ABHINANDAN JHA & ORS. v.

DINESH MISHRA (With Connected Appeal)

April 17, 1967

[M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JJ.]

Code of Criminal Procedure (Act S of 1898), ss. 169, 170, 173 and 190(1)-Report tc police of cognir.able offence-Report by police to magistrate after investigation that offence not made out-If magistrate can direct police ro file charge-sheet.

On the question whether a magistrate could direct the police to sub mil a chargheet1 when the police, after investigation into a cognizable offence, had sublllltted a report of the action taken under s. 169, Cr.

P.C., that there was no case made out for sending up the accused for trial, HELD : There was no such power conferred on a magistrate either expressly or by implication.

When a cognizable offence is reported to the police they may after investigation take action under s. 169 or s. 170 Cr. P.C. If the police think there is not sufficient evidence against the accused, they may, under s. 169 release the accused from custody on his executing a bond to appear before a competent magistrate if and when so required; or, if the police think there IS sufficient evidence, they may, under s. 170, forward the accused under custody to a competent magistrate or release the accused on bail in cases where the offences are bailable. In either case the police should submit a report of the action taken, under s. 173, to the competent magistrate who considers it judicially under s. 190 and takes the following action :

(I) If the report is a charge-sheet under s. 170 it is open to the magistrate to agree with it and take cognizance of the offence under s. !90(! )(b); or to take the view that the facts disclosed do not make out an offeeee and decline to. take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was not sufficient evidence.

(2) If the report is of the action taken under s. 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under s. 156(3) to make a further investigation. If the police, after further investigation submit a charge.,.heet, the magistrate may follow the procedure where the charheet under s. 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the

mastrate may agree or disagree with it Where he agrees, the case agamst the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he can take cognizance under s. 190(1) (c). The provision in s. 169 enabl

ing the police to take a bond for the appearance of the accused before a magistrate if so required, is to meet such a contingeilcy of the magistrate Jaking cognizance of the offence notwithstanding the contrary opinion of the police.

The power under s. 190(l)(c) was intended to secure that

ABINANDAN v. DINESH (Vaiaialingam, J.) 66~

offences may not go unpunished and justice may be invoked even whpersons individually aggrieved are unwilling or unable to prosecute, or the police either wantonly or through a balW fide error do not submit a charge-sheet.

But the magistrate cannot direct the polioe to submit a charge-sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the map Irate. The magistrate, if he disagrees with the report of the police, caa himself take cogniZance of the offence under s. 190(1)(a) or (c), but, he cannot compel the police to form a particular opinion on inveatlp tion and submit a report according to such opinion. [672F-H; 673B; 676H; 677B-H: u78A-fJ: (j79A-C. E-H]

Slate af Gujarat v. Sh<h Lakhamshi, A.I.R. 1966 Gujarat 283 (F.B.); Vcnkatu.rnbha v. Anianayulu, A.LR. 1932 Mad. 673; Abdul Rahim v.

Abdul Muktadin, A.I.R. 1953 Assam 112; Amar Premanand v. Stal•, A.I.R. 1960 M.P. 12 and A. K. Ray v.

State of West Bengal, A.I.R. 1962 Cal. 135 (F.B.), approved.

State v. Murlidhar Gavardhan, A.I.R. 1960 Bom. 240 and Ram Nandan v. State, A.I.R, 1966 Pat. 438, disapproved.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218 of 1966.

Appeal by special leave from the order dated August 5, 1966 of the Patna High Court in Criminal Revision No. 1020 of 1966,

AND Criminal Appeal No. 238 of 1966.

Appeal by special leave from the judgment and order dated September 13, 1966 of the Patna High Court in Criminal Revision No. 40 cif 1965.

B. P. Iha and Subhag Mal Jain, for the appellants (in Cr. A.

No. 218 of 1966).

Nuruddin Ahmed and R. C. Prasad, for the appellants (in Cr. A. No. 238 of 1966).

U. P. Singh, for the respondents (in both the appeals).

The Judgment of the Court was delivered by Vaidialingam, J.

The common question, that arises for consideration, in these two criminal appeals, by special leave, is as to whether a Magistrate can direct the police to submit a chargesheet, when the police, after the investigation inio a congnizable offence, had submitted a final report, under s. 173 of the Code of Criminal Procedure (hereinafter called the Code). There is a conflict of opinion, on this point between the various High Courts in India. The High Courts of Madras, Calcutta; Madhya Pradesh, Assam and Gujarat have taken the view that the Magistrate has no such power, whereas, the Patna and Bombay High Courts have held a contrary view. Jn Criminal Appeal No. 218 of 1966, the respondent, o:uesh Mishra, lodged a. first informat10n report, on June 3,

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1965, at the Rajoun Police Station, that he saw a thatched house, of one lJma Kant Misra, situated on the northern side of his house, burning, and the ptitioners herein, running away from the scene.

The police made an investigation and submitted what is called a 'final report', under s. 173(1) of the Code, to the effect that the offence complained of, was false.

The Sub-Divisional Magistrate received this report on July 13, 1965, but, in the meanwhile, the respond.nt had filed what is termed 'a protest petition', challenging the correctness of the report submitted by the police. The Magistrate appears to have perused the police diary and, after hearing the counsel for the respondent and the public prosecutor, passed an order on October 27, 1965, directing the police to submit a charge.sheet, against the petitioners, herein.

The petitioners challenged this order, without success, both before the learned Sessions Judge, Bhagalpur, and the Patna High Court. It was held .by the High Court, following its previous decision, that the Magistnite has jurisdiction to call for a charge-sheet, when he disagrees with the report submitted by the police, under s. 173 ( 1) of the Code. The petitioners. in this appeal, challenge these orders.

S1milarly, in Criminal Appeal No. 238 of 1966, the second respondent therein, had lodged a written report, on Fe)lruary 24, 1964, before the police, at Malsalami police station, that his daughter, Hiramani, was missing from February 21, 1964, and that the appellants in , that appeal, had kidnapped her. A case

under s. 366 I.P.C. was registered against them.

The police, after investigation, submitted a final report to the Magistrate, to the effect that the girl concerned, had been recevered and that she had stated that she had, of her own accord, eloped; and therefore the police stated that the case might be treated as closed; ·

The second respondent filed a 'protest petition' in Court, challenging the statements of the police and he also filed a complaint, under s. 498 I.P .C.

The Magistrate, after a perusal of the case diary of the police, and bl'.aring the lawyer for the appellants and the second respondent, a• also the public prosecutor) passed an order directing the .investigating officer to submit a charge-sheet, agiµnst the accused persons, under s. 366 I.P .C This order has been confirmed by the learned Sessions Judjle, as well as the Patna High Court.

Here also, the Patna High Court, in accordance with its previous decision, held that the Magistrate had jurisdiction to pass the order, in question.

All these. orders are challenged by the appellants, in this appeal.

On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha. learned counsel pointed out that when a final report is submitted by the police, under s. 173 (l) of the Code.

ABINANDAN v. D!NESH (Vaiaiaungam, J.) 671

A stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge-sheet.

It may be open, counsel points out, to the _Magistrate, to direct further investigation to be made by the police, or to treat the protest petition filed by the second respondent, as a complaint, and take cognizance of the offence and proceed, according to layv., The scheme 11 of Chapter XIV of the Code, counsel points out, clearly indicates that the formation of an opinion, as to whether or not there i5 a case to place the accused on trial, is that of the investigating officers, and the Magistrate cannot compel the police to form a par_ticular opinion on the investigation and to submit a r.eport, according to such opinion. In this case, there is nothing to show c that the protest petition, filed by the second respondent, has been

treated as a complain,!, in which case, it may be open to the Magistrate to take cognizance of the offence, but, in the absence of any such procedure being adopted according to counsel, the order of the Magistrate directing a charge-sheet tO be filed, is lllegal and not warranted by the provisions of the Code. These contentions have been adopted, and reiterated, by Mr. Nuruddin D Ahmed, on behalf of the appellants, in Criminal Appeal No. 238 of 1966.

Both the learned counsel pressed before us, for acceptance, the views, as expressed by the Gujarat High Court, in its F-ull Bench judgment, reported as State of Gujarat v. Shah Lakham- E shi('). On the other hand, Mr. U. P. Singh, learned counsel for the respondent, in Criminal Appeal No. 218 of 1966", has pointed ou, t that the Magistrate has jurisdiction, in proper cases, when he does not agree with the final report submitted by the police, to direct them to submit a charge-sheet. Otherwise, counsel points out, , the position will be that the entire matter is left to the discretion of the police authorities, and the Courts will be powerless, F even when they feel that the action of the police is not justified.

Quite naturally, counsel prays for acceptance of the views expressed by the dissenting Judges, in A. K. Roy v. State of W. B.(2) and by the Bombay and Patna High Courts, in .the decisions reported as State v. Murlidhar Govardhan(8 ), and Ram Nandan

v. State('), respectively.

Jn order, propely, . to appreciate the duties of e police, in the matter of 1nvestigat1on of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Gode. That chapter deals with 'Information to the Police and their Powers to investigate', and it contains the group of section beginning from s. 154 and ending with s. 176. Section 154 deals with information relating to the commission of a cognizable

(!)A. I, R. 1966 Guj, 283.

(2) A. I. R, 1962 Cal. 135 (F. B.).

(3) A. I. R. 1960 limn 240.

