made on June
16,
1960, were true.
After remand, the trial court accepted the plea of the
appellant regarding the truth of the compromise as well as the payments
said to have been made by him, including the payment of June 16, 1960,
he1d that the application filed was within time, and
ordered 1full adjustment and satisfaction of the decree.
On appeal, the findings of the trial
court were confirmed and the appeal was dismissed.
In.
second appeal.
the High Court acceoted the findirigs on the questions of compromise and
payments but held that as the appellant had not claimed to have made the
payments in compliance with 0. 21, r. 1, C.P.C., as amended and in forCe
in Allahabad, it wns not open to the appellant to ask for recording adiustment of the decree, and dismissed the application of the appellant filed
under 0. 21, r. 2.
,.
Allowing the appeal to this Court,
A
B
c
I)
E
F
G
HELD . In view of the decision of the appellate court when remandH
ing the matter, it was not open to the respondent to raise the objection
either of limitation or that the payments had not beeo made as per 0. 21,
r. 1, C.P.C. The parties and the courts had proceeded on the basis ihat
A
B
c
D
E
F
G
H
s. R. GOEL v. s. DAYAL ( Vaidialingam, J.)
83·7
.,
the entire qu~stion n.~lutcd 'to a controversy in' respect -or cx~cu~io:\, \l}s-'
charge or ·satisfactioni of the <lccrcc.
Under s. 47(2} ~C.P.C .•. J11e \..;'Ourt·
has po\ver lo treat the Sard proceeding as a suit. •Un,der b. 41~- r. 23, '3n
appellate court has po\vcr to remand a procccOing when .r s1fit has been
disposed_ of on. a prcli_n1ina~y Point! ~~n<l UJldCr o ..... 431 r_: 1 (u)., ~.!'.,(:. 3;0
appeal hes against an order rc1na1H.l1ng the case v..·hcrc an appeal \VOLl!d lie
a11ainst ... thc decree of ,,the aPpcllatc court.
The rCSPond"cnt sHoulU 'have
filed an 3ppcal against the order. b'f .. the rcma11d, and the conscq•H::r,f:e -or
his orriission to .file such :.in appeal' i,s that un<lcr ~- ) 0..5.(~), C.P .C.,
the·-
decisio'n of the appellate court, \Vhilc rcn11.1n<liQg the n1au~r, regarding the
date from which the period of limitation is tO con11111.:ncc, nan1cly June 16,
1960. if payment on that dafe~was established hy the appellant, v.·aS final
and binding on the partic".
The High-Court \\'hen <leuling with the 1natter
should have given due effect to the \l·:ci~!:.1n -given in ~he order of rcmandanJ should have held that the
n:•p:r1d::~t \Vas precluded
fron1 raising
either the J>lca of lin1itatibri or that it \Vi.I<:> nOt open to the appcll:f'1t to
rely upon the payn1e'lt"' ndt made in ;.{ccordanc~ \Vith 0. 21, r: I, {l.P.C.,
as in force in Allahabad.
The High Coltrt~'had not differed on the con~
current findings recorded on facts in favoOr Ut
1 the appellant nnd thefe':
fore. interference \Vith the decision or the l\VO SUborcJinate
COUflS
\Va'i
erroneous "in law. [843 F-G. 844. C-H; 845 A-El
C1v11. APPELLATE JURISDICTION: Civil Appeal ·~o. 1970 o.f
1969.
Appeal ,by special Mav~ from the judgment and order dated
J an9ary .2 L. 1969. df th~ ;~.llahaba'd 'High·· Court in Ex: S~~oml
Appeal N;o. 270 6f 196'.l.:
The appe!1ahl appeared in person.
;
J,.
i.
}
E. C: _1gra1v,ala, A. T, fo.;f. Sqr;ipath, and S. R, Agarwa!,.for llw
respondent.
'
The Judgment of the Court was delivered by
,.
~· ·-
Vai!lialfngam, ;r~
The appellant in this appeal,
by special
leave, has argue\1.h!s case in person ·and attacks the judgment of
the Allahai?ad High Court dated January 21, 1969 reversing' the
decrees of the two Subordinate Courts.
