A question of joint trial arises when the rival parties file independent actions but based on the same cause of action; for enforcement of rights or obligations springing out of that cause of action. The elements of a cause of action are: first, the breach of duty owing by one person to another and; second, the damage resulting to the other from the breach, or the fact of combination of facts which gives rise to a right to sue. Viewed thus, it cannot but be said that both the claims have arisen out of the same transaction or out of the same relationship that came into existence between the bank and the company and the alleged breach of obligations by one or the other. Therefore, it has to be held that the two actions have sprung out of the same cause of action. [151-C, D, E, F] 2.1. It is clear from Sections 19(6) to (11) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 that the Recovery Tribunal has the jurisdiction to entertain a claim of set off or a counter claim arising out of the same cause of action and has also the power to treat the counter claim as a cross suit. Therefore, if the claim of the company in the suit partakes the character of a cross action founded on the same cause of action, the same could be tried by the Debt Recovery Tribunal. [151-F, G] 2.3. It is, therefore, clear that the claim made by the company in the suit filed by it could be considered as a claim for set off and/or as a counter claim within the meaning of Section 19 of the Act. [152-B] United Bank of India v. Abhijit Tea Co. Pvt. Ltd, [2000] 7 SCC 357, relied on. 3. Even otherwise, after the amendment of Order VIII Rule 6A of the Code of Civil Procedure, 1908 by Act 104 of 1976, for maintaining a counter claim, the cross action need not even arise out of the same cause of action or be intrinsically connected with the cause of action sued upon. Any right or claim in respect of a cause of action accruing to the defendant against the plaintiff can be made the subject matter of a counter claim. Section 19(8) of the Act is also on the same lines. Therefore, there can be no objection to treating a claim in favour of a company arising out of the loan transaction and/or rehabilitation package as a counter claim in the application filed by the Bank before the Debt Recovery Tribunal. [152-B, C, D] 4. The two claims are inextricably inter linked. The consequences arising out of the respective claims are referable to the cause of action arising out of the very transactions between the bank and the company. The claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal in view of the amended section 19 of the Act. [153-F, G] Indian Bank v. ABS Marine Products (P) Ltd., [2006] 5 SCC 72, referred to. 5. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both the proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or a series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that it will save the expenses of two attendances by counsel and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If, therefore, the claim made by the company can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or a series of transactions. [154-A, B, C, D] 6. A joint trial is ordered when a court finds that the order of such a trial would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the court as an inherent power. It is not possible to accept the argument that every time the court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. Since the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceeding before the Debt Recovery Tribunal could not be transferred to the civil court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified. [154-D, E, F, G] 7. It is clear that in both the proceedings what are involved are, the nature of the loan transaction and the cash credit facility extended, the relationship that has sprung out of the transactions, the right and obligations arising out of them, their breach if any, who is responsible for the breach and its extent. The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due to the bank but also to ascertain as to when and in what manner the cash credit facility was permitted to be availed of by the company. Of course, evidence will have to be taken on whether there was any violation of conditions or laches on the part of the bank in fulfilling its obligations causing damage to the company. At least a part of the evidence will be common. Duplication of evidence could be avoided if the two actions are tried together. If a decree is granted to the bank on the basis of its accounts, and the damages, if any, is decreed in favour of the company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the company. This is a fit case where the two actions should be ordered to be tried together. [155-A, B, C] R. Mohan, A.S.G., Sanjay Kapur, Shubhra Kapur, Rajiv Kapur and Arti Singh for the Appellant. K. Radha Krishnan, Krishnanand Pandey and Goutam Prasad for the Respondents.Act: Recovery of Debts Due to Banks and Financial Institutions Act, 1993: Sections 19(6) to (11). Set off and/or counter claim-Claim for-Debt Recovery Tribunal-Joint trial for recovery of debts-Bank granted a term loan and also extended a cash credit facility to the company-The company failed to meet its obligations under the account and, therefore, the Bank issued a notice calling upon the company to repay the amounts due under the loan transactions-Company filed a suit before the civil court claiming that the Bank had failed to fulfil its obligations while making available the cash credit facility and, therefore, the company had suffered losses-The company also claimed damages with interest-Bank filed an original application before the Debt Recovery Tribunal for recovery of loan-In the civil suit, the Bank filed an application praying that the said suit be transferred to the Debt Recovery Tribunal for being tried jointly with the original application-The trial court refused to transfer the suit-High Court affirmed the decision-Correctness of-Held: The two claims are inextricably inter linked-The consequences arising out of the respective claims are referable to the cause of action arising out of the very transactions between the bank and the company-The claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal-Civil suit transferred to Debt Recovery Tribunal for being jointly tried with the original application filed by the Bank-Code of Civil Procedure, 1908, Order VIII Rule 6A. The appellant-Bank granted a term loan to the respondent-company and also extended a cash credit facility to the respondent. The respondent-company failed to meet its obligations under the account and, therefore, the appellant-Bank issued a notice calling upon the respondent to repay the amounts due under the loan transactions. On receipt of the notice, the respondent-company filed a suit before the Civil Court claiming that the appellant-Bank had failed to fulfil its obligations while making available the cash credit facility and, therefore, the respondent-company had suffered losses. The respondent-company had also claimed damages with interest. The appellant-Bank, in its turn, filed an original application for recovery of the loan before the Debt Recovery Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. In the civil suit, the appellant-Bank filed an application praying that the said suit be transferred to the Debt Recovery Tribunal for being tried jointly with the original application since both the proceedings arose out of the same cause of action, namely, the grant of loan and the providing of a cash credit facility by the appellant-Bank to the respondent-company and that the suit by the respondent was really in the nature of a counter-claim or set off as against the claim of the appellant for recovery of the loan. The trial court took the view that the suit filed by the respondent-company did not come within the purview of Section 19(9) of the Recovery of Debts Act and refused to transfer the suit to the Debt Recovery Tribunal. The High Court affirmed the decision of the trial court. Hence the appeal. The following question arose before the Court:- Whether the cause of action put in the suit by the company could be considered to be one in the nature of a set off or a counter claim within the meaning of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993? Citation: 2006(7 )Suppl.SCR145 ,2007(1 )SCC97 ,2006(10 )SCALE150 ,

