whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide sub-section (1) to Section 111 repeals the 2000 Act, albeit sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act.

 whether the Juvenile Justice (Care and Protection) Act of 2015 (2015 Act) would be applicable as the 2015 Act vide sub-section (1) to Section 111 repeals the 2000 Act, albeit sub-section (2) to Section 111 states that notwithstanding this repeal anything done or any action taken under the 2000 Act shall be deemed to have been done or taken under the corresponding provisions of the 2015 Act.

We would again record that Satya Deo was less than 18 years of age on the date of commission of offence and this remains undisputed and unchallenged. 20. Satya Deo has undergone incarceration for more than 2 years thus far. In Mumtaz @ Muntyaz (supra), dealing with quantum and nature of punishment which should be given to a person who was a juvenile on the date of commission of offence, this court, while placing reliance upon an earlier decision in Jitendra Singh v. State of Uttar Pradesh11 , had held: 22. It is thus well settled that in terms of Section 20 of the 2000 Act, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act. What kind of order could be passed in a matter where claim of juvenility came to be accepted in a situation similar to the present case, was dealt with by this Court in Jitendra Singh v. State of U.P. [Jitendra Singh v. State of U.P., (2013) 11 SCC 193 : (2013) 4 SCC (Cri) 725] in the following terms: (SCC pp. 210-11, para 32) “32. A perusal of the “punishments” provided for under the Juvenile Justice Act, 1986 indicate that given the nature of the offence committed by the appellant, advising or admonishing him [clause (a)] is hardly a “punishment” that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to 11 (2013) 11 SCC 193 Criminal Appeal No. 860 of 2019 Page 22 of 24 expect the appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or fit person [clause (b)]. For the same reason, the appellant cannot be released on probation of good conduct under the care of a fit institution [clause (c)] nor can he be sent to a special home under Section 10 of the Juvenile Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles [clause (d)]. The only realistic punishment that can possibly be awarded to the appellant on the facts of this case is to require him to pay a fine under clause (e) of Section 21(1) of the Juvenile Justice Act, 1986.” 21. Following the aforesaid ratio and the legal position elucidated above, while we uphold the conviction of Satya Deo, we would set aside the sentence of life imprisonment. We would remit the matter to the jurisdiction of the Board for passing appropriate order/directions under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased. We make no affirmative or negative comments either way on the order/direction under Section 15 of the 2000 Act. 22. We would, accordingly, direct the jail authorities to produce Satya Deo before the Board within seven days from the date of receipt of a copy of this judgment. The Board shall then pass appropriate order regarding detention and custody and proceed thereafter to pass order/directions under the 2000 Act. Criminal Appeal No. 860 of 2019 Page 23 of 24 23. The appeal filed by the Satya Deo is partly allowed in the aforesaid terms and all the pending application are disposed of.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 860 OF 2019

SATYA DEO @ BHOOREY ..... APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH ..... RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

By the order dated 17.08.2018, the Special Leave Petition,

challenging the judgment dated 20.4.2018 of the Lucknow Bench

of the Allahabad High Court, filed by Keshav Ram and Ram Kuber

was dismissed, albeit in the case of co-accused Satya Deo@

Bhoorey notice was issued on the plea of juvenility. The impugned

judgment had confirmed the conviction of Keshav Ram, Ram

Kuber and Satya Deo by the trial court in FIR No. 156/1981 dated

11.12.1981 Police Station Gilaula, Distt. Bahraich, Uttar Pradesh

for the offence under Section 302 read with section 34 of the

Indian Penal Code, 1860 (‘IPC’ for short) and the order of

sentence directing them to undergo imprisonment for life.

Criminal Appeal No. 860 of 2019 Page 1 of 24

2. By order dated 02.05.2019 leave was granted in the case of Satya

Deo.

3. By order dated 22.11.2019 the trial court was directed to conduct

an inquiry to ascertain if Satya Deo was a juvenile on the date of

occurrence i.e. 11.12.1981, on the basis of material which would

be placed on record.

4. Pursuant to the directions, the First Additional District and

Sessions Judge, Bahraich, Uttar Pradesh has conducted an

inquiry and submitted the report dated 06.03.2020. As per the

report, the date of birth of Satya Deo is 15.4.1965. Accordingly, he

was 16 years 7 months and 26 days of age on the date of

commission of the offence i.e. 11.12.1981. The report relies on the

Transfer Certificate (in original) issued by Ram Narayan Singh

Inter College, Ramnagar Khajuri, Bahraich, and the Admission

Register of Primary School, Pairi, which documents were proved

by Sh. Krishn Deo, Clerk at Ram Narayan Singh Inter College,

Ramnagar Khajuri, Bahraich, and Smt. Anupam Singh, in-charge

head-mistress of Primary School, Pairi, respectively. Further,

Satya Deo had appeared in class-10 examination vide Roll. No.

9020777, and his date of birth as recorded in the gazette relating

to this examination is 15.04.1965.

Criminal Appeal No. 860 of 2019 Page 2 of 24

5. The report states that the complainant had died and consequently

notice was served on the heirs of the complainant, who did not

appear before the First Additional District and Sessions Judge,

Bahraich. The prosecution had not led any evidence.

6. The date of birth of Satya Deo is undisputed and not challenged

before us.

7. Notwithstanding this finding, the First Additional District and

Sessions Judge, Bahraich has observed that Satya Deo was not a

juvenile as per the Juvenile Justice Act, 1986 (1986 Act) as he

was more than 16 year of age on the date of commission of the

offence i.e. 11.12.1981.

8. The conundrum is in light of the definition of ‘juvenile’ under the

1986 Act, which was below sixteen years in case of a boy and

below eighteen years in case of a girl on the date the boy or girl is

brought for first appearance before the court or the competent

authority, whereas the 2000 Act, as noticed below, does not

distinguish between a boy or girl and a person under the age of

eighteen years is a juvenile. Further, under the 2000 Act, the age

on the date of commission of the offence is the determining factor.

Criminal Appeal No. 860 of 2019 Page 3 of 24

9. In light of the conflicting views expressed by this Court on

application of the 2000 Act to the pending proceedings, vide

decisions in Arnit Das v. State of Bihar1

 and Umesh Chandra v.

State of Rajasthan2

, the matter was referred to a Constitution

Bench and decided in the case reported as Pratap Singh v. State

of Jharkhand and Another3

. The Constitution Bench formulated

two points for decision, namely:

“(a) Whether the date of occurrence will be the

reckoning date for determining the age of the alleged

offender as juvenile offender or the date when he is

produced in the court/competent authority.

(b) Whether the Act of 2000 will be applicable in the

case a proceeding is initiated under the 1986 Act and

pending when the Act of 2000 was enforced with

effect from 1-4-2001.”

On the second question, the Constitution Bench held that

the 2000 Act would be applicable in a pending proceeding

instituted under the 1986 Act in any court or authority, if the person

had not completed eighteen years of age as on 1st April 2001,

when the 2000 Act came into force. On the first question, it was

held that the reckoning date for the determination of the age of the

juvenile is the date of the offence and not the date when he is

produced before the authority or in a court. Consequently, the

2000 Act would have prospective effect and not retrospective

1 (2000) 5 SCC 488

2 (1982) 2 SCC 202

3 (2005) 3 SCC 551

Criminal Appeal No. 860 of 2019 Page 4 of 24

effect except in cases where the person had not completed the

age of eighteen years on the date of commencement of the 2000

Act. Other pending cases would be governed by the provisions of

the 1986 Act.

10. Subsequent to the decision of the Constitution Bench in Pratap

Singh (supra), several amendments were made to the 2000 Act

by the Amendment Act No. 33 of 2006. These amendments are

significant, but first we will begin by referring to Section 2(l) of the

2000 Act which defines “juvenile in conflict with law” as:

“(l) "juvenile in conflict with law" means a juvenile

who is alleged to have committed an offence and has

not completed eighteenth year of age as on the date

of commission of such offence”

In terms of clause (l) to section 2 of the 2000 Act, Satya

Deo, being less than 18 years of age, was juvenile on the date of

commission of offence.

11. Section 20 of the 2000 Act, which provides a special provision in

respect of pending cases, post the amendment vide Act 33 of

2006, reads:

“20. Special provision in respect of pending cases.—

Notwithstanding anything contained in this Act, all

proceedings in respect of a juvenile pending in any

court in any area on the date on which this Act

comes into force in that area, shall be continued in

that court as if this Act had not been passed and if

Criminal Appeal No. 860 of 2019 Page 5 of 24

the court finds that the juvenile has committed an

offence, it shall record such finding and instead of

passing any sentence in respect of the juvenile,

forward the juvenile to the Board which shall pass

orders in respect of that juvenile in accordance with

the provisions of this Act as if it had been satisfied on

inquiry under this Act that a juvenile has committed

the offence:

Provided that the Board may, for any adequate and

special reason to be mentioned in the order, review

the case and pass appropriate order in the interest of

such juvenile.

Explanation.—In all pending cases including trial,

revision, appeal or any other criminal proceedings in

respect of a juvenile in conflict with law, in any court,

the determination of juvenility of such a juvenile shall

be in terms of clause (l) of Section 2, even if the

juvenile ceases to be so on or before the date of

commencement of this Act and the provisions of this

Act shall apply as if the said provisions had been in

force, for all purposes and at all material times when

the alleged offence was committed.”

Section 20 is a special provision with respect to pending

cases and begins with a limited non-obstante or overriding clause

notwithstanding anything contained in the 2000 Act. Legislative

intent clearly expressed states that all proceedings in respect of a

juvenile pending in any court on the date on which the 2000 Act

came into force shall continue before that court as if the 2000 Act

had not been passed. Though the proceedings are to continue

before the court, the section states that if the court comes to a

finding that a juvenile has committed the offence, it shall record

Criminal Appeal No. 860 of 2019 Page 6 of 24

the finding but instead of passing an order of sentence, forward

the juvenile to the Juvenile Justice Board (Board) which shall then

pass orders in accordance with the provisions of the 2000 Act, as

if the Board itself had conducted an inquiry and was satisfied that

the juvenile had committed the offence. The proviso however

states that the Board, for any adequate and special reasons, can

review the case and pass appropriate order in the interest of the

juvenile. Explanation added to Section 20 vide Act 33 of 2006,

which again is of significant importance, states that the court

where ‘the proceedings’ are pending ‘at any stage’ shall determine

the question of juvenility of the accused. The expression ‘all

pending cases’ includes not only trial but even subsequent

proceedings by way of appeal, revision etc. or any other criminal

proceedings. Lastly, 2000 Act applies even to cases where the

accused was a juvenile on the date of commission of the offence,

but had ceased to be a juvenile on or before the date of

commencement of the 2000 Act. In even such cases, provisions of

the 2000 Act are to apply as if these provisions were in force for all

purposes and at all material time when the offence was

committed.

Thus, in respect of pending cases, Section 20 authoritatively

commands that the court must at any stage, even post the

judgment by the trial court when the matter is pending in appeal,

Criminal Appeal No. 860 of 2019 Page 7 of 24

revision or otherwise, consider and decide upon the question of

juvenility. Juvenility is determined by the age on the date of

commission of the offence. The factum that the juvenile was an

adult on the date of enforcement of the 2000 Act or subsequently

had attained adulthood would not matter. If the accused was

juvenile, the court would, even when maintaining conviction, send

the case to the Board to issue direction and order in accordance

with the provisions of the 2000 Act.

12. By the amendment Act No. 33 of 2006, Section 7-A was inserted

in the 2000 Act setting-out the procedure to be followed by the

court to determine the claim of juvenility. Section 7A, which came

into effect on 22.08.2006, reads:

“7-A. Procedure to be followed when claim of

juvenility is raised before any court.—(1) Whenever a

claim of juvenility is raised before any court or a court

is of the opinion that an accused person was a

juvenile on the date of commission of the offence,

the court shall make an enquiry, take such evidence

as may be necessary (but not an affidavit) so as to

determine the age of such person, and shall record a

finding whether the person is a juvenile or a child or

not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised

before any court and it shall be recognised at any

stage, even after final disposal of the case, and such

claim shall be determined in terms of the provisions

contained in this Act and the Rules made thereunder,

even if the juvenile has ceased to be so on or before

the date of commencement of this Act.

Criminal Appeal No. 860 of 2019 Page 8 of 24

(2) If the court finds a person to be a juvenile on the

date of commission of the offence under sub-section

(1), it shall forward the juvenile to the Board for

passing appropriate order, and the sentence if any,

passed by a court shall be deemed to have no

effect.”

