Patna High Court
Kaviraj Basudevanand vs Raghubir Saran Rastogi And Ors. on 18 January, 1954
Equivalent citations: AIR1955PAT284, AIR 1955 PATNA 284
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Kamla Sahai, J.
1. This appeal by Kaviraj Basudevanand, the objector, is directed against an order dated 6-10-1953 of the Subordinate Judge of Hazaribagh, dismissing his objections under Section 47, Civil P. C., in Miscellaneous Judicial Case No. 30 of 1953.
2. The litigation out of which this appeal arises has rather a long history. It will be necessary to mention some of the facts in order to understand the points which arise for decision.
3. Upendra Nath Banerji and his son Dhirendra Nath Banerji executed a mortgage bond on 5-8-1938 in favour of the Chota Nagpur Banking Association, Limited, to secure a sum of Rs. 40,000, Properties in Gaya district as well as Hazaribagh District were given in security. The properties of Hazaribagh District which were mortgaged consisted of 3 annas 3 pice share in Mahal Gaddi Masnodih, tauzi No. 32. There were 33 villages in this Mahal. On 13-6-1939, Dhirendra Nath Banerji gave a lease of his share in Mahal Gaddi Masnodili to Shyamal Ram Surekha. On 15-2-1943, the Chota Nagpur Banking Association, Limited, instituted Mortgage. Suit No. 1 of 1943 in the Court of the Subordinate Judge of Hazaribagh to enforce their mortgage. Upendra Nath Banerji and Dhirendra Nath Banerji were the first two defendants in that suit. Shyamal Ram Surekha was implcaded as defendant 3 on the ground that he had taken lease of some of the mortgaged properties and Narahari Gir was impleaded as defendant 4 on the ground that Dhirendra Nath Banerji had executed a deed on 22-4-1942, whereby he had acknowledged that he was merely a Benamidar for Narahari Gir with regard to the share of Gaddi Masnodih in question. On 11-8-1943, a compromise petition was filed in the suit. This compromise was effected between the plaintiff bank and defendants 1, 2 and 4 and it was agreed between these parties that the mortgagee would be entitled to sell all the mortgaged properties in case the instalments fixed by the compromise were not paid. Shyamal Ram Surekha, defendant 3, filed a written statement and pleaded that his lease was binding upon the plaintiff and that, in any case, the plaintiff should be ordered, in the first instance, to sell the Gaya properties in enforcement of his mortgage. Thus, the contest between the plaintiff and Shyamal Ram Surekha continued. On 6-4-1944, Brijraj Saran Rastogi was substituted as plaintiff in the suit as an assignee of the Bank's interests in the mortgage.
4. In the meantime, four villages comprised jn Gaddi Masnodih had been acquired in accordance with the provisions of Rule 75A, Defence of India Rules. On 31-5-1944, an award was made in the land acquisition proceeding, fixing the amount of compensation for acquisition of those four villages at Rs. 4,60,000. An appeal against the arbitrator's award was subsequently dismissed by this Court. On 24-7-1944, the Subordinate Judge decreed Mortgage Suit No, 1 of 1943 against defendants 1, 2 and 4 on compromise and against defendant 3 (Shyamal Ram Surekha) on contest. Shyamal Ram Surekha then filed First Appeal No. 215 of 1944 in this Court against that decree. On 26-1-1946, the final mortgage decree was prepared in the Subordinate Judge's Court in Mortgage Suit No. 1 of 1943. On 16-2-1948, First Appeal No. 215 of 1944 was dismissed by this Court but an observation was made as follows ;
"It is, therefore, made clear that the decree-holder will proceed in the first instance to execute his decree by obtaining an order from the executing court that the entire compensation money which is in the hands of the Government and which is available to the mortgagor and to Narahari Gir and Shyamal Ram Surekha should be paid to him to the extent of his decretal dues. If, however, the . decree-holder fails to obtain this amount within the period of six months from the date the execution starts the decree-holder will be at liberty to execute the decree by selling any of the properties given in security under the mortgage bond in the order he likes."
The compensation money referred to in this observation was the compensation which was payable under the award for the acquisition of four of the villages of Mahal Gaddi Masnodih. In the decree which was prepared in this Court, however, it was merely stated that the appeal had been dismissed. The observation which I have quoted above was not mentioned.
