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Friday, January 2, 2015

CIVIL APPEAL NO.9699 OF 2014 [Arising out of S.L.P. (Civil) No.33699 of 2011] Sameer Singh and Another ... Appellants Versus Abdul Rab and Others ... Respondents-2014-Oct. Month.S.C.


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.9699 OF 2014
              [Arising out of S.L.P. (Civil) No.33699 of 2011]


Sameer Singh and Another                           ... Appellants

                                   Versus

Abdul Rab and Others                                 ... Respondents






                               J U D G M E N T


Dipak Misra, J.


  Leave granted.

The Universal Construction Company, the respondent No. 3 herein,  instituted
Civil Suit No. 480 of 1971 in  the  High  Court  of  Calcutta  invoking  its
original civil jurisdiction for  realization  of  a  sum  of  Rs.2,15,289.28
paise  from  the  Engineers  Syndicate  (India)  Private  Limited,  the  4th
respondent herein, and an ex parte decree was passed  in  the  suit.   After
obtaining the decree, respondent No. 3 assigned the same in favour of  Abdul
Rab, respondent No. 1  herein,  on  20th  May,  2005.   After  the  deed  of
assignment was given the formal shape, the 1st  respondent  moved  the  High
Court of Calcutta and got the said decree transferred to the  Court  of  Sub
Judge-I,  Jamshedpur  for  execution  by  way  of  attachment  and  sale  of
immovable properties of the 4th respondent situated within the  jurisdiction
of the executing Court.  Thereafter, the 1st respondent filed  an  execution
case against the 4th respondent.  A schedule of  property  was  attached  to
the execution petition.


3.    As the factual matrix would unfurl, the executing court after  receipt
of the  decree  on  23.8.2006  issued  notice  to  the  4th   respondent  by
registered post and when the service was not effected, mode  of  publication
was taken recourse to for appearance of  the  judgment-debtor.   Eventually,
the execution case was fixed  for  ex  parte  hearing  on  9.3.2007  on  the
petition of the assignee-decree-holder.  After following the procedure,  the
scheduled property was put up for sale by  way  of  auction  and  ultimately
Abdul Rafai, respondent No. 2, purchased the property and  pursuant  to  the
order of the Court took over possession of the said immovable property.

4.    As the factual narration would further undrape, at the said  juncture,
the present appellants filed an application under Order XXI,  Rules  97,  99
and 101 of the Code of Civil  Procedure  (C.P.C.)  contending,  inter  alia,
that the disputed property originally belonged to the  4th   respondent  who
had borrowed a sum of Rs.14,571/- from his deceased father, Gopal Singh,  by
depositing the sale deeds of the said property on 18.2.1971 at Calcutta  and
had delivered possession of the said property to Gopal  Singh  on  19.2.1971
in lieu of interest of said borrowed amount.  When  he  failed  to  pay  the
borrowed sum, the 4th respondent agreed to transfer the said property for  a
consideration of Rs.25,000/- to Gopal Singh  after  adjusting  the  borrowed
amount i.e. Rs.14,571/-.  Regard being had to the  said  arrangement,  Gopal
Singh had  paid  the  balance  amount  of  Rs.10,429/-  and  accordingly  an
agreement for sale was executed.  When the 4th  respondent  did  not  honour
his part of the contract, Gopal Singh instituted Title Suit No. 43  of  1974
in the Court of Sub Judge-I,  Jamshedpur  against  the  4th  respondent  and
eventually the said suit was decreed by the Second  Additional  Sub  Judge-I
on 14.5.1977.  Thereafter, a case was filed and in pursuance of  the  decree
a sale deed was executed on 10.10.1982  in  favour  of  the  father  of  the
appellants through Court and he was put in possession through Nazir  of  the
Civil Court in respect of the property in question, and after the demise  of
Gopal Singh, the appellants, being sons, inherited  the  said  property  and
remained in possession having right, title and interest till 27.4.2008  when
all of a sudden, respondent No. 2 through the help of  Nazir  took  delivery
of the  property  after  dispossessing  the  appellants  therefrom.   On  an
inquiry being made, they came to know  under  what  circumstances  they  had
been dispossessed by the Nazir.  The application further asserted  that  the
schedule of property which had been appended to Execution  Case  No.  24  of
2006 had been deliberately added though the 4th respondent  had  no  concern
with the same.  It was also put  forth  that  an  order  of  attachment  was
published in a local daily ‘Uditwani’ dated 23.10.1982  in  respect  of  the
scheduled property by the High Court of Calcutta in Suit  No.  480  of  1971
and the father of the appellants coming to know of the  same  had  filed  an
objection before the High Court which after considering  the  objection  and
taking note  of  the  right,  title  and  interest  of  the  father  of  the
appellants had released the  said  property  from  attachment  but  the  1st
respondent by suppressing all the facts got the said  schedule  of  property
attached and put the same in auction and respondent No. 2 who was set up  by
the  respondent No.1 became the purchaser of the property.  In  essence,  it
had been pleaded that respondent Nos. 1  and  2  had  colluded  to  put  the
property to auction which did not belong to the respondent  No.  4  and  was
not meant for attachment and sale, for it had been already released  by  the
High Court of Calcutta and, in  any  case,  the  respondent  No.  4  had  no
concern with the said property.  In the application it was prayed  that  the
appellants, the applicants in the court below, should be put  in  possession
of the scheduled property and the respondents be  restrained  from  changing
the nature and character of  the  property  till  the  adjudication  of  the
application.