(4) A. I. R. 1966 Pat. 438,

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offence, and the procedure to be adopted in respect of the same.

Section 15 5, similarly, deals with information in respect of noli• cognizable offences. Sub-s. (2), of this section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorizes a police officer, in-charge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence.

Sub-s. (3), of s. 156, provides for any Magistrate empowered under s. 190, to order an investigation.

In cases where a cognizable offence is suspected to have been committed, the officer, in-charge of a police station, after sending a report to the Magistrate, is entitled, under s. 157, to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b ), of the proviso to s. 157 (1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Sectip_n 158 deals with the procedure to be adopted in the matter of"a rePort to be sent, under s. 157. Section 159 gives power to a Magistrate, on receiving a report under s. 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches, during an investigation, in tlie circumstances, mentioned therein.

Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours.

Section 168 provides for a report being sent to the officer, incharge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV.

Section 169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when so required, before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer, in-charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion, to justify the fonvarding of the accused to a Magistrate. Section 170 empowers the officer, incharge of a police station, after investigation unde.r Chapter XIV. and if it appears to him that there is st111icient evidence, to fonvard the accused, under custody, to a competent Magistrate or to take securtiy from the accused for his appearance before the Magistrate in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investiga?on, to maintain a diary recording the various particulars therein and in the

ABH!NANDAN v. DINESH (Vaidialingam, J.) 673

manner indicated in that section.

Section 173 provides for an investigation, under Chapter XIV, to be completed, without unnecessary delay .and also makes it obligatory, on the officr, incharge of the police station, to . send a report. to the Mgtstrate concerned, in the manner provided for therem, contammg the necessary particulars. It is now only necessary to refer to s. 190, occurring in Chapter XV, relating to jurisdiction of criminal Courts in inq.uiries and trials. That section is to be found under the headmg 'Conditions requisite for initiation of proceedings' and its sub-s. ( l) is as follows:

" ( I ) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistra'.c specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence; ( b) upon a report in writing of such facts made by any police-officer; ( c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed." From the foregoing sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing tha'. an investigation does take place into a reported offence and the inveitigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay.

But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same.

If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that 1here is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a

Mag1strat.~, s. 169 says that the officer shall release the accused if in custody. on h_is execu'.ing a bond to appear before the Magis'.

Irate.

S1m!larly, 1f, on the other hand, it appears to the officer,

rn-harge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or 1 easc; nable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under s. 170, to forward the accused to a Magistrate or, if the offence is bailable, to tajce security from him for his appearance before such Magistrate. But, whether a case comes under s. 169, or under s. 170, of the Code, on the completion of the investigation, the police officer has to L7SupCl/67-13

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submit a report to the Magistrate, under s. 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to fi!e a charge-sheet, on receipt of a report under s. 1.73 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.

In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor v. Khwaja Nazir Ahmed(') and by this Court, in H. N. Rishbud and Ind!!r Singh v. The State of Delhi('). In Nazir Ahmed's Case('), Lord Poiter observes, at 212, as follows:

"Just as it is essen'.ial that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry.

In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. fhe functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under s. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.

In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then."

These observations have been quoted, with approval, by this G Court, in State of West Bengal v. S. N. Basak('). This Court in Rishbud and lnder Singh's Case('), observes, at p. 1156, as follows:

"Investigation usually starts on information relating to the commission of an offence given to an officer incharge of a police station and recorded under sec- H

(t) L. R, 711. A, 203.

(2) [1955] I. S. C. R, 115 I.

(3) A. I. R. 1963 S. C. 447.

'.H

ABHINANDAN v. DINESH (Vaidialingam, J.) 675

tion l 54 ef the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by .him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.

Thus investigation primarily consists in the ascertainment of the facts and circums!ances of the case.

By definition, it includes 'all the proceedings under the Code for the collection of evidence conducted by a police officer'."

Again, after a reference to some of the provisions in Chapter XIV of the Code, it is observed at p. 1157 :

"Thus, under the Code investiga'.ion consists generaliy of the following steps : ( 1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case,

(3) Discovery and arrest of the suspected offender, ( 4) Collection of evidence relating to the commission of the offence which may consist of

(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and ( 5) Forma'.ion of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under section 173 ..... It is also clear that the final step in the investigation viz.. the formation of tlie opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station."

V'!~ are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly shows . that the formation of an opinion as to whether or not there is a case to place the accused on trial, has been left to the officer incharge of a police station.

Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in this case.

The High Courts which have held that the Magistrate has no jurisdiction to call upon the police to file a charge-sheet, under such circumstances, have rested their decision on two principles viz., (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of L7SupCl/67-14

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Chapter XIV, cannot be inferred-vide V enkata Subha v.

Anjanayulu('); Abdul Rahim v. Abdul Muktadin('); Amar Prctnanand v. Stare('); the majority view in A. K. Roy v. State of W. B.('); and State of Gujarat v. Shah Lakhamshi("). On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz., (a) when a report is submitted by the , POiice, after investigation, the Magistrate has to deal with it judtcially, which will mean that when the report is not accepted, the Magistrate can give suitable directions to the police; and (b) the Magistrate is given supervision over the conduct of investigation by the police, and therefore, such a power can be recognised in the Magistrattl-'-vide State v. Murlidhar Goverdhan( 6); arid Ram Nandan v. State(').

Though it may be that a report submitted by the police may have to be dealt with, judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law We do not also find any such power, under s. 173 ( 3), as is ., ought to be inferred, in some of the decisions cited above. As we have indicated broadly the apP.roach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail.

It will be seen that the Code, as such, does not use the expression 'charge-sheet' or 'final report'. But it is understood, in the Police Manual containing Rules and Regulations, that a report by the Police, filed under s. 170 of the Code, is referred to as a 'charge-sheet'.

But in respect of the reports sent under s. 169, i.e., when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either 'referred charge', 'final report', or summary'.

In these two appeals, which are from the State of Bihar, the reports, under s. 169, are referred to as 'final report' .. Now, the question as to what exactly is to dcme by a Mag1strte, on receiving a report. under s. 173, will have t'? be considered.

That report may be in respect of a case, commg under s. 170,

-(i) A IR 19:ffi.\.; d67J-

(2) A.l.R. 1953 Assam 112.

(3) A°I'R' 1960 Mp

0 12 . (4l A.l.R.1962 Cal. 135.

(5) Al:R: 1966 Gj.

0 283. .

(6) A.l.R. 1960 Born. 240. . (7l .A.l.R. 1966 Pat. 438.

ABHINANDAN v. DINESH (Vaidia/ingam, J.) 677

or one coming under s. 169.

We have already referred to s. 190, which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings.' Sub-s. (l), of this section, will cover a report sent, under s. 173. The use of the words 'may take cognizance of any offence', in sub-s. (1) of s. 190 in our opinion imports the exercise of a 'judicial discretion', and the Magistrate, who receives the rert, Ul)der s. 173, will have to consider the said report and judicially titlce a decision, whether or not to take cognizance of the offence.

From this it follows that it is not as if that the Magistrale is bound to accept the opinion of the police that there is a case for placing the accused, on trial.

It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for tak:ng cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under s. 190(1 )(b) of the Code. This will be the position, when the report undei' s. 173, is a charge-sheet.

Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under s. 173, that no case is made out for send<ing up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be . instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under s. 156 ( 3), to make a further inves'.igation.

That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direc'. th.~ police to make further investigation, under s. 156(3).

The police, after such further investigation, may submit a chargesheet, or, again submit a .final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence under s. 190 ( 1) ( c). notwithstanding the contrary opinion of the police. expressed in the final report.

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111 this connection, the provisions of s. 169 of the Ccide, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused,, to tal!; e a bond from him to appear, 'if and when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.

We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above.

We have already referred to. the schem11 of Chapter XIV,. as well as the observations of this Court in Rishbud and lnder Singh's Case(') that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of th.e nature under attack; nor can any such powers be implied.

There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police.

Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to tal!; e cognizance, under s. 190(1)(c) of the Code.

That provision, in our opinion, is obviously intended to secure that offences may not go , unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence.

Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the -commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under s. 190 ( 1 )( c), on the ground that, after having due rellard to the final report and the police records placed before hnn, he has reason to suspect that an offence has been committed.

Therefore. these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicate~ that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the officer in-charge of the police station and that opinion determines whether the report is to be under s .. 170. being a 'charge-sheet', or under s. 169, 'a final report' It is no (i).[t9ss1ls.c.R. 11so:- ···-

. j

ABliINANDAN v. DINESH (Vaidialingam, J.) 67~

doubt open to the Magistrate, as we have already pointed. out, to accept or disagree with lhe opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us.

But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion. fonned by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to fonn an opinion so as to accord with the decision of the Magistrate and send a report, either under s. 169, or under s. 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code.

We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final rport is dependent on the nature of the opinion, so formed.

The formation of the said opinion, by the police, as pointed out earlier, is the tina.l step in the investigation, and that final step is to be taken only by the police and by no other authority.

The question can also be considerd from another point of view.

Supposing the police send a report, viz., a charge-sheet, under s. 170 of the Code.

As we have already pointed out, the Magistrate is not bound to accept that report, when he considers the matter judicially.

But, can he differ from the police and call upon them to submit a final report, under s.169? In our opinion. the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police -to submit a charge-sheet when the police have submitted a final report that no case is made out for sending the accused for trial.