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CASE NO.:
Appeal (civil) 4443 of 2006
PETITIONER:
STATE BANK OF INDIA
RESPONDENT:
RANJAN CHEMICALS LTD. and ANR.
DATE OF JUDGMENT: 11/10/2006
BENCH:
H.K. SEMA & P.K. BALASUBRAMANYAN
JUDGMENT:
JUDGMENT
P.K. BALASUBRAMANYAN, J.
1. Leave granted.
2. This appeal is filed by the State Bank of India (hereinafter referred to
as the ‘bank’) challenging the order of the High Court of Patna affirming
an order of Subordinate Judge- I, Patna in Suit No. 168 of 2001 refusing to
transfer the suit for being tried jointly with O.A. No. 18 of 2002 filed by
the bank before the Debt Recovery Tribunal, Patna. The bank sought the
transfer on the basis that the suit was in the nature of a counter claim to
its claim and arose out of the same cause of action as the one put in suit
by the bank before the Tribunal. The bank originally granted a term loan to
M/s. Ranjan Chemicals Ltd. (hereinafter referred to as the ‘company’) of
Rs.30 lakhs. The bank further extended a cash credit facility to the
company. The company failed to meet its obligations under the account.
Thereupon the bank issued a notice calling upon the company to repay the
amounts due under the loan transactions and to close its accounts. On
receipt of that notice, the company filed a suit before the Court of
Subordinate Judge -I, of Patna as Suit No. 168 of 2001 claiming that the
bank had failed to fulfil its obligations while making available the cash
credit facility and has not honoured its commitments in time to release the
working capital which was agreed to as part of a rehabilitation process of
the company and because of the delay on the part of the bank in fulfilling
its obligations, the company had suffered losses leading to the Board of
Industrial and Financial Reconstruction, recommending its winding up and in
view of the fact that the losses were incurred because of the failure of
the bank to fulfil its obligations, the company was entitled to recover a
sum of Rs. 1739.15 lacs as damages with interest thereon. The bank in its
turn approached the Debt Recovery Tribunal constituted under The Recovery
of Debts Due to Banks and Financial Institutions Act, 1993 by way of O.A.
No. 18 of 2002 filed under Section 19(1) of that Act.
3. In the suit, the bank moved an application praying that the said suit be
transferred to the Debt Recovery Tribunal for being tried jointly with O.A.
No. 18 of 2002 pending before the Tribunal, since both proceedings arose
out of the same cause of action, namely, the grant of a loan and the
providing of a cash credit facility by the bank to the company and that the
suit by the company was really in the nature of a counter claim or set off,
as against the claim of the bank for recovery of a sum of Rs. 833.06 lakhs
on the loan account. The prayer of the bank was resisted by the company
contending that the cause of action for its suit was different from the
cause of action put in action by the bank in the Recovery Tribunal, that
the suit for damages was not in the nature of a counter claim or set off,
but that it was an independent action that the Civil Court alone had
jurisdiction to try and that the transfer prayed for was not liable to be
granted. The Trial Court took the view that the suit filed by the company
did not come with the purview of Section 19(9) of the Recovery of Debts Act
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and it could not be treated as a counter claim in O.A. No. 18 of 2002 and
hence the prayer was liable to be rejected. On a challenge by the bank of
the above said order before the High Court of Patna, that Court held that
there was no bar created by the Recovery of Debts Act or any other law,
which could prevent a person from filing a suit in the civil Court or
making any claim, much less, one for damages which was even otherwise,
completely alien to the claim based on the loan made by the bank before the
Tribunal. Since the suit was not thit by Section 18 of the Recovery of
Debts Act, the jurisdiction of the civil Court was not affected and the
Court had full authority to proceed with the suit for damages which was
filed earlier and which was unconnected with the loan transaction. The
Revision was thus dismissed. This order is challenged in this appeal.
4. It appears to us that the High Court and the Trial Court asked
themselves the wrong question. The question was not whether the civil Court
had jurisdiction to entertain the suit or to continue with the suit. The
question was whether in the nature of the respective claims arising out of
the loan transaction, it was just and proper to order a joint trial of the
two causes and whether there was anything in the Recovery of Debts Act
which prevented the Debt Recovery Tribunal from entertaining the claim made
by the plaintiff in the suit. A question of joint trial arises when the
rival parties file independent actions but’. based on the same cause of
action; for enforcement of rights or obligations springing out of that
cause of action. Here, the bank had approached the Recovery Tribunal for
recovery of amounts paid on the basis of
the loan transaction and the cash credit facility extended to the company.
The company had gone to the Civil Court claiming that it had suffered
damages because the bank had failed to fulfil its obligations based on the
cash credit facilities and the rehabilitation package extended to it. The
question, therefore, was whether it could be said that both claims arose
out of the same cause of action giving rise to different rights of action.
The elements of a cause of action are: first, the breach of duty owing by
one person to another and; second, the damage resulting to the other from
the breach, or the fact of combination of facts which gives rise to a right
to sue. Viewed thus, it cannot but be said that both claims have arisen out
of the same transaction or out of the same relationship that came into
existence between the bank and the company and the alleged breach of
obligations by one or the other. We have, therefore, no hesitation in
holding that the two actions have sprung out of the same cause of action.
5. Then the question is whether the cause of action put in suit by the
company could be considered to be one in the nature of a set off or a
counter claim within the meaning of Section 19 of the Recovery of Debts
Act. It is clear from sub sections 6 to 11 of Section 19 of the Act that
the Recovery Tribunal has the jurisdiction to entertain a claim of set off
or a counter claim arising out of the same cause of action and has also the
power to treat the counter claim as a cross suit. Therefore, if the claim
of the company in the suit partakes the character of a cross action founded
on the same cause of action, the same could be tried by the Debt Recovery
Tribunal. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.
and Ors., [2000] 7 SCC 357, this Court interpreted the expression counter
claim in sub Sections 8 to 11 of Section 19 as including even a claim made
in an independent suit and a claim for damages based on the same
transaction as being broadly a plea of set off falling under sub Sections 6
and 7 of Section 19 of the Act. With respect, we see no reason to differ
from the reasoning and conclusion therein in that regard. It is therefore
clear that the claim made by the company in the suit filed by it could be
considered as a claim for set off and/or as a counter claim within the
meaning of Section 19 of the Act.
6. Even otherwise, after the amendment of Order VIII Rule 6A of the Code of
Civil Procedure by Act 104 of 1976, for maintaining a counter-claim, the
cross action need not even arise out of the same cause of action or be
intrinsically connected with the cause of action sued upon. Any right or
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claim in respect of a cause of action accruing to the defendant against the
plaintiff can be made the subject matter of a counter-claim. Section 19(8)
of the Act is also on the same lines. Therefore, there can be no objection
to treating a claim in favour of the Company arising out of the Loan
transaction and/or rehabilitation package as a counter-claim in the
application filed by the Bank before the Debt Recovery Tribunal.
7. Learned Senior Counsel for the company, relied on the decision in Indian
Bank v. ABS Marine Products (P) Ltd., [2006] 5 SCC 72 in support of the
preposition that the Civil Court continued to have jurisdiction to try the
suit filed by the company and it could not be said that the subject matter
of the bank’s claim before; the Recovery Tribunal and the suit filed by the
company against the bank are inextricably connected, in that the decision
in one, would affect the decision in the other. He also urged that unless
both the parties agreed for the independent suit being considered as a
counter claim in the-bank’s application before the Tribunal, the suit could
not be transferred to the Tribunal. Counsel particularly relied upon the
discussion in paragraph 9 of the judgment suggesting that when the claim of
the bank was for an ascertained sum due from the borrower and the claim of
the borrower was for damages, it could not be said that there was any
connection between the subject matter of the two actions and that a
decision in one would depend on the other. Nor could there be any
apprehension of different and inconsistent results if the application and
the suit are tried and decided separately by different fora.
8. Their Lordships have held that the subject matter of the suit and the
proceeding before the Tribunal were in no way connected, but it appears to
us that the two litigations arise out of the same transaction or series of
transactions between the Bank and the Company. Even if, as observed by
their Lordships, a counter claim in the application by the Bank before the
Tribunal was not the only remedy available to the Company but an option was
available to the Company to sue, and the Company has exercised that option
by filing a suit, it does not in any manner affect the power of the Court
to order a joint trial of the application and the suit in the Debt Recovery
Tribunal provided the Debt Recovery Tribunal has jurisdiction to entertain
the action of the Company. What is relevant to note is that the claim of
the Company in the suit could have been maintained as a counter-claim in
the application of the bank, even if it did not arise out of the same cause
of action. There is no warrant for curtailing the power of the Court to
order joint trial by introducing a restriction to the effect that a joint
trial can be ordered only if there was consent by both sides. The power
inherent in the Court on well accepted principles to order a joint trial,
does not depend upon the volition of the parties but it depends upon the
convenience of trial, saving of time and expenses and the avoidance of
duplicating at least a part of the evidence leading to saving of time and
money.
9. On going through the application filed by the bank and the plaint filed
by the company in the present case, we find that both causes of action
arise out of a cash credit facility extended by the bank to the company and
while the claim by the bank is for recovery of amounts due under that
account, the suit of the company is for recovery of compensation based on
the alleged failure of the bank to fulfil its obligations under the cash
credit facility in time and in a meaningful manner. Obviously, if the
company is able to establish its claim, the amount that may be awarded to
it by way of damages has necessarily to be set off against any amount that
may be found due to the bank on the basis of the loan transaction including
the cash credit facility extended by it to the company. The decree to the
one or the other would depend upon an ascertainment of the rights and
obligations arising out of the loan transaction and the state of the loan
account. We are therefore of the view that the two claims are inextricably
inter linked. The consequences arising out of the respective claims are
referable to the cause of action arising out of the vary transactions
between the bank and the company. We have already indicated that the claim
of the company is in essence a claim for set off and/or a counter claim,
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which could be tried by the Debt Recovery Tribunal in view of the amended
Section 19 of the Act.
10. A joint trial can be ordered by the court if it appears to it that some
common question of law or fact arises in both proceedings or that the right
to relief claimed in them are in respect of or arise out of the same
transaction or series of transactions or that for some other reason it is
desirable to make an order for joint trial. Where the plaintiff in one
action is the same person as the defendant in another action, if one action
can be ordered to stand as a counter claim in the consolidated action, a
joint trial can be ordered. An order for joint trial is considered to be
useful in that, it will save the
expenses of two attendance by counsel and witnesses and the trial judge
will be enabled to try the two actions at the same time and take common
evidence in respect of both the claims. If therefore ‘the claim made by the
Company can be tried as a counter claim by the Debt Recovery Tribunal, the
Court can order joint trial on the basis of the above considerations. It
does not appear to be necessary that all the questions or issues that arise
should be common to both actions before a joint trial can be ordered. It
will be sufficient if some of the issues are common and some of the
evidence to be let in is also common, especially when the two actions arise
out of the same transaction or series of transactions.
11. A joint trial is ordered when a Court finds that the ordering of such a
trial, would avoid separate overlapping evidence being taken in the two
causes put in suit and it will be more convenient to try them together in
the interests of the parties and in the interests of an effective trial of
the causes. This power inheres in the Court as an inherent power. It is not
possible to accept the argument that every time the Court transfers a suit
to another court or orders a joint trial, it has to have the consent of the
parties. A Court has the power in an appropriate case to transfer a suit
for being tried with another if the circumstances warranted and justified
it. In the light of our conclusion that the claim of the company in the
suit could be considered to be a claim for set off and a counter claim
within the meaning of Section 19 of the Act, the only question is whether
in the interests of justice, convenience of parties and avoidance of
multiplicity of proceedings, the suit should be transferred to the Debt
Recovery Tribunal for being tried jointly with the application filed by the
bank as a cross suit. Obviously, the proceedings before the Debt Recovery
Tribunal could not be transferred to the civil Court since that is a
proceeding before a Tribunal specially constituted by the Act and the same
has to be tried only in the manner provided by that Act and by the Tribunal
created by that Act. Therefore, the only other alternative would be to
transfer the suit to the Tribunal in case that is found warranted or
justified.
12. It is clear that in both proceedings what are involved are, the nature
of the loan transaction and the cash credit facility extended, the
relationship that has spring out of the transactions, the right and
obligations arising out of them, their breach if any, who is responsible
for the breach and its extent. The same basic evidence will have to be
taken in both the proceedings. The accounts of the bank will have to be
scrutinized not only to ascertain the sum, if any, due to the bank but also
to ascertain as to when and in what manner the cash credit facility was
permitted to be availed of by the company. Of course, evidence will have to
be taken on whether there was any violation of conditions or laches on the
part of the bank in fulfilling its obligations causing damage to the
company. At least a part of the evidence will be common. Duplication of
evidence could be avoided if the two actions are tried together. If a
decree is granted to the bank on the basis of its accounts, and the
damages, if any, is decreed in favour of the company, a set off could be
directed and an ultimate order or decree passed in favour of the bank or
the company. In such a situation, we are of the view that this is a fit
case where the two actions should be ordered to be tried together.
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13. In this view, we are satisfied that the trial court and the High Court
have failed to exercise the jurisdiction vested in them by law in refusing
to transfer the suit to the Debt Recovery Tribunal, Patna. They have not
considered the question whether it will be fit and proper to order a joint
trial of the two actions. We find that it is not only fit and proper but
also just and necessary to have the two causes tried together. Hence, we
allow this appeal and setting aside the order of the High Court and that of
the trial Court, transfer Money Suit No. 168 of 2001 from the file of
Subordinate Judge -I, Patna to the Debt Recovery Tribunal, Patna for being
treated as a counter-claim by way of a cross suit and for being jointly
tried and disposed of with OA No. 18 of 2002 pending on its file.
14. In the circumstances, we direct the parties to suffer their respective
costs.

Act: Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002: s.18 - Requirement of pre-deposit of amount in terms of s.18 - Whether mandatory - Held: Right to file appeal u/s.18 is conferred subject to condition laid down in the second proviso thereto - The second proviso postulates that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the Debts Recovery Tribunal, whichever is less - However, under the third proviso to the sub-section, the Appellate Tribunal has the power to reduce the amount, for the reasons to be recorded in writing, to not less than 25% of the debt, referred to in the second proviso - Thus, there is an absolute bar to entertainment of an appeal u/s.18 of the Act unless the condition precedent, as stipulated, is fulfilled - In the instant case, the order of the Appellate Tribunal, entertaining borrower's appeal without insisting on pre-deposit was clearly unsustainable - In the notice issued to the borrower u/s.13(2) of the Act, the debts due was Rs. 52,42,474/- - Since the Debts Recovery Tribunal had not determined the debt due, the borrower is directed to deposit with the Appellate Tribunal an amount of Rs. 15 lakhs within a period of four weeks - Thereafter, appeal to be entertained and decided on merits. s.18, second proviso - Right to file appeal subject to conditions - Held: When a statute confers a right of appeal, while granting the right, the legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory - Bearing in mind the object of the Act, the conditions hedged in the second proviso cannot be said to be onerous - Interpretation of statutes. The appellant-borrower filed an appeal under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Debt Recovery Tribunal did not entertain the appeal on a technical ground. The Debt Recovery Appellate Tribunal while allowing the application filed by the appellant under Section 18 of the Act exempted him from making any deposit in terms of second proviso to Section 18 of the Act. The question which arose for consideration in the instant appeal was whether the Appellate Tribunal has the jurisdiction to exempt the person, preferring an appeal under Section 18 of the Act from making any pre- deposit in terms of the said provision.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2681 OF 2011
[Arising out of S.L.P. (C) No. 5488 of 2011]
Narayan Chandra Ghosh — Appellant (s)
VERSUS
UCO Bank & Ors. — Respondent (s)
O R D E R
1. Leave granted.
2. This appeal by the borrower is directed against judgment dated 7th
December, 2010 delivered by the High Court of Calcutta in C.O.
No.3608 of 2009. By the impugned judgment, the High Court has set
aside the order passed by the Debts Recovery Appellate Tribunal,
Kolkata (for short, “the Appellate Tribunal”) in Appeal No.35 of
2009, whereby the Appellate Tribunal, while allowing the application
filed by the appellant under Section 18(1) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short, “the Act”) had exempted the appellant
from making any deposit in terms of second proviso to Section 18 of
the Act before entertaining the appeal against the order passed by the
Debts Recovery Tribunal.
3. With the consent of learned counsel for the appellant as also the
respondent-bank, which is on caveat, we have heard the matter finally
at the motion hearing stage itself. Since the issue canvassed before us
is a pure question of law, we deem it unnecessary to state the facts
giving rise to this appeal.
4. Assailing the judgment, Mr. Ranjan Mukherjee has submitted that
since the Debts Recovery Tribunal had not entertained the appeal
preferred by the appellant under Section 17 of the Act on a technical
ground and the quantum of amount due from the appellant had not
been determined, the Appellate Tribunal could not saddle the
appellant with any liability of pre-deposit under Section 18 of the Act.
It is thus, asserted that the Appellate Tribunal was justified in
entertaining the appeal without insisting on any deposit in terms of
Section 18 of the Act.
5. Per contra, learned counsel for the bank, while supporting the
judgment of the High Court has submitted that the Appellate Tribunal
2
had failed to appreciate that the deposit of an amount in terms of
Section 18 of the Act is a condition precedent for entertainment of the
appeal. According to the learned counsel, the language of Section
18(1) of the Act being clear and unambiguous, the order passed by the
Appellate Tribunal was clearly unsustainable.
6. Thus, the short question for consideration is whether the Appellate
Tribunal has the jurisdiction to exempt the person, preferring an
appeal under Section 18 of the Act from making any pre-deposit in
terms of the said provision?
7. Section 18, which provides for appeal to the Appellate Tribunal, reads
as under:
“18. Appeal to Appellate Tribunal.—(1) Any person
aggrieved, by any order made by the Debts Recovery
Tribunal under section 17, may prefer an appeal along with
such fee, as may be prescribed to an Appellate Tribunal
within thirty days from the date of receipt of the order of
Debts Recovery Tribunal.
Provided that different fees may be prescribed for filing an
appeal by the borrower or by the person other than the
borrower:
Provided further that no appeal shall be entertained unless
the borrower has deposited with the Appellate Tribunal fifty
per cent of the amount of debt due from him, as claimed by
the secured creditors or determined by the Debts Recovery
Tribunal, whichever is less:
3
Provided also that the Appellate Tribunal may, for the
reasons to be recorded in writing, reduce the amount to not
less than twenty-five per cent of debt referred to in the
second proviso.
(2) ..... ….. ….. ….. ….. ….. ….. ….
…”
8. Section 18(1) of the Act confers a statutory right on a person
aggrieved by any order made by the Debts Recovery Tribunal under
Section 17 of the Act to prefer an appeal to the Appellate Tribunal.
However, the right conferred under Section 18(1) is subject to the
condition laid down in the second proviso thereto. The second
proviso postulates that no appeal shall be entertained unless the
borrower has deposited with the Appellate Tribunal fifty per cent of
the amount of debt due from him, as claimed by the secured creditors
or determined by the Debts Recovery Tribunal, whichever is less.
However, under the third proviso to the sub-section, the Appellate
Tribunal has the power to reduce the amount, for the reasons to be
recorded in writing, to not less than twenty-five per cent of the debt,
referred to in the second proviso. Thus, there is an absolute bar to
entertainment of an appeal under Section 18 of the Act unless the
condition precedent, as stipulated, is fulfilled. Unless the borrower
makes, with the Appellate Tribunal, a pre-deposit of fifty per cent of
4
the debt due from him or determined, an appeal under the said
provision cannot be entertained by the Appellate Tribunal. The
language of the said proviso is clear and admits of no ambiguity. It is
well-settled that when a Statute confers a right of appeal, while
granting the right, the Legislature can impose conditions for the
exercise of such right, so long as the conditions are not so onerous as
to amount to unreasonable restrictions, rendering the right almost
illusory. Bearing in mind the object of the Act, the conditions hedged
in the said proviso cannot be said to be onerous. Thus, we hold that
the requirement of pre-deposit under sub-section (1) of Section 18 of
the Act is mandatory and there is no reason whatsoever for not giving
full effect to the provisions contained in Section 18 of the Act. In that
view of the matter, no court, much less the Appellate Tribunal, a
creature of the Act itself, can refuse to give full effect to the
provisions of the Statute. We have no hesitation in holding that
deposit under the second proviso to Section 18(1) of the Act being a
condition precedent for preferring an appeal under the said Section,
the Appellate Tribunal had erred in law in entertaining the appeal
without directing the appellant to comply with the said mandatory
requirement.
5
9. The argument of learned counsel for the appellant that as the amount
of debt due had not been determined by the Debts Recovery Tribunal,
appeal could be entertained by the Appellate Tribunal without
insisting on pre-deposit, is equally fallacious. Under the second
proviso to sub-section (1) of Section 18 of the Act the amount of fifty
per cent, which is required to be deposited by the borrower, is
computed either with reference to the debt due from him as claimed
by the secured creditors or as determined by the Debts Recovery
Tribunal, whichever is less. Obviously, where the amount of debt is
yet to be determined by the Debts Recovery Tribunal, the borrower,
while preferring appeal, would be liable to deposit fifty per cent of
the debt due from him as claimed by the secured creditors. Therefore,
the condition of pre-deposit being mandatory, a complete waiver of
deposit by the appellant with the Appellate Tribunal, was beyond the
provisions of the Act, as is evident from the second and third proviso
to the said Section. At best, the Appellate Tribunal could have, after
recording the reasons, reduced the amount of deposit of fifty per cent
to an amount not less than twenty five per cent of the debt referred to
in the second proviso. We are convinced that the order of the
Appellate Tribunal, entertaining appellant’s appeal without insisting
6
on pre-deposit was clearly unsustainable and, therefore, the decision
of the High Court in setting aside the same cannot be flawed.
10. It is stated before us that in the notice issued to the appellant under
Section 13(2) of the Act, the debt due from the appellant as on 25th
September, 2006 was `52,42,474/-. Since in the present case Debts
Recovery Tribunal had not determined the debt due, we direct that on
appellant’s depositing with the Appellate Tribunal an amount of `15
lakhs within a period of four weeks from today, his appeal shall be
entertained and decided on merits. We direct that till the Appellate
Tribunal takes a final decision in the appeal, the bank shall maintain
status quo in respect of the property of which physical possession is
stated to have been taken by it.
11. Needless to add that if the appellant fails to make the said deposit
within the time granted, his appeal before the Appellate Tribunal shall
stand dismissed and it will be open to the respondent bank to take
further steps in the matter in accordance with law.
12. The appeal stands disposed of with no order as to costs.
.………………………………….
7
(D.K. JAIN, J.)
..….…………………………….
(H.L. DATTU, J.)
NEW DELHI;
MARCH 18, 2011
8