Proviso to Section 7A is important for our purpose as it states that

the claim of juvenility may be raised before ‘any court’ ‘at any

stage’, even after the final disposal of the case. When such claim

is made, it shall be determined in terms of the provisions of the

2000 Act and the rules framed thereunder, even when the

accused had ceased to be a juvenile on or before commencement

of the 2000 Act. Thus it would not matter if the accused, though a

juvenile on the date of commission of the offence, had become an

adult before or after the date of commencement of the 2000 Act

on 01.04.2001. He would be entitled to benefit of the 2000 Act.

13. Section 64 of the 2000 Act was also amended by Act No. 33 of

2006 by incorporating a proviso and explanation and by replacing

the words ‘may direct’ with the words ‘shall direct’ in the main

provision. Post the amendment, Section 64 reads as under:

“64. Juvenile in conflict with law undergoing sentence

at commencement of this ActIn any area in which this Act is brought into

force, the State Government shall direct that a

juvenile in conflict with law who is undergoing any

sentence of imprisonment at the commencement of

Criminal Appeal No. 860 of 2019 Page 9 of 24

this Act, shall, in lieu of undergoing such sentence,

be sent to a special home or be kept in fit institution

in such manner as the State Government thinks fit

for the remainder of the period of the sentence; and

the provisions of this Act shall apply to the juvenile as

if he had been ordered by the Board to be sent to

such special home or institution or, as the case may

be, ordered to be kept under protective care under

sub-section (2) of section 16 of this Act.

Provided that the State Government, or as the

case may be the board, may, for any adequate and

special reason to be recorded in writing, review the

case of a juvenile in conflict with law undergoing a

sentence of imprisonment, who has ceased to be so

on or before the commencement of this Act , and

pass appropriate order in the interest of such

juvenile.

Explanation :– In all cases where a juvenile in

conflict with law is undergoing a sentence of

imprisonment at any stage on the date of

commencement of this Act, his case including the

issue of juvenility, shall be deemed to be decided in

terms of clause (l) of section 2 and other provisions

contained in this act and the rules made thereunder,

irrespective of the fact that he ceases to be a juvenile

on or before such date and accordingly he shall be

sent to the special home or a fit institution, as the

case may be, for the remainder of the period of the

sentence but such sentence shall not in any case

exceed the maximum period provided in section 15

of this act.”

Substitution of the words ‘may direct’ with ‘shall direct’ in the

main provision is to clarify that the provision is mandatory and not

directory. Section 64 has to be read harmoniously with the newly

added proviso and explanation and also other amendments made

vide Act 33 of 2006 in Section 20 and by way of inserting Section

7A in the 2000 Act. The main provision states that where a

juvenile in conflict with law is undergoing any sentence of

Criminal Appeal No. 860 of 2019 Page 10 of 24

imprisonment at the commencement of the 2000 Act, he shall, in

lieu of undergoing the sentence, be sent to a special home or be

kept in a fit institution in such manner as the state government

thinks fit for the remainder of the period of sentence. Further, the

provisions of the 2000 Act are to apply as if the juvenile had been

ordered by the Board to be sent to the special home or institution

and ordered to be kept under protective care under sub-section

(2) of Section 16 of the Act. The proviso states that the state

government or the Board, for any adequate and special reasons to

be recorded in writing, review the case of the juvenile in conflict

with law who is undergoing sentence of imprisonment and who

had ceased to be a juvenile on or before the commencement of

the 2000 Act and pass appropriate orders. However, it is the

explanation which is of extreme significance as it states that in all

cases where a juvenile in conflict with law is undergoing a

sentence of imprisonment on the date of commencement of the

2000 Act, the juvenile’s case including the issue of juvenility, shall

be deemed to be decided in terms of clause (l) to Section 2 and

other provisions and rules made under the 2000 Act irrespective of

the fact that the juvenile had ceased to be a juvenile. Such

juvenile shall be sent to special home or fit institution for the

remainder period of his sentence but such sentence shall not

exceed the maximum period provided in Section 15 of the 2000

Criminal Appeal No. 860 of 2019 Page 11 of 24

Act. The statute overrules and modifies the sentence awarded,

even in decided cases.

14. This Court in Dharambir v. State (NCT of Delhi) and Another4

had analysed the scheme and application of the 2000 Act to the

accused who were below the age of eighteen years on the date of

commission of offence which was committed prior to the

enactment of the 2000 Act, to opine and hold:

“14. Proviso to sub-section (1) of Section 7-A

contemplates that a claim of juvenility can be raised

before any court and has to be recognised at any

stage even after disposal of the case and such claim

is required to be determined in terms of the

provisions contained in the Act of 2000 and the Rules

framed thereunder, even if the juvenile has ceased to

be so on or before the date of the commencement of

the Act of 2000. The effect of the proviso is that a

juvenile who had not completed eighteen years of

age on the date of commission of the offence would

also be entitled to the benefit of the Act of 2000 as if

the provisions of Section 2(k) of the said Act, which

defines “juvenile” or “child” to mean a person who

has not completed eighteenth year of age, had

always been in existence even during the operation

of the 1986 Act.

15. It is, thus, manifest from a conjoint reading of

Sections 2(k), 2(l), 7-A, 20 and 49 of the Act of 2000,

read with Rules 12 and 98 of the Juvenile Justice

(Care and Protection of Children) Rules, 2007 that all

persons who were below the age of eighteen years

on the date of commission of the offence even prior

to 1-4-2001 would be treated as juveniles even if the

4 (2010) 5 SCC 344

Criminal Appeal No. 860 of 2019 Page 12 of 24

claim of juvenility is raised after they have attained

the age of eighteen years on or before the date of

the commencement of the Act of 2000 and were

undergoing sentences upon being convicted. In the

view we have taken, we are fortified by the dictum of

this Court in a recent decision in Hari Ram v. State of

Rajasthan [(2009) 13 SCC 211: (2010) 1 SCC (Cri)

987].”

15. In Mumtaz v. State of U.P 5

, while referring to several earlier

decisions, this court dealt with effect of Section 20 of the 2000 Act

and its inter-play with the 1986 Act, to elucidate:

“18. The effect of Section 20 of the 2000 Act was

considered in Pratap Singh v. State of

Jharkhand [Pratap Singh v. State of Jharkhand,

(2005) 3 SCC 551: 2005 SCC (Cri) 742] and it was

stated as under: (SCC p. 570, para 31)

“31. Section 20 of the Act as quoted above deals

with the special provision in respect of pending

cases and begins with a non obstante clause.

The sentence ‘notwithstanding anything

contained in this Act, all proceedings in respect

of a juvenile pending in any court in any area on

the date on which this Act came into force’ has

great significance. The proceedings in respect of

a juvenile pending in any court referred to in

Section 20 of the Act are relatable to

proceedings initiated before the 2000 Act came

into force and which are pending when the 2000

Act came into force. The term “any court” would

include even ordinary criminal courts. If the

person was a “juvenile” under the 1986 Act the

proceedings would not be pending in criminal

courts. They would be pending in criminal courts

only if the boy had crossed 16 years or the girl

had crossed 18 years. This shows that Section

20 refers to cases where a person had ceased to

5 (2016) 11 SCC 786

Criminal Appeal No. 860 of 2019 Page 13 of 24

be a juvenile under the 1986 Act but had not yet

crossed the age of 18 years then the pending

case shall continue in that court as if the 2000

Act has not been passed and if the court finds

that the juvenile has committed an offence, it

shall record such finding and instead of passing

any sentence in respect of the juvenile, shall

forward the juvenile to the Board which shall

pass orders in respect of that juvenile.”

19. In Bijender Singh v. State of Haryana [Bijender

Singh v. State of Haryana, (2005) 3 SCC 685 : 2005

SCC (Cri) 889] , the legal position as regards Section

20 was stated in the following words: (SCC pp. 687-

88, paras 8-10 & 12):

“8. One of the basic distinctions between the

1986 Act and the 2000 Act relates to the age of

males and females. Under the 1986 Act, a

juvenile means a male juvenile who has not

attained the age of 16 years, and a female

juvenile who has not attained the age of 18

years. In the 2000 Act, the distinction between

male and female juveniles on the basis of age

has not been maintained. The age-limit is 18

years for both males and females.

9. A person above 16 years in terms of the 1986

Act was not a juvenile. In that view of the matter

the question whether a person above 16 years

becomes “juvenile” within the purview of the

2000 Act must be answered having regard to the

object and purport thereof.

10. In terms of the 1986 Act, a person who was

not juvenile could be tried in any court. Section 20

of the 2000 Act takes care of such a situation

stating that despite the same the trial shall

continue in that court as if that Act has not been

passed and in the event, he is found to be guilty

of commission of an offence, a finding to that

effect shall be recorded in the judgment of

conviction, if any, but instead of passing any

sentence in relation to the juvenile, he would be

forwarded to the Juvenile Justice Board (in short

Criminal Appeal No. 860 of 2019 Page 14 of 24

“the Board”) which shall pass orders in

accordance with the provisions of the Act as if it

has been satisfied on inquiry that a juvenile has

committed the offence. A legal fiction has, thus,

been created in the said provision. A legal fiction

as is well known must be given its full effect

although it has its limitations. …

11.***

12. Thus, by reason of legal fiction, a person,

although not a juvenile, has to be treated to be

one by the Board for the purpose of sentencing,

which takes care of a situation that the person

although not a juvenile in terms of the 1986 Act

but still would be treated as such under the 2000

Act for the said limited purpose.”

20. In Dharambir v. State (NCT of

Delhi) [Dharambir v. State (NCT of Delhi), (2010) 5

SCC 344 : (2010) 2 SCC (Cri) 1274] the

determination of juvenility even after conviction was

one of the issues and it was stated: (SCC p. 347,

paras 11-12)

“11. It is plain from the language of the

Explanation to Section 20 that in all pending

cases, which would include not only trials but

even subsequent proceedings by way of revision

or appeal, etc., the determination of juvenility of a

juvenile has to be in terms of clause (l) of Section

2, even if the juvenile ceases to be a juvenile on

or before 1-4-2001, when the 2000 Act came into

force, and the provisions of the Act would apply

as if the said provision had been in force for all

purposes and for all material times when the

alleged offence was committed.

12. Clause (l) of Section 2 of the 2000 Act

provides that “juvenile in conflict with law” means

a “juvenile” who is alleged to have committed an

offence and has not completed eighteenth year

of age as on the date of commission of such

offence. Section 20 also enables the court to

consider and determine the juvenility of a person

even after conviction by the regular court and

Criminal Appeal No. 860 of 2019 Page 15 of 24

also empowers the court, while maintaining the

conviction, to set aside the sentence imposed

and forward the case to the Juvenile Justice

Board concerned for passing sentence in

accordance with the provisions of the 2000 Act.”

21. Similarly in Kalu v. State of

Haryana [Kalu v. State of Haryana, (2012) 8 SCC

34 : (2012) 3 SCC (Cri) 761] this Court summed up

as under: (SCC p. 41, para 21)

“21. Section 20 makes a special provision in

respect of pending cases. It states that

notwithstanding anything contained in the

Juvenile Act, all proceedings in respect of a

juvenile pending in any court in any area on the

date on which the Juvenile Act comes into force

in that area shall be continued in that court as if

the Juvenile Act had not been passed and if the

court finds that the juvenile has committed an

offence, it shall record such finding and instead

of passing any sentence in respect of the

juvenile forward the juvenile to the Board which

shall pass orders in respect of that juvenile in

accordance with the provisions of the Juvenile

Act as if it had been satisfied on inquiry under

the Juvenile Act that the juvenile has committed

the offence. The Explanation to Section 20

makes it clear that in all pending cases, which

would include not only trials but even subsequent

proceedings by way of revision or appeal, the

determination of juvenility of a juvenile would be

in terms of clause (l) of Section 2, even if the

juvenile ceased to be a juvenile on or before 1-4-

2001, when the Juvenile Act came into force, and

the provisions of the Juvenile Act would apply as

if the said provision had been in force for all

purposes and for all material times when the

alleged offence was committed.”