The functions of the Magistracy and the police, are entirely different, and though, in the circumstance5 mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to challge their opinion, so as to accord with his view.

Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on .a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under s. 169 of the Code, that there is no case made out for sending up an accused for trial.

L7 Sup. Cl/67--15

SUPREME COURT REPORT$

In these two appeals, one other fact will have to be taken note of.

It is not very clear as to whether the Magistrate, in each of these cases, has chosen to treat the protest petitions, filed by the respective respondents; as complaints, because, we do not find that the Magistrate has adopted the suitable procedure indicated in the Code, when he takes cognizance. of an offence, on a complaint made to him. Therefore, while holding that the orders of the Magistrate, in each of these cases, directing the police to file charge-sheets, is without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective pro-- test petitions, as complaints, and take further proceedings,

according to law, and in the light of the views expressed by us, in this judgment.

Mr. Nuruddin Ahmed, learned counsel for the appellants in Criminal Appeal No. 238 of 1966, particularly urged that it is unnecessary to direct further proceedings to be continued, so far as his clients are concerned. Learned counsel pointed out that the police report before the Magistrate clearly shows that the girl, in question, who is stated to be above 19 years of age, has herself stated that she had eloped, of her own accord and that if that is so, further proceedings against his clients, are absolutely unnecessary, to be continued.

We are not inclined to accept these contentions of the learned counsel.

As to whether an offence is made out or whether any of the appellants or both of them are guilty of the offences with which they may be charged, are all matters which do not require to be considered, by this Court, at this stage.

Jn the result, subject to the directions contained above, the orders of the Magistrate, directing the police to file a charge, will be set aside, and the appeals allowed, to that extent.

V.P.S.

Appeals allowed.

ABHINANDAN JHA & ORS

DINESH MISHRA

April 17, 1967

M. HIDAYATULLAH

Code of Criminal Procedure

ss. 169, 170, 173 and 190(1)

s. 169

s. 169

s. 170

s. 169

s. 170

s. 173

s. 190

s. 170

s. 169

s. 156(3)

s. 170

s. 190(1)

s. 169

s. 190(l)(c)

s. 190(1)(a)

B. P. Iha

Subhag Mal Jain

Nuruddin Ahmed

R. C. Prasad

U. P. Singh

Vaidialingam

s. 173

Code of Criminal Procedure

India

High Courts of Madras, Calcutta

Patna and Bombay High Courts

[1967] 3 S.C.R.

1965

lJma Kant Misra

s. 173(1)

July 13, 1965

October 27, 1965

Sessions Judge, Bhagalpur

Patna High Court

s. 173

Fe)lruary 24, 1964

Hiramani

s. 366

I.P.C

s. 498

s. 366

Jha

s. 173

Chapter XIV of the Code

Nuruddin D Ahmed

Gujarat High Court

U. P. Singh

Bombay and Patna High Courts

s. 154

s. 176

Section 154

Section 15

Section 156

s. 156

s. 190

s. 157

s. 157

s. 157

Section 159

s. 157

Sections 160 to 163

Sections 165 and 166

Section 167

Section 168

Section 169

Section 170

Section 172

Section 173

s. 190

s. 169

s. 170

s. 169

s. 170

s. 173

s. 1

Nazir Ahmed

Poiter

s. 491

Rishbud

lnder Singh

Chapter XIV of the Code

section 173

s. 173

s. 170

s. 169

State of Bihar

s. 169

s. 173

s. 170

s. 169

s. 190

s. 173

s. 190

s. 173

s. 190(1 )(b)

s. 173

s. 173

s. 156

s. 156(3)

s. 190

s. 169

s. 190(1)(c)

s. 190

s. 169

s. 169

s. 170

s. 170

s. 169

Nuruddin Ahmed


ESTHURI ASWANTHIAH v.

COMMISSIONER OF INCOME-TAX, MYSORE

April 18, 1967.

(J. C. SHAH, S. M. S!KRI AND V. RAMASWAMI, JJ.J

Ind/an Income-tax Act, 1922-Cash credits-Income from undisclosed sources-Appellate Tribunal adding such income on concession from counsel-Duty 10decide on evidence-Tribunnrs duty when dealing with case after receiving opinion of High Court in. reference.

On July 1, 1949 the assessee who carried on business in Mysore State brought into his books of account an opening cash balance of Rs. 1,87,000. The Income-tax Officer held that out of the above sum Rs. 1,37,000 was the assessee's income from undisclosed sources. The assessee's explanations were rejected by the Income-tax Officer and in appeal by the Assistant Commissioner. The Appellate Tribunal considered that on the facts of tho case it was not unlikely that on the rel•·

vant date the asseS'See had some cash but held Rs. S0,000 to be income from undisclosed sources observin~ : "[Counsel] for the assessee also stated that his client was prepared to be asses>ed on Rs. S0,000". In reference the High Court held that the Tribunal's conclusion was based on no evidence. The assessee appealed.

HELD : The function of the Tribunal hearing an appeal is purely judicial. It is under a duty to decide all question of fact and law raised in the appeal before it : for that purpose it must consider whether on the materials relied upon by the assessee his plea is made out The Tribu nal cannot make arbitrary decisions.

Jts order in the present case without recording any reasons in support of _the estimate of unaccounted income could not, therefore, be sustained. There was also substance in tho assessee's plea that evidence in his favour had. not been properly considered and that his case had not been fairly tried.

(6840.F; 685AB) Income-tax Appellate Tribunal, Bombay <l Ors. v. S. C, Cambatta & Co. Ltd., 29 J.T.R. 118 and Rajkumar Mills Ltd. v. Income-ta.< Appellate Tribunal, 33 I.T.R. 750, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 631 of 1966.

Appeal by special leave from the judgment and order dated November 23, 1964 of the Mysore High Court in Income-tax Revision Petition 6 of 1964.

K. Srinivasan and R. Gopalakrishnan, for the appellant.

S. T. Desai, A. N. Kirpa/, S. P. Nayyar for R. N. Sachthev, for the respondent.

The Judgment of the Court was delivered by Shah, .l.-The appellant a trader in groundnuts and other commodities in the State of Mysore was taxed under the Mysore Income-tax Act, 1923, for the assessment years ending with the assessment year 1949-50.

On July 1, 1939, the l.\SSessee brought

SUPREME COl!RT RllrORTS

{1967] 3 S.C.R.

into his books of account an opening cash balance of RsJ,87,000.

In proceedings for assessment to tax for the year which ended June 30, 1950 the assessee was called upon to explain that entry and to produce his books of account of the earlier years. The assessee pleaded that his book_s of account upto June 30, 1949, were Jost and that the amount of Rs. 1,87 ,000 represented "cash brought from an iron safe kept in his house".

The Income-tax Officer found that in each previous year when the asscssee was assessed under the. Mysore Income-tax Act, he had pleaded that his books of account were either Jost or stolen in the succeeding year.

The Income-tax Officer was of the view that the assessee had probably an amount of Rs. 50,000 on hand representing a cash balance brought forward from the previous year. and that the balance of Rs. 1,37,000 was the assessee's income from undisclosed sources.

The order passed by the I ncomc-tax Officer assessing to tax the incoine of the assessee for the yar 1951-52 was set aside by the Appellate Assistant Commis•ioner on the ground that under s. 2 (11) of the Income-tax Act, 1922, the previous year for the income from other sources could only be the financial year ending March 31, 1950. Giving effect to this finding, the Income-tax Officer issued a notice of reassessment under s. 34 of the Indian Income-tax Act for bringing to tax the amount disclosed by the books of account of the assessee for the assessment year 1950-51.

The assessee submitted a petition to the High Court of Mysore for a writ declaring that the notice under s. 34 of the Act issued by the Income-tax Officer was without jurisdiction, and for an order quashing the notice and proceedings consequent thereon.

This petition was dismissed by the High Court of Mysore and the order was confirmed by this Court in appeal.

In the meanwhile the Income-tax Officer completed the assessment for the year 1950-51 and brought to tax Rs. 1,37,000 as income from undisclosed sources which had escaped tax. The assessee's contention that he had assets on hand exceeding Rs. 1,55,000 from his share of the joint family property, business income and other sources, and those assets were brought into his books of account on July 1, 1949. was rejected by the Income-tax Officer.

The order passed by the Income-tax Officer was confirmed in appeal by the Appellate Assistant Commissioner.

The assessee appealed to the Appellate Tribunal and contended, inter a/ia, that the evidence produced by . him showed that he had with him on October 27. 1946. in his bank account Rs. 1,38.946 that he had received Rs. 55,846 as his share on partition of the joint family of which he was a member, and that besides these sources he had agricultural income..

The Income-tax Appellate Tribunal modified the order of the Appellate Assistant Commissioner and brought to tn~

ESTHURI AS\\'ANTH!AH I', C.l.T, lS/111/r, /.) 683

Rs. 50,000 as income from undisclosed sources. The reasons recorded by the members of the Tribunal may be set out in their own words:

"It is clear that the assessee has not been able to explain the source of Rs. 1,37,000 satisfactorily.

But there have been trading additions for the assessment years 1951-52 and 1952-53 of Rs. 27,899 and Rs. 85,000. But the assessee has not proved t.hat this amount was all intact and besides, as pointed out by the Departmental Representative, the bank balance on 22 l 0-1946 would not have represented the cash poss essed by the assessee and at the same time, it is not unlikely that the assessee had some cash having regard to the trade in jaggery. the assets got On partition in the Hindu undivided family and other sources; the Counsel for the assessee also stat.ed that his client was prepared to be assessed on Rs. 50,000. So we direct that the addition must be confined to Rs. 50,000 only."