'
'
The facts leading upto this appeal may be briefly .stated·: The
respond~nt, wlio is the landl9rg;· under whom the appellant is a
tenant, obtai:ied an exparte decree o~. Mar,~h 9, 1_?57 in suiLNo.
74 of J 9,:;6.m the Court .of the Add1t1onal Muns1f; Kanpur. The
decree was not on!)(, for evictlqn, but also for payment' o(.rent or
damages and mesne profits, as well as costs.
,
"'
1
~,
The appellant ·p!ead,ed th~t there was ,a ccnnpromi~~ entered
into b"etween 'him .and, the tespondent in and ~,Y which 1he manner
of ~xtinguishment of the decree was arriv_ed at. • That compromise, 'acc~rding to the appellant, was entered into .on July 25,
1957, 'Die terms o~.the co1np~0tT\ise have been ·incorporated in
the judgment of the Additional District Judge dated March 21,
.838
SUPREME COURT REPORTS
(1972) 1 S.C.R.
196~ in Misc .. ciyil Appezj No. 688 of 1960 and in other proceedmgs, and 1t 1s unnecessary for us to refer to them.
It .is
enough to note that if the amounts agreed to be paid as per its
terms were paid the decree for eviction would stand extinguished
retrospectively.
The plea of the appellant was that he has made the payments
in accordance with the compromise and the last of such payments
was on June 16, 1960. As noted earlier, according to him; the
date of the compromise was July 25, 1957.
It was his claim
that when the last payment was made, the decree for
eviction
obtained against him on March 9, 1957 stood extinguished and
that the landlord-respondent has no further right to execute the
decree;
The landlord had filed an application on July 19, 1960 for
executing the decree in Suit No. 74 of 1956. Prior to that, the
appellant appears to have taken certain proceedings and asked
for stay of execution till the disposal of some criminal case and
also for adjustment of payments.
A
B
c
We are more particularly concerned with the application filed
D
by the appellant on September 3, 1960, before the trial court.
That application was under Order XXI Rule 2(2) C.P.C. In
that application, the appellant, after refering to the compromise
and the various payments, claimed to have been made by him
under the compromise, prayed for recording an adjustment of the
decree.
This application was opposed by the respondent on three
E
groum;ls : (a) There has been no compromise, (b) There has
been no payment, and ( c) The application under Order XXI Rule
2 is barred by limitation, as it has been filed beyond 90 days from
July 25, 1957.
The contentions of the landlord-respo,ndent were accepted by
the trial court, which by its order dated October 8, 1960, dismissed the application filed by the appellant under Order
XXI
Rule 2, on the ground that the application having been filed be·
yond 90 days from July 25, 1~57 was barred by limitation. It
is the view of the learned Munsif that as the case of the appellant
was that the compromise was entered into on July 25, 1957, the
period of limitation for filing an application for recording adjustment of the decree will start from that date. The application liled
by the appellant was dismissed o.n this sole ground without investigation into the truth of the compromise and the payments.
F
G
The appellant carried the matter before the learned Additional
District Judge, Kanpur in Misc: Civil Appeal No. 688 of 1960.
Before the learned District Judge, the appellant raised the contenH
tion that the view of the trial court that the period of limitation
starts from July 25, 1957 is erroneous. He pleaded that as the
decree obtained by the landlord will get extinguished only when
A
6
c
D
E
F
G
H
s. R. GOEL v. s. DAYAL (Vaidia/ingam, J.)
839
the last payment was made, namely, on June 16, 1960, the period
of limitation of 90 days for filing the application for recording
adf ustment of the decree will have to ~ computed from that date.
As the application has been filed within 90 days from June 16,
1960, the executing court has acted erroneously and illegally in
rejecting his application as being barred.
The appellant had
also raised contentions on facts regarding the truth of the compromise, as well as the payments claimed to have been made by
him.
These contentions of the appellant, as seen from the judgment,
were very strenuously contested by the respondent who pleaded
that the application filed under Order XXI Rule 2 was barred,
as correctly held by the executing court on the basis
that the
limitation starts from July 25, 1957.