5.    The said application was resisted by respondent  Nos.  1  and  2,  the
opposite parties No. 1 and 2 before the executing court, on  many  a  ground
and basically reasseverating the facts how the decree  had  been  passed  by
the High Court of Calcutta and how there had been a deed of  assignment  and
further the fairness  of  procedure  adopted  in  putting  the  property  to
auction and the eventual sale.

6.      The  executing court framed two issues which read as follows:-

“I. Whether the transferee executing court has  jurisdiction  to  adjudicate
the present petition filed by the applicants under order XXI  rules  97,  99
and 101 C.P.C.?

II. Whether the applicants are entitled to get as relief in claim  in  their
application?”

7.    The executing  court  noted  the  submissions  of  both  the  parties,
referred to the order passed by the High Court of Calcutta transferring  the
decree for execution, adverted to the provisions under Sections 39 to 42  of
C.P.C., placed reliance on certain authorities as regards the limitation  on
the powers of the transferee court under Section 42 of C.P.C., recorded  the
fact  that  it  had  already  dismissed  the  execution  case  to  the  full
satisfaction of the decree-holder on 19.12.2008 and  informed  the  same  to
the Registrar of the High Court of Calcutta, and  eventually  came  to  hold
that it had no jurisdiction to reopen and discuss the matter  pertaining  to
the title of the parties in execution  case  at  the  instance  of  a  third
party.  In that backdrop, it observed that the executing  court  had  become
functus officio and could not entertain the application.  Adverting  to  the
second issue, the executing court noted the contentions and referred to  the
authorities earlier cited but ultimately opined that as a finding  had  been
recorded  to  the  effect  that  the  transferee-executing  court   had   no
jurisdiction to entertain the petition, regard being had to  the  fact  that
the decree had been executed to the full satisfaction and an intimation  had
been sent to the Registrar of  the  Calcutta  High  Court,  the  controversy
raised could not be dealt with and no relief could be granted.

8.    The aforesaid order came to be  assailed  before  the  High  Court  in
W.P.C. No. 348 of 2011 under Article 227 of the Constitution  of  India.   A
preliminary objection was raised on behalf of the  1st  respondent  that  an
order passed under Order XXI, Rule 98 to 100 of C.P.C. is a  decree  as  per
the  provisions  contained  under  Order  XXI,  Rule  103  of  C.P.C.   and,
therefore, an appeal would lie and the writ petition was  not  maintainable.
The preliminary objection was resisted by proponing a contention  that  only
those orders which adjudicate the  dispute  between  the  parties  would  be
treated as decree but as in the case at hand, the Court had not decided  the
lis in question as it had expressed an opinion that it had  no  jurisdiction
after having become functus officio, an appeal would not lie.

9.    The learned Single Judge accepted the  preliminary  objection  on  the
foundation that dispute between parties regarding jurisdiction of  executing
court could be determined under Order XXI, Rule 100 of C.P.C. and that  when
a decision had been rendered on that score  it  would  be  a  deemed  decree
under Order XXI, Rule 103 of C.P.C. and hence, the  writ  petition  was  not
maintainable.  Expression of aforesaid view entailed dismissal of  the  writ
petition.  Hence, the present appeal by special leave.