The Tribunal drew up a statement of the case under s. 66 ( 2) of the Income-tax Act and submitted three questions to 'the High Court of Mysore, of which the second and the third questions are relev11nt for the purpose of this appeal :

"2, Havin& found that the assessee was not ablo to explain satisfactorily the source of the credit of Rs. 1,37,000. whether the Tribunal had any material to come to the conclusion that the addition of Rs. 1,37,000 inade by the Income-tax Officer as the lnoome from undisclosed sources should be reduced to Rs. 50,000 only ?

3. Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in reducing the addition of Rs. 1,37,000 to Rs. 50,000 as income from undisclosed sources ?"

The High Court answered the two questions in the negative. The High Court observed 'that the Tribunal's conclusion that out of the amount brought to tax by the Income-tax Officer only

R~. 50,000 represented income from undisclosed sources was based on no evidence. The High Court observed :

"The finding . . . , shows that the Tribunal also did not accept the explanation given by the assessee as regards the cash credit entry on .1-7-1949. But strangely enough, the Tribunal, for no reason whatsoever, came .to the conclusion that the unaccounted income may be es'timated at Rs. 50,000. We do not

know how the offer of the counsel for the assessee was at all relevant. The Tribunal's sunnise about the assessee's income from .iaggery trade and the receipt by him at the time of the partition in his family is not based on any material.

Surmises have no place in judicial and quasi-judicial proceedings."

The judgment recorded by the Tribunal has not the merit of clarity or of consistency.

The Tribunal commenced by disbelieving the explanation of the assessee relating to. the source of the credit entry.

After some inconclusive statements it proceeded to record that it was nO't unlikely that the assessee had some cash on hand from profits earned in the trade from jaggery, and from assets received on partition of the ioint family of wMch the assessee was a member.

In estimating Rs. 50,000 as the income from undisclosed sources, 'the Tribunal merely relied upon the offer made by counsel for the assessee.

This was an unsatisfactory way of disposing of the appeal.

The function of the Tribunal in hearing an appeal is purely judicial. It is under n duty to decide all questions of fact .and law raised in the appeal before it : for that purpose it must consider whether on the materials relied upon by the assessee his plea is made out.

Conclusive proof of the claim is not predicated : the Tribunal may act upon probabilities, and presumptions may supply gaps in the evidence which may not on account of delav or the nature of the transactions or for other reasons be supplied from indeoendent sources.

But the Tribunal cannot make arbitrary decisions :· it cannot found its judgment on conjectures, surmises or speculation.

Between the claims of the public revenue and of the tax-payers, the Tribunal must maintain a judicial balance. . The order passed by the Tribunal without recording any reasons in support of the estimate of unaccounted income cannot, therefore, be sustained.

But counsel for the assessee saidl that the case of the assessee had not been fairly tried. He said that there was on the record evidence that in a partition suit between the assessee and his brother the assessee received on June 30, 1949 an amount of

'Rs. 48,500 and Rs. 14,647 and Rs. 13,116 representing "money

bonds".

He also said that the assessee had made a profit of G Rs. 70,000 in his business in iaggery, that between November 18. 1946 and December 16, 1948, the assessee had drawn cheques "to self' on the Mysore Bank for Rs. 1.67 ,800, and between January 18, 1947 and November 25, 1947 the assessee had drawn \ cheques "to self' for Rs. 52,255, and that on October 22. 1946 \ the assessee had in his Bank Account a balance of Rs. 1,39,946.

H Counsel col'ltended that the assessee had at the material time larl!; e funds which could have been brought into the books of account on July 1, 1949, but the Tribunal failed to consider the evidence

llSTHUll! ASWANTiiIAii v, C.!.T. (Shah, ).) 685

and had merely accepted the offer made by counsel for the assessee that he should be assessed in the sum of Rs. 50,000.

For the reasons already recorded, we agree with the answers recorded by the Hign Court on the two questions.

But it is necessary to give certain effective directions, lest a bald order of dismissal of the appeal may result in injustice, espe cially when the assessee had not a fair trial of his case before the Tribunal. Section 66 ( 5) of the Indian Income-tax Act, 1922, requires the Tribunal on receiving a copy of the judgment of the High Court to pass such orders as are necessary to dispose of the case conformably to such judgment. This clearly imposes an obligation upon the Tribunal to dispose of the appeal in the light of and conformably with the judgment of the High Court. Before the Tribunal passes an order disposing of the appeal, there would 1 normally be a hearing. The scope of the hearing must of course depend upon the nature of the order passed by the High Court.

If the High Court has agreed with the view of the Tribunal, the appeal may be disposed of by a formal order : if the High Court disagrees with the Tribunal on a question of law the Tribunal must modify its order in the light of the order of the High Court : if the High Court has held that the judgment of the Tribunal is vitiated, because it is based on no evidence or that it proceeds upon conjectures, speculation or suspicion, or has been delivered after a trial contrary io rules of natural justice, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the High Court and on the merits of the dispute. In all cases, however, opportunity must be afforded to the parties of being heard In income-tax Appellate Tribunal, Bombay & Ors. v. S. C.

Cambatta & Co. Ltd. (') the Bombay High Court explained the procedure to be followed in the disposal of an appeal conformably to the judgment of the High Court. Chagla C. J. in delivering the judgment of the Court observed : ' ' ". . . . when a reference is made to the High <; ourt either under s. 66(1) or section 66(2) the deci: s1on of te Appellate Tnbimal cannot be looked upon as final; m o'!ter words, the appeal is not finally disposed of. . It 1s only when the High Court decides the c.ase, exercises !ts advisory juri.sdiction, and gives directions to the nbunal on qllestmns of law, and the Tri .bunal reconsiders the matter and decides it that the appeal is finally disposed of ' t ·

clar that what the Appellate Tn'bunal ls doing. aftr t~!

High Court has heard the case is to exercise its appellate powers under section 33. . . . . The shape that _ the ~...!'.ealould ultimately take and the decision that II) 29 f.T.R, 118. ---· --· -

the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court."

A similar view was expressed by the Bombay High Court in Raikumar Mills Lttl. v. lncome, tax Appellate Trlbuna/( 1).

The High Court has held, and we agree with the High Court, that the judgment of the Tribunal is based on no reasoning and is on that account speculative. But by recording that answer, it is not to be implied that the order of the Appellate Assistant Commissioner is confirmed. It will be the duty of the Tribunal, conformably with the judgment of the High Court, to dispose of the case after hearin~ the assessee and the Commissioner in the light of the evidence and according to law.

Subject to this direction, the appeal is dismissed.

The appellant wilt pay the costs of the Commissioner in this appeal.

G.C .

Appeal dismissed.

ESTHURI ASWANTHIAH

COMMISSIONER OF INCOME-TAX, MYSORE

April 18, 1967

C. SHAH

V. RAMASWAMI, JJ

Income-tax Act, 1922

K. Srinivasan

R. Gopalakrishnan

S. T. Desai

A. N. Kirpa/

S. P. Nayyar

R. N. Sachthev

Shah

Income-tax Act

July 1, 1939

June 30, 1950

June 30, 1949

Mysore Income-tax Act

s. 2

Income-tax Act, 1922

March 31, 1950

s. 34

Income-tax Act

High Court of Mysore

s. 34

July 1, 1949

October 27. 1946

Income-tax Appellate Tribunal

22 l 0-1946

s. 66

Income-tax Act

Mysore Bank

January 18, 1947

November 25, 1947

October 22. 1946

Section 66

Indian Income-tax Act, 1922

Bombay High Court

Chagla

s. 66(1)

section 66(2)

Tnbimal

section 33


SA WAN RAM & OTHERS

KALA WANTI & OTHERS

April 19, 1967

(K, N. WANCHOO, C.1., V. BHAllGAVA AND 0. K. MITTBR, J.1,]

Hindu A.doptlon.r and Malntenanc. A.ct, 1956 (78 of 1956) S1. 9(2) and 12-D11d mltu adoption 6'v1n by f/111'11118 and con.r1111 by motlilr, If v1111d-Adop1lon by widow, If allo to h111band-

A. widow, whole hmband had died before the Hindu Succealon A.ct Clllll Into force, od respondent 2 after the lllforcement of the Act.

Oii the widow\ du the at, the -t menloner of her hmbllld, flied I ault Ill the adC?Ption, The trial c:ourt dl1ml-' the llllt. whlob, In apptll, the Hlab court uphelcl, In appeal, to thla CoUrt the at oontended that (I) the adoption wasillvalld Wider oL (II) of s. 6 read with s. 9(2) ol the Hllldu Mc>Ptlona 111d Malnte- Dllllle Act 11 tho ion wu slven In idoPtlon bY his mOther even thouah Illa father wu alive; and (ii) under the Rindu Adoptions and Maintenance Aat, 111 Independent rlaht of adoption Is slven to Hilldu female and If a wldOw adopti a ion, hi becomes the adoPtecl 1011 of the widow only and wu DOt dffmed to be the 1011 of her dlCeued huiband.

