Calcutta High Court
Manik Chandra Naskar vs Smt. Tara Debi And Ors. on 18 May, 2004
Equivalent citations: AIR2004CAL207, AIR 2004 CALCUTTA 207
JUDGMENT Arun Kumar Mitra, J.
1. This second appeal has been taken out by the defendant No. 1 appellant challenging the judgment and decree dated 30-1-1998 passed by the learned Addl. District Judge, 1st Court at Alipur in Title Appeal No. 880 of 1984 affirming the judgment and order dated 21-9-1984 passed by the learned Fourth Munsif, Alipur in T.S. No. 180 of 1982.
2. This appeal arises out of a suit for recovery of possession and mesne profits. The case as has been made out by the plaintiff in the plaint is inter alia as follows :
1. One ekchala hut with that walls and tiled roof in the premises No. 32 Kali Temple Road, Police Station -- Bhowanipur belongs to the plaintiffs and pro forma defendants in their respective shares and the aforesaid joint property was let out to different monthly tenants in different portions. The defendant No. 1 was a monthly tenant in respect of suit premises. An ejectment suit was filed by all the landlords, owners, namely, the pro forma defendants Nos. 9 to 11 and predecessors-in-interest of the plaintiffs against the defendant No. 1 in the Court of learned 4th Munsif at Alipur being T. S. No. 351 of 1970 and subsequently the said suit was transferred to 3rd Addl. Court of Munsif, Alipur and was renumbered as T.S. No. 96/72 and ultimately the said suit was decreed ex parte. The plaintiffs further slated that after obtaining the said ex parte decree of the co-owners intended to sale out the property to one Rupen Mukherjee and executed an agreement for sale by taking earnest money from the said Rupen Mukherjee. After that said Rupen Mukherjee started to look after all pending cases and also taking steps by execution of the decree against the defendant for delivery of possession. The said Rupen Mukherjee happens to be relations of the plaintiffs by marriage. The pro forma defendants coming to know about it started moving adversely against the plaintiffs' interest and also started supporting the defendant No. 1. The plaintiffs further stated that during the pendency of the execution proceeding the pro forma defendants Nos. 9 to 11 filed an application in Court praying for non-prosecution of the execution case on the ground that the matter has been compromised with the defendant No. 1 being the judgment-debtor. But their said malicious attempt was nullified by the Court's order in the said execution case but in spite of unlawful obstructions created by the pro forma defendants the delivery of possession was obtained by the half on 22-9-1981. That after taking possession of the suit premises the defendant again trespassed into the suit premises on the very same night on 22-9-1981 with the help of certain unruly people. The plaintiffs stated in the plaint that the defendant No. 1 is a rank trespasser in the suit premises and he has no legal right to stay in the suit premises and is liable to be evicted. The plaintiffs and the pro forma defendants are entitled to get a decree for mense profits against the defendant No. 1 on and from 23-9-1981. The cause of action of the suit arose on 22-9-1981 and the plaintiffs prayed for a decree of eviction.