Penal Code, 1860-Sections 375, 376, 417 and 90-Rape-Accused forcibly committed sexual intercourse with a girl of tender age and thereafter continued to do so by promising to marry her-Girl became pregnant and he refused to marry her-Held: He is guilty of offence punishable u/ss.376 and 417 as his intention was never bonafide-Consent of girl was not obtained voluntarily but under misconception of fact that he intends to marry her-Such consent cannot condone the offence-Section 90 IPC can be invoked-Evidence Act, Section 114-A. Prosecution's case was that the prosecutrix PW-1 had been attending to cooking at her sister's house where accused was a frequent visitor. He persuaded her to indulge in sexual intercourse. She resisted to this for sometime but one day accused forcibly committed sexual intercourse with her against her will and consent. When she protested that he had spoiled her life, he promised that he would marry her. Thereafter, he continued to have sexual intercourse with her. When she became pregnant, she insisted him to marry her but he refused. PW-1 told her sister about her pregnancy. Matter was reported to Panchayat. Accused accepted the guilt and promised to marry but subsequently absconded from village. Police registered a case for offence punishable u/ss. 376 and 417 IPC. PW-1 was sent for medical examination. Doctor confirmed about the pregnancy and further opined that the age of PW-1 was not less than 15 years and not more than 17 years. Sessions Judge acquitted the accused. On appeal, High Court held that the sexual intercourse by accused with PW-1 by falsely promising to marry her, attracts the category of offence punishable u/ss. 376 and 417 IPC and sentenced him to undergo RI for 7 years. In these appeals, the questions for consideration are, that when the accused committed sexual intercourse with PW-1 holding out a promise for marriage whether this will amount to a consent or not and whether this conduct of accused falls under any of one six description of Section 375 IPC. Dismissing the appeals, the Court HELD: 1. The conviction and sentence awarded to the appellant is correct and no case is made out for interference. The intention of the accused was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. The poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception cannot be treated to be a consent. Hence, Section 90 IPC can be invoked. [767-c-d; e-f; 768-a] Jayanti Rani Panda v. State of West Bengal and Anr., (1984) Crl.L.J.1535 - distinguished. 2.1. It is always matter of evidence whether consent was obtained willingly, or consent has been obtained by holding a false promise which the accused never intended to fulfil. If the court of facts come to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that he would marry her then in that case it can always be said that such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence. [768-b-c] Emperor v. Mussammat Soma, (1917) Crl.L.J.R. 18 and Deelip Singh Alias Dilip Kumar v. State of Bihar, [2005] 1 SCC 88, distinguished. 2.2. What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but prosecutrix was also equally keen, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what the consequences may result for indulging into such acts and when the accused promised to marry but he never intended to marry right from the beginning then the consent of the girl is of no consequence and falls in the second category as enumerated in Section 375 - "without her consent". A consent obtained by misconception while playing a fraud is not a consent. [771-b-d] Uday v. State of Karnataka, [2003] 4 SCC 46, distinguished. Reg. v. William, (1850) Crl. Law. Cases 220 Vol. IV; The Queen v. Flattery, (1877) 2 QBD 410 and The King v. Williams, (1923) 1 KB 340 - referred to. 3. In terms of Section 114 A introduced by amendment in Evidence Act, a presumption is raised as to the absence of consent in certain prosecutions for rape. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the Court shall presume that she did not consent. Presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women. Sunita Pandit and Rameshwar Prasad Goyal for the Appellant. P. Vinay Kumar and D. Bharathi Reddy for the Respondent., 2006(6 )Suppl.SCR760 , 2006(11 )SCC615 , 2006(9 )SCALE692 ,

CASE NO.:
Appeal (crl.)  1369 of 2004

PETITIONER:
Yedla Srinivasa Rao

RESPONDENT:
State of A.P.

DATE OF JUDGMENT: 29/09/2006

BENCH:
A.K. Mathur & Altamas Kabir

JUDGMENT:
JUDGMENT

A.K. MATHUR, J.

Both these appeals arise out of two orders passed on 25.2.2004 and
18.6.2004 by the High Court of Andhra Pradesh convicting and sentencing
accused - appellant under Section 376 of the Indian Penal Code (for short,
IPC) to undergo rigorous imprisonment for 7 years and fine of Rs. 100/-, in
default, to further undergo simple imprisonment for one week and under
Section 417, IPC a fine of Rs. 100/-, in default, to further undergo simple
imprisonment for one week, therefore, they are disposed of by this common
order.

Brief facts giving rise to both these appeals are that prosecutrix (PW1)
used to attend cooking in her sister's (PW2) house in day time, as her
sister was attending to agricultural operations. The accused used to visit
the house of P.W 2 during day time between 11.00 a.m. and 12.00 noon
regularly while PW 1 was alone and persuaded her to have sexual intercourse
by telling her that he would marry her. PW1 resisted for this for sometime
but later on one day, the accused came to the house of PW2 in her absence,
closed the doors and committed forcible sexual intercourse with PW1 against
her will and consent. When she protested as to why he spoiled her life,
accused promised that he would marry her. Subsequently, the process
continued for some time. Accused used to come in the noon and had sexual
intercourse with PW1. When she became pregnant she informed the accused and
he gave tablets for abortion in order to get rid of pregnancy which did not
work. Subsequently, PW1 insisted the accused to marry her. The accused
informed PW1 that as his parents were not agreeing for the marriage, he
would not marry her. PW1 brought this fact to the notice of her sister -
PW2. Thereafter, the matter was reported to the Panchayat. The accused
accepted the guilt and promised to marry PW1 but subsequently, he absconded
from the village. Since the persuasion could not fructify, PW1 lodged a
report against the accused to police and, therefore, the police registered
a case as per the prosecutrix report for the offences punishable under
Sections 376 and 417.IPC. After completion of investigation, police filed a
challan against the accused. The accused denied the charges. Prosecution in
support of its case examined PW1 - Prosecutrix, PW2 -sister of Prosecutrix
and other witnesses. Prosecutrix was sent for medical examination and PW9 -
Smt. G. Pushpavalli -examined PW1. She found that PW1 was pregnant at the
time of examination and the age of pregnancy is 20-22 weeks. She was also
examined by Dr. Y.Jagannadha Rao - PW10 who was working as a Professor of
Forensic Medicines. He confirmed about the pregnancy. He also examined the
age of the prosecutrix and on the basis of X-Ray examination and other
physical features opined that the age of PW1 was not less than 15 years and
not more than 17 years at the time of examination.

Learned Assistant Sessions Judge after recording all the necessary evidence
and after hearing the parties acquitted the accused for the offences under
Section 417 as well as 376 of IPC. Aggrieved against the order of acquittal
appeal was preferred by the State before the High Court. The High Court
after examining the evidence came to the conclusion that so far as the age
of prosecutrix is concerned, in view of the testimony of PW10 who conducted
the physical examination of the prosecutrix and has opined that she is not
less than 15 years and not more than 17 years at the time of examination
and there can be error of age as -1 or +1 in either way, it is highly
doubtful whether the age of PW1 is below 16 years and opined that she is
more than 16 years of age. So far as the age of the prosecutrix was
concerned, she cannot be said to be below 16 years.

However, the High Court found that testimony of PW1 being truthful that she
had sexual intercourse with the accused with the promise to marry attracts
the category of the offence punishable under Section 376 as well as 417 of
IPC. The High Court further found that in view of the statement of
prosecutrix, the accused gave a promise which was false right from the
beginning and under the misconception of fact the prosecutrix submitted to
the lust of the accused and, therefore, the High Court found the accused
guilty under Sections 376 and 417 of IPC.

Since the acquittal was being reversed and accused was found guilty the
High Court deferred the imposition of sentence till the examination of the
accused as to the quantum of sentence. The High Court, however, directed
the learned Sessions Judge to summon the accused for examining about the
quantum of sentence, therefore, record was sent back to the Sessions Judge
for necessary evidence to be recorded for imposition of sentence. The
Sessions Judge took up the matter and after recording necessary findings
sent the record back to the High Court and the High Court by order dated
18.6.2004, on the basis of the evidence recorded by the Sessions Judge,
convicted the accused - appellant under Sections 376 and 417 of IPC and
sentenced the accused to undergo rigorous imprisonment for a period of
seven years for the offence punishable under Section 376 IPC and also
sentenced to pay a fine of Rs. 100/-, in default, to suffer simple
imprisonment for one week. The accused was also convicted and sentenced to
pay a fine of Rs. 1007 for the offence punishable under Section 417 of IPC
in default, to suffer simple imprisonment for one week.