HBLD : The appeal muit be d!trnl.....,,

<lfun The evidence Oii record atablilhed that the IOll waa t; i ID ='had t?.!1v:'~1t ~~~:nr t a1Udll the falhii'. The foUOwlna Hlltace lllath!I that the mother o tile E bor had .'put her thumbomlrk hereunder In tom of her COJ11111t,' wu puf In the deed, becauae 1. 9(2) of the AdOl)lion~ end Melntena"c• Act -tlom that the father Is not to elordN hla rlaht Of slvlna his child lo adoDtlon, Ave with the OOllHllt of the mother. ''The COllHllt of the mother" havlna been Uled Ill the Act which wu applicable, the drafts. men of the deid Included ill It the f11t that the boy'1 mother had actual ly alven hll' conaeat and obtained her thumb-lmprelllon In token thenof, F

[~DHJ

(Ii) The provision In 1. 12 of the Act, mak11 It clear that, on adoDtloll bY a Hilldu female who has been married, the adopted aoa will, In t, be. the adopted of her hmband also. Under the Shutrlc Law, if a child wu aCIOplld bY a widow he wu treated u a natural-born child 111d; comequently, he could ht other members of the family of rlahts v11ted ID them prior to his adoption. It waa onlY with. the G limited object of avoldlna any such oonce on the adoption of a cblld by a Hindu widow that the provislomi In clauae (c) of the proviso to a. ~2, and section 13 of the AC! were Incorporated In that !'9IPICt. the rlahts of the. :Ctecl child were reitrlcted. It Is to' be noted that this m::cllon was pl on the rights Of a child idopted by either 1 male u or a female Hindu and not r; Ill a cue of acloptfon by a ~~!_nleaddu. This reitrlcllo11 on tho rl ta of the i!IOPted cb11d ca1111ot

um&WRI, tO Illy Inference that I C adopted by I widow will noi H - ~B1eemed to be the adopted son of her deceased huiband. [694B.C.

And~':i 0 w!"k1~R:'~,, ais6; Cs~:'lnumayya and another, [1964) 1

CIVIL APPELLATE JurusmcnoN: Civil Appeal No. 728 of 1964.

Appeal by special leave from the judgment and decree dated September 25, 1961 of the Punjab High Court in Civil Regular Second Appeal 343 of 1961.

S. K. Mehta and K. L. Mehta, for the appellant.

A. [). Mathur, for the respondents.

The Judgment of the Court was delivered by Bhargava, J.

One Ramji Dass died leaving behind a widow, Smt. Bhagwani. At the time of his death, he owned some land and a house. 4 bighas and 17 biswas of the land were mortgaged by.Smt. Bhagwani on 2nd May, 1948 in favour.of respondent No. 3, Babu Ram.

Later, on 22nd August, 1949, she executed a deed of gift in respect of the house and the land covering an area of 50 bighas and 14 biswas in favour of Smt. Kala Wanti who was related to her as a grand-niece. Sawan Ram appellant instituted a suit for a declaration that both these alionations were without legal necessity and were not binding; on him, claiming that he was the nearest reversioner of Ramji Dass, being his collateral. In that suit, Smt. Bhagwani, the donee, Smt.

Kala Wanti, respondent No. 1, and the mortgagee, Babu Ram, resoondent No. 3, were impleaded as defendants. That suit was decreed and Smt. Bhagwani went up in appeal to.the High Court.

During the pendency of the appeal, Smt. Bhagwani adopted res,., ondent No. 2, Deep Chand, the son of Brahmanand and his wife, res., ondent No. 1, Smt. Kala Wanti. A deed of adoption was executed by her in that respect on 24th August, 1959. The appeal was dismissed in spite of this adoption.

Smt. Bhagwani died on 31st October, 1959, and thereupon, the appellant brought a suit for possession of the house and the land which had been gifted by Smt. Bhagwani to respondent No. 1 as well as for possession of the land which she had mortgaged with respondent No. 3. It was claimed that Smt. Bhagwani had only a life interest in all these properties, because she had divest- ed herself of all the rights in those properties on 22nd August, 1949, before the Hindu Succession Act, 1956 (No. 30 of 1956) came into force.

The adoption of Deep Chand was also challenged as fictitious and ineffective.

It was further urged that, even if that adoption was valid, Deep Chand became the adopted son of Smt. Bhagwani and could not succeed to the properties of Ramji Dass. The suit was dismissed by the trial court, holding that the adoption of Deep Chand was valid and that, though Smt.

Bhagwani had not .become the full owner of the proper!J: under the Hindu Succession Act, 1956, Deep Qtand was entitled to succeed to the property of Ramji Dass in preference to the appel !ant, so that the appellant could not elaim possession of these properties.

That order was upheld by the High Court of Punjab, and the appellant has now com~ up to this Court in appeal by special leave.

In this appeal before us, only two points have been urged by learned counsel for the appellant.

The first point taken is that, even though the appellant did not challenge the finding of fact that respondent No. 2 was, in fact, adopted by Smt. Bhagwani, that adoption was invalid under clause (ii) of section 6 read with sub-s. (2) of s. 9 of the Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956) (hereinafter referred to as "the Act").

It is urged that, under s. 9(2) of the Act, if the father of a child is alive, he alone has the right to give in adoption, though the right is not to be exercised, save with the consent of the mother. In this case, reliance was placed on the language of the deed of adoption dated 24th August, 1959, to urge that Deep Chand was, in fact, given in adoption to Smt. Bhagwani by his mother, respondent No. 1, even though his father, Brahmanand, was alive.

This point raised on behalf of the appellant is negatived by the evidence on the record. There is oral evidence of the adoption which has been accepted by the lower courts, and it shows that Deep Chand was given in adoption by both the parents to Smt. Bhagwani. Even the deed of adoption dated. 24th August, 1959, on which reliance was placed on behalf of the appellant in support of this argument, does not bear out the suggestion that Deep Chand was given in adoption by his mother and not by his father.

The deed clearly mentions that "the parents of Deep Chand have, of their own free will, given Deep Chand to me, the exccutant, today as my adopted son." This recitation is followed by a sentence which states : "Mst. Kala Wanti, mother of Deep Chand, has put her thumb-mark hereunder in token of her consent" It was from this solitary sentence that infe.rence was sought to be drawn that Deep Chand had been given in adoption .by his mother, Kala Wanti and not by the father.

The deed, in the earlier sentence quoted above, clearly mentions that Deep Chand had been given in adoption by his "parents" which necessarily includes the father.

This later sentence, it appears, was put in the deed, because s. 9 ( 2) of the Act mentions that the father is not to exercise his right of giving his child in adoption, save with the consent of the mother. "The consent of the mother" having been used in the Act which was applicable, the draftmen of the deed included in it the facl that Deep Chand's mother had actually given her consent and obtained her thumb-impression in token thereof. This mention of the consent cannot, in these circumstances, be held to show that it was the mother who, in fact, gave the child in adoption and not the father.

The second point and the one, on which reliance is mainly placed by learned counsel for the appellant, is that, according

690 SUPREME COURT Rl!PORTS

(1967] 3 S.C.R.

to him, under the Act, an independent right of adoption is given A to a Hindu female and if a widow adopts a son, he becomes the adopted son of the widow only and is not to be deemed to be the son of her deceased husband. Under the Shastric Hindu Law, no doubt, if a Hindu widow made an adotion after the death of. her husband on the basis of collSllllt obtamed from him in his lifetime, the adopted son was deemed to be the soil of the deceased husband also; but it is urged that the Act lias completely changed this policy. In support of this rroposftian:, learned c9unsel dicw our attention to the provisions o s. 8 of the Act; under which any female Hindu, who is of sound mind, who i$ not a minor, and who is not married, or if married, whose marriage has been dis solved or whose husband is dead or has completely and finally c renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of µnsound mind, has been granted the capacity to take a son or a daughter in adoption. Then .reference was made to s. 12 of the Act, which runs as follows :-

"12. An adopted child shall be deemed to be the child of his or her adoptive father or mother.for all pur poses with effect from the date of adoption and from such date all the :tics of the child In the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption In the adoptive family; Provided that- ( a) the child cannot marey any person whom he or she could not have married If he .. or she had continued

In the family of his or her birth(

(b) any property which vested In the adopted child before the adoption shall continue to vest In such person subject to the obligations, if any, attaching to the owner ship of such property, Including the obligation to main

tain relatives in the family of his or her birth; ( c) the adopted child shall not divest any person of any estate which vested in him or her before the adop tion."

Reliance was also placed on sections 13 and 14 of the Act G which are reproduced below:-

"13. Subject to any agreement to the contrary, an adoption does not depnve the adoptive father or mother of the power to dispose of his or her property by trans

fer inter vivos ot by will.

14. (1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.

SAWAN RAM v. KALA WANTI (Bhargava, I.) 691

( 2) Where an adoption has been made with the consent of more than one wife, the seniormost in mar

rlage among them shall be deemed to be the adoptive mother and the others to be step-mothers. ( 3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child. ( 4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.'' On the basis of these provisions, it was urged that the scheme of the Act is that, when a Hindu female adopts a child, he becom~ the adopted son of the Hindu female only and does not necessarily become the son of the deceased husband, if the Hind11 female be a widow.

Emphasis was laid on the fact that even an unmarried female Hindu is permitted to take a son or daughter in adoption and in such a case, naturally, no question would arise of the adopted child becoming the adopted son of a Hindu male also. In this connection, reliance was placed on a decision of the High Court of Andhra Pradesh in Nara Hanumantha Rao v.