3. The defendant No. 1 and the pro forma defendants Nos. 2 to 12 appeared in the suit and contested the suit by filing the Written Statement. In their respective W. S. they stated that the suit is bad, the plaintiffs have no cause of action and the suit is liable to be dismissed. The pro forma defendants Nos. 2 to 12 stated that they along with the plaintiffs Nos. 1 to 3 executed an agreement for sale of their interest which they had in premises No. 38, Kali Temple Road, Calcutta-26. The plaintiff No. 2 who is the son-in-law of the said Rupen Mukherjee negotiated the sale on behalf of all the defendants co-sharers. Due to some reasons or other the said Rupen Mukherjee failed to complete the transaction. According to the defendants including the pro forma defendants the allegations made in Paragraph 2 of the plaint by the plaintiffs is false. The pro forma defendants denied all the allegations made by the plaintiffs in the plaint. The pro forma defendants also denied that said Rupen Mukherjee used to look after the execution case. The pro forma defendants further denied that they have filed the application before the learned Addl. Munsif, Alipur for dismissal of the execution case. The pro forma defendants stated that the tenancy agreement was executed after full consideration which was lawful and the principal defendant acquired the legitimate right therefrom. These pro forma defendants stated that the allegations made by the plaintiffs regarding taking possession of the suit property by the help of police are false. These are nothing but paper transactions. These pro forrna defendants further stated that the plaintiffs have no independent right, title and interest in the suit premises unless their shares are ascertained and partitioned by a partition suit. The pro forma defendants further stated that they are not entitled to get any mesne profits from the defendant No. 1. These pro forma defendants denied that the defendant No. 1 is staying in the suit premises as rank trespasser. These defendants also denied the plaintiffs' cause of action of the suit. The defendant No. 1 further denied the allegations of the plaintiffs as alleged in the plaint. The defendant No. 1 stated that he is a monthly tenant in respect of the suit premises at a monthly rental of Rs. 15/- per month according to English Calendar under Keshab Das Chatterjee. Debnath Chatterjee, Probodh Kr. Chatterjee, Ajit Kr. Chatterjee, Sudhangshu Kr. Chatterjee and Sailendra Nath Chatterjee by virtue of an agreement dated 24-3-1981. The defendant denied the relationship of landlord and tenant between the plaintiffs and him. The defendant also denied that the said house is a joint property. The defendants stated that he is paying the rent regularly to the pro forma defendants. The defendants denied the alleged transaction with Rupen Mukherjee. The defendant No. 1 stated that he is staying in the suit premises as a tenant. The plaintiffs have no cause of action of the suit and hence the suit is liable to be rejected.
4. On the above pleadings the learned trial Judge framed the following Issues --
1. Have the plaintiffs any cause of action of the suit?
2. Is the suit maintainable in its present form?
3. Are the plaintiffs entitled to get a decree for Khas possession and mesne profits against the defendant No. 1 in respect of the suit premises?
4. Was there any agreement for sale of the suit property?
5. Was there any fresh tenancy created by the pro forma defendants Nos. 2 to 12 along with principal defendant if so, why?
6. Has the principal defendant acquired a legitimate right by virtue of fresh tenancy agreement with major co-sharers -- defendants Nos. 2 to 12 at an enhanced rate?
7. Have the plaintiffs acquired independent right, title and interest in the suit property and their shares?
8. To what relief, if any, are the plaintiffs entitled?
5. It is recorded that only one witness that is P.W. 1 has been examined on behalf of the plaintiffs and two witnesses have been examined on behalf of the defendants.
6. The learned Trial Judge passed a decree for Khas possession of the suit premises and granted two months time to the defendant No. 1 to vacate the suit premises. The learned Trial Judge granted decree for mesne profits of Rs. 20/- for payment of Court fees and granted liberty to the plaintiffs for further mesne profits of separate proceedings under Order 20, Rule 12 of the C.P. Code of payment of requisite Court fees.
7. Challenging the judgment and decree the defendant No. 1 preferred Title Appeal No. 880/84.
8. On contest the said appeal was dismissed with costs, and the learned appellate Court below affirmed the judgment and decree passed by the learned Trial Judge.
9. Challenging the said judgment and decree, the defendant No. 1 being the appellant preferred this second appeal. On 6-10-1988 this second appeal came up for hearing under Order 41 Rule 11 of the C.P. Code the Hon'ble Division Bench directed that the appeal will be heard on ground No. 2 as taken in the Memo of Appeal.
10. Before hearing the appeal this Court is to see whether there is any substantial question(s) of law and if any substantial question of law is or (sic) are their office are to be formulated. After considering the judgment and decree passed by the learned Courts below and on perusal of the documents and records that is the Plaint, W. S. and evidence the following substantial question(s) of law is or are framed for the purpose of hearing of the instant appeal.
11. As observed earlier the Hon'ble Division Bench when hearing the matter under Order 41 Rule 11 of the C.P. Code that the appeal will be heard on Ground No. 2 of the Memorandum of Appeal. It is settlled position of law that if the Court at the time of final hearing of the appeal finds that there are other substantial questions of law on which the appeal should be heard the Court may formulate additional substantial questions of law. Now Ground No. 2 being the substantial question of law is made No. 1 hereinbelow and the other questions are also formulated.