We have heard Mr. Saurabh S. Sinha, learned counsel for the  appellants  and
Mr. Jayesh Gaurav, learned counsel for the respondents.

Assailing the impugned order it is contended by Mr. Sinha that  the  learned
Single Judge has failed to appreciate the language employed  in  Order  XXI,
Rules 97 to 103  which  commands  the  executing  court  to  adjudicate  the
controversy  pertaining  to  all  the  aspects  and,  therefore,  when   the
executing Court has only opined that it  has  become  functus  officio,  the
said order cannot be treated as a decree.  It is urged by him that the  said
order tantamounts to refusal of exercise of jurisdiction duly  vested  in  a
Court and, therefore, such an error has to be rectified in exercise  of  the
power of superintendence  by  the  High  Court  under  Article  227  of  the
Constitution  of  India.   It  is  his  further  submission  that  the  view
expressed by the High Court is fallacious as far  as  its  understanding  of
the ratio of the decision  in  Babulal  v.  Raj  Kumar  and  Others[1].   To
pyramid the submission that there has to be an adjudication as warranted  in
law, learned counsel has placed reliance on Ghasi Ram and  Others  v.  Chait
Ram Saini and others[2] and Ram Kumar Tiwari and  Others  v.  Deenanath  and
Others[3].

Mr. Jayesh Gaurav, learned counsel appearing for the respondents in  support
of the order passed by the High Court has contended that when the  executing
court had clearly expressed the view that it has no jurisdiction  to  embark
upon the issues as required to be gone into under Order  XXI,  Rules  97  to
103 of  C.P.C., there was no necessity to proceed further and it would be  a
travesty of justice  if  it  is  construed  that  when  there  has  been  no
adjudication of an application on behalf of a third party it would not be  a
decree.  It is canvassed by him that adjudication does not necessarily  mean
to record evidence and deal with the issue of right, title and  interest  to
make the order a deemed decree as stipulated under Order XXI, Rule 103.   It
is urged by him that when finality is given to the objection it assumes  the
character  of  a  decree  as  envisaged  under  Order  XXI,  Rule  103  and,
therefore, the reasons ascribed by the High Court  cannot  be  faulted.   In
support  of  his  contention,  learned  counsel  has  commended  us  to  the
authority in S. Rajeswari v. S.N. Kulasekaran and Others[4].
To appreciate the  submissions  raised  at  the  Bar,  it  is  necessary  to
appreciate the whole gamut of provisions contained in Order  XXI,  Rules  97
to 103 of CPC and the fundamental objects behind the same.   Rule  97  deals
with resistance or obstruction to possession by the holder of a  decree  for
possession or the purchaser of any such property  sold  in  execution  of  a
decree.  It empowers such a person to  file  an  application  to  the  Court
complaining of such resistance or obstruction and requires the  Court  under
sub-rule (2) to adjudicate upon  the  application  in  accordance  with  the
provisions provided therein.  Rule 99 deals with  dispossession  by  decree-
holder or purchaser.  It stipulates that where any  person  other  than  the
judgment-debtor is dispossessed of immovable property by  the  holder  of  a
decree for the possession of such property or where such property  has  been
sold in execution of a decree, by the purchaser  thereof,  he  may  make  an
application to the Court complaining of such dispossession.   The  Court  is
obliged to adjudicate such an application.  Thus this rule, as is  manifest,
includes any person other than the judgment-debtor.   Rule  101  deals  with
the questions to be determined.  It provides that  all  questions  including
questions relating to right, title  or  interest  in  the  property  arising
between the parties to a proceeding on an application under Rule 97 or  Rule
99 or their  representatives,  and  relevant  to  the  adjudication  of  the
application shall be determined by the Court  dealing  with  an  application
and not by a separate suit and for the said  purpose,  the  executing  court
has been conferred the jurisdiction to decide  the  same.   Rule  100  deals
with orders to be passed upon application complaining of dispossession.   It
is apt to reproduce the said rule:-
“Rule  100.  Order  to   be   passed   upon   application   complaining   of
dispossession.- Upon the determination of the  questions  referred  in  Rule
101, the Court shall, in accordance with such determination,-

make an order allowing the application and directing that the  applicant  be
put into possession of the property or dismissing the application; or

(b)   pass such order as, in the circumstances of  the  case,  it  may  deem
fit.”