Nara Hanumayya and Another(1 ). For convenience, the facts of that case may be briefly reproduced as given in the head-note to indicate the question of law that fell to be decided. A and his two sons B and C were members of a Hindu joint family.

B died on 26th August, 1924 leaving behind his widow D. A died in the year 1936. On 17th June, 1957, D adopted E, and E filed the suit against C and his son F for partition and separate possession of a half share in the properties. The trial court held : ( 1) that there is a custom among the members of the Kamma caste, to which the parties belonged, whereby the adoption of a boy more than 15 years old is valid; and (2) that the adoption of E could not have the result of divesting the interest of B that had vested in C long prior to the date of the adoption, having re gard to the provisions of the Act. In appeal, the High Court upheld the decision of the trial court on both the points that were raised. The existence of the caste custom, by which boys aged more than 15 years could be adopted, was held to be sufficiently proved by evidence. Then the High Court proceeded to consider the provisions of the Act to find out whether E could claim a share in the property of B, the deceased husband of D who had adopted him. The learned Judges of the High Court enumerated the contents of the various relevant sections of the Act and then proceeded to consider whether E could claim a right in the pro perty left by B. The Court, after reproducing the provisions of s. 12 of the Act held :

(I} [1964] I Andhra Weekly Reporter, 156.

692 SUPREME WURT .Klll'URTS LIo/J :J' s.<.:.K.

"Under the terms of the above section, an adopted child is deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. Relying on the words "for all purposes", it is argued that the adopted child has the same rights and privileges in the family of the adopter as the legitimate child.-From the language of the section, it is manifest that an adopted child is deemed to be the child of his or her adoptive father or mother. The use of the word "or" between the words "father" and "mother" makes this abundantly clear. The use of the expression "with effect from the date of adoption" as also the language of clause ( c) of the Proviso are important. The expression_ "with effect from the date of adoption" introduces a vital change in the pre-existing law.

Under the law as it stood before the Act came into operation, the ground on which an adopted son was held entitled to take in defeasance of the rights acquired prior to his adoption was that, in the eye of law, his adoption related back, by a legal fiction, to the date of death of his adoptive father.

The rights of the adopted son, which were rested on the theory of "relation back", can no longer be claimed by him. This is clear from the specific provision made in s. 12 that the rights of the adoptee are to be determined with effect from the date of adoption. Clause ( c) of the Proviso to s. 12 lays down the explicit rule that the adoption of a son or daughter by a male or female Hindu is not to result in the divesting of any estate vested in any person prior to the adoption."

When finally expressing its opinion on the question of law, the Court said:

"The Act has made a notable departure from the previous law in allowing a widow to adopt a son or daughter to herself in her own right. Under the Act, there is no question of the adopted child divesting of any property. vested in any person or even in herself.

The provisions of section 13 make this pQ§ition clear, by providing that an adoption does not deprive the adoptive father or mother of the powers to dispose of his or her property by transfer inter vivos or by will ...

On a fair interpretation of the provisions of section 12 of the Act, we are of the opinion that the section has the effect of abrogating the ordinary rule of Mitakshara Jaw that, as a result of the adoption made by the widow, the adoptee acquires rights to the share of his deceased

adoptive father which has passed by survivorship to his father's brothers." We are unable to accept this interpretation of the provisions of the Act by the Andhra Pradesh High Court as it appears to us that the High Court ignored two important provisions of the Act and did not consider their effect when arriving at its decision. The first provision, which is of great significance, is contained in s. 5 ( 1) of the Act which lays down : "No adoption shall be made after commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void." It is significant that, in this section, the adoption to be made is mentioned as "by or to a Hindu". Thus, adoption is envisaged as being o.f two kinds. One is adoption by a Hindu, and the other is adoption to a Hindu. H the view canvassed on behalf of the appellant be accepted, the consequence will be that there will be only adoptions by Hindus and not to Hindus. On the face of it, adoption to a Hindu was intended to cover casei. where an adoption is by one person, while the child adopted becomes the adopted son of another person also. It is only in such a case that it can be said that the adoption has been made to that other person. The most common instance will naturally be that of adoption by a female Hindu who is married and whose husband is dead, or has completely and finally renounced the world, or has been declared by a court of competent jurisdiction to be of unsound mind.

In such a case, the actual adoption would be by the female Hindu, while the adoption will be not only to herself, but also to her husband who is dead, or has completely and finally renounced the world or has been declared to be of unsound mind.

The second provision, which was ignored by the Andbra Pradesh High Court, is one contained in s. 12 itself. The section, in its principal clause, not only lays down that the adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. but, in addition, goes on to define the rights of such an adopted child. It lays down that from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. A question naturally arises what is the adoptive family of a child who is adopted by a widow, or by a married woman whose husband has completely and finally renounced the world or has been declared to be of unsound mind even though alive.

It is well-recognized that, after a female is married, she belon2s to the family of her husband. The child adopted by her must also, therefore, belong to the same family. On adoption by a widow. therefore, the adomed son is to be deemed to be a member of the family of the deceased husband of the widow. Further till, he loses all his rights in the family of his birth and those rights

are replaced by the rights created by. the adoption in the adoptive family.

The right, which the child had, to succeed to property by virtue of being the son of his natural father, in the family of his birth, is, thus, clearly to be replaced by similar rights in the adoptive family and, consequently, he would certainly obtain those rights in the capacity of a member of that family as an adopted son of the decell$Cd husband of the widow, or the married female, taking him in adoption. This provision in s. 12 of the Act, thus, ttself makes it clear that, on adoption by a Hindu female who has been married, the adopted son will, in. effect. be the adopted son of her husband also.

This aspect was ignored by the Andhra Pradesh High Court when dealing with the effect of the language used in other parts of this section.

It may, however, be mentioned that the conclusion which we have arrived at does not indicate that the ultimate decision given by the Andhra Pradesh High Court was in any way incorrect. Ni we have mentioned earlier, the question in that ca.Se was whether E, after the adoption by D, the widow of B, could divest C of the rights which had already vested in C before the adoption. It is significant that by the year 1936 C was the sole male member of the Hindu joint family which owned the disputed property.

B died in the year 1924 and A died in 1936. By that time, the Hindu Women's Rights to Property Act had not been enacted and, consequently, C, as the sole male survivor of the family became full owner of that property. In these circumstances, it was clear that after the adoption of E by D, E could not divest C of the rights already vested in him in view of the special provMon contained in clause (c) of the proviso to s. 12 of the Act. It appears that, by making such a provision, tlie Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously. Under the Shastric law, if a child was adopted by a widow, he was treated as a natural-born child and, con!lequently, he could divest other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause ( c) of the proviso to s. 12, and section 13 of the Act were incorporated. In that respect, the rights of the adopted child were restricted. It is to be noted that this restriction was placed on the rights of a child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu.

This restriction on the rights of the adopted child cannot, therefore, in our opinion, lead to any inference that a child adopted by a Widow will nClt be deemed to be the adopted son of her deceased husband. The second ground taken on behalf of the appellant also, therefore, fails.

The appeal is, consequently, dismissed with costs.

Y.P.

Appital dismissed.

SA WAN RAM & OTHERS

KALA WANTI & OTHERS

April 19, 1967

N. WANCHOO

s. 6

s. 9(2)

Malnte- Dllllle Act

Uled Ill the Act

section 13

S. K. Mehta

K. L. Mehta

A. [). Mathur

Bhargava

Ramji Dass

Bhagwani

2nd May, 1948

Babu Ram

22nd August, 1949

Kala Wanti

Sawan Ram

Ramji Dass

Kala Wanti

Deep Chand

Brahmanand

24th August, 1959

31st October, 1959

Hindu Succession Act, 1956

Deep Chand

Bhagwani

Hindu Succession Act, 1956

Deep Qtand

High Court of Punjab

section 6

s. 9

s. 9(2)

s. 9

s. 8

s. 12

sections 13 and 14

High Court of Andhra Pradesh

26th August, 1924

D. A

17th June, 1957

s. 12

s. 12

s. 12

section 13

section 12

Mitakshara Jaw

Andhra Pradesh High Court

s. 5

Andbra Pradesh High Court

s. 12

s. 12

Rights to Property Act

s. 12

s. 12

section 13


lf ..

HUKAMCHAND

BANSILAL & ORS.

April 19, 1967

(K. N. WANCHOO, C.J., V. BHARGAVA AND G. K. MITTER, JJ.]

Civil Procedure Code, 1908, 0. XXX/, rr. 90. 92, 0. XXXIV, r. 5- Judgment.<febtor making application under 0. XVI r. 90 after decree passed-Application withdrawn and til1U! extended with consent of par- 'f/es-Whether court /ias power to grant further extension or must conflt<m IMile under o. XX/, r, 92.

The respondents were members of a cooperative housing society and had created a mortgage on their property in favour of the society. A' an amount due under the mortgage was not paid, the matter was referred to the Registrar of Cooperative Societies and he made an order on May !, 1957 directing the respondent to pay the amount due from August !. 1953 till the debt was discharged. He further directed that if the amount was not paid, the property could be sold in satisfaction of the amount.

The amount was not paid as d; rected and the property was therefore sold on April 7, 1958 to the appellant. As an application was made by the respondents on May 3, 1958 under 0. XXI, r. 90 the sale could not be confirmed under 0. XXI, r. 92 until this application was disposed of.