1. Whether the plaintiffs having approached the Court for passing a decree for recovery of possession of the disputed property on the allegation that they got an ejectment decree against the defendant No. 1 and pursuant to the said decree obtained possession in execution on 22-9-1981 and subsequent to such taking of possession, the defendant No. 1 dispossessed the plaintiffs on the self-same night and the defence case being that some of the decree-holders created an interest in favour of the defendant No. 1, the only question before the appellate Court was to find out the evicted (sic) of creation of such an interest after the satisfaction of the decree vis-a-vis the disputed property and the status that would be created in favour of the defendant No. 1 and the lower appellate Court erred in law in proceeding to decide the impact of Order 21 Rule 15 of the C.P. Code on the admitted fact and to the legal point whether there had been as a matter of fact could be an adjustment of the ejectment decree overlooking the fact that the question is being mooted not in the execution proceeding but in a subsequent suit after the satisfaction of the ejectment decree where no question regarding adjustment of such a decree could legally arise.
2. Whether learned appellate Court below erred in law in not holding that after the satisfaction of the decree by obtaining delivery of possession the matter came to an end and the dispossession of the judgment debtor after such satisfaction could amount to a fresh cause of action independent of the decree.
3. Whether the Court should decide that Order 21 Rule 15 of the C.P. Code have any manner of application in the instant case or not.
4. Whether the appellate Court below followed the principle of law to the effect that a co-sharer, by any means cannot get a decree against a trespasser for ejectment from the whole of the suit premises or could only get a decree for joint possession to the extent of his share and he has to work out his further right by means of a suit for partition.
5. Whether the judgment and decree passed by the Courts below are vitiated for wrong tests of law being applied in coming to the conclusion or coming to the finding.
12-13. Before dealing with the submissions made by the learned Counsel for the parties a fact need be recorded at the outset which is as follows :--
During the course of hearing of this appeal one application was filed by Smt. Gita Mukherjee, the respondent No. 3 herein. In support of her claims in the application Smt. Gita Mukherjee annexed two registered sale deeds. One deed has been executed by Smt. Sribani Devi and others in favour of Sri Rupen Mukherjee. The transferred property as per the schedule is two cottahs, eight chhataks and six sq.ft. of land on the structure thereon being premises No. 32 Kali Temple Road, Calcutta-26 that is the suit property. Said Rupen Mukherjee in favour of whom the above transfer was made again transferred the said property to Smt. Gita Mukherjee by another deed of sale. In the said application being CAN 568/02 was filed on 22-1-2002. In the said application said Gita Mukherjee who is the defendant No. 3 made a prayer for recording devolution of interest under Order 22 Rule 10 of the C.P. Code in her favour in respect of the suit property. Affidavit-in-opposition and affidavit-in-reply were filed by the parties in respect of the said application being CAN 568/ 02. In the opposition the appellant/defendant No. I/op No. 1 stated in its paragraph 2 that during the pendency of the instant suit if an agreement for sale was made between the alleged Rupen Mukherjee with all the co-sharers of the property in question the same could not nullify the agreement of tenancy being Exht.-A filed in the instant suit made by and between the pro forma defendants and the appellants herein because agreement for salt does not create any right. title or interest of the said Rupen Mukherjee in the suit property. It was also stated in the said opposition that even after the purchase of the suit property by the alleged Rupen Mukherjee through Court in terms of Order No. 9 dated 20-9-1989 in Title Execution Case No. 18/1988 who subsequently sold the suit property to the respondent No. 3 of the instant appeal the said respondent No. 3 cannot get the decree by virtue of the same. It has further been stated that the judgment passed in T.S. No. 18/84 (originally numbered as 164/80) for specific performance of contract is not binding upon the appellant herein as the appellant was not a party to the said suit.