Criminal Appeal No. 860 of 2019 Page 16 of 24

16. This position of law and principle was affirmed by this court for the

first time in Hari Ram v. State of Rajasthan6

in the following

words:

“39. The Explanation which was added in

2006, makes it very clear that in all pending

cases, which would include not only trials but

even subsequent proceedings by way of

revision or appeal, the determination of

juvenility of a juvenile would be in terms of

clause (l) of Section 2, even if the juvenile

ceased to be a juvenile on or before 1-4-

2001, when the Juvenile Justice Act, 2000,

came into force, and the provisions of the Act

would apply as if the said provision had been

in force for all purposes and for all material

times when the alleged offence was

committed. In fact, Section 20 enables the

court to consider and determine the juvenility

of a person even after conviction by the

regular court and also empowers the court,

while maintaining the conviction, to set aside

the sentence imposed and forward the case

to the Juvenile Justice Board concerned for

passing sentence in accordance with the

provisions of the Juvenile Justice Act, 2000.”

17. In light of the legal position as expounded above and in the

aforementioned judgments, this court at this stage can decide and

determine the question of juvenility of Satya Deo, notwithstanding

the fact that Satya Deo was not entitled to the benefit of being a

juvenile on the date of the offence, under the 1986 Act, and had

turned an adult when the 2000 Act was enforced. As Satya Deo

was less than 18 years of age on the date of commission of

6 (2009) 13 SCC 211

Criminal Appeal No. 860 of 2019 Page 17 of 24

offence on 11.12.1981, he is entitled to be treated as a juvenile

and be given benefit as per the 2000 Act.

18. This brings us to the question whether the Juvenile Justice (Care

and Protection) Act of 2015 (2015 Act) would be applicable as the

2015 Act vide sub-section (1) to Section 111 repeals the 2000 Act,

albeit sub-section (2) to Section 111 states that notwithstanding

this repeal anything done or any action taken under the 2000 Act

shall be deemed to have been done or taken under the

corresponding provisions of the 2015 Act. Section 69 ‘Repeal and

saving clause’ of the 2000 Act is identical as sub-section (1)

thereof had repealed the 1986 Act and sub-section (2) provides

that notwithstanding such repeal anything done or any action

taken under the 1986 Act shall be deemed to have been done or

taken under the corresponding provisions of the 2000 Act.

However, what is important and relevant for us is Section 25 of the

2015 Act which, as per the headnote to that Section, incorporates

‘special provision in respect of pending cases’ and reads:

“Notwithstanding anything contained in this Act, all

proceedings in respect of a child alleged or found to

be in conflict with law pending before any Board or

court on the date of commencement of this Act, shall

be continued in that Board or court as if this Act had

not been enacted.”

Criminal Appeal No. 860 of 2019 Page 18 of 24

Section 25 is a non-obstante clause which applies to all

proceedings in respect of a child7

 alleged or found to be in conflict

with law pending before any Board or court on the date of

commencement of the 2015 Act, that is, 31st December 2015. It

states that the pending proceedings shall be continued in that

Board or court as if the 2015 Act had not been passed. In Akhtari

Bi v. State of M.P.8

, it was observed that the right to appeal being

a statutory right, the trial court’s verdict does not attain finality

during the pendency of the appeal and for that purpose the trial is

deemed to be continuing despite conviction. Thus, the use of the

word ‘any’ before the board or court in Section 25 of the 2015 Act,

would mean and include any court including the appellate court or

a court before which the revision petition is pending. This is also

apparent from the use of the words ‘a child alleged or found to be

in conflict with law’. The word ‘found’ is used in past-tense and

would apply in cases where an order/judgment has been passed.

The word ‘alleged’ would refer to those proceedings where no final

order has been passed and the matter is sub-judice. Further,

Section 25 of the 2015 Act applies to proceedings before the

board or the court and as noticed above, it would include any

court, including the appellate court or the court where the revision

7 The expression ‘child’ as per clause (12) to Section 2 of the 2015 Act reads – ‘a person who has

not completed eighteen years of age’.

8 (2001) 4 SCC 355

Criminal Appeal No. 860 of 2019 Page 19 of 24

petition is pending. In the context of Section 25, the expression

‘court’ is not restricted to mean a civil court which has the

jurisdiction in the matter of ‘adoption’ and ‘guardianship’ in terms

of clause (23) to Section 2 of the 2015 Act9

. The definition clause

is applicable unless the context otherwise requires. In case of

Section 25, the legislature is obviously not referring to a civil court

as the section deals with pending proceedings in respect of a child

alleged or found to be in conflict with law, which cannot be

proceedings pending before a civil court. Since the Act of 2015

protects and affirms the application of the 2000 Act to all pending

proceedings, we do not read that the legislative intent of the 2015

Act is to the contrary, that is, to apply the 2015 Act to all pending

proceedings.

 Section 6 of the General Clauses Act,1897 that provides

the consequence of “repeal” of an enactment reads:

6. Effect of repeal. Where this Act, or any Central Act or

Regulation made after the commencement of this Act, repeals

any enactment hitherto made or hereafter to be made, then,

unless a different intention appears, the repeal shall not:

xxx

(c) affect any right, privilege, obligation or liability acquired,

accrued or incurred under any enactment so repealed;

Consequently, in light of Section 6 of the General Clauses Act

read with Section 25 of the 2015 Act, an accused cannot be

denied his right to be treated as a juvenile when he was less than

9 “(23) – “court” means a civil court, which has jurisdiction in matters of adoption and guardianship

and may include the District Court, Family Court and City Civil Courts’;”

Criminal Appeal No. 860 of 2019 Page 20 of 24

eighteen years of age at the time of commission of the offence, a

right which he acquired and has fructified under the 2000 Act,

even if the offence was committed prior to enforcement of the

2000 Act on 01.04.2001. In terms of Section 25 of the 2015 Act,

2000 Act would continue to apply and govern the proceedings

which were pending when the 2015 Act was enforced. (In the

present case, we are not required to examine and decide the

question whether 2000 Act or the 2015 Act would apply when the

offence was committed before the enactment of the 2015 Act but

the charge-sheet was filed after enactment of the 2015 Act. The

answer would require examination of clause (1) to Article 20 of the

Constitution and several other aspects as the 2015 Act provide an

entirely different regime in respect of children in conflict with law

and the procedure to be followed in such cases. These aspects

and issues have not been argued before us.)

19. Decision of this court in Gaurav Kumar @ Monu v. State of

Haryana10, which was relied upon by the learned counsel for the

state is of no avail as this decision is on interpretation and

application of Rule 12 of the Juvenile Justice (Care and Protection

of Children) Rules, 2007, for the procedure to be followed in

determination of age. The procedure adopted by the learned

10 (2019) 4 SCC 549

Criminal Appeal No. 860 of 2019 Page 21 of 24

District and Sessions Judge is not challenged and questioned

before us. We would again record that Satya Deo was less than

18 years of age on the date of commission of offence and this

remains undisputed and unchallenged.

20. Satya Deo has undergone incarceration for more than 2 years

thus far. In Mumtaz @ Muntyaz (supra), dealing with quantum

and nature of punishment which should be given to a person who

was a juvenile on the date of commission of offence, this court,

while placing reliance upon an earlier decision in Jitendra Singh

v. State of Uttar Pradesh11

, had held:

22. It is thus well settled that in terms of Section 20

of the 2000 Act, in all cases where the accused was

above 16 years but below 18 years of age on the

date of occurrence, the proceedings pending in the

court would continue and be taken to the logical end

subject to an exception that upon finding the juvenile

to be guilty, the court would not pass an order of

sentence against him but the juvenile would be

referred to the Board for appropriate orders under

the 2000 Act. What kind of order could be passed in

a matter where claim of juvenility came to be

accepted in a situation similar to the present case,

was dealt with by this Court in Jitendra Singh v. State

of U.P. [Jitendra Singh v. State of U.P., (2013) 11

SCC 193 : (2013) 4 SCC (Cri) 725] in the following

terms: (SCC pp. 210-11, para 32)

“32. A perusal of the “punishments” provided for

under the Juvenile Justice Act, 1986 indicate that

given the nature of the offence committed by the

appellant, advising or admonishing him [clause

(a)] is hardly a “punishment” that can be awarded

since it is not at all commensurate with the

gravity of the crime. Similarly, considering his

age of about 40 years, it is completely illusory to

11 (2013) 11 SCC 193

Criminal Appeal No. 860 of 2019 Page 22 of 24

expect the appellant to be released on probation

of good conduct, to be placed under the care of

any parent, guardian or fit person [clause (b)].

For the same reason, the appellant cannot be

released on probation of good conduct under the

care of a fit institution [clause (c)] nor can he be

sent to a special home under Section 10 of the

Juvenile Justice Act, 1986 which is intended to

be for the rehabilitation and reformation of

delinquent juveniles [clause (d)]. The only

realistic punishment that can possibly be

awarded to the appellant on the facts of this case

is to require him to pay a fine under clause (e) of

Section 21(1) of the Juvenile Justice Act, 1986.”

21. Following the aforesaid ratio and the legal position elucidated

above, while we uphold the conviction of Satya Deo, we would set

aside the sentence of life imprisonment. We would remit the

matter to the jurisdiction of the Board for passing appropriate

order/directions under Section 15 of the 2000 Act including the

question of determination and payment of appropriate quantum of

fine and the compensation to be awarded to the family of the

deceased. We make no affirmative or negative comments either

way on the order/direction under Section 15 of the 2000 Act.

22. We would, accordingly, direct the jail authorities to produce Satya

Deo before the Board within seven days from the date of receipt of

a copy of this judgment. The Board shall then pass appropriate

order regarding detention and custody and proceed thereafter to

pass order/directions under the 2000 Act.

Criminal Appeal No. 860 of 2019 Page 23 of 24

23. The appeal filed by the Satya Deo is partly allowed in the

aforesaid terms and all the pending application are disposed of.

......................................J.

(S. ABDUL NAZEER)

......................................J.

(SANJIV KHANNA)

NEW DELHI;

OCTOBER 07, 2020.

Criminal Appeal No. 860 of 2019 Page 24 of 24

error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police

The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The  direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong. We accordingly allow the appeals and set aside the judgments of the High Court dated 6 December 2018 in Writ Petition (Civil) No.10143 of 2017 and 19 December 2018 in Writ Petition (Civil) No.13052 of 2018. Both the Writ Petitions shall stand dismissed.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 3334 of 2020

(Arising out of Special Leave Petition (C) No. 3335 of 2019)

Commissioner of Police and Anr …Appellants

Vs.

Umesh Kumar …Respondent

And

With

Civil Appeal No. 3335 of 2020

(Arising out of Special Leave Petition (C) No. 5545 of 2019)

2

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 On 27 January 2013, a notice was published in the newspapers for filling up

523 vacancies for the post of ‘Constable (Executive) – Male’ in the Delhi Police. The

break-up of vacancies indicated 262 to be unreserved, 142 for OBC candidates, 79

for Scheduled Caste candidates and 40 for those belonging to the Scheduled Tribes.

The candidates appeared for a physical endurance and measurement test on 4

October 2013. Upon qualifying at the test, the candidates were allotted roll numbers

for appearing in the written examination. Of a total of 50,422 candidates, 39,597

appeared in the written examination which was held on 8 March 2014. This

examination was cancelled by the Delhi Police, and a fresh written examination was

held on 25 May 2014, which was cancelled as well. Finally, a written examination was

conducted on 16 November 2014, consisting of one objective - type multiple choice

question paper of 100 marks. After an evaluation of the OMR sheets, a list of 514

provisionally selected candidates was declared on 13 July 2015. Nine vacancies could

not be filled up due to the unavailability of suitable candidates in the ex-servicemen

category. The respondents were declared to be selected under the OBC category.

During the course of scrutiny, it was found that a bonus mark had not been allocated

to candidates whose height was measured at 178 centimetres or above at the time of

the physical endurance and measurement test. Candidates were entitled to an extra 

3

bonus mark under the provisions of Point No. 4 (II) of the then Standing Order 212 of

2011, according to which:

“A candidate whose height is 178 cms or more shall be given

01 bonus mark, to be added in the total marks while

determining the merit list."

Accordingly, the result was recompiled after allocating one bonus mark to all the

candidates with a height of at least 178 centimetres and a final revised result was

declared on 17 July 2015. 512 candidates were selected while the remaining 11

vacancies were not filled up due to the unavailability of candidates from the exservicemen category. In the result which was declared on 17 July 2015, 32 new

candidates came within the selection zone and 34 candidates were ousted.