The respondent pleaded
that the appellant had sufficient opportunity to lead evidence both
regarding the truth about the factum of compromise as well as
regarding the payments claimed to have been made by him.
As
this opportunity was not availed of by the appellant, the landlord
pleaded that the appeal should be dismissed.
The learned District Judge by his judgment and order dated
March 27, 1961, after referring to the contentions of the parties,
as well as the terms of the compromise pleaded by the appellant,
considered the main question as to from what date the period of
limitation is to be computed. The' learned Judge before whom
case law was cited on both sides with regard to the starting point
for limitation, ultimately accepted the contention of the appellant
that if he is able to establish that he has made the last payment.
on June 16, 1960, the period of limitation of three months for
filing an application unde~ Order XXI Rule 2 would begin to
run only from that date, and that in that case the application filed
on September 3, 1960 will be in time. The learned Judge categorically rejected the contention of the respondent-decree-holder
supporting the view of the trial court that limitation has begun
to run from July 25, 1957. In fact the trial court could not have
held otherwise, in view of the decision of the Distriot Court in
Misc. Civil Appeal No. 688 of 1960.
After holding that the limitation will start only from June 16,
1960, the learned Judge, however, adverted to questions regarding
the truth about the compromise as well as the payments clairaed
to have been made by the appellant.
But the court was faced
With this difficulty, namely, that parties had not adduced evidence
before the trial court as the latter had dismissed the application
of the appellant on the ground that it was barred by limitation.
Therefore, the learned District Judge set aside the order of the
trial court and remanded the proceedings for investigation into
facts, namely, whether the compromise and the payments alleged
840
SUPREME COURT REPORTS
(1972] I S.C.R.
to have been made by the appellant on the basis of tl:.e' compromise, particularly the payment stated to have been made on
June 16, 1960 were true. He gave a specific .direction that if the
payment on June 16, 1960 is found in favour of the judgmentdebtor the application filed by him is no.t barred by)imitation.
It is significant that the respondent-landlord never raised any
objection to the maintainability of the appeal No. 688 of 1960.
Nor did he raise the conte;ntion that no investigation into the
truth of the compromise or payments pleaded ~ the judgment
debtor was needed as the payments claimed to have been made
have not been certified and made in accordance with Or<ler XXI
Rule 1 C.P.C. as in force in Allahabad, nor on the ground that
the application filed by the judgment debtor is barred by time.
N'o appeal was filed by the decree-holder against the order of
femand passed by the District Court.
After remand, both the parties adduced evidence with regard
to these. questions of fact before the trial court. Even before the
trial court the decree-holder did not contest its jurisdiction to
investigate into facts. In fact, he could not have raised any such
contention, as the Munsif was bound by the remand order. By
j11dgment and order dated September 28, 1961, the learned Munsif
accepted the plea of the appellant both regarding the truth of the
compromise as well as the payments stated to have been made
by him.
In particular, though there was a serious controversy
be.tween the parties regarding the payment stated to have been
made by the appellant on June 16, 1960, the learned Munsif, on
the evidence, accepted the appellant's case and held in his favour
on this point. In view of this finding regarding payment on June
16, 1960, in favour of the judgment-debtor, the period of limitation was computed by the Munsif from that date, as directed by
the· remand order of the District Judge, and held that the application filed by the judgmefit debtor was within time. In this view, the
learned Munsif ordered full adjustment and satisfaction of the
decree as well as cost and further held that the decree got extinguished as pleaded by the judgment debtor.
The respondent filed an appeal before the Ist
1 Additional Civil
Judge challenging the judgment and order of the !rial court dated
September 28, 1961. The learned Civil Judge by his judgment
dated October 20, 1962, confirmed the findings of the trial court
and dismissed the respondent's appeal.