5. I may mention at this stage that an issue was raised in Mortgage Suit No. 1 of 1943 as to whether Brijraj Saran Rastogi the plaintiff, was a Benamidar for Ramsaran Das Kashyap and Kaviraj Basudevanand who had entered into a contract of sale relating to Masnodih with Narahari Gir who was the real owner of that property, and whether the payment of the consideration money by the substituted plaintiff to the bank did not discharge the liability under the petition of compromise dated 11-8-1943 and other claims made in the suit. In his judgment, dated 14-8-1944, the Subordinate Judge held that the plaintiff was a Benamidar of Ramsaran Kashyap but the payment of the consideration money by him did not discharge the liability under the petition of compromise or the claims made in the suit. In the order portion of the judgment, he passed the decree in favour of the plaintiff, Brijraj Saran Rastogi.
6. On 20-3-1945, Narahari Gir executed a sale deed in respect of his share in Gaddi Masnodih in favour of Kaviraj Basudevanand who is the appellant in this appeal.
7. Brijraj Saran Rastogi died on 24-3-1948. His father Raghubir Saran Rastogi who is the respondent in this appeal put the final decree dated 26-1-1946 in execution on 1-4-1949. This was Execution Case No. 12 of 1949 and it was dismissed on 3-6-1950. In the meantime, an application had been filed in this Court for amendment of the decree prepared in First Appeal No. 215 of 1944. That application was numbered as Miscellaneous Judicial Case No. 65 of 1950. By an order dated 16-5-1950, a Bench of this Court directed that the decree be amended by incorporating in it the observation which I have already quoted.
On 15-6-1950, the respondent filed his second application for execution of the final decree dated 26-1-1946 which has been numbered as Execution Case No. 23 of 1950. In this execution case, Raghubir Saran Rastogi seeks to recover the decretal amount out of the compensation money relating to the four villages of Gaddi Masnodih, treating the same as substituted security, and also by sale of the remaining mortgaged properties. The Court ordered that the execution case would proceed after the final decree had been amended so as to bring it in conformity with the amended decree passed in First Appeal No. 215 of 1944. The final decree was, therefore, amended on 19-8-1950 and was brought in conformity with the amended decree of the aforesaid first appeal.
Before this amendment was made, however, the Subordinate Judge dismissed the execution case by his order dated 12-8-1950 on the ground that recovery of the decretal amount out of the compensation money was barred as no attempt had been made to proceed against that money in Execution Case No, 12 of 1949, though the decree-holder was directed by the decree to proceed against it in the first instance. Miscellaneous Appeal No. 376 of 1950 was filed in this Court against this order. By an order dated 9-8-1951, a Bench of this Court held that the Court below was wrong in holding that the claim of the decree-holder for realisation of the decretal amount out of the compensation money was barred and allowed the appeal.
8. On 27-10-1952, a notification under Section 3, Bihar Land Reforms Act was published in the Gazette declaring that the entire Mahal of Gaddi Masnodih had passed to and become vested in the State. An objection was then taken before the Executing Court that Section 4(d), Land Reforms Act was bar to the execution of the mortgage decree and, hence, the execution proceedings should be dropped. On 8-12-1952, the Subordinate Judge upheld this, objection and dropped the execution case. Respondent Raghubir Saran Rastogi filed Miscellaneous Appeal No. 13 of 1953 in this Court against that order. By an order dated 8-5-1953, a Bench of this Court held that "the appellant is entitled to execute the mortgage decree by attaching the amount of Rs. 83,000 being the compensation money paid by the Central Government for the four villages of Mahal Gaddi Masnodih", allowed the appeal and set aside the Subordinate Judge's order.
9. On 4-6-1953, Kaviraj Basudevanand filed an objection petition under Section 47, Civil P. C. before the executing Court, raising various objections to the execution of the decree. The learned Subordinate Judge, by his order dated 6-10-1953, rejected all the objections and directed the execution case to proceed. It is against this order that the present appeal has been filed.