2 The respondents to the present Civil Appeals were declared as selected from

the OBC category in the revised result as well. The minimum qualifying marks for the

OBC category were 71.29004295. Umesh Kumar, the respondent in the first of the

two appeals secured 74.16991306 marks. Satyendra Singh, the respondent in the

companion appeal secured 71.49891738 marks. In the note attached to the final list

declared on 17 July 2015, all candidates were directed to report to the DCP –

Recruitment Cell, New Police Lines, Kingsway Camp, Delhi for further “codal

formalities” between 27 July 2015 and 31 July 2015. Candidates were distributed on

these dates in accordance with their roll numbers:

4

3 All the selected candidates were issued the prescribed forms so as to expedite

the process of recruitment. The object appears to have been that during the

commencement of batches for basic training, the candidates should have all

documents complete, to facilitate the issuance of offers of appointment. The

documents which were issued to candidates were:

“a. Attestation Form for Police Verification (F-36).

b. Medical Form (F-37) for medical examination.

c. Agreement Form (F-81) i.e. regarding depositing of

capitation charges in case he / she left service before 5 years

after joining Delhi Police.

d. Certificate of Character (F-82).

e. Undertaking (F-83).”

4 All candidates were directed to submit the attestation form (F-36) for police

verification and a medical form (F-37) for conducting a medical examination in

accordance with Rules 24 and 25 of the Delhi Police (Appointment and Recruitment)

Rules, 1980. On receipt of a satisfactory police verification and medical report,

candidates were to be issued a communication directing them to report at the 

5

Recruitment Cell- NPL, together with original documents. The following forms had to

be submitted before the issuance of an offer of appointment:

“a. Agreement Form (F-81) i.e. regarding depositing of

capitation charges in case he/ she left service before 5 years

after joining Delhi Police.

b. Certificate of Character (F-82).

c. Undertaking (F-83).”

5 The respondents submitted Form F-36 for verification of character and

antecedents, and Form F-37 for medical examination on 28 July 2015. Both of them

were examined by the medical board and were declared to be medically fit. The

verification of character and antecedents was also received. In the case of Umesh

Kumar, the medical examination was conducted by the Medical Board at Rao Tula

Ram Memorial Hospital, GNCT of Delhi on 20 August 2015, while the verification of

character and antecedents was conducted by Haryana Police on 23 August 2015 and

was received by the Recruitment Cell on 8 September 2015. In the case of Satyendra

Singh, the medical examination was conducted on 27 August 2015 by the Medical

Board at Guru Gobind Singh Government Hospital, Raghubir Nagar, New Delhi while

the verification of character and antecedents was conducted by the SSP, Alwar,

Rajasthan and was received by the Delhi Police through a letter dated 25 August

2015.

6 In the ordinary course, both the respondents would likely have been appointed

as Constables in Delhi Police. However, on 29 September 2015, some other 

6

candidates approached the Central Administrative Tribunal1

in O.A. No. 3657 of 20152

and O.A. No. 4258 of 20153

. The applicants before the Tribunal challenged the answer

keys in the written examination and claimed that they had not obtained marks for

correct answers for question Nos. 17, 55, 56, 71, 75, 79, 86 and 90 of question booklet

series ‘C’ as well as for the same questions of booklet series ‘A’, ‘B’ and ‘D’ with

different sequence numbers. The Competent Authority in Delhi Police appointed an

Expert Committee to examine all the issues and to submit its report after making “a

master answer compendium and resultant answer key”. In the meantime, the

recruitment process for the joining of selected candidates in pursuance of the result

dated 17 July 2015 was kept in abeyance and no offers for appointment were issued.

The Expert Committee which was constituted on 20 November 2015 submitted its

report on 26 December 2015. The grievances which were raised in OAs were

examined and it was found that there were typographical errors in the answer keys.

The Tribunal disposed of the OAs by a judgment dated 8 January 2016, with the

following directions:

“ …in view of the statements made by the respondents that

further action regarding the recruitment process will be taken

as per the recommendations of the Expert Committee, and that

till date no candidate has been given appointment for the post

in question, and, considering the vagueness of the statements

made by the respondents, we deem it just and proper to direct

the respondents to ensure submission of the report by the said

Expert Committee within one month from today, if such report

has not yet been submitted by the Expert Committee, and to

take further necessary action regarding the recruitment

process within two months from today. Ordered accordingly.”

1

“the Tribunal”

2 Ankit Kumar & others vs. Commissioner of Police, Delhi & others

3 Anuj Kumar vs. Commissioner of Police, Delhi & others

7

Upon receipt of the report of the Expert Committee, the following decisions were taken

on 1 February 2016 by the recruitment authority:

 “

i. 14 questions declared "Null/Void" for the reasons like

none of the given options being correct. Questions

having more than one possible answers, mis-match

in the meaning of English & Hindi versions etc.

ii. In all the 21 questions (12 for General Knowledge

section and 07 of Reasoning ability section and 02 of

Numerical ability section) including 7 questions (3 for

General Knowledge section and 3 of Reasoning

ability section and 1 of Numerical ability section),

which were declared void earlier, full marks be given

to all candidates in such a manner that all candidates

were given marks as per scaling method for the

respective number of Questions from each category.

iii. The options of answer of Q. No.6 & 10 (Booklet Series

'A') may be changed/modified from (B) to (D) & from (A)

to (B) respectively as well as options of the same

questions of other Booklet Series (B, C & D) having

different sequence number may also be changed

accordingly.

iv. The option of answer of only Q.No.67 (Booklet SeriesA) may be changed/modified from (B) to (D) as the

option of answer of the same question of other Booklet

Series (B), (C) and (D) is correct.”

7 Resultantly, the entire result was revised. The final result after re-evaluation of

all OMR sheets was declared on 22 February 2016. 518 candidates were declared to

be provisionally selected subject to “codal formalities”, such as the satisfactory

verification of character and antecedents, medical examination and final verification

of documents. Five vacancies could not be filled up due to the unavailability of suitable

candidates from the ex-servicemen category. In the final result which was declared

on 22 February 2016, 129 new candidates came into the selection zone and 123 

8

candidates who had been declared selected earlier in the result of 17 July 2015 were

ousted. The cut-off for the OBC category after re-evaluation of results was

79.49134163 marks. The marks which were secured by the two respondents in the

revised results of 22 February 2016 were as follows:

 Umesh Kumar : 77.51406888

 Satyendra Singh : 77.27164463

8 The newly selected candidates from the result declared on 22 February 2016

were called for the completion of “codal formalities”. Police verification and medical

fitness was carried out and the candidates who successfully completed this process

were required to report to the recruitment cell at New Police Lines, Kingsway Camp,

Delhi with original attested copies of documents to collect their offers of appointment.

Except for candidates with an adverse background, all selected candidates were

issued offers of appointment and joined the basic training programme for Constables

in Delhi Police with effect from 4 April 2016.

9 After the declaration of the result on 22 February 2016, some candidates

challenged the process before the Tribunal in O.A. No. 969 of 20164 and O.A. No.

1244 of 20165

in March 2016. The Tribunal dismissed the OAs on 5 May 2016, and

the Review Petitions were subsequently dismissed on 1 June 2016. Following this,

writ petitions under Article 226 of the Constitution – W.P. (C) No. 7411 of 20166 and

4 Sandeep Kumar & Ors. vs C.P. Delhi & Anr.

5 Bijendere Kumar & Ors. vs. C.P. Delhi & Anr.

6 Sandeep Kumar & Ors. vs. Delhi Police & Anr.

9

W.P. (C) No. 7624 of 20167 – challenging the judgments of the Tribunal were also

dismissed as not pressed by the Delhi High Court on 7 September 2016.

10 On 21 March 2016, the respondents filed O.A. No. 1146 of 2016 challenging

their non-selection in the revised result declared on 22 February 2016 before the

Tribunal. The OA was dismissed on 15 September 2017. Umesh Kumar then filed a

writ petition under Article 226 – Writ Petition (C) No.10143 of 2017 – in the Delhi High

Court which was allowed by a judgment dated 6 December 2018. Following its

decision in the case of Umesh Kumar, the Delhi High Court also allowed the writ

petition instituted by Satyendra Singh – Writ Petition (C) No.13052 of 2018 – by its

judgment dated 19 December 2018. The ultimate directions that have been issued by

the Delhi High Court in the first of the two writ petitions are in the following terms:

“For the aforesaid reasons, we find no merits in the

submissions of Mr. Satyakam, learned counsel for the

respondents. The petition is accordingly allowed and we

direct the respondents to appoint the petitioner to the post

of Constable (Executive), Delhi Police. He shall be deemed

to have been appointed from the date of appointment with his

other batch mates and his seniority shall be determined

accordingly, on notional basis. However, he shall not be

entitled to any arrears of pay and allowances. Compliance

be made within next four weeks.”

The companion writ petition has been allowed in similar terms.

11 Ms Madhavi Divan, learned Additional Solicitor General has assailed the

correctness of the judgment of the Delhi High Court. The learned ASG submitted that:

7 Bijender Kumar & Ors. vs. Delhi Police & Anr.

10

(i) The process of re-evaluation of the first result was necessitated following

the receipt of complaints and the filing of OAs before the Tribunal;

(ii) An Expert Committee was constituted by the competent authority of

Delhi Police and upon due enquiry. The report established irregularities

in the preparation of the answer key and the allocation of marks;

(iii) Following the report of the Expert Committee a fresh revised list was

drawn up and both the respondents secured marks below the cut-off for

the OBC category;

(iv) As many as 228 candidates are ranked higher than the respondent

Umesh Kumar, while 265 candidates are ranked higher than the

respondent Satyendra Singh;

(v) The mere fact that all candidates, including the respondents, who had

been successful in the first result declared on 17 July 2015 have been

furnished with requisite documents including the agreement form did not

confer a vested right to appointment;

(vi) The revision of result has taken place in accordance with due process

by applying the same yardstick to all candidates. Admittedly, the

respondents have thereafter failed to secure marks above the cut-off for

the OBC category;

11

(vii) The judgement of the Delhi High Court is contrary to the law laid down

by a two judge Bench of this Court in Rajesh Kumar vs State of Bihar8

;

and

(viii) A grievance of respondent Umesh Kumar that he had resigned from the

Railway Protection Force9 was no ground for the Delhi High Court to

direct the appellants, by a writ of mandamus, to issue an appointment.

The respondent, in terms of Rule 275 of the RPF Rules, 1987, could

have sought re-instatement in service which he failed to do.

12 On the other hand Mr Salman Khurshid, learned Senior Counsel appearing on

behalf of the respondents submitted that:

(i) Neither of the two candidates in question has been at fault;

(ii) Both the respondents participated in the selection process and were

declared to have been successful in the first result declared on 17 July

2015;

(iii) Though, as a consequence of the revision of the result, the respondents

stand ousted, grave prejudice has been caused to them;

(iv) By furnishing documents to the respondents including the agreement

form, a representation was held out to them by the appellants of their

eligibility to join Delhi Police and of their selection to the post; and

8

(2013) 4 SCC 690

9 RFP

12

(v) There may be other candidates higher than the respondents in merit in

the revised result, but none of them has approached this Court under

Article 136 of the Constitution or the High Court under Article 226.

Hence, the ultimate direction that was issued by the High Court should

not be disturbed.

13 This judgment has adverted to the course which the recruitment process

followed since the publication of an advertisement for selection to the 2013 batch of

Constables (Executive) – Male in Delhi Police. The narration of facts demonstrates

that a result notifying a list of provisionally selected candidates was initially declared

on 13 July 2015 but it was soon found that an error had crept in due to the failure to

allocate a bonus mark to every candidate whose height was in excess of 178

centimetres. The allotment of bonus marks was provided in Standing Order No. 212

of 2011, which necessitated a revision of the results. In the revised result, which was

declared on 17 July 2015, certain candidates from the original list were ousted while

new candidates came in. Both the respondents were part of the list of successful

candidates. Yet, there can be no dispute about the factual position that the recruitment

process was yet to be concluded. For one thing, the process of verification of character

and antecedents and the ascertaining of medical fitness was yet to be carried out. But

apart from this, a set of OAs came to be instituted by unsuccessful candidates before

the Tribunal highlighting grievances in regard to the manner in which the answer key

had been prepared. The authorities agreed before the Tribunal to appoint an Expert

Committee. Following the submission of the report of the Expert Committee, the 

13

results were revised on 22 February 2016. After a decision was taken by the

Competent Authority for revising the result, as many as 123 candidates who had been

selected earlier were ousted and 129 new candidates came into the selected list. This

process of revising the results was carried out when the recruitment process was yet

to be completed for the candidates selected in the result declared on 17 July 2015.