Being aggrieved against both the orders i.e. one dated 25.2.2004 whereby he
was found guilty and the second dated 18.6.2004 whereby he was sentenced as
aforesaid, the accused filed these two appeals. Hence both these appeals
are now being disposed of by a common judgment.

The question that falls for our consideration is that when the accused
committed sexual intercourse with the prosecutrix holding out a promise for
marriage whether this will amount to a consent or not? Section 375 of IPC
enumerates six circumstances wherein the sexual intercourse committed
amounts to rape which read as under:

"First - Against her will.

Secondly - Without her consent.

Thirdly - With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or of hurt.

Fourthly - With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man
to whom she is or believes herself to be lawfully married.

Fifthly - With her consent, when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome substance,
she is unable to understand the nature and consequences of that to which
she gives consent.

Sixthly - With or without her consent, when she is under sixteen years of
age."

It is admitted fact that the sexual intercourse was committed with the
prosecutrix by the accused. She had deposed unequivocally in her statement
that after the death of her father she and her mother started residing at
Neelavathi Village. PW2 is her elder sister. She studied upto 4th class.
She obtained puberty at the age of 12 years. She went to her sister's (PW2)
house for giving help as her sister and brother-in-law used to go for
agricultural operations in the fields and used to return back in the
evening. During this time she used to remain alone. She deposed that the
accused used to come to her sister's house in between 11 a.m. and 12 noon
daily and asked her for sexual intercourse with him. She refused to
participate in the said act but the accused kept on persisting and
persuading her. She resisted for about 3 months. She deposed that one day
the accused came to her sister's house at about 12 noon and closed the
doors and had sexual intercourse forcibly without her consent and against
her will. When she asked the accused as to why he spoiled her life he gave
assurance that he would marry her and asked not to cry though, his parents
are not agreeing for the marriage. But on the basis of the assurance given
by the accused this process of sexual intercourse continued and he kept on
assuring that he would marry her. This state of affair was not disclosed by
the prosecutrix to her sister. When she became pregnant she informed about
the pregnancy to the accused. He got certain tablets for abortion but they
did not work. When she was in the third month of pregnancy, she again
insisted for the marriage and the accused answered that his parents are not
agreeable. She also deposed that had he not promised, she would not have
allowed him sexual intercourse with her. Thereafter she informed her sister
(PW2) and her husband (PW3) and they asked the accused to marry her and the
accused informed that he would not marry with the prosecutrix. The question
was raised before the Panchayat of elders and the prosecutrix was present
in the Panchayat along with her sister and brother-in-law. Accused and his
father both attended the Panchayat and accused admitted about the illegal
contacts with the prosecutrix and causing pregnancy. Accused asked for two
days' time for marrying prosecutrix and the Panchayat accordingly granted
time. But after Panchayat meeting accused absconded from the village and
when the accused did not fulfil his promise which was made before the
Panchayat exhibit P-1 was lodged at the Police Station.

The question in the present case is whether this conduct of the accused
apparently falls under any of the six descriptions of Section 375 of IPC as
mentioned above. It is clear that the prsoecutrix had sexual intercourse
with the accused on the representation made by the accused that he would
marry her. This was a false promise held out by the accused. Had this
promise not been given perhaps, she would not have permitted the accused to
have sexual intercourse. Therefore, whether this amounts to a consent or
the accused obtained a consent by playing fraud on her. Section 90 of the
Indian Penal Code says that if the consent has been given under fear of
injury or a misconception of fact, such consent obtained, cannot be
construed to be valid consent. Section 90 reads as under:

"Section 90 - Consent known to be given under fear or misconception.- A
consent is not such a consent as it intended by any section of this Code,
if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has reason
to believe, that the consent was given in consequence of such fear or
misconception; or

Consent of insane person - if the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature
and consequence of that to which he gives his consent; or

Consent of child - unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age."

It appears that the intention of the accused as per the testimony of PW1
was, right from the beginning, not honest and he kept on promising that he
will marry her, till she became pregnant. This kind of consent obtained by
the accused cannot be said to be any consent because she was under a
misconception of fact that the accused intends to marry her, therefore, she
had submitted to sexual intercourse with him. This fact is also admitted by
the accused that he had committed sexual intercourse which is apparent from
the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the
village. It is more than clear that the accused made a false promise that
he would marry her. Therefore, the intention of the accused right from the
beginning was not bona fide and the poor girl submitted to the lust of the
accused completely being misled by the accused who held out the promise for
marriage. This kind of consent taken by the accused with clear intention
not to fulfil the promise and persuaded the girl to believe that he is
going to marry her and obtained her consent for the sexual intercourse
under total misconception, cannot be treated to be a consent. In this
connection, reference may be made to a decision of the Calcutta High Court
in the case of Jayanti Rani Panda v. State of West Bengal & Anr., (1984)
Cri.L.J.1535. In that case it was observed that in order to come within the
meaning of misconception of fact, the fact must have an immediate
relevance. It was also observed that if a fully grown up girl consents to
the act of sexual intercourse on a promise of marriage and continues to
indulge in such activity until she becomes pregnant it is an act of
promiscuity on her part and not an act induced by misconception of fact and
it was held that Section 90 IPC cannot be invoked unless the court can be
assured that from the inception accused never intended to marry her.
Therefore, it depends on case to case that what is the evidence led in the
matter. If it is fully grown up girl who gave the consent then it is
different case but a girl whose age is very tender and she is giving a
consent after persuasion of three months on the promise that the accused
will marry her which he never intended to fulfil right from the beginning
which is apparent from the conduct of the accused, in our opinion, Section
90 can be invoked. Therefore, so far as Jayanti Rani Panda (supra) is
concerned, the porseuctirx was aged 21-22 years old. But, here in the
present case the age of the girl was very tender between 15-16 years.
Therefore, Jayanti Rani Panda's case is fully distinguishable on facts. It
is always matter of evidence whether the consent was obtained willingly or
consent has been obtained by holding a false promise which the accused
never intended to fulfil. If the court of facts come to the conclusion that
the consent has been obtained under misconception and the accused persuaded
a girl of tender age that he would marry her then in that case it can
always be said that such consent was not obtained voluntarily but under a
misconception of fact and the accused right from the beginning never
intended to fulfil the promise. Such consent cannot condone the offence.
Reliance can also be made in the case of Emperor v. Mussammat Soma reported
in (1917) Crl. Law Journal Reports 18 (Vol.18). In that case the question
of consent arose in the context of an allegation of kidnapping of a minor
girl. It was held that the intention of the accused was to marry the girl
to one Dayaram and she obtained Kujan's consent to take away the girl by
misrepresenting her intention. In that context it was held that at the time
of taking away the girl there was a positive misrepresentation i.e. taking
the girls to the temple at Jawala Mukhi and thereafter they halted for the
night in Kutiya (hut) some three miles distance from Pragpur and met Daya
Ram, Bhag Mal and Musammat Mansa and Musammat Sarasti was forced into
marrying Daya Ram. This act was found to be act of kidnapping without
consent. But, in the instant case, a girl though aged 16 years was
persuaded to sexual intercourse with the assurance of marriage which the
accused never intended to fulfil and it was totally under misconception on
the part of the victim that the accused is likely to marry her, therefore,
she submitted to the lust of the accused. Such fraudulent consent cannot be
said to be a consent so as to condone the offence of the accused. Our
attention was also invited to the decision of this Court in the case of
Deelip Singh Alias Dilip Kumar v. State of Bihar, [2005] 1 SCC 88 wherein
this Court took the view that prosecturix had taken a conscious decision to
participate in the sexual act only on being impressed by the accused who
promised to marry her. But accused's promise was not false from its
inception with the intention to seduce her to sexual act. Therefore, this
case is fully distinguished from the facts as this Court found that the
accused promise was not false from its inception. But in the present case
we found that first accused committed rape on victim against her will and
consent but subsequently, he held out a hope of marrying her and continued
to satisfy his lust. Therefore, it is apparent in this case that the
accused had no intention to marry and it became further evident when
Panchayat was convened and he admitted that he had committed sexual
intercourse with the victim and also assured her to marry within 2 days but
did not turn up to fulfil his promise before the Panchayat. This conduct of
the accused stands out to hold him guilty. What is a voluntary consent and
what is not a voluntary consent depends on the facts of each case. In order
to appreciate the testimony, one has to see the factors like the age of the
girl, her education and her status in the society and likewise the social
status of the boy. If the attending circumstances lead to the conclusion
that it was not only the accused but prosecutrix was also equally keen,
then in that case the offence is condoned. But in case a poor girl placed
in a peculiar circumstance where her father has died and she does not
understand what the consequences may result for indulging into such acts
and when the accused promised to marry but he never intended to marry right
from the beginning then the consent of the girl is of no consequence and
falls in the second category as enumerated in Section 375 -"without her
consent". A consent obtained by misconception while playing a fraud is not
a consent.

In this connection our attention was also invited to the decision of this
Court in the case of Udav v. State of Karnataka, [2003] 4 SCC 46. In this
case also this Court held that for determining whether consent given by the
prosecutrix was voluntary or under a misconception of fact, no straitjacket
formula can be laid down but following factors stand out; (i) where a girl
was of 19 years of age and had sufficient intelligence to understand the
significance and moral quality of the act she was consenting to; (ii) she
was conscious of the fact that her marriage was difficult on account of
caste considerations; (iii) it was difficult to impute to the appellant
knowledge the prosecutrix had consented in consequence of a misconception
of fact arising from his promise, and (iv) there was no evidence to prove
conclusively that the appellant never intended to marry the prosecutrix. On
the basis of the above factors this Court did not feel persuaded to hold
that consent was obtained by misconception of facts on the part of the
victim. But as already mentioned above, in the present case we are
satisfied that looking to the antecedent and subsequent events that the
accused never intended to fulfil the promise of marriage, this was not a
case where the accused was deeply in love. In the present case in our hand
the accused persuaded her for couple of months but she resisted it
throughout. But, on one day he came to the house of her sister and closed
the doors and committed forcible sexual intercourse against her will and
consent, holding out a promise for marriage and continued to satisfy his
lust. Therefore, this case stands entirely on different footing. We may aid
a word of caution that the court of fact while appreciating evidence in
such cases should closely scrutinize evidence while taking into
consideration the factors like the age of the girl, her education, her
social status and likewise the social status of the boy.

In the case of Reg. v. William Case, (a) (1850) Crl. Law Cases 220 (Vol.
IV) if a girl does not resist intercourse in consequence of
misapprehension, this will not amount to a consent on her part. It was held
that where a medical man, to whom a girl of fourteen years of age was sent
for professional advice, had criminal connection with her, she making no
resistance from a bona fide belief that he was treating her medically, he
could be convicted for rape.

Similarly, in the case of The Queen v. Flattery (1877) 2 QBD 410 where the
accused professed to give medical advice for money, and a girl of nineteen
consulted him with respect to illness from which she was suffering, and he
advised that a surgical operation should be performed and, under pretence
of performing it, had carnal intercourse with her, it was held that he was
guilty of rape.

Likewise, in the case of The King v. Williams (1923)1 KB 340 the accused
was engaged to give lessons in singing and voice production to the girl of
sixteen years of age had sexual intercourse with her under the pretence
that her breathing was not quite right and he had to perform an operation
to enable her to produce her voice properly. The girl submitted to what was
done under the belief, wilfully and fraudulently induced by the accused
that she was being medically and surgically treated by the accused and not
with any intention that he should have sexual intercourse with her. It was
held that the accused was guilty of rape.

In this connection reference may be made to the amendment made in the
Indian Evidence Act. Section 114 A was introduced and the presumption has
been raised as to the absence of consent in certain prosecutions for rape.
Section 114-A reads as under:

`Section 114 A- Presumption as to the absence of consent in certain
prosecutions for rape.- In a prosecution for rape under Cl. (a) or Cl.(b)
or Cl.(c) or Cl. (d) or Cl. (e) or Cl. (g) of sub-section (2) of Section
376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the
accused is proved and the question is whether it was without the consent of
the woman alleged to have been raped and she states in her evidence before
the court that she did not consent, the Court shall presume that she did
not consent."