14. The applicant Smt. Gita Mukherjee the respondent No. 3 herein in her affidavit-in-reply reiterated her stand taken in the application. At this background the learned Counsel for the parties made their submissions. The learned Counsel for the appellant Mr. Roy Chowdhury submitted that judgment of both the Courts below are vitiated by non-consideration of basic questions of law. The learned Counsel further submitted that the decree of the earlier suit is a joint decree and the landlords were in joint possession and the decree was fully satisfied when in pursuance of the decree the plaintiffs were given possession on eviction of the tenant. The learned Counsel further submitted that fresh tenancy has been created by the major group of co-sharers who are the plaintiffs and in that event whether the suit is maintainable. The learned Counsel further submitted that the learned appellate Court below went on wrong by trying to take advantage of Order 21 Rule 15 of the C.P. Code. The learned Counsel further submitted that the learned appellate Court below went on wrong by not considering the principles of law to the effect that a co-sharer, by himself, cannot get a decree against a trespasser for ejectment from the whole of the suit premises but could only get a decree for joint possession to the extent of his share and he has to work out his further rights by means of a suit for partition. The learned Counsel relied on a decision , Joy Gopal Sinha v. Probodh Ch. Bhattacharjee in this context. In this judgment the Hon'ble Division Bench of this High Court observed in the mariner as follows :--
"In view of the finding of the Lower Appellate Court that the Plaintiffs have succeeded only in establishing their title to the one-fourth share of the disputed land. They are only entitled to recover joint possession to the extent of four annas share with the Defendants Nos. 1 and 2. If the Plaintiffs be given a decree for possession of 12 annas share on the ground that they arc co-sharers to the extent of four-annas share, this will entitle them to get mesne profits to the extent of 12 annas share which under the law he is not entitled to claim. In an action for ejectment the Plaintiff must succeed on the strength of his own title and not on the absence of any title in the Defendants. In the case of Currimbhoy & Co, Ltd. v. L.A. Creet , C. C. Ghose, J. has held that a co-sharer by himself can maintain an action of trespass against a wrong-doer. But from this it does not necessarily follow that he can get a decree for possession of the whole property. In fact as has been stated above the practice in this Court had been all along to give the co-sharer a decree for joint possession with the trespasser, leaving the Plaintiff to work out his further rights by a separate suit for partition. This contention of the Appellants therefore fails.
The second point urged by the learned Advocate for the Appellants is that even if the Appellants have not succeeded in proving their title to the whole of the 12 annas share, they are entitled to eject the trespasser from that share on the strength of their previous possession. It is argued by the learned Advocate on the authority of Mussammat Sunder v. Mussammat Parbati, (1890) ILR 12 All 51, that if a person obtains possession lawfully, peaceably, without force or fraud and no one interested in the land opposes him, he is entitled to maintain his possession against all persons except those who can plead a preferable title. I am unable to accept this contention for two reasons. In the first it has not been found by the lower Appellate Court that the Appellants were in possession of the 12 annas share of the land before they were dispossessed by the Defendants. In the second place Mussammat Sundar's case is not an authority for the proposition that where a person brings a suit for ejecting a trespasser and is not defending his possession, he can eject the trespasser from the whole of the land. If a person has entered into possession lawfully and peaceably and if his possession is attempted to be disturbed by a person who has no title, he can maintain his possession by an injunction from the Court. If, however, he is dispossessed and does not sue for possession under Section 9 of the Specific Relief Act, he can only succeed on the strength of his own title. Therefore, it is clear that the Plaintiffs in the present case having failed to prove their exclusive possession of 12 annas share before the dispossession by the Defendants and the Plaintiffs' title to the extent of four annas share only having been found, the Lower Appellate Court was right in passing a decree for joint possession in favour of the Plaintiffs to the extent of four annas share only.
The result therefore is that this appeal fails and is dismissed with costs.
HANDERSON, J. :- I agree and only desire to say this, that in dealing with the Appellants' contention, that they are entitled to succeed on account of their previous possession, though they have not established their title, the learned Judge found that this plea must be overruled in accordance with the accepted view of this Court. I am of opinion that the learned Judge correctly estimated the position with regard to the law in this Court and it is not necessary to say any more.
In the second place, the previous possession of the Plaintiffs was merely that of co-sharers and it is quite meaningless to say that they were in possession of a share greater than that to which they were entitled."
15. Learned Counsel Mr. Roy Chowdhury then relied on a decision , Sree Sree Iswar Sridhar Jew v. Jnanendra Nath Ghose. Learned Counsel Mr. Roy Chowdhury relied on this judgment which has been delivered by the Hon'ble Division Bench of this High Court. Mr. Roy Chowdhury laid stress on Paragraph 17 of this judgment which is quoted hereinbeow--
"17. The last point taken on behalf of the appellant, however, is one to which also effect must be given. In fact. Mr. Chatterjee conceded frankly that he was unable to furnish an adequate answer to it on behalf of his client. Even assuming that the decree is a decree for possession, it is a decree for joint possession and a decree for joint possession is to be executed in the manner laid down in Rule 15 of Order XXI of the Code. But that Rule obviously contemplates execution by the joint decree-holders against persons liable under the decree. Execution of a decree for joint possession by one of the joint decree-holders against the other ap-pears to me to be an impossible notion. Mr. Chatterjee with his usual candour conceded that he was unable to make out a case to the contrary."