This process of the revision of the result was then unsuccessfully challenged in the

first batch of OAs before the Tribunal, and subsequently the writ petitions under Article

226 before the High Court were also dismissed as not pressed. The flip-flops which

took place were undoubtedly because of the failure of the authorities to notice initially

the norm of allotting 1 bonus mark based on height and due to the failure to prepare

a proper answer key. Such irregularities have become a bane of the public recruitment

process at various levels resulting in litigation across the country before the Tribunals,

the High Courts and ultimately this Court as well. Much of the litigation and delay in

carrying out public recruitment would be obviated if those entrusted with the duty to

do so carry it out with a sense of diligence and responsibility.

14 The real issue, however, is whether the respondents were entitled to a writ of

mandamus. This would depend on whether they have a vested right of appointment.

Clearly the answer to this must be in the negative. In Punjab SEB vs. Malkiat

Singh10

, this Court held that the mere inclusion of candidate in a selection list does

not confer upon them a vested right to appointment. The Court held:

“4. …the High Court committed an error in proceeding on the

basis that the respondent had got a vested right for

10 (2005) 9 SCC 22

14

appointment and that could not have been taken away by the

subsequent change in the policy. It is settled law that mere

inclusion of name of a candidate in the select list does not

confer on such candidate any vested right to get an order of

appointment. This position is made clear in para 7 of the

Constitution Bench judgment of this Court in Shankarsan Dash

v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 :

(1991) 17 ATC 95] which reads: (SCC pp. 50-51)

“7. It is not correct to say that if a number of vacancies are

notified for appointment and adequate number of candidates

are found fit, the successful candidates acquire an indefeasible

right to be appointed which cannot be legitimately denied.

Ordinarily the notification merely amounts to an invitation to

qualified candidates to apply for recruitment and on their

selection they do not acquire any right to the post. Unless the

relevant recruitment rules so indicate, the State is under no

legal duty to fill up all or any of the vacancies. However, it does

not mean that the State has the licence of acting in an arbitrary

manner. The decision not to fill up the vacancies has to be

taken bona fide for appropriate reasons. And if the vacancies

or any of them are filled up, the State is bound to respect the

comparative merit of the candidates, as reflected at the

recruitment test, and no discrimination can be permitted. This

correct position has been consistently followed by this Court,

and we do not find any discordant note in the decisions in State

of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 :

1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla

v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759]

or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985

SCC (L&S) 174 : (1985) 1 SCR 899] .”

(emphasis supplied)”

In the present case, after the name of respondents appeared in the results declared

on 17 July 2015, the process of recruitment was put in abeyance since the results

were challenged before the Tribunal. The process of revising the results during the

course of the recruitment was necessitated to align it in accordance with law. An

Expert Committee was specifically appointed following the institution of proceedings

before the Tribunal. The report of the Expert Committee established errors in the 

15

answer key, and thereafter a conscious decision was taken, after evaluating the

report, to revise the results on 1 February 2016. In the fresh list which was drawn up,

both the respondents have admittedly failed to fulfil the cut-off for the OBC category

to which they belong. As the learned ASG submitted before the Court, as many as

228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand

above Satyendra Singh. The submission of Mr Khurshid that these are the only two

candidates before this Court would not entitle them to a direction contrary to law since

they had no vested right to appointment.

15 In regard to respondent Umesh Kumar, it is also brought to our attention that

he resigned from the RPF on 16 August 2015 and his resignation was accepted on

25 August 2015. Evidently, the respondent tendered his resignation without any

justification when the recruitment process had not been concluded and even before

an offer of appointment was made to him. In any event, it would have been open to

him seek re-enlistment in the RPF at the material time which he chose to not do.

16 In Rajesh Kumar (supra), Justice TS Thakur, as the learned Chief Justice of

India then was, dealt with a case where the model answer key, and hence the process

of evaluation of answer scripts by the Bihar Staff Selection Commission, had been

found to be flawed. The Court held:

“15.The writ petitioners, it is evident, on a plain reading of the

writ petition questioned not only the process of evaluation of

the answer scripts by the Commission but specifically averred

that the “model answer key” which formed the basis for such

evaluation was erroneous. One of the questions that, therefore,

fell for consideration by the High Court directly was whether the

“model answer key” was correct. The High Court had aptly 

16

referred that question to experts in the field who, as already

noticed above, found the “model answer key” to be erroneous

in regard to as many as 45 questions out of a total of 100

questions contained in ‘A’ series question paper. Other errors

were also found to which we have referred earlier. If the key

which was used for evaluating the answer sheets was itself

defective the result prepared on the basis of the same could be

no different. The Division Bench of the High Court was,

therefore, perfectly justified in holding that the result of the

examination insofar as the same pertained to ‘A’ series

question paper was vitiated. This was bound to affect the result

of the entire examination qua every candidate whether or not

he was a party to the proceedings. It also goes without saying

that if the result was vitiated by the application of a wrong key,

any appointment made on the basis thereof would also be

rendered unsustainable. The High Court was, in that view,

entitled to mould the relief prayed for in the writ petition and

issue directions considered necessary not only to maintain the

purity of the selection process but also to ensure that no

candidate earned an undeserved advantage over others by

application of an erroneous key.”

In Rajesh Kumar (supra), the Court then refused the oust those individuals from

service who did not make the grade after re-valuation of the result since they had been

in service for nearly seven years. However, in the present case, as we have discussed

above, the revised result was declared even before offers of appointment were made

to the respondents since the entire process of recruitment had been put in abeyance.

17 For the above reasons, we are of the view that the judgements delivered by the

Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on

19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law.

The High Court has been manifestly in error in issuing a mandamus to the appellants

to appoint the respondents on the post of Constable (Executive) in Delhi Police. The 

17

direction was clearly contrary to law. The respondents have participated in the

selection process and upon the declaration of the revised result, it has emerged before

the Court that they have failed to obtain marks above the cut-off for the OBC category

to which they belong. We accordingly allow the appeals and set aside the judgments

of the High Court dated 6 December 2018 in Writ Petition (Civil) No.10143 of 2017

and 19 December 2018 in Writ Petition (Civil) No.13052 of 2018. Both the Writ

Petitions shall stand dismissed. There shall, however, be no order as to costs.

18 Pending application(s), if any, shall stand dismissed.

…….………….…………………...........................J.

 [Dr. Dhananjaya Y Chandrachud]

……….…………………………...............................J.

 [Indira Banerjee]

New Delhi;

October 07, 2020.

When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted.

 When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C)NO.10482 OF 2020

T.K. DAVID ...PETITIONER (S)

VERSUS

KURUPPAMPADY SERVICE

CO-OPERATIVE BANK LTD. & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This special leave to appeal has been filed

against the Division Bench judgment of the Kerala

High Court dated 06.02.2020 rejecting the Review

Petition No. 805 of 2018 filed by the petitioner in

Writ Appeal No. 399 of 2014.

2. Brief facts necessary to consider this special

leave petition need to be noted.

3. The petitioner was an employee of Kuruppampady

Service Co-operative Bank. Petitioner was suspended

2

and disciplinary inquiry was conducted by the Bank.

The Bank vide order dated 20.03.2003 dismissed the

petitioner consequent to domestic enquiry. There has

been series of litigation between the petitioner and

the Bank and thereafter Cooperative Arbitration Court

by order dated 18.08.2010 gave award by which

punishment of dismissal was modified as reduction to

a lower rank. Against the order dated 18.08.2010 both

the petitioner as well as the Bank filed Appeal No.

78 of 2010 and No. 81 of 2010 respectively. The

Cooperative Tribunal vide its judgment dated

16.08.2011 disposed of both the appeals by which the

punishment of compulsory retirement on 20.03.2003 was

imposed with terminal benefits subject to liability,

if any, duly assessed. Against the order of the

Cooperative Tribunal a writ petition was filed by the

petitioner before the learned Single Judge of the

Kerala High Court, which writ petition was dismissed

by judgment dated 31.07.2013 against which judgment

Writ Appeal No. 1313 of 2013 was filed by petitioner

before the Division Bench. The Division Bench of the

High Court vide its judgment dated 11.03.2015

dismissed the writ appeal filed by the petitioner.

3

Aggrieved by the Division Bench judgment dated

11.03.2015, the petitioner filed a Special Leave

Petition No. 24231 of 2015 before this Court, which

was dismissed by order dated 21.08.2015, which is as

follows:-

“Heard.

Delay condoned.

We do not see any merit in this special

leave petition which is hereby dismissed.”

4. After dismissal of special leave petition, a

Review Petition No. 1521 of 2016 was filed in this

Court, which too was dismissed on 02.03.2016. The

petitioner also filed a Curative Petition No. 245 of

2016, which also was dismissed on 12.05.2016. After

the aforesaid proceedings in this Court, the

petitioner filed a Review Petition, R.P. No. 805 of

2018 in Writ Appeal No.399 of 2014, which review

petition has been dismissed by the High Court vide

its judgment dated 06.02.2020. Aggrieved with the

judgment dated 06.02.2020, this special leave

petition has been filed. 

4

5. Learned counsel for the petitioner challenging

the order on the review submits that earlier

dismissal of the special leave petition on 21.08.2015

shall not operate as res judicata. He further

submits that the petitioner was dismissed on petty

charges due to political vendetta. He further

contends that Cooperative Arbitration Court, which

has imposed punishment of reduction in rank was

wrongly substituted by compulsory retirement by the

Cooperative Tribunal. Learned counsel for the

petitioner has also referred to judgment of this

Court in Kunhayammed and Ors. Vs. State of Kerala and

Anr., (2000) 6 SCC 359.

6. We have heard learned counsel for the petitioner

and have perused the records.

7. The earlier Special Leave Petition (C) No. 24231

of 2015 was filed by the petitioner challenging the

Division Bench judgment dated 11.03.2015 by which his

Writ Appeal was dismissed. The Review Petition No.

805 of 2018 giving rise to this special leave

petition has been filed to review the judgment dated

5

11.03.2015 of the Division Bench. A review petition

as well as curative petition was filed by the

petitioner after dismissal of his earlier special

leave petition. The judgment of this Court in

Kunhayammed and Ors. Vs. State of Kerala and Anr.

(supra) laid down that where the special leave

petition is dismissed there being no merger, the

aggrieved party is not deprived of any statutory

right of review, if it was available and he can

pursue it. In paragraph 34, this Court made

following observations:-

“34. ................But where the

special leave petition is dismissed —

there being no merger, the aggrieved

party is not deprived of any statutory

right of review, if it was available

and he can pursue it. It may be that

the review court may interfere, or it

may not interfere depending upon the

law and principles applicable to

interference in the

review..................”

8. The Division Bench of the High Court by the

impugned judgment dated 06.02.2020 has not dismissed

the review petition as not maintainable. The High

Court proceeded to meticulously examine the question

and after consideration came to the conclusion that

6

there is no mistake or omission amounting to error

apparent on the face of the record. In paragraphs 8

and 9 of the judgment, High Court held:-

“8. This Court in paragraph Nos.11 and

12 of the judgment passed in writ

appeal, elaborately considered the

conversion of punishment to compulsory

retirement with sufficient reasonings

and justified the Co-operative Tribunal

for setting aside the punishment of

reduction to lower rank and imposing

compulsory retirement. The aforesaid

findings are made consciously after

making due deliberations on the

materials on record and the findings of

the single Bench of this Court. The

findings of this Court are supported by

the decisions of the Apex Court in

Hussain Sasansaheb Kaladgi v. State of

Maharashtra [AIR 1987 SC 1627] and

J.K.Synthetics Ltd. v. K.P.Agarwal and

Another [(2007) (2) SCC 433].

9. So there is no omission to consider

the legality or correctness of the

punishment or power of the Co-operative

Tribunal to impose such a punishment of

compulsory retirement. There is no

mistake or omission amounting to error

apparent on the face of the record, as

contended by the revision petitioner.

In view of the legal proposition laid

down by the Supreme Court in the

decisions referred above, this Court is

not inclined to rehear or reconsider

the above findings, as the review is

not an appeal in disguise. Hence, the

review petition fails and is dismissed

accordingly.”

7

9. The review petition filed by the petitioner,

thus, was rejected on merits.

10. The first question, which need to be considered

is as to whether the present special leave petition

challenging the above review order dated 06.02.2020

is maintainable when the Division Bench judgment

dated 11.03.2015 has neither been challenged nor can

be challenged in this special leave petition. The

consequence of the rejection of the review petition

is that the High Court has refused to review the

judgment of the Division Bench dated 11.03.2015

passed in Writ Appeal No. 399 of 2014. As noted

above, the Division Bench judgement dated 11.03.2015

was questioned by petitioner by special leave

petition in this Court, which was dismissed on

21.08.2015. When the Special Leave Petition No.

24231 of 2015 challenging the earlier judgment has

already been dismissed, such dismissal has become

final between the parties. In this special leave

petition, the petitioner cannot challenge the earlier

order dated 11.03.2015 against which he

unsuccessfully has earlier filed the special leave

8

petition. When the order dated 11.03.2015 is

unassailable by the petitioner in this special leave

petition, no relief can be granted to petitioner,

which may have effect in any manner diluting,

modifying or reversing the earlier judgment dated

11.03.2015.