Rule 98 deals with orders after adjudication.  Sub-rule  (1)  provides  that
upon the determination of questions referred to in Rule 101,  the  Court  in
accordance with determination and subject  to  provisions  of  sub-rule  (2)
therein make an order  allowing  the  application  and  directing  that  the
applicant  be  put  in  possession  of  the  property  or   dismissing   the
application or pass such other order, as in the circumstances  of  the  case
it may deem fit.  As far as sub-rule (2)  is  concerned,  the  same  is  not
necessary to be taken note of for the purposes of present  case.   Rule  103
which is significant reads as follows:-
“Rule 103. Orders to be treated as decrees.- Where any application has  been
adjudicated  upon under Rule 98 or Rule 100, the order  made  thereon  shall
have the same force and be subject to the same conditions as  to  an  appeal
or otherwise as if it were a decree.”

The submission of the learned counsel for the  appellants  is  that  if  the
scheme underlying the said Rules is appositely appreciated, it is  clear  as
crystal that the legislature in order to avoid multiplicity  of  proceedings
has  empowered  the  executing  court  to  conduct  necessary  enquiry   and
adjudicate by permitting the parties  to  adduce  evidence,  both  oral  and
documentary, and to determine the right, title and interest of  the  parties
and, therefore, such  an order has been given the status of  a  decree.   As
has been put forth by him, a proceeding in terms of Rule 97 or  Rule  99  is
in the nature of a suit and the adjudication is similar to that  of  a  suit
and when in the case at hand, the Court has  declined  to  embark  upon  any
enquiry  by  calling  for  reply,  recording  evidence   and   appropriately
adjudicating the controversy, the order  passed  cannot  be  regarded  under
Rule 103 of Order XXI as a decree.  In this context,  the  authorities  that
have been commended to us need to be carefully noticed.
 In Noorduddin v. Dr. K.L. Anand[5], the executing court  had  rejected  the
application of the appellant therein on the ground that the High  Court  had
already adjudicated the lis.  Analysing the language employed in  Rules  97,
98 and 100 to 104, the Court held:-

“Thus, the scheme of the Code clearly adumbrates that  when  an  application
has been made under Order 21, Rule 97, the court is enjoined  to  adjudicate
upon the right, title and interest claimed in the property  arising  between
the parties to a proceeding or between  the  decree-holder  and  the  person
claiming independent right, title or interest in the immovable property  and
an order in that behalf be  made.  The  determination  shall  be  conclusive
between the parties as if it was a decree subject to  right  of  appeal  and
not a matter to be agitated by a separate suit. In  other  words,  no  other
proceedings were  allowed  to  be  taken.  It  has  to  be  remembered  that
preceding Civil Procedure Code Amendment Act,  1976,  right  of  suit  under
Order 21, Rule 103 of 1908 Code was  available  which  has  been  now  taken
away. By necessary implication, the legislature relegated the parties to  an
adjudication of right, title or interest in  the  immovable  property  under
execution and finality has been accorded to it.  Thus,  the  scheme  of  the
Code appears to be to put an end to the protraction of the execution and  to
shorten the litigation between the parties or persons claiming right,  title
and interest in the immovable property in execution.”