16. Mr. Roy Chowdhury then relied on a judgment of the Hon'ble Division Bench of this High Court reported in (1971) 75 Cal WN 502, Smt. Kalyani Sen v. Sk. Enayetullah, Mr. Roy Chowdhury laid stress on Paragraphs 11 and 12 of this judgment which are quoted hereinbelow :--
"11. Even applying the principle that the suit should be decided on the original cause of action the present plaintiffs cannot be contemplated to have any cause of action against and right to get a decree for eviction of their co-sharer plaintiff No. 4. That plaintiff No. 4 Ayesha Khatun has been transferred to the category of pro forma defendant. Purchaser of her share in the suit property has been added as defendant No. 3, whose title by that purchase is still subsisting, until finality is reached in the preemption suit. In such circumstances we hold that the plaintiffs have no right even on the original cause of action, to get a decree for khas possession by evicting defendant No. 3 from the suit property.
12. On the original cause of action the plaintiffs are entitled to a decree for eviction against defendants Nos. 1 and 2. But they are not entitled to a decree for eviction and khas possession against defendant No. 3 in this suit until the contesting claim between the plaintiffs and defendant No. 3 has been finally settled in the suit for preemption which is remaining pending after remand. For the appellants Mr. Chatterjee has pressed the point for contending that in such circumstances the entire decree should be set aside and the suit should be dismissed as a whole. We do not agree with that contention. In our view in the particular facts of the case proper decree can only be decree for eviction against defendants Nos. 1 and 2-granting the plaintiffs a decree for joint possession of the premises with the defendant No. 3, leaving it to the plaintiffs to work out their further rights in the preemption suit or by a suit for partition. In that view we find strong support in a decision of a Division Bench of this Court. (Rankin C.J. and M. N. Mookerjee, J.) in Letters Patent Appeal No. 104 of 1928 affirming the judgment delivered by D. N. Mitter, J. in Second Appeal No. 1269 of 1926 fun-reported). Rankin C.J, in delivering that judgment of the Division Bench has said "A theoretical and highly important question is raised as to whether or not a co-sharer can maintain a case of trespass in the absence of other co-sharers against the trespasser so as to get an order of eviction as distinct from an order of joint possession of the trespasser, that is a matter which has long been considered in this Court. The possession as regards the execution of such an order and the possession as regards the theory of the matter being in practice clone in this Court dealt with by giving decree for joint possession together with the trespasser and leaving it to the plaintiff to work out their further rights by a suit for partition. I do not think anything unusual in the form of the decree."
17. Lastly, Mr. Roy Chowdhury submitted that the decree which was passed in the original suit was a joint decree in favour of the plaintiffs and the plaintiffs got possession jointly. Thereafter in course of a subsequent suit and/or proceeding the said execution cannot be made effective inasmuch as the subsequent action is a different cause of action and this is merely a replacement of decree and this cannot be permissible. The learned Counsel Mr. Roy Chowdhury concludingly submitted that in the above view of the matter and considering the principles laid down in the above referred cases cited by him both the judgments and decrees passed by the Courts below should set aside.