11. This Court had earlier considered the question as

to whether the special leave petition challenging the

order rejecting review petition is maintainable when

the main judgment of the High Court is not under

challenge. We may refer to judgment of this Court in

Municipal Corporation of Delhi Vs. Yashwant Singh

Negi, (2013) 2 SCR 550. In the above case, a special

leave petition was preferred against an order

rejecting the review petition. A preliminary

objection was raised that special leave petition is

not maintainable since the main judgment is not

challenged. In paragraph 1 of the judgment, facts

have been noticed, which are to the following

effect:-

“1. This special leave petition has

been preferred against the order dated

11.09.2009 passed by the High Court of

9

Delhi in Review Petition No. 79 of 2009

in LPA No. 1233 of 2006. Mr. Nidhesh

Gupta, learned senior counsel appearing

for the Respondent raised a preliminary

objection that the special leave

petition is not maintainable since the

main judgment rendered by the High

Court on 5.11.2008 in LPA No. 1233 of

2006 was not challenged.”

12. This Court after considering the earlier judgment

of this Court held that special leave petition is not

maintainable. In paragraphs 3 and 4 following was

laid down:-

“3. We find ourselves unable to agree

with the views expressed by this Court

in Eastern Coalfields Limited (supra).

In our view, once the High Court has

refused to entertain the review petition

and the same was dismissed confirming

the main order, there is no question of

any merger and the aggrieved person has

to challenge the main order and not the

order dismissing the review petition

because on the dismissal of the review

petition the principle of merger does

not apply. In this connection reference

may be made to the Judgment of this

Court in Manohar S/o Shankar

Nale v. Jaipalsing S/o Shivlalsing

Rajput (2008) 1 SCC 520 wherein this

Court has taken the view that once the

review petition is dismissed the

doctrine of merger will have no

application whatsoever. This Court

in DSR Steel (Private) Limited v. State

of Rajasthan (2012) 6 SCC 782 also

examined the various situations which

might arise in relation to the orders

10

passed in review petitions. Reference to

paragraphs 25, 25.1, 25.2 and 25.3 is

made, which are extracted below for

ready reference:

“25. Different situations may

arise in relation to review

petitions filed before a court

or tribunal.

25.1. One of the situations

could be where the review

application is allowed, the

decree or order passed by the

court or tribunal is vacated and

the [pic]appeal/proceedings in

which the same is made are

reheard and a fresh decree or

order passed in the same. It is

manifest that in such a

situation the subsequent decree

alone is appealable not because

it is an order in review but

because it is a decree that is

passed in a proceeding after the

earlier decree passed in the

very same proceedings has been

vacated by the court hearing the

review petition.

25.2. The second situation that

one can conceive of is where a

court or tribunal makes an order

in a review petition by which

the review petition is allowed

and the decree/order under

review is reversed or modified.

Such an order shall then be a

composite order whereby the

court not only vacates the

earlier decree or order but

simultaneous with such vacation

of the earlier decree or order,

passes another decree or order

or modifies the one made

11

earlier. The decree so vacated

reversed or modified is then the

decree that is effective for the

purposes of a further appeal, if

any, maintainable under law.

25.3. The third situation with

which we are concerned in the

instant case is where the

revision petition is filed

before the Tribunal but the

Tribunal refuses to interfere

with the decree or order earlier

made. It simply dismisses the

review petition. The decree in

such a case suffers neither any

reversal nor an alteration or

modification. It is an order by

which the review petition is

dismissed thereby affirming the

decree or order. In such a

contingency there is no question

of any merger and anyone

aggrieved by the decree or order

of the Tribunal or court shall

have to challenge within the

time stipulated by law, the

original decree and not the

order dismissing the review

petition. Time taken by a party

in diligently pursing the remedy

by way of review may in

appropriate cases be excluded

from consideration while

condoning the delay in the

filing of the appeal, but such

exclusion or condonation would

not imply that there is a merger

of the original decree and the

order dismissing the review

petition.”

4. We are in complete agreement with the

principle laid down by this Court in DSR

12

Steel (Private) Limited (supra) and

applying the 3rd situation referred to

therein in paragraph 25.3, we are

inclined to dismiss this special leave

petition. We find force in the

contention made by the learned senior

counsel appearing for the respondent

that this SLP is not maintainable, since

the main order was not challenged but

only the order passed in the review

petition alone was challenged in this

SLP. Hence, the SLP is, therefore, not

maintainable and the same is dismissed.

13. We may also notice another elaborate judgment of

this Court in Bussa Overseas and Properties Private

Limited and Anr. Vs. Union of India and Anr., (2016)

4 SCC 696. In the above case also special leave

petition was filed against the Division Bench

judgment of the High Court rejecting the review

petition. Facts have been noticed in paragraph 1,

which is to the following effect:-

“...............The present appeal is

directed against the judgment and order

dated 14-9-2004 passed by the Division

Bench of the High Court of Judicature

at Bombay in Bussa Overseas &

Properties (P) Ltd. v. Union of

India [Notice of Motion No. 62 of 2004,

decided on 14-9-2004 (Bom)] whereby the

High Court while dealing with an

application of review has declined to

condone the delay of 129 days in

preferring the application for review

and also opined that the application

for review was totally devoid of merit.

13

The expression of the said view led to

dismissal of the application for

review.”

14. In the above case, this Court noticed several

earlier judgments and accepting the preliminary

objection held that the special leave petition is not

maintainable. Following was held in paragraphs 29 to

32:-

“29. Needless to state that when the

prayer for review is dismissed, there

can be no merger. If the order passed

in review recalls the main order and a

different order is passed, definitely

the main order does not exist. In that

event, there is no need to challenge

the main order, for it is the order in

review that affects the aggrieved

party.

30. The decisions pertaining to

maintainability of special leave

petition or for that matter appeal have

to be seemly understood. Though in the

decision in Shanker Motiram

Nale [Shanker Motiram

Nale v. Shiolalsing Gannusing Rajput,

(1994) 2 SCC 753] the two-Judge Bench

referred to Order 47 Rule 7 of the Code

of Civil Procedure that bars an appeal

against the order of the court

rejecting the review, it is not to be

understood that the Court has curtailed

the plenary jurisdiction under Article

136 of the Constitution by taking

recourse to the provisions in the Code

of Civil Procedure. It has to be

understood that the Court has evolved

and formulated a principle that if the

14

basic judgment is not assailed and the

challenge is only to the order passed

in review, this Court is obliged not to

entertain such special leave petition.

The said principle has gained the

authoritative status and has been

treated as a precedential principle for

more than two decades and we are

disposed to think that there is hardly

any necessity not to be guided by the

said precedent.

31. In this context, we may profitably

reproduce a passage from State of

A.P. v. A.P. Jaiswal [(2001) 1 SCC 748]

wherein a three-Judge Bench has

observed thus: (SCC p. 761, para 24)

“24. Consistency is the

cornerstone of the

administration of justice. It

is consistency which creates

confidence in the system and

this consistency can never be

achieved without respect to

the rule of finality. It is

with a view to achieve

consistency in judicial

pronouncements, the courts

have evolved the rule of

precedents, principle of stare

decisis, etc. These rules and

principle are based on public

policy….”

32. In view of the aforesaid analysis,

the submission of Mr. Gulati that all

the subsequent judgments are per

incuriam as they have not taken into

consideration the decision rendered

in Thungabhadra Industries

Ltd. [Thungabhadra Industries

Ltd. v. State of A.P., AIR 1964 SC 1372

: (1964) 5 SCR 174] is not correct.

15

Consequently, the appeal, being not

maintainable, stands dismissed. There

shall be no order as to costs.”

15. The rationale for not entertaining a special

leave petition challenging the order of High Court

rejecting the review petition when main order in the

writ petition is not challenged can be easily

comprehended. Against the main judgment the SLP

having been dismissed earlier the same having become

final between the parties cannot be allowed to be

affected at the instance of petitioner. When the main

judgment of the High Court cannot be effected in any

manner, no relief can be granted by this Court in the

special leave petition filed against order rejecting

review application to review the main judgment of the

High Court. This Court does not entertain a special

leave petition in which no relief can be granted. It

is due to this reason that this Court in Bussa

Overseas and Properties Private Limited and Anr.

(supra) has held that principle of not entertaining

special leave petition against an order rejecting the

review petition when main judgment is not under

challenge has become a precedential principle. We

16

reiterate the above precedential principle in this

case again.

16. The special leave petition against the Division

Bench judgment dated 11.03.2015 having been dismissed

by this Court earlier on 21.08.2015 and the review

petition filed by the petitioner to review the

judgment having been dismissed by the impugned

judgment, we see no reason to entertain this special

leave petition. The special leave petition is

accordingly dismissed.

......................J.

 ( ASHOK BHUSHAN )

......................J.

( R. SUBHASH REDDY )

......................J.

( M.R. SHAH )

New Delhi,

October 05, 2020.

Sec.64 CPC - when the sale took place when there was no subsistence of attachment before judgment of the EP schedule property and therefore the sale cannot be deemed void.

 Sec.64 CPC - when the sale  took place when there was no subsistence of attachment before judgment of the EP schedule property and therefore the sale cannot be deemed void. 

This suit was initially instituted in forma pauperis by the first respondent in POP No.2 of 2005 on the file of vacation Court and a petition under Order-XXXVIII, Rule-5 CPC was filed therein in I.A.No.3 of 2005 seeking attachment of the above property before judgment, wherein an interim conditional attachment was ordered. The property was, in fact, attached by the field assistant of the Court on 08.05.2005. Later the said POP was renumbered as POP No.148 of 2005 on the file of learned Principal District Judge, Chittoor,whereas I.A.No.3 of 2005 was renumbered as I.A.No.174 of 2005.By order dated 05.08.2008, POP No.148 of 2005 was dismissed and the first respondent, who was the petitioner therein, was granted time till 25.08.2008 for payment of court fee. Then, the matter was posted to 25.08.2008 to comply with the above direction. Court fee was not deposited, as directed as per the above order. However, in the year 2012, this POP was renumbered and registered, obviously, upon depositing necessary court fee. An ex parte decree was passed in the suit thereupon, since the respondents 2 and 3 did not choose to contest, on 30.04.2013.I.A.No. 174 of 2005 referred to above was not closed with the termination of the proceedings in POP No.148 of 2005 on 25.08.2008 and it was being called thereafter till 29.08.2008 from which date it was posted to 20.10.2008. Later on, it was not called on the bench nor any further date of posting was given therein in the trial Court.

The appellant is the daughter-in-law of third respondent. Smt.Vani is the daughter of the third respondent. On 14.10.2009 a gift deed was executed by the third respondent in favour of Smt.Vani, giving away the E.P.schedule property. Thereafter, the appellant had purchased this property for Rs.5,15,000/-(Rupees five lakhs and fifteen thousand only) under registered sale deed dated 19.04.2016 from Smt.Vani and has claimed to be in possession of the same.

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HONOURABLE SRI JUSTICE M. VENKATA RAMANA

+ A.S.No.664 of 2019

% Dated:13.11.2019

Between:

# H.Nirmala,

 W/o. K. Hari Babu,

 R/o. D.No.19-133, Jayaprakash Street,

 Kuppam Town, Chittoor District.

… APPELLANT

AND

$ 1. C.Padmavathi, W/o. A.S.Mallikarjuna,

 R/o. Door No.14-151/1, Radhakrishna Road,

 Kuppam Town, Chittoor District.

 2. S.Venkatamuni (DIED)

 3. Smt. Prabhavathi, W/o. V. Krishnappa Naidu,

 R/o. Door No.19-133, Jayaprakash Street,

 Kuppam Tiown, Chittoor District.

... RESPONDENTS

! Counsel for appellant : Mr. KS Gopalakrishnan

^Counsel for Respondents : Mr. S. Lakshminarayana Reddy

<GIST :

>HEAD NOTE:

? Cases referred:

1. AIR 1968 Kant 270

2. AIR 1969 SC 941

3. Legalcrystal.com/62607

4. AIR 1982 SC 989

5. AIR 1978 AP 30

6. AIR 1968 Mysore, 283

7. AIR 1935 (Mad) 365

8. 1994(1) ALT 56 (S.B.)