            Elucidating further, the Court opined that  adjudication  before
execution is an efficacious remedy to prevent fraud,  oppression,  abuse  of
the process of the court or miscarriage of justice. The object of law is  to
meet out justice and, therefore, adjudication under  Order  XXI,  Rules  98,
100 and 101 and its successive rules is sine qua non to a  finality  of  the
adjudication of the right, title  or  interest  in  the  immovable  property
under execution.
In  Babulal  (supra),  the  appellant  apprehending   that   it   would   be
dispossessed in an execution proceeding had filed an  application  based  on
possessory title and obtained interim injunction.   He  had  also  filed  an
application stating, inter alia, that he should not  be  dispossessed.   His
objection was overruled by the executing court holding  that  since  he  had
not been dispossessed, an application under  Order  XXI,  Rule  98  was  not
maintainable.  The said view  was  affirmed  by  the  High  Court  in  Civil
Revision Petition.  The Court while interpreting the Order XXI, Rules 98  to
102 referred to the decision in Bhanwar Lal v.  Satyanarain  and  Another[6]
and opined that  it  is  clear  that  an  adjudication  is  required  to  be
conducted under Order XXI, Rule 98 before removal of the obstruction  caused
by the objector or the appellant and a finding is required  to  be  recorded
in that behalf. The Court ruled that the order is treated as a decree  under
Order XXI, Rule 103 and it is subject to an appeal.  It  has  been  observed
in the said case that prior to 1976, the order  was  subject  to  suit,  but
under the amended Code, right of suit under Order XXI, Rule 63 of  old  Code
has been taken away, and the determination of the  question  of  the  right,
title or interest of the objector in the immovable property under  execution
needs to be adjudicated under Order XXI, Rule 98 which is an order and is  a
decree under Order XXI, Rule 103 for the purpose of appeal  subject  to  the
same conditions as to an appeal or otherwise as if it were  a  decree.   The
Court further opined that the procedure prescribed is  a  complete  code  in
itself and, therefore, the executing [pic]court  is  required  to  determine
the question.
In Ghasi Ram and Others (supra)  while  making  a  distinction  between  the
provisions prior to the amendment brought in 1976 in CPC and  the  situation
after the amendment, a two-Judge Bench observed thus:-
“The position has changed after amendment of the Code of Civil Procedure  by
the  Amendment  Act  of  1976.   Now,  under  the  amended  provisions,  all
questions,  including  right,  title,  interests  in  the  property  arising
between   the  parties  to  the  proceedings  under  Rule  97,  have  to  be
adjudicated by the executing court itself and not left to be decided by  way
of a fresh suit.”

In the case of S. Rajeswari (supra), the appellant was one  of  the  persons
who  had  obstructed  the  execution  of  a  decree  obtained  by  the   1st
respondent therein and  had filed an application under Section  151  of  CPC
which was rejected by the executing court on the  ground  that  it  was  not
maintainable.  Being grieved by the  said  order  he  preferred  a  revision
petition which was allowed  by  the  High  Court.   The  Court  treated  the
application preferred under Section 151 of C.P.C.  to  be  one  under  Order
XXI, Rule 97 because the executing court proceeded to  record  evidence  and
thereupon adjudicated the matter.  The evidence  of  the  decree-holder  was
considered and a conclusion was arrived at that  the  identity  of  plot  in
question had not been established and thereby  the  plaintiff  was  disabled
from executing the decree for possession of  the  land.   A  contention  was
raised before this Court that the High Court had  erred  in  entertaining  a
revision petition under Section 115, C.P.C., for  the  order  was  a  decree
under Order XXI, Rule 103 of C.P.C. and hence,  an  appeal  lay.   The  said
contention was accepted by this Court.
At this juncture, we may refer with profit to the pronouncement in  Brahmdeo
Chaudhary v. Rishikesh Prasad Jaiswal and  another[7]  wherein  a  two-Judge
Bench scanning the anatomy of the rules came to hold that:-

“... a stranger to the decree who claims an  independent  right,  title  and
interest in the decretal property can offer his  resistance  before  getting
actually dispossessed. He can equally agitate his grievance  and  claim  for
adjudication of his independent right, title and interest  in  the  decretal
property even after losing possession as per Order XXI, Rule 99. Order  XXI,
Rule 97 deals with a stage which is prior to the  actual  execution  of  the
decree for possession wherein the grievance of  the  obstructionist  can  be
adjudicated upon before actual delivery of possession to the  decree-holder.
While Order XXI, Rule 99 on the other hand deals with the  subsequent  stage
in the execution proceedings where a stranger claiming any right, title  and
interest in the decretal property might have got actually  dispossessed  and
claims restoration of possession on adjudication of his  independent  right,
title and interest dehors the interest of the  judgment-debtor.  Both  these
types [pic]of enquiries in connection with the right, title and interest  of
a stranger to the decree are clearly contemplated by  the  aforesaid  scheme
of Order XXI and it is not as if that such a  stranger  to  the  decree  can
come in the picture only at the final stage after losing the possession  and
not before  it  if  he  is  vigilant  enough  to  raise  his  objection  and
obstruction  before  the  warrant  for  possession  gets  actually  executed
against him.”