18. Mr. Bagchi, the learned Counsel for the respondents submitted that the tenancy agreement created by the pro forma defendants cannot be a valid one and cannot stand the tests of law inasmuch as this agreement was not executed on behalf of the landlords and/or of the co-sharer owners of the suit premises. Mr. Bagchi also submitted that both the Courts below came to a concurrent finding that the plaintiffs are entitled to get a decree for ejectment on eviction of the defendant No. 1, the appellant herein and the said finding should not be disturbed at the second appellate stage. Mr. Bagchi, thereafter, submitted that the decree was passed in favour of the plaintiffs and the plaintiffs along with pro forma defendants Nos. 2 to 12 being the joint owners got a joint decree for eviction and thereafter some of the pro forma defendants made an adjustment of the decree and entered into an invalid agreement and the defendant No. 1 has been trying to proceed on the basis of the said agreement. Mr. Bagchi further submitted that the suit property got involved in an agreement for sale in favour of one Rupen Mukherjee during the pendency of the proceeding. Mr. Bagchi further submitted that some of the co-sharers by entering into a collusive agreement with the defendant No. 1 without jurisdiction cannot stall the execution proceeding. Mr. Bagchi relied on the judgment of the Division Bench of this High Court reported in (1907) 11 Cal WN 517, (Kumudini Mazumder v. Rasik Lal Mazumder). Mr. Bagchi laid stress on the following observations made by the Hon'ble Division Bench in this judgment.
"The Court of Appeal below has dismissed the plaintiffs suit, so far as it relates to the separate parcels of land in and about the khanabari, which the plaintiff claims upon the ground that the arrangement that was come to between the Naba Krista and his co-sharers could only continue so long as Naba Krista was the owner of the property, and that it came to an end as soon as Naba Krista's interest in the taluk passed to a stranger.
We are however unable to accept this view as correct. No doubt, when certain co-sharers came to an arrangement like that which was effected between Naba Krista and his co-sharers, it continues to be a good and binding arrangement until the co-sharers themselves agree to give it up, and come to some other arrangement or until any one of the co-sharers demand a partition of the entire joint lands either in Court or out of Court; but no such partition has yet been demanded by any of the co-sharers nor does it appear that the arrangement in question was given up by the co-sharers. And the question is whether the plaintiff as the purchaser of the right, title and interest of Naba Krista is not entitled to be put in the same position in which that individual was at the time when his interest was sold at the execution sale. We think, in the circumstances of the case, the plaintiff is entitled to be put in the same position as Naba Krista was in respect to the separate portions of the khanabari lands mentioned in the plaint.
The learned vakil for the respondents, however, contended that all that the plaintiff was entitled to was joint possession in respect to a 4 annas share in all and several portions of the khanabari lands, because it must be taken that the arrangement that was come to between Naba Krista and his co-sharers was abandoned, so to say, as soon as Naba Krista's interest in the property passed to a stranger, and he suggested that a decree might be given to the Plaintiff in that wise. But upon such consideration, we are of the opinion that such a decree will no way be beneficial to his clients, rather it would be injurious to them, and Babu Dwarka Nath Chuckerbutty, on behalf of the Plaintiff-Appellant, expressed his unwillingness to accept a decree in that form upon the ground that his client is not prepared to fight with the co-sharers in respect of every portion of the Khanabari lands. In these circumstances, we are of opinion that the decree of the Court of Appeal below in so far as it disallows the Plaintiffs prayer for exclusive possession in respect of the particular plots of land formerly in the possession of Naba Krista should be set aside, and the case sent back to that Court with a view that the 8th issue raised between the parties in the Court of first instance be determined."
19. Mr. Bagchi then relied on a judgment reported in AIR 1967 Mysore 24, S. J. Dharmachand v. Sha Sakalchand Babulal Jain. Mr. Bagchi relied on Paragraphs 2 to 6 of this judgment delivered by the Division Bench of the Mysore High Court. For the sake of discussionat convenience the said paragraphs are quoted hereinbelow :--
"2. The decree was a money-decree and the amount claimed in the execution application which was presented on August 1, 1960 was Rs. 13363.22 NP. The Court of the Civil Judge, Bangalore, passed that decree and the execution application with which we are concerned in this appeal was also presented to that Court. At one stage the decree was at the instance of the decree-holder transferred to the Court of the Subordinate Judge Tumkur, and that order was made in Execution Case No. 17 of 1956 by the Civil Judge, Bangalore. It is obvious that the execution proceedings before the Subordinate Judge Tumkur, did not yield anything fruitful to the decree-holder as can be seen from the certificate forwarded by the Subordinate Judge, Tumkur, to which in the proceedings of the Civil Judge, Bangalore, there is a reference in the Judge's notes of July 21, 1962.