The respondent-decree-holder filed Second Appeal No. 270
of 1963 before the High Court. The learned Judge has not
adverted to the proceedings referred to above leading up to the
order of remand and the directions given in Misc. Civil Appeal
A
B
c
D
E
F
G
H
s. R. ®EL v. s. DAYAL ( Vaidialingam, ]. )
841
A
No. 688 of 1960. On the other hand, the learned Judge has
proceeded on the basis as if the decision in this case was rendered
for the first time by the Munsif on September 28,, 196 l mltl ?)
the Civil Jm4ie on October 20, 1962.
In vie:-V of
tlus,
tne
learned Judge merely noted that the two subordmate courts have
concurrently accepted the case of the appellant, b~ih on the
B question of compromise, as well as the payments claimed to have
been made by him.
The learned Judge has also not~d that the
daim of the judgment debtor that he paid Rs. 235/- on June 16,
1960 has been concurrently accepted by both the couns.
After noting the above findings recorded concurrently by bo.th
the courts, the High Court does not express any disagreement wl!h
C
those findings. But on the basis of those findings, the High Court
considered the question whether, in the nature of the compromise
pleaded by the appellant and found in his favour by
the two
courts, an application under Order 21 Rule 2 C.P.C. was mainfainable.
In this connection the High Court referred to the provisions of Order 21 Rule 1 C.P.C. as amended and in force in
D
Allahabad.
After quoting that rule, the High Court is of the
view that as the appellant has not claimed to have made payments in compliance with those provisions, it was not open to
him to ask for recording adjustment of the decree.
According
to the High Court, his remedy, if any, is only by way of a separate
suit for damages against the decree-holder. It is the forther view
E
of the High Court that this aspect has not been considered at all
by the two courts and as such they committed an error in investigating the question regarding the truth or otherwise of the compromise or payments claimed to have been made in pursuance of
the said compromise, particularly the payments made on June 16.
1960. The High Court then refers to the stand taken by
the
,
decree-holder that even on the basis of the
compromise,
the
F
period of limitation for filing an application for recording adjustment of the decree commences from July 25, 1957 as also the
plea of the appellant that limitation commences from June· 16,
I 960, when the last payment was made.
The High Court expressed the view that the agreement uleaded could amount to an
adjustment of the decree only if the said agreement was in writing
G
and had been filed within the period allowed by the law of
Limitation. The High Court has not pursued the matter further
and express-ed an opinion as to what is the date from which the
period Clf limitation is to be computed.
In the end the High
Court expressed the view that the whole approach made by the
two subordinate courts is erroneous.
Obvi9usly, thls criticism
H
must refer to the circumstances noted by the High Court that the
payments under the compromise have not been claimed to have
been made in the manner provided in Order 21 Rule 1 C.P .C. as
in force in· Allahabad. On this reasoning the High Court reversed
2~Ll19SupCT/72
842
SUPREME COURT REPORTS
[l 972] I S.CR.
the decrees of both the subordinate courts and dismissed the application of the appellant filed under Order 21 Rule 2 C.P.C. It
will be noted that even before the High Court the respondent
had not "taken any objection that the appeal filed by.the judgment
debtor namely. Misc. Civil Appeal No. 688 of 1960 was not
maintainable and that the findin_gs recorded therein against him
are not binding on him.
The appellant urged before us that the High Court was not
justified in interfering with the concurrent findings on facts and
that it committed an error in going behind the findings recorded
in the Misc. Civil Appeal No. 688 of 1960.
He further urged
that the question as to from what date the period of limitation is
to be computed has already been adjudicated upon in the said
appeal. and that the decree-holder should not have been permitted
to raise over again the point concluded by the remand order. The
appellant also urged that the view of the High Court that the
payments have not been made by him in accordance with Order
21 Rule l C.P.C. is not correct.
Mr. E. C. A;garwala, learned Counsel for
the
respondent
decree-holder has drawn our attention to Order 21 Rule 1 C.P.C.
as in force in Allahabad.
He contended that even according to
the appellant the paymen'ts have not been made in accorda;nce
with the said rule.
Therefore, he urged that the High Court was
perfectly justified in holding that the payments which have not
been made in accordance with the said rule, cannot be taken inl0
account for recording adjustment of the decree.
In the view that we take that because of the decision in Misc.