10. Mr. S.C. Sinha, appearing for the appellant, has urged five points before us. His first point is that, in view of Section 214, Indian Succession Act, the execution case cannot proceed at the instance . of the respondent who claims to be the heir of the decree-holder unless he takes a succession certificate. Section 214 provides, among other things, that no Court shall execute against a debtor of a deceased person a decree or order for the payment of his debt on the application of a person claiming to be entitled on succession to the effects of that deceased person except on production of a succession certificate granted under Part X of the Act. In the first place, it is not at all clear that the "respondent claims to be entitled to the effects of Brijraj Saran on succession. He has described himself at the top of his execution petition as the only legal heir of Brijraj Saran but it may well be that he claims on the basis of survivorship. In that case, Section 214 will have no application. The appellant has not even alleged in his objection petition under Section 47, Civil P. C. that the respondent's claim is based upon succession and not upon survivorship.
11. In the second place, Section 214 can. only apply in a case where there is a decree for payment of debt. In the present case, the decree which is sought to be executed is a final mortgage decree for sale of the mortgaged properties under Sub-rule 3 of Rule 5 of Order 34, Civil P. C. It is true that a mortgage is executed for securing a debt and hence, apart from the security, a mortgagor has generally a personal liability to pay the debt. When, however, a final decree is prepared in accordance with the aforesaid provision, that decree is for the sale of the property given in security or, in other, words, for enforcement of the mortgage. It is only when the net proceeds of sale of the mortgaged properties is insufficient that the Court may pass' a decree for the balance in accordance with Order 34, Rule 6. A decree passed under that rule will be a decree on the basis of the personal liability of the mortgagor to pay the debt. Such a decree may well be described as a decree for the payment of a debt but a final mortgage decree prepared under Order 34, Rule 5 cannot be so described.
12. Mr. S.C. Sinha has relied upon a Full Bench decision of the Allahabad High Court in the case of -- 'Fateh Chand v. Muhammad Bakhsh', 16 All 259 (A) in support of his contention that the execution cannot proceed at the instance of the respondent in the absence of a succession certificate. In that case, Section 4, Succession Certificate Act (Act 7 of 1889) came up for consideration and it was held that a suit for sale df the mortgaged property was a suit for a decree for payment of a debt. The words used in Section 214, Indian Succession Act are almost the same as those used in Section 4 of Act 7 of 1889. But, with great respect to the learned Judges who decided the Full Bench case, I find myself unable to agree with the view that a suit for sale of the mortgaged property can be described as a suit for a decree for payment of a debt, Their Lordships have rested their decision substantially on the ground that the form in. which a final decree for sale of mortgaged property is drawn up shows that the mortgaged property would be sold in default of payment by the defendant of the amount which is found to be due to . the mortgagee. They have, however, conceded that a suit for foreclosure of a mortgage can in no sense be considered to be a suit for a decree for payment of a debt. As pointed out by Dr. Ghose at p. 72 of his Law of Mortgage, Vol. I, Edn. 5 the form of a decree for foreclosure also contains a direction to the defendant to pay the amount due to the mortgagee and it is only in default of payment of the amount that the defendant's right to redeem the mortgaged property is foreclosed. Dr. Ghosh has further pointed out at p. 73 that in the case of an English mortgage, the mortgagee may either sell or foreclose and has mooted the question whether a suit by such a mortgagee either for foreclosure or sale can be treated as a suit to recover a debt. It is clear that the answer must be "no".
13. The decision in Fateh Chand?s case (A)' has been expressly dissented from by different High Courts. I may refer in this connection to the cases of -- 'Mahomed Yusuf v. Abdur Rahim', 26 Cal 839 (B); -- 'Nanchand Khemchand v. Yenewa 28 Bom 630 (C) and -- "Palaniyandi Pillai v. Veerammal', 29 Mad 77 (D). In the last of these cases, the question was whether a personal decree which was prayed for could be described as a decree for payment of a debt within the meaning of Section 4 of Act. 7 of 1889. Their Lordships held that such a decree was a decree for payment of a debt but the final decree for sale of mortgaged property could not be described as a decree for payment of a debt within the meaning of that section.
14. I do not think I need refer' to any other decision, though there are a number of other decisions of the Calcutta and other High Courts which support the view which I have expressed above. I have, therefore, no hesitation in holding that there is No. substance in the first point which has been raised by Mr. S.C. Sinha and that the (sic)ution at the respondent's instance cannot be held to be barred because he has not produced a succession certificate.