If sexual intercourse has been committed by the accused and if it is proved
that it was without the consent of the prosecutrix and she states in her
evidence before the court that she did not consent, the court shall presume
that she did not consent. Presumption has been introduced by the
legislature in the Evidence Act looking to atrocities committed against
women and in the instant case as per the statement of PW, she resisted and
she did not give consent to the accused at the first instance and he
committed the rape on her. The accused gave her assurance that he would
marry her and continued to satisfy his lust till she became pregnant and it
became clear that the accused did not wish to marry her.

In the present case in view of the facts as mentioned above we are
satisfied that the consent which had been obtained by the accused was not a
voluntary one which was given by her under misconception of fact that the
accused would marry her but this is not a consent in law. This is more
evident from the testimony of PW1 as well as PW6 who was functioning as
Panchayat where the accused admitted that he had committed sexual
intercourse and promised to marry her but he absconded despite the promise
made before the Panchayat. That shows that the accused had no intention to
marry her right from the beginning and committed sexual intercourse totally
under the misconception of fact by prosecutrix that he would marry her.
Therefore, we are satisfied that the conviction and sentence awarded to the
appellant is correct and no case is made out for our interference. The
appeals are dismissed.

Companies Act, 1956-Section 537(2)-Company took loan from Appellant which it failed to repay-Properties of company attached pursuant to recovery proceedings initiated by Appellant under the Kerala Revenue Recovery Act-Company went for voluntary liquidation-Claim by Appellant, a Government company, for precedence in recovery of dues in terms of S.537(2)-Maintainability of-Held, not maintainable-S.537(2) had no application inasmuch as recovery proceedings initiated by Appellant cannot be said to be a proceeding for recovery of any tax or impost or any dues payable to the Government-Kerala Revenue Recovery Act, 1968. Companies Act, 1956-Sections 125 & 446-Company-in-liquidation had failed to repay loan-Its properties had been attached by a Recovery Court under the Kerala Revenue Recovery Act-Effect of the earlier order of attachment in pending company proceedings-Held: An attachment itself does not create any charge in the property-By reason of attachment, no decree is passed-Distinction between attachment before judgment in terms of Order 38 and attachment for execution of decree under Order 21 explained-Provisions of the Companies Act shall prevail-Applicability of S.125 discussed-Words and Phrases-"Attachment"-Meaning of-Code of Civil Procedure, 1908-Order 21 & 38-Kerala Revenue Recovery Act, 1968. Recovery proceedings were initiated against a company under the Kerala Revenue Recovery Act, 1968 after it failed to repay loan taken from Appellant Government company. Properties belonging to the defaulting company were attached. In the meanwhile, the defaulting company went for voluntary liquidation whereupon a provisional liquidator was appointed. In the pending company proceedings, Appellant filed application seeking leave to proceed with sale of the properties, which was objected to by the Respondent, inter alia, on the premise that the charge in respect of the alleged debt was not registered with the Registrar of Companies and, thus, it was an unsecured creditor. High Court rejected the application. Hence the present appeal in which it was contended for the Appellant that the Kerala Revenue Recovery Act being a special statute prevailed over the Companies Act, 1956; that Section 125 of the Companies Act was not attracted and that in any event the dues of Appellant got precedence in terms of sub-Section (2) of Section 537 of the Companies Act. Dismissing the appeal, the Court HELD: 1. Appellant is a Government company. Its dues are not Government dues. The provisions of the Kerala Revenue Recovery Act might have been made applicable, but only by reason thereof, dues of a Government company would not become the dues of the Government within the meaning of sub-section (2) of Section 537 of the Companies Act. Sub-section (2) of Section 537 will have no application in the instant case, inasmuch the recovery proceeding initiated by Appellant cannot be said to be a proceeding for recovery of any tax or impost or any dues payable to the Government. [859-c; 860-g-h] 2.1. An attachment itself does not create any charge in the property. By reason of attachment, no decree is passed. Section 125 of the Companies Act contains a special provision. It may not have any application in a case where a decree has already been passed. [859-e; 861-a] 2.2. The word `attachment' would only mean `taking into the custody of the law the person or property of one already before the court, or of one whom it is sought to bring before it. It is used for two purposes : (i) to compel the appearance of a defendant; and (ii) to seize and hold his property for the payment of the debt. It may also mean prohibition of transfer conversion, disposition or movement of property by an order issued by the court. [859-f] 2.3. There, indisputably, exists a distinction between attachment before judgment in terms of Order XXXVIII of the Code of Civil Procedure and attachment for execution of a decree under Order XXI thereof. An order of attachment before judgment passed under Order XXXVIII seeks to safeguard the interests of plaintiff so that in the event a decree is passed, the same stands satisfied. On the other hand, the essential parties of Order XXI is to see that the process of court is not defeated once execution starts, but the same would not mean that the provisions of the Companies Act become wholly inapplicable. [860-e-f] Faqir Chand Gupta v. Tanwar Finance P. Ltd., (1981) 51 Com. Cases 60, approved. Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors., AIR (1982) SC 989: [1982] 1 SCC 237 and Indian Bank v. Official Liquidator, Chemmeens Export (P) Ltd. and Ors., [1998] 5 SCC 401, referred to. 3.1. Save and except certain special statutes in relation to recovery of debts from the properties of a company which has directed to be wound up, the provisions of the Companies Act shall apply. [860-d] 3.2. It may be true that if there exists a statute like SICA, the provisions thereof may prevail over the Companies Act. But in absence of a clear provision, the Companies Act cannot be held to give way to another Act providing for recovery only leaving the rights and liabilities of the parties to be dealt with a general law. [863-g, h] Ovation International (India) P. Ltd., Re (1969) 39 Com. Cases 595 (Bom.), approved. Maharashtra State Financial Corporation v. Official Liquidator, Sidhu Tyres (P) Ltd. (1988) 64 Com. Cases 641, distinguished. NGEF Ltd. v. Chandra Developers (P) and Anr., [2005] 8 SCC 219 and Jay Engineering Works Ltd. v. Industry Facilitation Council and Anr., (2006) 9 SCALE 285, relied on. Kerala Financial Corporation, Trivandrum v. C.K. Sivasankara Panicker and Ors., (1978) TAX L.R. 1860; International Coach Builders Ltd. v. Karnataka State Financial Corporation, [2003] 10 SCC 482; Rajasthan State Financial Corporation and Anr. v. Official Liquidator and Anr., [2005] 8 SCC 190 and ICICI Bank Ltd. v. SIDCO Leathers Ltd. and Ors., (2006) 5 SCALE 27, referred to. 4. The High Court has not committed any error in refusing to exercise its discretionary jurisdiction under Section 446 of the Companies Act. C.N. Sree Kumar for the Appellant. Romy Chacko for the Respondent.2007 AIR 63 , 2006(6 )Suppl.SCR855 , 2006(10 )SCC709 , 2006(10 )SCALE28 , 2006(12 )JT603

CASE NO.:
Appeal (civil)  4333 of 2006

PETITIONER:
Kerala State Financial Enterprises Ltd.

RESPONDENT:
Official Liquidator, High Court of Kerala

DATE OF JUDGMENT: 29/09/2006

BENCH:
S.B. Sinha & Dalveer Bhandari

JUDGMENT:
JUDGMENT

S.B. SINHA. J.


Leave granted.

Appellant herein is a Government company. It is engaged in conduct of
chitties. M/s Concert Capital Limited together with its sister concern M/s
Concert Securities Limited took loan from it. They failed to repay the said
loan. A recovery proceeding was initiated against the defaulting company
under the Kerala Revenue Recovery Act, 1968. A notification was issued in
that behalf in terms of Section 71 thereof.

The properties belonging to the defaulting company were attached. In the
meanwhile, the Company went for voluntary liquidation. A provisional
liquidator was appointed. Appellant was informed thereabout.

In the pending company proceeding being C.A. No. 165 of 2001, Appellant
filed an application seeking leave to proceed with the sale of the
properties, which was objected to, inter alia, on the premise that the
charge in respect of the alleged debt was not registered with the Registrar
of Companies and, thus, it was an unsecured creditor. A Counter Affidavit
thereto was filed by Respondent. A prayer was also made by the Official
liquidator for a direction upon Appellant to surrender the original
documents. The application for leave to proceed with the revenue recovery
proceeding was rejected by a learned Single Judge of the High Court by its
order dated 28.11.2003.

An appeal thereagainst being Company Appeal No. 14 of 2004 preferred by
Appellant was dismissed by a Division Bench of the High Court. Appellant
is, thus, before us.

The contentions raised in support of the appeal are :

(i) In view of the fact that an order of attachment was passed by the
Revenue Recovery Officer, the provisions of Section 125 of the Companies
Act, 1956 were not attracted;

(ii) The provisions of the Kerala Revenue Recovery Act being a special
statute, the same shall prevail over the Companies Act;

 (iii) The order of attachment passed in favour of Appellant was saved
 under sub-section (1) of Section 537 of the Companies Act;

(iv) In any event, the dues of Appellant shall get precedence in terms
of sub-section (2) of Section 537 of the Companies Act.

The Official Liquidator, on the other hand, contended that no charge is
created by reason of an order of attachment and as upon liquidation all the
properties vest in the Official Liquidator being an unsecured creditor, the
provisions of the Companies Act shall prevail.

Appellant is a Government company. Its dues are not Government dues. The
provisions of the Kerala Revenue Recovery Act might have been made
applicable, but only by reason thereof, dues of a Government company would
not become the dues of the Government within the meaning of subsection (2)
of Section 537 of the Companies Act.

Ordinarily a charge should be registered in terms of Section 125 of the
Act. If the charges are not registered, the same would be void against the
liquidator or creditors. The question which arises for consideration is as
to whether if the properties are attached by a Revenue Recovery Court,
Section 125 of the Act would be applicable? An attachment itself does not
create any charge in the property. By reason of attachment, no decree is
passed.

The expression `attachment' has no definite connotation. An order of
attachment is passed for achieving a limited purpose. It is subject to
further orders as also provisions of other statute.

The word `attachment' would only mean `taking into the custody of the law
the person or property of one already before the court, or of one whom it
is sought to bring before it. It is used for two purposes : (i) to compel
the appearance of a defendant; and (ii) to seize and hold his property for
the payment of the debt. It may also mean prohibition of transfer,
conversion, disposition or movement of property by an order issued by the
court.

In Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors., AIR (1982) SC
989 : [1982] 1 SCC 237, this Court held :

"What is the effect of attachment before judgment? Attachment
before judgment is levied where the court on an application of the
plaintiff is satisfied that the defendant, with intent to obstruct
or delay the execution of any decree that may be passed against him
(a) is about to dispose of the whole or any part of his property,
or (b) is about to remove the whole or any part of his property
from the local limits of the jurisdiction of the court. The sole
object behind the order levying attachment before judgment is to
give an assurance to the plaintiff that his decree if made would be
satisfied. It is a sort of a guarantee against decree becoming
infructuous for want of property available from which the plaintiff
can satisfy the decree. The provision in Section 64 of the Code of
Civil Procedure provides that where an attachment has been made,
any private transfer or delivery of the property attached or of any
interest therein and any payment to the judgment-debtor of any
debt, dividend or other monies contrary to such attachment, shall
be void as against all claims enforceable under the attachment.
What is claimed enforceable is the claim for which the decree is
made...."

Save and except certain special statutes in relation to recovery of debts
from the properties of a company which has been directed to be wound up,
the provisions of the Companies Act shall apply. An order of attachment
made prior to passing of an order of winding up may not be void, but then
the execution proceedings must be allowed to continue with the leave of the
court in terms of Section 446 of the Companies Act. [See Ovation
International (India) P. Ltd., Re (1969) 39 Com. Cases 595 (Bom)].

There, indisputably, exists a distinction between attachment before
judgment in terms of Order XXXVIII of the Code of Civil Procedure and
attachment for execution of a decree under Order XXI thereof. An order of
attachment before judgment passed under Order XXXVIII seeks to safeguard
the interests of plaintiff so that in the event a decree is passed, the
same stands satisfied. On the other hand, the essential parties of Order
XXI is to see that the process of court is not defeated once execution
starts, but the same would not mean that the provisions of the Companies
Act become wholly inapplicable.

[See Faqir Chand Gupta v. Tanwar Finance P. Ltd., (1981) 51 Com. Cases 60].