Civil Appeal No. 688 of 1960 it is not open to the respondent to
raise the objection either of limitation or that the payments have
not been made as per the said rule, we express no opinion whether
the payments made directly to •the decree-holder under the specific
terms of an agreement or a compromise cannot be pleaded in an
aQPlication filed for recording satisfaction or
adjustment
and
whether under those circumstances such payment should also be
made in the manner provided in the said rule.
One aspect which strikes us and which will conclude the case
ugainst the respondent is the findi,ng recorded by the
learned
District Judge on March 27, 196! in Misc. Civil Appeal No. 688
of 1960.
We have already referred to the nature of the findings
recorded therein. The executing court had dismissed the application filed by the appellant on the ground that it is barred by limitation as it has been filed beyond· 90 day• from July 25, 19-57.
Before the District Judge parties were at issue on this aspect.
While according to the appellant, limitation starts only from
A
c
D
E
F
(•"
G
H
s, ·R. GOEL v. s. DAYAL (Vaidialingam, J.)
843
'
A
Ju'ne 16, 1960, .the respondents plea was that limitation comnrences ·from July 25, 1957.
Various decisions were· cited ·by
both the parties before the· District Coμrt.
After a considei:ation
of those decisions, the Districl Court s'pecific.ally held that if the
:tppellant is able to establish the compromise as well as the further fact that he paid the last instalmf?llt ·on _June 16-, ·1960, his
application is not barred', by limitation n's it has peen filed within
90 days, pamcly on -Seμ'.tember' 3, 1960. Though the .respondent
pleaded that t.he appellant had '"-'1 opportunity to let in evidence
regarding the truth of t11e compromise as well as the payments
claimed to hav~ been- macie lfy him, t11e District Court rnok the
view tliat the learned Munsii·;had no occasion to consider these
aspects as )1c dismissed the application filed by the appdlant on
tile sole ground of limitatiop'.
After ,spccificai1y_ 1recording 1l1e
date from which period of limitation' is ;to be
computed,
the
learned District J ua'~inemanded lhe proceedings to the lJfal cQHrf
for investig;\tion in1o the trutif' bf the compron1ise as well. as .the
payments claimed to have been made by the appellant.
The
Dl\iitict MGhsif, after rerhand has elaborately gone into the matter"!;.
arn;l ·specifically found' on. fact 'in favouf of the d~llant. both
r~garding the truth o.f the co111promisd and the ,Ptlyment;.
He
:llso held that ·the last 'Payment has· been made on lune 16, 1960.
and.''t_herefore .. in view of the ;direqions containeil in the 1'.emand
order, the 'application filed by the appeJlant was within time.
B
c
D
I
(
'
.
,
.
E
...,
~
r
.•:,,..
It is a·ganist this order .of. the .District.Munsif.tthat the respon·
·ctent filed an appeal before the District Court and a further Second:
A.ppealeefore the High Court!" , We have already stated. that the
~espondent. h_ad'. filed on July l 9, l 960. an application· for executing. !P.e ex1farte decree,, It is in answet' to that execution petition
F
that the appellant' filed objection~ by. il1itiating proceedings under
Order ·2 ! Rule<2(2) CP.C:•Oll. 5eptember ). 1960.
Ther~fore.
·the. parties ahcl '.the Courts ha,cf pro'ceeded on the basis that the
entir~ question related to a controversy in respect of execution.
disc)large or' ;ati~fa9tion of th~ deq~e.' 't.Jnder s. "47.(2) c'.P.c.
the ~ouh bas jiower to treai the said proceeding as a suit.
That
explains• why the respondenr did not' raise any objection before
G •• the District €ourt that Misc. Ciiril Appeal No.: 688 of 1960 filed
' by the appellant was· not maintainable. We have already pointed
out that 'before the ·District •Court the respondent did not also
raise any o)>jection that •nm investigation Tegarding the trnth of'the
compromise and .the .payhic!]t
i~ necessary as the amount. even
according to the appellant. has been .!)aid contrary to Order .2 I
H Rull!, 1 C.f,!=. a~ in force in fllah~bacj.
ln view of t)1e circumstances pJlnt~d 'out
above,
opinion, t~e decisio.n of the" . .(\dditic)nfll District !udge
BJ
our
in Misc.