The proceedings on the application continued up to October 7, 1958 when an order was passed with the consent of the parties whereby the respondents were granted time till November 21, 1958 to deposit the amount due and the application under 0. XXI r. 90 was dismissed as withdrawn.

When the matter came up before the executing court on November 22, the court noted that no amount had been deposited and although an application was made on behalf of the respondents for a further extension of time, the executing court held that as the society decree-holder and the auction purchaser were not willing to extend time, the court could not extend time which had been given under an agreement of the parties by way of compromis-o.

The court therefore confirmed the sale under 0. XXI r. 92.

Mter appeals to the District Judge and a single bench of the High Court, a Division µench. in a Le!te~ Patent Appeal, held that 0. XXXIV

~· 5 would apply m a cas~ f this kind and that even if it did not apply. it was a fundame?tal pnnciple that before a mortgagor could be prc- ".""ted from making the payment and redeeming the property, his nghts must. have come to an end and they would come to an end only when his title was lost by confirmation of sale. The court allowed the \'1)peal holding that \he applicatioi:i for extension of time was wrongly re- 1ected by th~ executing court as it had the pe>wer to grant an extension.

It furt!'er direc~ that as some amount had been paid by he respondents, tf on makm~ up the accounts it was found that any additional

arno11!1!--Was due the court would give reasonable time for this to be deposited.

On appeal to this Court,

HELD : The order of the executing court refusing extension of time and confirmin~ the sale in favour of the apJ>llant under O. XXI r. 92 was correct. [702B!

It was not open to the executing court to extend time without the consent of parties, for time between October 7, 1958 to November 21, 1958 was granted by consent of parties.

Section 148 of the Code of Civil Procedure would not apply in these circumstances.

[701H]

Though 0. XXXIV r. 5 (I) recognises the right of the judgment• dobtor to pay the decretal amount in an execution relating to a mortgage decre~ for sale at any time before the corifirmation of sale, the rule does not give any power to the court tp grant time to deposit the money after the .final decree has been passed.

It is not open to the court to go on fixmg date after date and postponing confirmation of 8ale merely to accommodate a judgment-debtor.

A harmonious construction of O. XXXIV r. 5 and O. XX! r. 92 makes it clear that if the provisions of

0. XX! r. 92(1) apply the sale must be confirmed unless bfore the confirmation the mortgagor judgment-debtor has deposited the amount as permitted by 0. XXXIV r. 5.

[699D-E. H; 700E]

Janak Rai v. Gurdial Singh [1967] 2 S.C.R. 77. referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeals No. 1005 of 1964. .

Appeal by special leave from the judgment and order dated July 12, 1962 of the Bombay High Court, Nagpur Bench in appeal No. 16 of 1960 under the Letters Patent.

A. S. Bobde, G. L. Sanghi, and 0. C. Mathur, for the appellant.

N. C. Chatterjee and M. S. Gupte, for respondents Nos. 1. and 2.

W. S. Barlingay and A. G. Ratnaparkhi, for respondent No. 4.

The Judgment of the Court was delivered by Wanchoo, C.J. This is an appeal by special leave from the judgment of the Bombay High Court and arises in the following circumstances. The respondents were members of a Co-operative Housing Society and had created a mortgage on their property in favour of the society. As the amount due under the mortgage was not paid, the matter was referred to the Registrar, Co-operative Societies, and he made an order dated May 1, 1957 that the respondents should pay a sum of Rs. 9,000 and odd and interest at Rs. 12 per cent per annum from August 1, 1953 till satisfaction of the debt due to the Society. The Registrar further directed that if the amount was not paid in cash to the society, the property mentioned in his order would be sold in satisfaction of the amount.

The order also provided that in case the amount due was not realised from the sale of the property, the society would haYe the right to proceed against the respondents for the balance. The amount was not paid as directed in the order. Consequent!y an application was made to the civil court as provided by law for recovery of the amount under the order of the Registrar which amounted to a decree. In consequence the property on which charge was created by the order of the Registrar was brought to

HUKAMCHAND v. BANSILAL (Wane/zoo, C.J.) 697

sale. The sale was held on April 7, 1958 and the appellant being the highest bidder, the sale was concluded in his favour.

Normally the sale would have been confirmed after 30 days, if no application had been made under 0. XXI r. 90 of the Code of Civil Procedure, for 0. XXI r. 92 Inter alia provides that "where no application is made under r. 89, r. 90 or r. 91, or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute".

As an application had been made on May 3, 1958 under 0. XXI r. 90, the sale could not be confirmed till that a.pplication was disposed of. Proceedings under 0. XXI rule 90 seem to have gone on upto October 7, 1958. On that day it appears that one of the respondents gave evidence as a wrtness.

Thereafter it was the turn of the Society decree-holder to give evidence. Rut before the evidence of the society began, it appears that respondents requested for one month's time to deposit the decretal amount along with the auction-purchaser's commission.

They also appear to have stated that in that event they were prepared to withdraw their application under 0. XXI r. 90. The society as well as the auction-purchaser had no objection to time being allowed. The executing court therefore granted time to the respondents till November 21, 1958 to deposit the entire decretal amount along with the auction-purchaser's commission. After time was thus allowed with consent of the parties, the application under 0. XXI r. 90 was dismissed as withdrawn with no order as to costs.

On November 20, 1958, an application was made by the respondents in which they referred to what had been ordered on October 7, 1958. They further stated that November 21 1958 was a holiday and it was not possible to deposit the amont on that day tho.ugh they were prepared to do so. They consequently prayed for ume for one day so that the deposit 111i, ght be made on November 22, 1958. No order was passed on this application on ovember 20, 1958 though it bears an endorsement of the executmg court to the effect that it had been filed on November 20,

1958. November 21, 1958 being a holiday it appears that the matter came before the executing court on November 22. On that day the court noted that no amount had been deposited. The

rder-sheet also shows that counsel for the respondents -,, rayed for tune. for a fortnight.

The society decree-holder as well as the

uct1on-purchaser .C appellant) opposed the prayer for extension of tune. The xecutmg court held that as the society decree-holder and the a.uction-puchaser .were not willing to extend time the court could not xtend tm1e which had. been given under an agreement of the parties by way of compromise. The court tl1erefore rejected the praer for extension of time and thereafter confirmed tlle sale as reqmred by 0. XXI r. 92 as the application under 0. XXI r. 90 had already been dismissed on October 7, 1958.

The respondents went in appeal to the District Judge. He held that the court had always the power whether under s. 148 of the Code of Civil Procedure or otherwise, to postpone passing of orders confirming sale of immovable properties. He went on to hold that the executing court erred in holding that it had no power to grant further extension of time. The appeal was therefore allowed, the order of the executing court set aside and the case remitted to the executing court for deciding the application for. extension of time on merits. It may be mentioned that though the District Judge said in the order that the applicati0n presented on November 22, 1958 for granting further time would be disposed of after hearing parties and considering the merits of the case, there was in fact no written application on November 22, 1958 and there was only an oral prayer. That however makes no difference to the main question before us._

There was then a second appeal by the appellant to the High Court. A question was raised in the High Court whether

0. XXXIV r. 5 applied to the present case.

The learned Single Judge seems to have held that 0. XXXIV r. 5 did not apply. He further held that in view of the 1provisions of o. xxr r. 92, the -sale was rightly confirmed and s. 148 of the Code of Civil Procedure could not under the circumstances be invoked. The appeal therefore was allowed and the order of the executing court restored.

Then there was a Letters Patent Appeal by the respondents.

The Division Bench appears to have held that p, XXXIV r. 5 would apply in a case of this kind. It also went on to say that even if 0. XXXIV r. 5 did not apply, it was a fundamental pfindple that before a mortgagor could be prevented trom making the payment and redeeming the property, his rights must have come to an end and they would come to an end oniy when his title was Jost by confinnation of sale. It went on to hold that if the application for extension of time was wrongly rejected if the mortgagor had the right and the court had the power to grant adjournment, it would be open in appeal to consider whether the executing court refused the adjournment properly or not. If in appeal the court came 'to the conclusion that the order of the executing court refusing extension of time was wrong, the confirmation which followed on such wrong order would fall and the mortgagor judgmentdebtor would be entitled to deposit the amount. It appears that as the respondents had deposited some money after the order of 1he District Judge in appeal, the Letters Patent Bench allowed the appeal, set aside the order of the learned Single Judge and restored the order of the District Judge and further set aside the order of , confirmation made by the executing court on Novenlber 22, 1958.

It also ordered that the amount lying in deposit should be paid to

the decree-holder mortgagee and the auction-purchaser.

It may be added that this deposit was not made before the confirmation

HUKAMCHAND v. BANS!LAL (Wanchoo, C.J.) 699

of sale on November 22 1958 but long afterwards in 1959. It further directed that if dn making up the accounts, it was found that any additional amount had to be deposited, the court would give reasonable time to the judgment-debtors, namely, the present respondents before us. The High Court having refused leave to appeal,. the appellant obtained special leave from this Court, and that is how the matter has come before us.

The principal question that arises for decision in this case is whether the executing court was right in the view that it could not extend time which had been given by consent of parties on October 7, 1958. If that view is correct, there would be no difficulty in holding, in view of O. XXI r. 92, that the order confirming sale was proper. We shall proceed on that assumption that 0. XXXIV r. S applies in the present case and that the order of the Registrar which was under execution was a final decree in a mortgage suit.