15. The second point which Mr. S.C. Sinha has raised is that Brijraj Saran Rastogi was held to be a Benamidar of Ramsaran Das Kashyap in the Subordinate Judge's Judgment in Mortgage Suit No. 1 of 1943 and hence the respondent who is the father of Brijraj Saran has ho 'locus standi' to execute the final mortgage decree. This contention also appears to me to be without merit. As I have already mentioned, the mortgage decree was passed in favour of Brijraj Saran Rastogi, even though he was held to be a benamidar of Ramsaran Das Kashyap. The executing Court cannot but recognise Brijraj Saran as the decree-holder as it cannot go behind the decee. The case of -- 'Lalmani Kuer v. Raghubansi Devi', AIR 1944 Pat 307 (E) may be referred to in this connection.
That being so, it is the legal representative of the deceased decree-holder who must put the decree in execution after the decree-holder's death. Besides, Ramsaran Das Kashyap has filed a petition in the execution case saying that he has no objection to the execution being levied at the respondent's instance and that he will be bound by orders passed in favour of or against the respondent. In these circumstances, I agree with the learned Subordinate Judge that the respondent, Raghubir Saran Rastogi, has 'locus standi' to proceed with the execution of the decree.
16. The third point urged by Mr. S.C. Sinha is that the execution of the final decree is barred by limitation because the final decree was passed on 26-1-1946 and the first petition for execution, Execution Case No. 12 of 1-949, was filed on 1-4-1949, that it, beyond three years. Mr. Sinha has not disputed that Article 182, Limitation Act governs this case. Under Article 182(2), the three years.' limitation for execution of a decree starts from "where there has been an appeal the date of the final decree or order of the appellate court."
It is true that First Appeal No. 215 of 1944 was filed against the preliminary decree but Mr. K.D. Chatterji, who has appeared before us on behalf of the respondent, has argued that limitation for execution of the final decree 'must start from the date of the decision in that first appeal. His contention is that the words "where there has been an appeal" do not imply that the appeal must necessarily have been filed against the decree which is sought to be executed but they include an, appeal which imperils the decree sought to be executed. In support of this contention, he has relied upon the case of -- 'Somar Singh v. Deonandan Prasad Singh', AIR 1927 Pat 215 (F). It appears to me that this case fully supports Mr. Chatterji's contention.
The Privy Council decision in the case of --'Nagendra Nath v. Suresh Chandra', AIR 1932 PC 165 (G) also supports this view. There can, therefore, be no doubt that limitation for execution of the final decree will run from the date of final disposal of First Appeal No. 215 of 1944, i.e. 16-2-1948. As even the present execution was levied within three years from that date, it is manifest that the execution of the final- decree is not barred by limitation.
17. The 'fourth point raised by Mr. S.C. Sinha is that the respondent was directed in the judgment passed by this Court in Miscellaneous Appeal No. 13 of 1953 to make an election as to whether he would proceed against the compensation money or the other properties and that this execution cannot proceed because the respondent has not made any election, I am unable to find anything in the judgment passed in that appeal which could show that the respondent was directed to file a petition, declaring that he elected to proceed against the compensation money in the Civil Court instead of applying to the Claims Officer under Section 14, Land Reforms Act to settle his claim. I do not think that there is any substance even in this contention.
18. The last point which Mr. S.C. Sinha has urged is that the respondent has not mentioned in his execution petition the date of amendment of the final mortgage decree. This is true. The respondent has mentioned the date of the final mortgage decree and the date of the appellate decree of this Court. I do not think that it was necessary for him to mention the date on which the final mortgage decree or the decree of this Court was amended specially when his prayer in the execution petition is in accordance with the final decree as amended. Hence, this point also fails.
19. Mr. K.D. Chatterji has argued that the objections raised on behalf of the appellant are all barred by the principle of 'res judicata'. I do not consider it necessary to decide this point in view of the fact that all the points raised on behalf of the appellant before us have failed on merits. The result is that I do not find any merit in this appeal and would dismiss it with costs.
Imam, C.J.
20. I agree.