The  aforesaid  authorities  clearly  spell  out  that  the  court  has  the
authority to adjudicate all the questions  pertaining  to  right,  title  or
interest in the property arising between the parties.  It also includes  the
claim of a  stranger  who  apprehends  dispossession  or  has  already  been
dispossessed from the immovable property.  The self-contained Code,  as  has
been emphasised by this Court, enjoins the  executing  court  to  adjudicate
the lis and the purpose is to avoid  multiplicity  of  proceedings.   It  is
also so because prior to 1976 amendment the grievance  was  required  to  be
agitated by filing a suit but after the amendment the entire enquiry has  to
be conducted by the executing court.  Order XXI, Rule 101 provides  for  the
determination of necessary issues.  Rule 103 clearly  stipulates  that  when
an application is adjudicated upon under Rule 98 or Rule 100 the said  order
shall have the same force as if it were a decree.   Thus,  it  is  a  deemed
decree.  If a Court declines to adjudicate on the ground that  it  does  not
have jurisdiction, the said order cannot earn the status of  a  decree.   If
an executing court only expresses its inability  to  adjudicate  by  stating
that it lacks  jurisdiction,  then  the  status  of  the  order  has  to  be
different.  In the  instant  case  the  executing  court  has  expressed  an
opinion that it has become functus officio and hence, it cannot initiate  or
launch any enquiry. The appellants had invoked the jurisdiction of the  High
Court under Article 227 of the Constitution assailing the  order  passed  by
the executing court on the foundation that it had  failed  to  exercise  the
jurisdiction vested in it.   The appellants had approached  the  High  Court
as per the dictum laid down by this Court in Surya Dev Rai  v.  Ram  Chander
Rai and others[8].
Whether the executing court, in the obtaining circumstances,  has  correctly
expressed the view that it has become functus officio or not and thereby  it
has jurisdiction or  not,  fundamentally  pertains  to  rectification  of  a
jurisdictional error.  It is so as there has been  no  adjudication.   If  a
subordinate court exercises its jurisdiction not vested  in  it  by  law  or
fails to exercise the jurisdiction so vested, the said order  under  Section
115 of the Code is revisable as has been held  in  Joy  Chand  Lal  Babu  v.
Kamalaksha Chaudhury and others[9].  The same principle has been  reiterated
in Keshardeo Chamria v. Radha  Kissan  Chamria  and  others[10]  and  Chaube
Jagdish Prasad and another v.  Ganga  Prasad  Chaturvedi[11].   Needless  to
emphasise, the said principle  is  well-settled.   After  the  amendment  of
Section 115, C.P.C. w.e.f. 1.7.2002,  the  said  power  is  exercised  under
Article 227 of the Constitution as per the principle laid down in Surya  Dev
Rai (supra).  Had the executing court apart from expressing  the  view  that
it had become functus officio had adjudicated  the  issues  on  merits,  the
question would have been different, for in that event there would have  been
an adjudication.
In view of the forgoing analysis, we conclude and hold that the  High  Court
has fallen  into  error  by  opining  that  the  decision  rendered  by  the
executing court is a decree and,  therefore,  an  appeal  should  have  been
filed, and resultantly allow the appeal and set aside  the  impugned  order.
The High Court shall decide the matter as necessary  under  Article  227  of
the Constitution of India.  As a long span of  time  has  expired  we  would
request the High Court to dispose of the matter within  a  period  of  three
months.  There shall be no order as to costs.


                                             .............................J.
                                                               [Dipak Misra]



                                             .............................J.
                                                                         [V.
Gopala Gowda]

New Delhi;
October 14, 2014


                                                     -----------------------
[1]    (1996) 3 SCC 154
[2]    (1998) 6 SCC 200
[3]    AIR 2002 Chhattisgarh 1
[4]    (2006) 4 SCC 412
[5]    (1995) 1 SCC 242
[6]    (1995) 1 SCC 6
[7]    AIR 1997 SC 856
[8]    (2003) 6 SCC 675
[9]    AIR 1949 PC 239
[10]   AIR 1953 SC 23
[11]   AIR 1959 SC 492

-----------------------
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