0. XXXIV r. S ( 1) gives an opportunity to the judgmentdebtor in a mortgage decree for sale to deposit the amount due under the mortgage decree at any time before the confinnation of sale made in pursuance of the final decree, and if such a deposit is made the court executing the decree has to accept the payment and make an order in favour of the judgment-dt>btor in terms of

0. XXXIV r. 5 (1). Though 0. XXXIV r. 5 (1) recognises the right of the judgment-debtor to pay the decretal amount in an execution relating to a mortgage decree for sale at any time before the confirmation of sale, that in our opinion does not mean that the said rule gives power to the court to extend time for payment on an application made by the judgment-deboor. 'l'here is no provision in 0. XXXIV r. 5 (1) like that contained in O. XXXIV r. 4 (2) to extend time for payment after the final decree is passed in a mortgage suit. As we read 0. XXXIV r. 5 it only permits the judgment-debtor to deposit the amount due under the decree and such. other amount as may be due in conuence of a sale having taken place, provided the deposit is made before the confirmation of sae.

Bu~ there is oo power in O. XXXIV r. 5 (1) to .grant extension of time and postpone confirmation of sale therefor. The observation of the District Judge tnat the court has

:iJways , the power to postpone passing orders confirming sale of unmovable property is in our view incorrect, in the face of the provisions contained in. 0. XXI ~· 9~ ( 1). That provision makes 1t absolutely clear that 1f no apphcation is made under r. 89, r. 9()' or r. 91 or where such application is made and disallowed the court has to make an order confirming the sale and thereupn the sale becomes absolute. It is not open to the court to go on fixing date after date and postponing confirmation of sale merely to ac comm.odate a.judgment-debtor. If that were so, the court may go on posning confirmation of sale for years in order to accommodate a 1udizment-debtor. What O. XXI r. 92 contemplates is that where conditions thereunder are satisfied an order for confirmatioll'

must follow. Further we have already indicated that 0. XXXIV r. 5 does not give any power to court to !); rant time to deposit the ni.oney after the final decree has 'been passed. All that it permits is that a judgment-debtor can deposit the amount even after the final decree is passed et any time before the confirmation of sale and if he does so, an order in terms of 0. XXXIV r. 5 (1) in his favour has to be passed. With respect we cannot understand what the Letters Patent Bench meant by saying that before a mortgagor could be prevented from making payment and redeeming the property, his rights must have come to an end and that they could not come to an end unless his title to the property had been lost by confirmation of sale. It is true that SO long as his right to redeem subsists the mortgagor may redeem the property. It is this principle which is recognised in 0. XXXIV r. 5 which pro- . vides that the mortgagor judgment-debtoJ" can deposit the amount due even after the final decree; has been passed but this deposit must be made at any time before confirmation of sale. It may be noted that there is no power under 0. :x; XXIV r. 5 to extend time

and all that it does is to permit the mortgagor judgment"debtor to deposit the amount before confirmation of sale. It does not give . D any right to the mortgagor judgment-debtor to ask for postponement of confirmation of sale in order to enable him to deposit the amount.

We have to interpret 0. XXXIV r. 5 and 0. XX! r. 92 harmoniously and on a harmonious interpretation of the two provisions it is clear that though the mortgagor has the right to deposit the amount due at any tirile before confirmation. of sale, there is no question of his being granted time under 0. xxxrv r. 5 and if the provisions of 0. XXI r. 92 ( 1) apply the sale must be confirmed unless before the confirmation the iµortgagor judg ment-debtor has deposited the amount as permitte4 by O. XXXIV r. 5. We may in this connection refer to the decision of this Court in Janak Raj v. Gurdial Singh(1 ), where it has been laid down that once tlie conditions of 0. XXI r. 92 (1) are complied with, the executing court must confirm the sale.

It is on these principles that we have to decide whether the trial court was correct. We have already indicated that the sale was held on April 7, 1958, and in the normal course it would have been confirmed after 30 days unless an application under r. 89, r. 90, or r. 91 of 0. XXI was made. Besides, this case is, as we have already assumed, analogous to the case of a final mortgage decree. The judgment-debtor mortgagor had the right to deposit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after tho sale under 'O. XXXIV r. S ( 1) so lon11: as the sale. was not confirmed. If the amount had been deposited before the confirmation of sale, the judgment-debtors had the right to ask for an order in terms of

(1) [1967} 2 S.C.R. 77.

HUKAMCHAND v. BANSILAL (Wanchoo, C.J.) 701

o.xxxrv r. 5 (1) in their favour. In this case an application under 0. XXI r. 90 had 'been made and therefore the sale could not be confirmed immediately after 30 Jays which would be the normal course; the confirmation had to await the disposal of the application under O. xxrr. 90. That application was disposed of on October 7, 1958 and was dismissed. It is obvious from the order-sheet of October 7, 1958 that an oral compromise was arrived at between the parties in courc 011 that day. By that compromise time was granted to the.1espondents to deposit the entire amount due to the decree-holder and the auction-purchaser by November 21, 1958. Obyiously the basis of the qompromise was that the respondents withdrew their application under 0. XXI r. 90 while the decree-holder society and the auction-purchaser ap pellant agreed that time might be given to deposit the amount up to November 21, 1958. If this agreement had not been arrived at and if the application under 0. XXI r. 90 bad been dismissed (for example, on merits) on October 7, 1958, the court was bound under 0. XXI r. 92(1) to confirm the sale at once. But because of the compromise between the parties by which the respondents were given time up to November 21, 1958 the court rightly postponed the question of confirmation of sa1e till that date by consent of parties. But the fact remains. that the application under 0. XXI r. 90 had been dismissed <in October 7, 1958 and thereafter the court was bound to confirm the sale but for the compromise bet ween the parties giving time upto November 21, 1958.

Now let us see what happened about November 21, 1958. On November 20, 1958, an application wns made by the respondents praying that they might be given one day more as November 21, 1958 was a holiday. No order was passed on that date, but it is remarkable that no money was deposited on November 20, 1958.

When the matter came up before the court on November 22 1958 no money was deposited even on that day.

Now 'under

0. XXXIV r. 5 it was open to the respondents to deposit the entire amount on November 22, 1958 hefore the sale was confirmed but no such deposit was made on November 22, 1958. On the ther hand, cou.nsel fo~ the respondents prayed tu the executing court for extension of tune by 14 days. The executina court refused that holding tha.t time upto November 21, 1958 had been granted by cosent and 1t was no longer open to it to extend that time. The ~cutm~ court has not referred to o. xxr r. 92 in its order but l! is ?b, ous that the executing court held that it could not grant time m the absence ?f an agreement between the parties because

0. XXI r. 92 requ1red that as the application under' O XXI r., 90 had~ disissed, the sale must be confinned. We are' of the view that m the circumstances it was not open to the executing court to extend time without consent of parties for time between Oct?ber 7, 1~58 to November 21, 1958 was granted by consent of parties. Section 148 of the Code Civil Procedure would not apply

in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under 0. XXI r. 92, there being no question of the application of 0. XXXIV r. 5, for the money had not .been deposited on November 22, 1958 before the order of confirmation was pass.ed. In this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct.

It is however urged that it does not appear that ihe time was granted on October 7, 1958 by consent of parties because the respondents had only asked for one month's time and the court gave tiine for about six weeks. It appears however that the grant of time on October 7, 1958 was as a result of an oral compromise between the parties. This is quite clear from the fact that the application under 0. XXI r. 90 was withdrawn on the basis that time would be granted. The fact that time was actually granted for six weeks does not mean that that was done without the consent of the parties. t seems to us that the whole thing took place in the presence of the court and the order granting ime upto November 21, 1958 must in. the circumstances be read a~ a consent order.

It is borne out by the fact that on Novemj>er _22, 1958 the same prmding judge of the executing court said that time had been granted with the consent of the parties by way of compromise. We cannot therefore accept the contention that tiDJe was not granted by consent of parties and therefore the court had power under s. 148 to extend time which had aiready been granted.

We a!iow the appeal, set aside the order of the Letters Patent Bench and of the District Judge and restore that' 9f the executing court dated November 22, 1951!. It follows that the sale stood confirmed in favour of the appellant on November 22, 1958. We direct that the respondents (judgment-debtors) will pay the costs of the appellant throughout. The money deposited by the respondent' can be taken back by them.

R.K.P.S.

Appeal allowed.

HUKAMCHAND

BANSILAL & ORS

April 19, 1967

K. N. WANCHOO, C.J.

V. BHARGAVA

G. K. MITTER, JJ.

Civil Procedure Code, 1908

May !, 1957

April 7, 1958

May 3, 1958

October 7, 1958

November 21, 1958

November 22,

Section 148

the Code of Civil Procedure

[1967] 2 S.C.R. 77

A. S. Bobde

G. L. Sanghi

0. C. Mathur

N. C. Chatterjee

M. S. Gupte

W. S. Barlingay

A. G. Ratnaparkhi

Wanchoo

Bombay High Court

May 1, 1957

August 1, 1953

the Code of Civil Procedure

November 20, 1958

November 21 1958

November 22, 1958

ovember 20, 1958

November 20,

1958

s. 148

the Code of Civil Procedure

s. 148

the Code of Civil Procedure

Novenlber 22, 1958

November 22 1958

Oct?ber 7, 1~58 to November 21, 1958

Section 148

Novemj>er _22, 1958

s. 148

November 22, 1951