9. (2005)6 Supreme Court Cases 344 

MVR,J

A.S.No.664 OF 2019

2

 HON’BLE SRI JUSTICE M.VENKATA RAMANA

APPEAL SUIT No.664 of 2019

JUDGMENT :

1. The first respondent is the decree holder in O.S.No.5 of 2012. She levied

E.P.No. 7 of 2016 in execution of the decree dated 30.04.2013 passed in the

suit against respondents 2 and 3. Mode of execution sought was by sale of

E.P.schedule mentioned property under Order-XXI, Rules-64 and 66 CPC.

Amount sought to be realised in this execution petition then was

Rs.22,71,460/- apart from costs. The property described in the schedule of

execution petition is an RCC building bearing Door No.19-19-133 at Kothapet,

Kuppam. It was alleged to have had been attached in I.A.No.174 of 2005 in the

suit, before judgment.

2. This suit was initially instituted in forma pauperis by the first

respondent in POP No.2 of 2005 on the file of vacation Court and a petition

under Order-XXXVIII, Rule-5 CPC was filed therein in I.A.No.3 of 2005 seeking

attachment of the above property before judgment, wherein an interim

conditional attachment was ordered. The property was, in fact, attached by the

field assistant of the Court on 08.05.2005. Later the said POP was renumbered

as POP No.148 of 2005 on the file of learned Principal District Judge, Chittoor,

whereas I.A.No.3 of 2005 was renumbered as I.A.No.174 of 2005.

3. By order dated 05.08.2008, POP No.148 of 2005 was dismissed and the

first respondent, who was the petitioner therein, was granted time till

25.08.2008 for payment of court fee. Then, the matter was posted to

25.08.2008 to comply with the above direction. Court fee was not deposited, as

directed as per the above order. However, in the year 2012, this POP was renumbered and registered, obviously, upon depositing necessary court fee. An

ex parte decree was passed in the suit thereupon, since the respondents 2 and 

MVR,J

A.S.No.664 OF 2019

3

3 did not choose to contest, on 30.04.2013.

4. I.A.No. 174 of 2005 referred to above was not closed with the termination

of the proceedings in POP No.148 of 2005 on 25.08.2008 and it was being

called thereafter till 29.08.2008 from which date it was posted to 20.10.2008.

Later on, it was not called on the bench nor any further date of posting was

given therein in the trial Court.

5. The above are all undisputed facts in this case.

6. The appellant is the daughter-in-law of third respondent. Smt.Vani is the

daughter of the third respondent. On 14.10.2009 a gift deed was executed by

the third respondent in favour of Smt.Vani, giving away the E.P.schedule

property. Thereafter, the appellant had purchased this property for

Rs.5,15,000/-(Rupees five lakhs and fifteen thousand only) under registered

sale deed dated 19.04.2016 from Smt.Vani and has claimed to be in

possession of the same.

7. The appellant filed a claim petition under Order-XXI, Rule-58, r/w.

Section 47 CPC basing on the above sale deed, claiming right, title and interest

to the above property in E.A.No.19 of 2018 in E.P.No. 7 of 2016 in O.S.No.5 of

2012 on the file of the Court of learned District Judge, Chittoor requesting to

raise the attachment effected on 20.05.2005 in I.A.No.174 of 2005.

8. In this claim petition, it was the contention of the appellant that, she

came to know about the proceedings relating to pauperism as well as

attachment of the petition schedule property, directed before judgment in

I.A.No.174 of 2005, and that there was no order of attachment in force on the

date when she purchased this property from Smt. Vani on 19.04.2016.

Therefore, according to the appellant, the gift deed executed by the third 

MVR,J

A.S.No.664 OF 2019

4

respondent in favour of Smt.Vani is valid, which enures to her benefit and

hence E.P. as brought out for sale of E.P.schedule property could not be

maintained nor it binds her. Thus, stating that she has nothing to do with the

alleged transaction between respondent No.1 on one hand and the respondent

Nos.2 and 3 on the other nor has there been any collusion between her and the

third respondent in filing the petition, she requested to accept her claim and

allow the petition.

9. The first respondent resisted the claim of the appellant denying all such

averments therein including alleged gift in favour of Smt. Vani and purchase of

E.P.schedule property by the appellant from her thereafter. The first

respondent specifically contended in the counter that the petition in forma

pauperis was filed only for exemption from payment of court fee and dismissal

of the same with a direction to pay court fee granting time will not render the

attachment before judgment of E.P. schedule property, ineffective. According to

the first respondent, the moment she paid court fee, when the suit is

numbered, the attachment ordered gets revived and thus the attachment so

ordered, continued to subsist. She also contended that the claim petition was

filed only to protract the proceedings without any legal basis, by the petitioner,

who is none other than the daughter-in-law of the third respondent and,

therefore, the claim as made can not be sustained.

10. Enquiry was conducted in this petition before the executing court, where

the appellant was examined as P.W.1 and Smt. Vani as P.W.2, P.W.3 being the

Panchayat Secretary, Kuppam, while relying on Exs.P1 to P5 in support of her

version. On behalf of the respondents, the first respondent was examined as

R.W.1 and R.W.2 being a third party, while relying on Exs.R1 to R3 in support

of her contention. 

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11. Upon considering such material as well as the contentions of the parties,

the executing court dismissed the claim petition, holding that there was no

question of raising of attachment in this case in as much as the situation upon

dismissal of the petition in forma pauperis is not equivalent to dismissal of the

suit for default. It was further observed that neither Order-XXXVIII, Rule

11A(2) stood attracted in this case nor there was determination of attachment

in terms of Order- XXXVIII, Rule-9 CPC occurs. Thus observing that the

property was conveyed to Smt.Vani by the third respondent knowing full well of

the subsisting attachment, which cannot enure to her benefit and, when the

property was conveyed by sale in favour of the appellant, it could not have

conveyed a better right and title to her.

12. Sri K.S.Gopalakrishnan, learned counsel for the appellant, assailed the

order under appeal raising various grounds and mainly contended that the

executing court did not realise the consequences of determination of

attachment or in respect of application of Order- XXXVIII, Rule 11A(2) CPC.

The learned counsel further contended that in given facts and circumstances,

when court fee was paid, leisurely, by the first respondent, on the plaint in the

year 2012, after her claim of pauperism was rejected in 2008, four years later,

question of bar of limitation to enforce the debt under the promissory note

against respondents 2 and 3 by the first respondent comes into play. Therefore,

learned counsel contends that the order under appeal requires interference.

13. Sri S.Lakshminarayana Reddy, learned counsel for first respondent,

supported the order under appeal referring to the nature of claim made by the

first respondent against respondents 2 and 3 with reference to attachment

before judgment of the E.P.schedule property taken out at the instance of the

first respondent, which, in fact, was effected. Learned counsel for first

respondent further contended that the attempt of the appellant is nothing but 

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6

collusive on the face of it, particularly, when the effect of Ex.P1 and Ex.P2 is

taken into consideration, and also the close relationship among the parties.

Contending that the executing court has taken into consideration all the facts

and circumstances available on record in proper perspective, it is requested not

to interfere with the order under appeal.

14. Now the point for determination is- “Whether there was determination of

attachment, upon dismissal of POP 148 of 2005, as ordered in I.A.No.174 of

2005 and the claim of the appellant in respect of E.P. schedule property, in the

circumstances, is justified?”

POINT:-

15. In terms of Order-XXXIII, Rule-1 CPC, when an application is presented

to sue in forma pauperis, a suit commences. For benefit, it is desirable to

extract Order-XXXIII, Rule-1 hereunder. It reads:

1. Suits may be instituted by indigent person

Subject to the following provisions, any suit may be instituted by an

indigent person

 Explanation 1: A person is an indigent person, __

(a) If he is not possession of sufficient means (other than property

exempt from attachment in execution of a decree and the subject

matter of the suit) to enable him to pay the fee prescribed by law

for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property

worth one thousand rupees other than the property exempt from

attachment in execution of a decree, and the subject matter of the

suit.

Explanation II: Any property which is acquired by a person after the

presentation of his application for permission to sue as an indigent

person, and before the decision of the application, shall be taken into

account in considering the question whether or not the application is an

indigent person.

Explanation III: Where the plaintiff sues in a representative capacity, the

question whether he is an indigent person shall be determined with

reference to the means possessed by him in such capacity. 

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16. It is one of the special kinds of suits, prescribed in the scheme of CPC to

meet the needs of an indigent, who is unable to pay court fee. Thus, it enables

an indigent person to institute a suit without paying the requisite court fee at

the initial stage.

17. In order to appreciate its nature, a reference to Rule-2 of Order-XXXIII

CPC shall be made. It provides for contents of the application and particularly

that an application of this nature, shall have all particulars required in regard

to pleadings in a suit including schedules of the property. Therefore, when

nature of application filed under Order-XXXIII, Rule-1 CPC, r/w. Rule-2 of

Order XXXIII CPC is considered, when claim of the applicant to declare him as

an indigent stands rejected and when he is directed to deposit the court fee

payable on such application, all the related provisions of CPC shall certainly

apply. They are the consequences follow, thereupon.

18. Explaining the nature of application filed under Order-XXXIII, Rule-1

CPC, Sri K.S.Gopalakrishnan, learned counsel for appellant, relied on

Ramappa Parappa Khot and others vs. Gourwwa1 where the trappings of

such an application as a suit were considered. Reliance was placed in this

ruling in Stuart Skinner v. William Orde ((1876-80)6 Ind App 126 (PC)). And

observing that the opinion so expressed in this decision of Judicial Committee

was accepted by Hon’ble Supreme Court in Vijay Pratap Singh vs. Dukh

Haran Nath Singh and another2. The Hon’ble Supreme Court, in this

context, observed:

“An application to sue in forma pauperis, is but a method prescribed by

1

. AIR 1968 Kant 270

2

 .AIR 1969 SC 941 

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8

the Code for institution of a suit by a pauper without payment of fee

prescribed by the Court Fees Act. If the claim made by the application that

he is a pauper is not established the application may fail. But there is

nothing personal in such an application. The suit commences from the

moment an application for permission to sue in forma pauperis as

required by O.33 of the Code of Civil Procedure is presented, and O.1, r.10,

of the Code of Civil Procedure would be as much applicable in such a suit

as in a suit in which court fee had been duly paid.”

19. The first respondent choose to file I.A.No.6 of 2012 in POP 148 OF 2005,

obviously, under Sections 148 and 149 CPC in the trial Court. It was allowed

on 19.01.2012 condoning a delay of 1092 days in representation of the plaint.

Consequently, the suit was numbered on 19.01.2012. A copy of the decree

made available on first respondent in this appeal reflected this situation. Thus,

at that stage, upon depositing the court fee, this matter got metamorphised

into a suit.

20. Therefore, nearly for four years, court fee was not paid. Consequences of

non-payment of court fee are governed by Order-VII, rule 11(c) CPC. It provides

for rejection of plaint, when the court fee is not supplied or deposited within

the time fixed by the Court. Therefore, in the context of this case, when the

first respondent did not deposit or supply the court fee by 25.08.2018, in terms

of scheme of CPC, the consequence to follow is, rejection of the plaint.

21. But, there is no specific order in POP No.148 of 2005 to that effect. It

appears, the matter remained in the same status without getting this POP

closed. This situation is also explicit from the contents of the decree in the suit

referred to above.

 22. The first respondent (J.Dr.1) and the second respondent (J.D.2) appeared

on 20.05.2005 through their Advocates in POP 148 of 2005 and sought time for

filing counters. When the matter was posted on 25.05.2005, counters were filed

on their behalf and thereafter the matter was posted for enquiry. As seen from

the docket notings, a copy of which is made available on behalf of the appellant 

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9

as well as the first respondent in this appeal; I.A.No.174 of 2005 was continued

upto 29.08.2008, earlier to which it was also posted on 05.08.2008. It was

expected to be called on 20.10.2008. Thereafter the docket entries did not

continue in this petition. It remained dormant.

23. It is this situation, the first respondent has taken advantage of, to

contend that no specific order was passed in I.A.No.174 of 2005 either raising

the attachment so effected before judgment or terminating the proceedings

along with the order in POP on 05.08.2008 or subsequently on 25.08.2008.

Thus, it is the contention of the first respondent that the attachment ordered of

the petition schedule property remained intact, without being dissolved or

nullified. On such basis, the first respondent initiated execution proceedings

basing on the ex parte decree passed dated 30.04.2013 in the suit preferring

the mode of execution under Order-XXI, Rules 64 and 66 by sale of the petition

schedule property.