The matter may, however, be different where the proceeding itself commenced
with the leave of the court. We have noticed hereinbefore that sub-section
(2) of Section 537 will have no application in the instant case, inasmuch
the recovery proceeding initiated by Appellant cannot be said to be a
proceeding for recovery of any tax or impost or any dues payable to the
Government.

Section 125 of the Companies Act contains a special provision. It may not
have any application in a case where a decree has already been passed, as
was the case of Indian Bank v. Official Liquidator Chemmeens Exports (P)
Ltd. and Ors., [1998] 5 SCC 401, on the ground that in terms of sub-section
(2) of Section 446, the Company Court is not empowered to declare a decree
passed by a competent court to be void. In that case it was held that the
provisions of a special statute would apply subject to the provisions of
the Companies Act. Therein a decree was already operative and observations
were made only in that context.

Mr. C.N. Sree Kumar, the learned counsel appearing on behalf of Appellant,
placed reliance upon a decision of the Kerala High Court in Kerala
Financial Corporation, Trivandrum v. CK. Sivasankara Panicker and Ors.,
(1978) TAX. L.R. 1860, wherein in view of the fact that the State Financial
Corporation had already taken recourse to Section 31 of the State Financial
Corporations Act.

The question therein was as to whether the order Ext. PI8 has the effect of
a decree creating a charge and Sec. 46B of the State Financial Corporations
Act has overriding effect over the provisions of Sec. 125 of the Companies
Act. It was held :

"...Section 46B, no doubt, provides that the provisions of the State
Financial Corporations Act shall have effect notwithstanding anything
contained in any other law for the time being in force. An order for
realization of the amount due to the Financial Corporation by sale of the
assets of the Company amounts to a charged decree. The assets attached and
ordered to be sold constitute the security for the amount due to the
Corporation. But S. 125 of the Companies Act declares that the charge so
created by the company will be invalid as against the Liquidator and any
creditor if it is not registered with the Registrar of Companies. This is
inconsistent with the provisions of State Financial Corporations Act and
therefore under S. 46B of the latter Act which is a special Act the legal
effect of the order passed will be binding on the Liquidator of the company
also. This is further clear by sub-sec. (10) of S.32 of the State Financial
Corporations Act..."

It was further observed :

"...Section 125 applies to every charge created by the company in so far as
any security of the company's property is conferred thereby. It cannot be
said that a decree by which the company's property is ordered to be sold
for realization of the amount due to the creditor is a charge created by
the company. It may be that the decree is based on a mortgage created by
the company. But, once that mortgage has merged in the decree the
relationship of the parties is governed by the terms of the decree and the
decree creating a charge is not hit by Section 125 of the Act (See
Subrahmanyan v. Muttuswami, AIR (1941) FC 47). If the charge has not
matured in a decree, no doubt, S. 125 will apply and the charge will be
void against all creditors and the Liquidator. It is not possible to extend
the scope of that Section to cases where there are supervening events which
are not covered by the Section. Moreover, in this case in the light of
S.46B of the State Financial Corporations Act the charge created by the
order of the District Court under section 32 of the said Act will not be
affected by S. 125 of the Companies Act inasmuch as the latter section is
inconsistent with the right created in favour of the creditor by Section 32
of the Act..."

We may notice that this Court, however, has taken a somewhat different
view.

The question as to whether Sections 28, 31 and 46B of the State Financial
Corporations Act shall prevail over Section 529 and 529-A of the Companies
Act came up for consideration before this Court in International Coach
Builders Ltd. v. Karnataka State Financial Corporation, [2003] 10 SCC 482,
wherein this Court opined :

"We do not really see a conflict between Section 29 of the SFC Act
and the Companies Act at all, since the rights under Section 29
were not intended to operate in the situation of winding up of a
company. Even assuming to the contrary, if a conflict arises, then
we respectfully reiterate the view taken by the Division Bench of
this Court in AP. State Financial Corpn. case. This Court pointed
out therein that Section 29 of the SFC Act cannot override the
provisions of Sections 529(1) and 529-A of the Companies Act, 1956,
inasmuch as SFCs cannot exercise the right under Section 29
ignoring a pari passu charge of the workmen..."

The view taken therein was reiterated by a three-Judge Bench of this Court
in Rajasthan State Financial Corporation and Anr. v. Official Liquidator
and Anr., [2005] 8 SCC 190 wherein it was stated:

"18. In the light of the discussion as above, we think it proper to sum up
the legal position thus:

(i) A Debts Recovery Tribunal acting under the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 would be entitled to order the
sale and to sell the properties of the debtor, even if a company-in-
liquidation, through its Recovery Officer but only after notice to the
Official Liquidator or the Liquidator appointed by the Company Court and
after hearing him.

(ii) A District Court entertaining an application under Section 31 of the
SFC Act will have the power to order sale of the assets of a borrower
company-in-liquidation, but only after notice to the Official Liquidator or
the Liquidator appointed by the Company Court and after hearing him.

(iii) If a financial corporation acting under Section 29 of the SFC Act
seeks to sell or otherwise transfer the assets of a debtor company-in-
liquidation, the said power could be exercised by it only after obtaining
the appropriate permission from the Company Court and acting in terms of
the directions issued by that court as regards associating the Official
Liquidator with the sale, the fixing of the upset price or the reserve
price, confirmation of the sale, holding of the sale proceeds and the
distribution thereof among the creditors in terms of Section 529-A and
Section 529 of the Companies Act.

(iv) In a case where proceedings under the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 or the SFC Act are not set in motion,
the creditor concerned is to approach the Company Court for appropriate
directions regarding the realisation of its securities consistent with the
relevant provisions of the Companies Act regarding distribution of the
assets of the company-in-liquidation."

[See also ICICI Bank Ltd. v. SIDCO Leathers Ltd. & Ors., (2006) 5 SCALE
27].

It may be true that if there exists a statute like SICA, the provisions
thereof may prevail over the Companies Act. But in absence of a clear
provision, the Companies Act cannot be held to give way to another Act
providing for recovery only leaving the rights and liabilities of the
parties to be dealt with a general law. [See NGEF Ltd. v. Chandra
Developers (P) Ltd, and Anr., [2005] 8 SCC 219 and Jay Engineering Works
Ltd. v. Industry Facilitation Council and Anr. - (2006) 9 SCALE 285]

Reliance has also been placed by Mr. Sree Kumar on Maharashtra State
Financial Corporation v. Official Liquidator, Sidhu Tyres (P) Ltd., (1988)
64 Com. Cases 641 is also not apposite. Therein the charge was created not
by the company, but by its predecessor which was a partnership firm.

For the reasons aforementioned, we do not think that the High Court has
committed any error in refusing to exercise its discretionary jurisdiction
under Section 446 of the Companies Act. The appeal is dismissed. No costs.

Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975: s.4 - Execution of money decree against agriculturist - Attachment of property - Execution application closed in view of s.4 of the Act staying the execution against agriculturist - After moratorium period ended, initiation of execution proceedings by decree-holder - Auction sale of attached property - Validity of - Held: Auction sale was valid - There was no withdrawal of attachment, nor any question of `eclipse of attachment' during the period of the statutory stay under the Act - Attachment in execution already effected, continued and was in effect, during the entire period of stay and on expiry of moratorium period, the decree-holder became entitled to continue the execution by proceeding with the sale - Sale of attached property during subsistence of attachment by the judgment-debtor was void - Code of Civil Procedure, 1908 - s.51(b), O.21, rr.54, 55, 57, 58. Code of Civil Procedure, 1908: s.51(b), O.21, rr.54, 55, 57, 58 - Attachment of immovable property effected in execution of a decree - Determination/removal of - Legal position discussed. O.21, r.57 - Closure of execution application - Held: Is not dismissal of execution application. The appellant obtained a money decree against the judgment-debtor (M). In the execution of the money decree, the properties belonging to `M' were attached on 29.12.1974. On 10.1.1975, the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 came into force, by virtue of which all the proceedings in applications for execution of decrees in which relief was claimed against the agriculturists were stayed until the expiry of one year from the date of commencement of the said Act. As `M' was an agriculturist, the execution proceedings in regard to the decree obtained by the appellant against her were closed on 15.2.1975. The moratorium period of one year under the Debt Relief Act was extended from time to time till 14.7.1979. After the moratorium period ended, the appellant initiated execution proceedings afresh. In the said execution proceedings, the attached suit property was brought to auction sale on 6.6.1984 and in that auction, the appellant purchased the sale property. `M' filed an application under Section 47, CPC to set aside the sale. The trial court set aside the sale. The first appellate court reversed the order of trial court and upheld the validity of sale. The High Court upheld the same. In the meanwhile, on 17.2.1978, `M' had sold the attached property and the purchaser further sold the property and ultimately the attached (suit) property came to the respondent. In 1985, the respondent filed a suit for declaration of title over the suit property against the appellant. A decade later, the respondent filed an additional document. As per the document, the order dated 15.2.1975 was corrected twenty years later on 19.7.1995 converting the attachment which was to continue without any specific time limit, as one to end on the expiry of six months. The said correction was by way of an office note and without notice to the appellant. The appellant challenged the amendment before the High Court. The High Court held that a clerical mistake cannot be converted behind the back of parties and remitted the matter to lower court with direction to give notice to both the parties in respect of the clarification required and the amendment to be made. On 18.9.1996, the District Munsif addressed a communication to the counsel of the appellant for making correction in the suit register as well as in the certified copies. The trial court dismissed the suit. The first appellate court upheld the order of trial court. It was concurrently found by both the courts that the attachment effected on 29.12.1974 was not raised/withdrawn/determined and it continued till the sale of the property in the court auction on 6.6.1984 and, therefore, the sale in favour of appellant was valid and the sales effected by `M' during the subsistence of the attachment were invalid. The High Court allowed the appeal holding that that when the Debt Relief Act came into force, the executing court had closed the execution proceedings on 15.2.1975 with an observation that the attachment to continue for a period of six months, and at the end of six months the attachment came to an end and was not revived or renewed and auction sale in favour of the appellant was not valid and consequently when `M' sold the suit property, it was not subject to any attachment and consequently, the respondent who purchased the suit property was the owner of the suit property. In the instant appeal, it was contended for the appellant that on 15.2.1975, the executing court, while closing the execution in view of the stay of execution proceedings by the Debt Relief Act, had made it clear that the attachment would continue. Allowing the appeal, the Court HELD: 1.1. An attachment of an immovable property in execution of a decree is made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge (Order 21 Rule 54, CPC), and it continues until the said property is sold and the sale is confirmed, unless it is determined or removed on account of any of the following reasons: (i) By deemed withdrawal under Rule 55 Order 21, CPC, that is, where the attachment is deemed to be withdrawn on account of (a) the amount decreed with all costs, charges and expenses resulting from the attachment being paid into court; or (b) satisfaction of the decree being otherwise made through the court or is certified to the court; or (c) the decree being set aside or reversed. (ii) By determination under Rule 57 Order 21, CPC, that is, after any property has been attached in execution of a decree, the court passes an order dismissing the application for execution of the decree, but omits to give a direction that the attachment shall continue. (iii) By release of the property from attachment under Rule 58 Order 21, CPC, that is, when any claim is preferred to the property attached in execution, or any objection is made to the attachment, on the ground that the property is not liable to such attachment and the court, on adjudication of the claim or the objections, releases the property from attachment. (iv) By operation of law, that is, on account of any statute declaring the attachment in execution shall cease to operate, or by the decree (in respect of which the property is attached) being nullified, or by the execution being barred by the law of limitation. (v) By consent of parties, that is, where the decree holder and the judgment debtor agree that the attachment be withdrawn or raised. [Paras 8, 9] 1.2. It is not the case of the respondent that there was determination of the attachment on account of any of the grounds specified in Rule 55 or Rule 58 of Order 21, CPC. There was also no agreement to raise the attachment nor any application for withdrawing the attachment. It is clear from Rule 57 of Order 21, CPC that where the court `dismisses' the application for execution of the decree, the attachment effected in execution, shall cease unless the court indicates that the attachment shall continue. But where the execution petition is adjourned `sine die' or closed on account of any moratorium or stay of the execution under a statute, or by an order of stay by any court, there is no "dismissal" of the execution application. Similarly, where the execution application is closed without any specific cause, apparently for purposes of statistical disposal, there is no `dismissal' of the execution application. An execution application is `dismissed' when (i) the execution is dismissed as a consequence of the decree being found to be null and void or inexecutable (as contrasted from any temporary eclipse of the decree); or (ii) the execution is dismissed on the ground of any default on the part of the decree-holder. [Paras 10, 11] 1.3. The execution application of the appellant was closed on 15.2.1975 in view of Section 4 of the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 staying the executions against agriculturists. What was stayed or kept in abeyance during the period when the statutory stay of execution operated under the Act, was not the attachment, but the further proceedings in pursuance of the attachment, that is, sale of the attached property. The stay was only for a specified limited period. On the expiry of the moratorium period under the Debt Relief Act on 17.10.1979, the decree holder became entitled to continue the execution by proceeding with the sale. Thus, there was no question of determination or withdrawal of attachment, nor any question of `eclipse of attachment' during the period of the statutory stay under the Debt Relief Act, nor any `revival' of attachment thereafter. Attachments in execution, already effected, continued and were in effect, during the entire period of stay of execution by the Debt Relief Act. The alienations by `M' were, therefore, void as against the claim enforceable under the attachment obtained by appellant, having regard to Sec. 64 of the Code. As the attachment obtained by the appellant continued, the sales by `M' were invalid and the sale in favour of the appellant was valid. [Paras 11, 12] 2.1. If the order of the executing court while closing the execution, was `attachment to continue', the attachment would have continued in spite of the closing of the execution proceedings. Even if the executing court had closed the execution, in view of the statutory stay, without any specific order continuing the attachment, the attachment would not have ceased as there was no `dismissal' of execution under Order 21 Rule 57, CPC. But if the order dated 15.2.1975 had stated `attachment to continue for six months', whether right or wrong, the attachment would have come to an end on the expiry of six months from 15.2.1975, unless it was continued by any subsequent order, or had been modified or set aside by a higher court. [Para 14] 2.2. The High Court erred in proceeding on the basis that by order dated 15.2.1975, the executing court had closed the execution proceedings in view of the enactment of the Debt Relief Act and continued the attachment only for six months and thereafter there was no attachment and, therefore, the sales by `M' on 17.2.1978 and 8.12.1980 were valid and the court auction sale in favour of the appellant was invalid. When the Debt Relief Act clearly indicated that the attachment would continue during the period when the execution proceedings were stayed, it is ununderstandable how the executing court could make an order that the attachment would continue only for six months. Moreover, when the order dated 15.2.1975 stated "attachment to continue", it is ununderstandable how the said order could have been amended after 20 years without notice to the plaintiff-decree holder on the basis of some private clarification letter dated 29.10.1985 allegedly written by the District Munsif stating that the order made on 15.2.1975 was not "attachment to continue" but "attachment to continue for six months". Also, when the order dated 19.7.1995 amending the order dated 15.2.1975 was set aside by the High Court by order dated 22.12.1995 with a direction for fresh disposal in accordance with law after notice to the parties, it is ununderstandable how the District Munsiff, instead of complying with the order of the High Court, could have issued a notice dated 18.9.1996 to both counsel stating that the said correction adding the words "for six months" was required to be made in the certified copies, if any obtained by the Advocates, and that both side Advocates should produce the certified copies for making the correction. The notice dated 18.9.1996, by no stretch of imagination, could be construed as an order. The notice dated 18.9.1996 was apparently issued under an erroneous impression that the High Court had accepted the correction, but had directed making of the correction in the certified copies after notice to the parties. The amendment made pursuant to the office note dated 19.7.1995 having been set aside by order dated 22.12.1995, and no further order having been made thereafter by the executing court, the unauthorized addition of the words "for six months" in the order dated 15.2.1975 have to be ignored and excluded. Therefore, the attachment dated 29.12.1974 continued till the property was sold by public auction on 6.6.1984 and confirmed on 30.7.1985. Consequently any sale by `M', during the subsistence of the attachment was void insofar as the decree obtained by the appellant. Therefore, neither the purchasers from `M' nor the respondent who is the subsequent transferee, obtained any title in pursuance of the sales, as the sales were void as against the claims enforceable under the attachment. The order of the High Court is set aside and the order of the first appellate court confirming the dismissal of the respondent's suit stands restored. [Paras 18, 19, 20] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5798 of 2002. P. Vishwanath Shetty, V. Ramasubramanian, V. Balachandran for the Appellant. K.S. Ramamurthy, A.T.M. Sampath for the Respondent.

