LexASNEW DRUMS PRIVATE LTD. & ORS. versus MAHARASHTRA STATE FINANCE CORPORATION & ORS.
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A B c D E F G 351 ASNEW DRUMS PRIVATE LTD. & ORS. v. MAHARASHTRA STATE FINANCE CORPORATION & ORS. August 24, 1971 [S. M. S!KRI, C.J., A. N. RAY AND D. G. PALEKAR, JJ.] State Financial Corporation Act (Maharashtra Act, 63 of 1951)- Appeal whether lies to High Court against order of sale of mortgaged pro- perty by District Judge under s. 38(2)-District Judge whether persona designata-Summary dismissal of appeal whether justified. Section 32(8) of the State Financial Corporation Act, 1961 provides : "An order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execu- tion of a decree as if the Financial Corporation were the decree-holder". The appellant's properties which were mortaged under a registered deed to the Maharashtra State Financial Corporation were ordered to be sold by an order passed by the District Judge under s. 32(8) of the aforesaid Act. The High Court dismissed the appeal filecl against the order of the District Judge on the ground that no appeal lay. On merits also the appeal was dismissed summarily. In appeal to this· Court by special leave, HELD : (i) The High Court erred in holdipg that no appeal lay. (a) There is no doubt that under the Code of Civil Procedure an order setting aside or refusing to set aside a sale in execution of a decree in appealable under 0., XLIII r. I (j). It is difficult to understand why the scope of the language should be cut down by not including appeals pro- ,;ded under the Code of Civil Procedure within the ambit of the words "in the manner provided in the Code of Civil Procedure". "Manner" means method of procedure and to provicle for an appeal is to provide for a mode of procedure. The State Financial Corporation lends huge amounts and it could not be imagined that it was the intention of the Legislature to make the order of sale of property, passed by the District Judge, final and only subject to an appeal to the Supreme Court under Art. 136 of the Constitution. [354 H-355 BJ The fact that an appeal to the High Court has been .expressly provided in s. 32(9') could not lead to a different conclusion. The reason why an appeal has been expressly provided therein is that if there had been no specific provision in sub-s .. (9), no appeal would lie otherwise because it is. not provided in sub-s. (5) or sub-s. (7) that the District Judge should proceed in the manner provided in the Code of Civil Procedure., [355 DJ (b) On a correct reading of s. 32( 11) it cannot be said that the Act confers iurisdictiQn on the District Judge as persona designata. [355 E-F] ( c) The contention that the whole idea of the Act was to have ex- peditious execution as otherwise large funds of the State Financial Corpo- .ration would be locked up during execution proceedings could not be accepted. If this was the intention of the legislature it would have ex- pressly provided that no appeal would lie against an order made under sub-s. (8) of s. 32. [355 G] (ii) On the facts of the case the High Court was not justified in dis- missing the app~_al summarilv. [3% A 1 352 SUPREME COURT REPORTS [1972] l S.C.R. CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.' 1021 A and 1022 of 1971 and 1852 of 1970. Appeals by special leave from the orders dated February 16, 1970 and August 20, 1970 of the Bombay High Court in First Appeal No. 152 of 1970 and Civil Application No. 2183 of 1970 and from the judgment and order dated January 16, 1970 of the B Dist!. Court, Thana, Bombay in Misc. Applications Nos. 111 of 1969 and 75 of 1965, respectively. V. M. Tarkunde, B. Dalla and B. R. Agarwal, for the appel- lant (in all the appeals). M. N. Phadke and A.G. Ratnaparkhi, for respond•mts Nos. 1 c and 2 (in all the appeals). C. K. Daphtary, Bishan Narain, Barish Chandra, S. !a/an and H. K. Puri, for respondent no. 3(in all the appeals). The Judgment of the Court was deliv~red by :., SIKRI, C. !.-Civil Appeal No. 1021 of 1971, by special D kave is directed against the judgment of the Bombay High Court, dated February 16, 1970, dismissing First Appeal No. 152 of 1970, summarily. The judgment of the High Court reads : "No appeal lies. Even on merits' we do not find any substance. E Dismissed." This First Appeal was purported to be filed under sub-s. (9) of s. 32 of the State Financial C
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