24. Order-XXXVIII, Rules 5 to 7 CPC refer to nature of orders to be passed,

including calling for security when attachment before judgment is directed.

Rule-9 of this Order also speaks of removal of attachment when the security is

furnished or when the suit is dismissed. Rule-11A of Order-XXXVIII CPC

enables to apply the provisions of attachment of properties made in execution

of the decree insofar as they are applicable and which continue after the

judgment in view of Rule-11 of Order XXXVIII CPC. Rule-11A(2) of Order

XXXVIII CPC bears significance in this context and it reads as under:

Or.11A (2) or Order XXXVIII

 11A. Provisions application to attachment

 (1) ………

(2) An attachment made before judgment in a suit which is dismissed

for default shall not become revived merely by reason of the fact

that the order for the dismissal of the suit for default has been set

aside and the suit has been restored.

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25. Effect of this provision is that when the suit is dismissed for default, an

attachment made shall not get revived merely for the reason that the order of

dismissal of the suit is set aside and since the suit has been restored. Rule-11A

of Order-XXXVIII CPC, has come into effect on 01.02.1977 by virtue of

amendment Act of CPC i.e. Act 104 of 1976.

26. Effect of the same was considered by Kerala High court in V.Gopi Vs. Dr.

Bhaskaran3 in its judgment in OP (C) No.3205 of 2013 dated 05.08.2015. In

this ruling, learned Judge referred and considered application of ruling of

Hon’ble Supreme Court in Sardar Govindrao Mahadik and another v. Devi

Sahai and others4. In Para 16 of the ruling of Kerala High Court, certain

extracts from the Judgment of Supreme Court are drawn and they are as

under:

16. …… In fact a dismissal of the suit may terminate the provision in

Sub-rule(2) of R.11-A of O.38, C.P.C. which provides that attachment

before judgment in a suit which is dismissed for default shall not be

revived merely because by reason of the fact that the order for the

dismissal of the suit for default has been set aside and the suit has

been restored.

Observations are also recorded in Para-17 of the ruling of Kerala High

Court in this context referring to application of Order-XXXVIII, Rule-11A CPC

and Order-XXI, Rule-57 CPC relating to determination of attachment. It is

desirable to extract this passage from Para-17 in this respect and it is as

under:

17. I have gone through the reasons for change made by CP.C.

Amendment Act 104 of 1976 while adding Rule 11A to Order XXXVIII

of the Code. Clause (1) in Rule 11A specifically states that the

provisions of this Code applicable to an attachment made in

execution of a decree shall, so far as may be, apply to an attachment

made before judgment which continues after judgment by virtue of

3

. Legalcrystal.com/62607

4

.AIR 1982 SC 989 

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Rule 11. The Legislature expressed the following reasons for the

change: “Sub-rule (1) of new rule 11-A is intended to clarify the

position as to whether the provisions of Order XXI, rule 57, apply to

attachment made before judgment. The provision has been framed in

general terms as it would not be appropriate to apply only the

provisions of rule 57 of Order XXI. Sub-rule (2) of new rule 11-A

clarifies that an attachment before judgment made in a suit which

was dismissed for default will not become revived on the restoration

of the suit.” From the above passage, it is clear that Rule 11A is

added to Order XXXVIII of the code with an intention to clarify that it

is in general terms and not only the provision in Order XXI Rule 57 of

the Code, but other provisions also, if found applicable, could be

applied to an attachment made under Order XXXVIII of the Coe. It is

further clear that the statement of law in Order XXI Rule 57 of the

Code this angle also, it can only be held that the order of attachment

will not survive the dismissal of a suit on merit. Going by the

principles in Sardar Govindrao Mahadik’s case, it is definite that

reversal of a decree in appeal will not revive the order of attachment,

which ceased to be in force on the dismissal of the suit.

27. Order-XXI, Rule-57 CPC reads as under:-

57. Determination of attachment

(1) Where any property has been attached in execution of a decree and

the court, for any reason, passes an order dismissing the application for

execution of the decree, the court shall direct whether the attachment

shall continue or cease and shall also indicate the period up to which such

attachment shall continue or the date on which such attachment shall

cease.

(2) If the court omits to give such direction, the attachment shall be

deemed to have ceased.

28. Effect of the same, particularly, in the context of this case, when there is

no direction by the Court to the effect that attachment continued or upto a

particular period to subsist or to cease is that it shall be deemed that the

attachment stood ceased.

29. As already stated, in I.A.No.174 of 2005, the docket notings reflected that

the matter continued upto 20.10.2008. Thereafter, no order as such, of the

nature contemplated by Order-XXI, Rule-57 CPC was passed by the trial Court.

30. In the context of this situation and as was considered by the Hon’ble

Supreme Court in Sardar Govindrao Mahadik’s case referred to above, reliance

placed on behalf of the first respondent in Nandipati Rami Reddi and others 

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A.S.No.664 OF 2019

12

v. Nandipati Padma Reddy and others5, Shivaraya and others v.

Sharnappa and others6, can have no application. These two judgments also

referred the judgment of Madras High Court in Thavvala Veeraswami v/s

Pulim Ramanna7. The situation considered in all these rulings is with

reference to revival of orders on Interlocutory Applications relating to incidental

proceedings in a suit.

31. It should be noted that they all considered the situation prior to 1976. In

K.Era Reddy and another vs. K.Bal Reddy (died) and others8, basing on

Nandipati Rami Reddi’s case referred to supra, revival of incidental proceedings

when the suit is restored was upheld. Reference to incidental proceedings in

general, cannot enure to the benefit of the 1sdt respondent, when, revival or

otherwise of an attachment before judgment, when the suit is dismissed was

not a specific issue.

32. All these rulings can have no bearing now, in as much as the factual

context in this case presented a different situation. These rulings did not

consider the effect of continuation of attachment before judgment of any

property once the suit is dismissed and later on when the suit is restored.

There was no occasion to consider the effect of Order-XXXVIII, Rule-11A(2) CPC

and also effect of Order-XXI, Rule-57 CPC.

33. The effect of failure to comply with the direction of the trial court to

deposit the requisite court fee by 25.08.2008 is that, the petition (POP)

presented, which was in the form of plaint in terms of Order-XXXIII, Rule-1

CPC, stood rejected, in view of Order-VII, Rule-11(c) CPC. Thereby, the

inference to draw is that there was no such application pending before the trial

Court and that, by then the matter had come to an end. Merely because

5

 . AIR 1978 AP 30

6

. AIR 1968 Mysore, 283

7

 . AIR 1935 (Mad) 365

8

 .1994(1) ALT 56 (S.B.) 

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I.A.No.174 of 2005 was not closed nor it had any docket notings or order

recording either as to continuation of order of attachment before judgment or

its cessation, it cannot be stated that the orders so passed therein continued.

The first respondent cannot have advantage of certain ministerial mistakes or

omissions that went on in the trial court in this context.

34. When these circumstances are taken into consideration, further

inference to be drawn is that on the date when the petition presented in forma

pauperis came to an end without any further proceedings by 25.08.2008, when

it is deemed that the matter stood disposed of considering it as a rejection of

plaint in terms of Order-VII,Rule-11(c) CPC, order of attachment before

judgment cannot be deemed to survive thereafter.

35. Merely because the first respondent had chosen to deposit the requisite

court fee, almost four years later in the trial court, filing I.A.No.6 of 2012,

which was allowed on 19.01.2012, it cannot be deemed that the order of

attachment before judgment virtually continued on account of the registration

of the suit on the same day.

36. As rightly contended for the appellant, once the first respondent failed to

deposit required court fee as directed by the trial court, neither the

respondents 2 and 3 nor can the appellant be expected to wait for certain

events to happen in future. Such events, as rightly contended, are indefinite in

nature with attached uncertainty. A party to the litigation, in these

circumstances, cannot be made to face a situation in limbo for indeterminate

period.

37. Viewed from such perspective, when the third respondent had executed

a gift deed under Ex.P1 on 14.10.2009 in favour of her daughter Smt.Vani, it

cannot be stated that order of attachment before judgment referred to above

made this gift deed a void transaction. By 14.10.2009, in view of what is stated 

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above, there was no attachment subsisting of the petition schedule property.

When Smt.Vani sold the petition schedule property to the appellant under

original of Ex.P2 on 19.04.2010, such sale transaction has not been affected as

a sequel. These parties can never be deemed nor can be expected to visualize

that, four years after the order passed by the trial Court of rejection of pauper

petition, the first respondent would make an effort to get the matter revived. It

is also not known whether these parties i.e. respondents 2 and 3 had any

notice of the application filed in I.A.No.6 of 2012 in the trial court, before it was

allowed on 19.01.2012. In these circumstances, it is not open for the first

respondent to contend that all the above transactions are collusive amongst

the same family members and that they were brought into existence to defeat

her claim under the decree or under the suit transaction.

38. Learned trial judge in para-14 of the order under appeal considered the

objections raised on behalf of the appellant as mere technical grounds without

considering their substantive effect. The reasons so assigned, in the backdrop

of the situation and the legal position as has been drawn, now, cannot be

appreciated nor can be supported.

39. Therefore, in the facts and circumstances it has to be held that rejection

of pauper petition on failure to comply with the directions of the trial Court

therein within the time stipulated, amounted to rejection of plaint. Thereby,

attachment ordered in I.A.No.174 of 2005 therein neither stood continued nor

revived upon registration of the suit in the year 2012.

40. The first respondent cannot take advantage her own lapse or rather

laxity and file an execution petition in the Court below requesting sale of the

petition schedule property in terms of Order-XXI, Rules-64 and 66 CPC, three

years after passing of the decree. By then several transactions had taken place

in between, including the one covered by Ex.P1. Thus, the transfer of 

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ownership of the E.P.schedule property from the third respondent took place

and in favour of her daughter, which, later on, in the year 2016, was

transferred in favour of the appellant conferring absolute right, title and

interest. The fact that she holds the right, title and interest of the property is

also confirmed by the evidence of P.W.3, the panchayat Secretary of Kuppam,

who deposed with reference to records and also as to transfer of ownership in

the concerned registers of his office.

41. One of the contentions on behalf of the first respondent is that request of

the appellant to raise attachment itself indicates an admission on her part that

the attachment before judgment so ordered is subsisting and therefore her

contention now, cannot be considered.

42. Nature of relief to be sought in terms of Order-XXI, Rule-58 CPC is to

raise objection to the attachment, if any. It is also open for such an applicant

to contend that no such attachment subsists. Therefore, in terms of Order-XXI,

Rule-58 CPC, when such an applicant was made by the appellant to adjudicate

her claim as to right, title and interest to the EP schedule property, this

contention of the first respondent cannot stand.

43. A contention is also advanced on behalf of the appellant as to bar of

limitation for the first respondent to continue the suit against the respondents

2 and 3. Since the appellant being a third party to the suit proceedings, it is

not open for her to raise such contention nor can she take advantage of Section

3 of the Limitation Act.

44. Sri S. Lakshminarayana Reddy, learned counsel for first respondent,

attempted to invoke Section 64 of CPC, questioning Ex.P1 sale transaction to

hold the same void, in view of subsisting attachment of petition schedule

property by that date. Reliance is placed in this context on the observations of

Hon’ble Supreme Court in Salem Advocate Bar Association, Tamilnad v. 

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Union of India9. The fact situation in this case cannot lead to apply Section 64

CPC. Reasons are assigned already that the sale covered by Ex.P1 took place

when there was no subsistence of attachment before judgment of the EP

schedule property and therefore the sale covered by Ex.P1, cannot be deemed

void.

45. Thus, on careful consideration of the entire material, it has to be held

that the objection as to attachment raised by the appellant of the EP schedule

property is valid and it shall be upheld. Therefore, the first respondent cannot

bring E.P.schedule property for sale in the execution petition. Accordingly, the

point is held.

46. In the result, this appeal is allowed. Consequently, the order of learned

Principal District Judge, Chittoor in E.A.No.19 of 2018 in E.P.No.7 of 2010 in

O.S.No. 5 of 2012, dated 26.08.2019, is set aside. Pending petitions, if any,

shall stand closed.

 _________________________________

JUSTICE M.VENKATA RAMANA

Dt: 13-11-2019

RRR

9

 . (2005)6 Supreme Court Cases 344

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 HON’BLE SRI JUSTICE M.VENKATA RAMANA

APPEAL SUIT No.664 of 2019

DATED: 13-11-2019

RRR