                                   1


                                                              Reportable

                 IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO. 5798 OF 2002


C.S.Mani (deceasad) by LR C.S.Dhanapalan              ... Appellant

Vs.

B.Chinnasamy Naidu (deceased) by LRs                  ... Respondent




                           JUDGMENT


R.V.RAVEENDRAN, J.


      Appellant obtained a money decree for Rs.4200/- against one

Mokshammal on 28.2.1972. He levied execution (EP No.466/1974) in

respect of the said decree, wherein the suit property (agricultural land

measuring 2 acres 22 cents) and two other properties (which are not the

subject matter of present proceedings) belonging to Mokshammal were

attached on 29.12.1974.
                                     2


2.    The Tamil Nadu Indebted Agriculturists (Temporary Relief) Act,

1975 (`Debt Relief Act' for short) enacted by the Tamil Nadu Legislature

came into force with effect from 10.1.2005. Section 4 of the said Act stayed

all further proceedings in applications for execution of decrees in which

relief was claimed against an agriculturist until the expiry of one year from

the date of commencement of the said Act. The proviso thereto enabled the

court to pass such orders as it deemed necessary for custody or preservation

of the property under attachment. As Mokshammal was an `agriculturist' as

defined under the said Act, the execution proceedings in regard to the decree

obtained by the appellant against her were closed, by order dated 15.2.1975.

The moratorium period of one year under the Debt Relief Act was

subsequently extended from time to time till 14.7.1979.



3.    After the moratorium period ended, the appellant initiated execution

proceedings afresh (EP No.276 of 1980). As the suit property had already

been attached on 29.12.1974 in the earlier execution proceedings, and that

attachment continued even during the moratorium period, the appellant did

not seek any fresh attachment. In the said execution proceedings the attached

suit property was brought to sale. At the court auction sale held on 6.6.1984,

the appellant purchased the suit property. The auction sale in favour of
                                    3


appellant was confirmed on 30.7.1985 and a sale certificate was issued to

him. According to appellant possession of the suit property was also

delivered to him through court on 10.9.1985.



4.     The judgment debtor Mokshammal filed an application under section

47 of the Code of Civil Procedure (`Code' for short) to set aside the sale.

The sale was set aside on 10.1.1986. However the appeal filed by the

appellant against the said order was allowed by the Subordinate Judge and

by order dated 15.3.1993 the order of the executing court dated 10.1.1986

setting aside the sale was reversed. The revision petition filed by

Mokshammal against the said order was dismissed on 5.10.1993. Thus the

attempts by Mokshammal to get the sale set aside failed and the auction sale

attained finality.



5.     In the meanwhile, the Judgment-Debtor Mokshammal sold 75 cents

out of the suit property to one Chandra on 17.2.1978 who in turn sold it to

Kiliammal on 19.8.1981. The remaining 1.47 acre was also sold by

Mokshammal to one Chand Basha under another sale deed dated

18.12.1980. Chand Basha and Kiliammal sold their respective portions

measuring 1.47 acres and 75 cents to the respondent under sale deeds dated
                                      4


27.1.1982 and 6.3.1982. Respondent thus claimed to be the owner in

possession of the suit schedule property measuring 2 acres 22 guntas. The

respondent filed a suit in the court of District Munsiff, Tiruvallur (O.S.No.

458/1985) against the appellant seeking a declaration of his title over the suit

property and for a permanent injunction to restrain the appellant from

interfering with his possession over the same.          In the said suit, the

respondent contended that on the enactment of the Debt Relief Act, the

execution against Mokshammal was closed on 15.2.1975 and as a result the

attachment dated 29.12.1974 over the suit property came to an end; and

therefore when portions of suit property were sold by Mokshammal to

Chandra and Chand Basha or when the suit property was subsequently sold

to him on 27.1.1982 and 6.3.1982, it was not subject to any attachment and

therefore he became the absolute owner thereof. He further contended that

the court sale in execution on 6.6.1984 in favour of the appellant, was on the

erroneous premise that the suit property was under attachment; and that as

the attachment had ceased on 15.2.1975, the auction sale was null and void.

He also asserted that he was in possession of the suit property and the claim

of the appellant that possession was delivered to him on 10.9.1985, was false

and incorrect. The suit was contested by the appellant. The trial court

dismissed the suit by judgment and decree dated 7.11.1997, holding that the
                                     5


sale deeds in favour of respondent were not valid and the appellant was in

possession of the suit property. The respondent filed an appeal challenging

the judgment and decree of the trial court, and the first appellate court by

judgment dated 5.8.1998 dismissed the appeal. The trial court and the first

appellate court concurrently found that the attachment effected on

29.12.1974 was not raised/withdrawn/determined and it had continued till

the sale of the property in the court auction on 6.6.1984 and therefore the

sale in favour of appellant was valid and the sales effected by Mokshammal

during the subsistence of the attachment were invalid.


6.    Feeling aggrieved, the respondent filed a second appeal. The High

Court allowed the second appeal and set aside the judgment and decree of

the first appellate court, and decreed the suit for declaration of title and

injunction filed by the respondent. The High Court held that when the Debt

Relief Act came into force, the executing court had closed the execution

proceedings on 15.2.1975 with an observation that the attachment to

continue for a period of six months, and at the end of six months the

attachment came to an end and was not revived or renewed and

consequently when Mokshammal sold the suit property on 17.2.1978 and

18.12.1980 in two portions to Chandra and Chand Basha, the suit property

was not subject to any attachment and consequently, the respondent who had
                                       6


purchased the suit property from Chandra's successor Killiammal and Chand

Basha, was the owner of the suit property. It held that the court sale dated

6.6.1984 and consequent sale certificate did not convey any title to the

appellant, as there was no attachment as on the date of sale and

Mokshammal did not have any interest in the suit property on the date of

auction sale. The said judgment is challenged in this appeal.



Legal Position regarding determination of attachment


7.    One of the modes of enforcing execution of a money decree is by

attachment and sale of the property of the judgment-debtor. (Vide Sec.51(b)

of the Code). Attachment of an immovable property is made by an order

prohibiting the judgment-debtor from transferring or charging the property

in any way, and all persons from taking any benefit from such transfer or

charge (Vide Order 21 Rule 54 of the Code). Section 64 of the Code of Civil

Procedure provides that private alienation of property after attachment is

void and sub-section (1) thereof is extracted below :


      "64. Private alienation of property after attachment to be void.--(1)
      Where an attachment has been made, any private transfer or delivery of
      the property attached or of any interest therein and any payment to the
      judgment-debtor of any debt, dividend or other money contrary to such
      attachment, shall be void as against all claims enforceable under the
      attachment."
                                      7



8.      An attachment of an immovable property effected in execution of a

decree, will continue until the said property is sold and the sale is confirmed,

unless it is determined or removed on account of any of the following

reasons:



(i)     By deemed withdrawal under Rule 55 Order 21 of the Code, that is,
where the attachment is deemed to be withdrawn on account of (a) the
amount decreed with all costs, charges and expenses resulting from the
attachment being paid into court; or (b) satisfaction of the decree being
otherwise made through the court or is certified to the court; or (c) the
decree being set aside or reversed.



(ii)    By determination under Rule 57 Order 21 of the Code, that is, after
any property has been attached in execution of a decree, the court passes an
order dismissing the application for execution of the decree, but omits to
give a direction that the attachment shall continue. (When an execution
application is dismissed, for whatsoever reason, the court is required to
direct whether the attachment shall continue or cease and shall also indicate
the period up to which the attachment shall continue or the date on which
such attachment shall cease).



(iii)   By release of the property from attachment under Rule 58 Order 21
of the Code, that is when any claim is preferred to the property attached in
execution, or any objection is made to the attachment, on the ground that the
                                     8


property is not liable to such attachment and the court, on adjudication of the
claim or the objections, releases the property from attachment.



(iv)   By operation of law, that is, on account of any statute declaring the
attachment in execution shall cease to operate, or by the decree (in respect of
which the property is attached) being nullified, or by the execution being
barred by the law of limitation.



(v)    By consent of parties, that is, where the decree holder and the
judgment debtor agree that the attachment be withdrawn or raised.