844
SUP.REME COURT REPORTS
[1972] 1 S.C.K.
Civil Appeal ,No. 688 of 1960 precludes the respondent from
reagitating the point ·covered by that decision.
A
Mr. Agarwala pointed out that Misc. Civil Appeal No. 688
of 1960 'Was not maintainable: We are not impressed with this
contention because apart from the fact that no such objection
was raised before the District Court, which was dealing with the
B
said appeal, the respondent himself has filed the appeal and the
Second Appeal against the order passed by the District Munsif
after .remand. It was against the original order of the District
Munsif that the appeal was filed by the appellant before the District Court.
Even otherwise, as we have already pointed out, the proceedings have been treated as one under s. 47 C.P.C. in which the
Misc. CiviI Appeal No. 688 of 1960 was perfectly competent.
Under Order 41 Rule 23, an appellant court has got power to
n;mand the proceedings when a suit has been disposed of on a
preliminary point. We have already pointed out that the District
Munsif dismissed the application filed by the appellant on the
preliminary ground that it is barred by limitation. We have already further pointed out that it mus: be considered to be a
proceeding under s. 4 7 as it was really iJ! opposition to the execution proceedings filed by the respondent:
The appellate court,
under those circumstances, when it disagreed with the trial court
on the question of limitation was perfectly competent io remand
the proceelfings.
Under Order· 43 Rule 1 CL(u)
C.P.C. an
appeal lies against an order reman3ing a case whete an appeal
would lie from the decree of the appellate court. From the fact
that the respondent has filed Second Appeal, which is the subject
of attack before us against the decision in an appeal of tl]e District
Court in the same proceedings, it is clear that the respondent should
have filed an appeal against the order of remand.
The consequence of an omission to file an appeal against the
order of remand. under such circumstances, is indicated ins. 105.
sub-s. (2) C.P.C. which is as follows :
"Sec. 105 (2) Notwithstanding anything contained
in sub-section ( 1), where any party aggrieved by an
order of remand made after the commencement of this
Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputin!?
its correctness."
We have already pointed out that the respondent had a right
of appeal against the judgment and order passed in Misc. Civil
Appeal No. 688 .Of 1960. The respondent admittedly did not
file an appeal against the said order of remand. If so, it follows
c
D
E
F
G
H
A
B
c
D
E
s. R. GOEL v. s. DAYAL (Vaidialingam, !.)
845
that the decision in Misc. Civil Appeal No. 688 of 1960 regardmg the date from which the period of limitation is to commence,
namdy, June 16, 1960, if payment on that date is established by
the appellant binds both the parties, as that decision has become
final.
It is on the basis of that decision that the tri~l court went
into the facts and held in favo~·r of the appellant. Those findings
have been confirmed by the District Court on October 20, 1962.
It was against the fresh decision given by the District Mnnsif on
September 28, 1961 and confirmed by the District
Court
on
December 20, 1962 that the present Second Appeal was filed
before the High Conrt by the respondent. The High Court when
dealing with the matter should have given due effect to the decision
given in the order of remand in Misc. Civil Appeal No. 68 8 of
1960 and should have held that the respondent is precluded from
raising either the plea of limitation or that it was not open to the
appe.llant It' rely upon the payments not made in accordance with
Order 21 Rule 1 C.P.C. as in force iQ Allahabad.
The High
Court has committed a very serious error in law in not adverting
!o the remand order as well as to th~ ';arious other circumstances
mentioned by us earlier.
We have already pointed out that the High Court has not
differed from the concurrent findings recorded on facts in favour
•)f the appellant.
The interference by the High Court with the
decision of the two subordinate courts is erroneous in Jaw.
In the result, the decree and judgment of the High Court dated
Tanuary 21. 1969 in Second Appeal N:o. 270 of 1963 are set
aside and this appeal is allowed.
There will be no order as to
costs.
F V.P.S.
Appeal al/ow~d.