Questions for consideration


9.     On the contentions raised, two questions arise for our consideration in

this appeal :


(i)    Whether the attachment of the suit property on 29.12.1974 continued
after the closure of the execution petition on 15.2.1975, till the auction sale
on 6.6.1984 and confirmation of sale on 30.7.1985; and consequently the
sales by Mokshammal on 17.2.1978 and 18.12.1980 as also the sales by her
transferees to respondent were invalid.


(ii)   Whether the attachment of the suit property ceased on 15.8.1975, on
the expiry of six months from the date of closure of the execution
proceedings, in view of the intervention of the Debt Relief Act and the order
                                    9


of closure dated 15.2.1975; and consequently the sales by Mokshammal on
17.2.1978 and 18.12.1980 were valid, and the auction sale in favour of the
appellant was invalid ?



Re : Question (i)


10.   There is no dispute that the suit property was attached on 29.12.1974

in the execution proceedings initiated by the appellant against Mokshammal,

in regard to the money decree obtained by him. Therefore any private

transfer or delivery of the attached property, by Mokshammal during the

period when the attachment was in force, was void as against all claims

enforceable under the attachment by the appellant. As noticed above, an

attachment, once made in execution of a decree, will continue till the

completion of the sale, unless determined by any of the methods mentioned

in para (8) above. It is not the case of the respondent that there was

determination of the attachment on account of any of the grounds specified

in Rule 55 or Rule 58 of Order 21 of the Code. There was also no agreement

to raise the attachment nor any application for withdrawing the attachment.

Therefore what remains to be considered whether there was determination of

attachment under any of the circumstances mentioned in paras (ii) and (iv)

of para 8 above.
                                     10




11.   It is clear from Rule 57 of Order 21 of the Code that where the court

`dismisses' the application for execution of the decree, the attachment

effected in execution, shall cease unless the court indicates that the

attachment shall continue. But where the execution petition is adjourned

`sine die' or closed on account of any moratorium or stay of the execution

under a statute, or by an order of stay by any court, there is no "dismissal" of

the execution application. Similarly where the execution application is

closed without any specific cause, apparently for purposes of statistical

disposal, there is no "dismissal" of the execution application. An execution

application is `dismissed' when (i) the execution is dismissed as a

consequence of the decree being found to be null and void or inexecutable

(as contrasted from any temporary eclipse of the decree); or (ii) the

execution is dismissed on the ground of any default on the part of the

decree-holder.



12.   The execution application of the appellant was closed on 15.2.1975 in

view of Section 4 of the Debt Relief Act staying executions against

agriculturists. The stay of further proceedings in execution under section 4

of the Debt Relief Act was only for a specified limited period. The proviso
                                    11


to section 4 clearly implied that any attachment made in such stayed

execution proceedings shall continue to be in effect, by providing that the

court will have to pass if necessary the orders for custody or preservation of

the attached property during the pendency of stay under the Debt Relief Act.

Therefore the enactment of the Debt Relief Act did not determine the

attachment. What was stayed or kept in abeyance during the period when the

statutory stay of execution operated, was not the attachment, but the further

proceedings in pursuance of the attachment, that is, sale of the attached

property. On the expiry of the moratorium period under the Debt Relief Act

on 17.10.1979, the decree holder became entitled to continue the execution

by proceeding with the sale. There is thus no question of determination or

withdrawal of attachment, nor any question of `eclipse of attachment' during

the period when the statutory stay under the Debt Relief Act, nor any

`revival' of attachment thereafter. Attachments in execution, already

effected, continued and were in effect, during the entire period of stay of

execution by the Debt Relief Act. The alienations by Mokshamal under sale

deeds dated 17.2.1978 and 18.2.1980 were therefore void as against the

claim enforceable under the attachment obtained by appellant, having regard

to Sec. 64 of the Code. As the attachment obtained by the appellant

continued, the sale in his favour was valid and the sales by Mokshammal
                                    12


were invalid.


Re : question (ii)


13.   The contention of the respondent is that even if the attachment was

not determined on account of the enactment of the Debt Relief Act, the

executing court which passed the order of attachment on 29.12.1974 had

subsequently made an order on 15.2.1975 closing the execution with an

observation that the "attachment to continue for six months" thereby making

it clear that the attachment would came to an end on 15.8.1975. It was

submitted that there was no order extending the attachment after the expiry

of the said six month period. It was submitted by the respondent that even

assuming that the said order dated 15.2.1975 was erroneous, it was binding

and valid as it was not got modified or set aside and had attained finality;

and consequently when the sale was effected by Mokashammal on

17.2.1978 and 18.12.1980 in respect of portions of the suit property, there

was no subsisting attachment. On the other hand, the appellant contends that

on 15.2.1975, the executing court, while closing the execution in view of the

stay of execution proceedings by the Debt Relief Act, had made it clear that

the attachment will continue. According to them the order made by the
                                     13


executing court while closing the execution proceedings on 15.2.1975 was

"Defendant in an agriculturist - EP is closed - attachment to continue".


14.   If the order of the executing court while closing the execution, was

`attachment to continue', the attachment would have continued in spite of

the closing of the execution proceedings. Even if the executing court had

closed the execution, in view of the statutory stay, without any specific order

continuing the attachment, the attachment would not have ceased as there

was no `dismissal' of execution under Order 21 Rule 57 of the Code. But if

the order dated 15.2.1975 had stated `attachment to continue for six months',

whether right or wrong, the attachment would have come to an end on the

expiry of six months from 15.2.1975, unless it was continued by any

subsequent order, or had been modified or set aside by a higher court. What

then was the order that was passed on 15.2.1975?



15.   It is significant that the respondent in his plaint (in OS No. 458/1985)

never stated that that order dated 15.2.1975 closing the execution

proceedings, continued the attachment for only six months. On the other

hand his specific case was that the attachment came to an end on account of

the execution being closed on 15.2.1975 by reason of the Debt Relief Act.

We extract below the relevant averments from the plaint :
                                          14

      "While the E.P. Proceedings were in progress Government passed Debt
      Relief Act for the relief of agriculturists and by virtue of which all further
      proceedings against agriculturists were either stayed or dismissed. The
      E.P. No.466/74 was also closed on 15.2.75 with the result the attachment
      came to an end."


Nearly a decade later, the respondent filed by way of an additional document

in the said suit, the suit register extract relating to order dated 15.2.1975

which read as follows :

                     Amended as per Office Note dated 19.7.1995:

                     "Defendant is an agriculturist - E.P. is closed -
                     attachment to continue for 6 months".


The certified copy of the order dated 15.2.1975 obtained by the appellant

(prior to 19.7.1975 when the amendment was made) read: "Defendant is an

agriculturist - E.P. closed - attachment to continue." The said order dated

15.2.1975 was corrected twenty years later on 19.7.1995 by adding the

words "for six months" at the end, thereby converting the attachment which

was to continue without any specific time limit, as one to end on the expiry

of six months. The said correction was by way of an office note and without

notice to the appellant. The appellant therefore filed a civil revision petition

before the High Court challenging the amendment to the order dated

15.2.1975 made on 19.7.1995 by way of an office note, converting the words

"attachment to continue" to "attachment to continue for 6 months".
                                         15




16.   The High Court allowed the said revision petition by order dated

22.12.1995. It found that the correction had been made after 20 years on

19.7.1995, allegedly after obtaining a clarification from the Presiding

Officer; and that it was not known how and on what basis such a

clarification could be obtained after 20 years and on what authority the

person who was the Presiding Officer on 15.2.1975 could issue any

clarification after the order, and how the order could be amended after 20

years, that too without giving an opportunity to the appellant to oppose the

same. The court therefore allowed the revision petition with the following

observations and directions :

      "3. It is absolutely necessary that whenever a clerical mistake is to be
      corrected, such corrections cannot be made behind the back of the parties
      and the parties must be given an opportunity, explaining the clerical
      mistake and the circumstances under which the corrections are to be made.
      Hence the amendment made pursuant to the office note dated 19.7.1995
      with regard to the suit register in O.S.No.29/71 cannot be sustained.
      Accordingly, the same is set aside.

      4. The Civil Revision Petition is allowed and the matter is remitted to the
      Lower Court for fresh disposal according to law. The Lower Court is
      directed to give notice to the both parties in respect of the clarification
      required and the amendment to be made and thereafter pass orders
      regarding the amendment of the suit register, if required."


17.   Strangely on such remand by the High Court, the executing court did

not hold any enquiry, nor gave any hearing to parties as directed by the High

Court. On the other hand a rather strange communication dated 18.9.1996
                                          16


was addressed by the learned District Munsif to the learned counsel for the

appellant and respondent herein :


      "This is to inform you that regarding the order in E.P.No.466 of 1974 in
      O.S.No.29 of 1971, the doubt was cleared for the last order in E.P. by the
      then Presiding officer by his letter dated 29.10.1985 i.e., "Defendant is an
      Agriculturist. E.P. is closed. Attachment to continue for 6 months". The
      same was omitted to be carried out in the Suit Register by mistake on
      29.10.1985 itself. Hence office note put up on 19.07.1995 and as per order
      of District Munsif the same was carried out in the suit register, after giving
      notice to the petitioner's advocate Thiru S.Chandramouli in this Court's
      Memo in D.No. 393 dated 19.07.1995.

      Now as per High Court's direction in C.R.P.No.2864 of 1995 dated
      22.12.1995 this fresh notice is given to both the Advocates for making
      correction in the suit register as well as in the certified copies if any
      obtained by the Advocates.

      Hence both side advocates are directed to produce the certified copies in
      E.P.No.466 of 1974 in O.S.No.29 of 1971 (Suit Register Extract) on the
      file of this Court for making correction with in a week's time."


18.   The High Court, while allowing the second appeal of the respondent

by the impugned judgment, has read the said notice as an "order" reiterating

the amendment made on 19.7.1995. The High Court has therefore proceeded

on the basis that by order dated 15.2.1975, the executing court had closed

the execution proceedings in view of the enactment of the Debt Relief Act

and continued the attachment only for six months and thereafter there was

no attachment and therefore the sales by Mokshammal on 17.2.1978 and

18.12.1980 were valid and the court auction sale in favour of the appellant

was invalid. The High Court clearly erred. Firstly when the Debt Relief Act
                                    17


had clearly indicated that the attachment will continue during the period

when the execution proceedings were stayed, it is ununderstandable how the

executing court could make an order that the attachment will continue only

for six months. Secondly when the order dated 15.2.1975 stated "attachment

to continue", it is ununderstandable how the said order could have been

amended after 20 years without notice to the plaintiff-decree holder on the

basis of some private clarification letter dated 29.10.1985 allegedly written

by the District Munsif stating that the order made on 15.2.1975 was not

"attachment to continue" but "attachment to continue for six months".

Thirdly when said amendment order dated 19.7.1995 amending the order

dated 15.2.1975 was set aside by the High Court by order dated 22.12.1995

with a direction for fresh disposal in accordance with law after notice to the

parties, it is ununderstandable how the learned District Munsiff, instead of

complying with the order of the High Court, could have issued a notice

dated 18.9.1996 to both counsel stating that the said correction adding the

words "for six months" was required to be made in the certified copies, if

any obtained by the Advocates, and that both side Advocates should produce

the certified copies in EP No. 466 of 1974 for making the correction. The

notice dated 18.9.1996, by no stretch of imagination could be construed as

an order after hearing as directed by the High Court by its order dated
                                    18


22.12.1995. The notice dated 18.9.1996 was apparently issued under an

erroneous impression that the High Court had accepted the correction, but

had directed making of the correction in the certified copies after notice to

the parties. The amendment made pursuant to the office note dated

19.7.1995 having been set aside by order dated 22.12.1995, and no further

order having been made thereafter by the executing court, the unauthorized

addition of the words "for six months" in the order dated 15.2.1975 have to

be ignored and excluded.


conclusion


19.   Therefore the attachment dated 29.12.1974 continued till the property

was sold by public auction on 6.6.1984 and confirmed on 30.7.1985.

Consequently any sale by the judgment debtor Mokshammal, during the

subsistence of the attachment was void insofar as the decree obtained by the

appellant. Therefore it has to be held that neither the purchasers from

Mokshammal nor the respondent who is the subsequent transferee, obtained

any title in pursuance of the sales, as the sales were void as against the

claims enforceable under the attachment.
                                    19


20.   In view of the above this appeal is allowed and the order of the High

Court is set aside and the order of the first appellate court confirming the

dismissal of the respondent's suit stands restored and confirmed.




                                             .................................J.
                                             (R V Raveendran)



New Delhi;                                   .................................J.
August 31, 2010.                             (H L Gokhale)