3. The four objections raised by the fourth judgment-debtor are these
(a) that a previous execution application in execution Case No. 64 of 1958 was not accompanied by a certified copy of the decree and that execution application was not therefore one made according to law and that therefore, the order made in that execution application which was dismissed for default on the part of the decree-holder did not operate as a step-in-aid
(b) that the amount claimed by the decree-holder was excessive
(c) that since the Subordinate Judge, Tumkur, had not, when the decree-holder presented his execution application to the Civil Judge of Bangalore forwarded a certificate under Section 41 of the Code of Civil Procedure, certifying the result of the execution before his Court, the application for execution made to the Civil Judge, Bangalore, was incompetent, and
(d) that there was an attachment by the decree-holder of a decree which the judgment-debtor had obtained against a certain Mir Izad Hussain in O.S. 25 of 1951-52 in the Court of the Subordinate Judge, Tumkur, and that since the decree-holder who is the respondent before us did not execute that decree but allowed it to get time barred, the decree-holder became accountable to the decree-holder (judgment-debtor?) to the extent of the amount recoverable under that decree.
4. These four submissions made by the judgment-debtor before the Court below are reiterated'in this appeal, and, when they are scrutinised, it becomes apparent that each one of them is as unsustainable as the others.
5. Firstly, it is clear that the mere fact that the earlier execution application was not accompanied by a certified copy of the decree, does not make that execution application liable to the impeachment that it was not made in accordance with law. In regard to the correctness of the amount claimed by the decree-holder, it is enough to say that judgment-debtor himself did not state why and for what reason the decree-holder was not entitled to recover the amount claimed in the execution application to which he was obviously entitled under the provisions of the decree. Then, again, the objection that the certificate under Section 41 of the Code of Civil Procedure should have been forwarded by the Subordinate Judge, Tumkur, by the time the decree-holder presented the present execution application, cannot be sustained by reason of the fact that Section 41 does not prescribe that that certificate should precede the presentation of an execution application to the transferrer Court. This contention must fail for the other reason that even otherwise, the transferrer Court would have jurisdiction in certain circumstances to entertain the execution application and this case is one such.
6. The last submission which concerns the accusation against the decree-holder that he did not execute the decree obtained by the judgment-debtor against Mir Izad Hussain must fail by reason of the clear provisions of Rule 53 of Order XXI of the Code of Civil Procedure. Sub-rule (1) (b) (ii) of Rule 53 and Sub-rule (2) of that Rule unlike the provisions of Section 273 of the old Code of Civil Procedure, do not prohibit an application for execution by a judgment-debtor whose decree is attached by a person who obtains a decree against him. It is very clear from these two provisions of Rule 53 that notwithstanding the attachment of a decree obtained by a judgment-debtor against his own judgment-debtor (sic), it is always open to the judgment-debtor whose decree is attached, to execute that decree although the proceeds of that decree have to be applied towards the satisfaction of the decree which has been obtained against himself."
20. Mr. Bagchi submitted that in the instant case the provisions of Order 21 Rule 15 of the Code of Civil Procedure is attracted. On this score Mr. Bagchi relied on the decision reported in (1959),63 Cal WN 570, Mihir Bose v. Jobeda Khatun. Mr. Bagchi submitted that in this judgment, the Hon'ble Division Bench of this High Court has observed that the expression "to the satisfaction of the decree-holder", in Rule 2 (1) of Order 21 of the C.P. Code, refers to the entire body of decree-holders, where the decree is joint and indivisible. Such a decree can only be adjusted by the consent of the entire body of the decree-holders and not by some of them only. Mr. Bagchi relied on the observations of the Hon'ble Division Bench made in this judgment which are quoted hereinbelow :--
"The expression "to the satisfaction of the decree-holder" in my opinion means the entire body of the decree-holders, where a decree is joint and indivisible. In the present case, the decree was passed for khas possession of the disputed premises by evicting the appellant. No share of the decree-holders were specified and the decree was a joint and indivisible decree in the true sense of the term. In my opinion such a decree can be adjusted only by the consent of the entire body of decree-holders and not by some of them. In this connection Mr. Sinha drew my attention to a case , Valchand Gulabchand v. Manekbai Hirachand. That was a case of adjustment of a money decree, and it was held by their Lordships of the Bombay High Court that payment to one of the several joint decree-holders cannot be recognized as a payment to all (unless he was authorised to receive such payment on behalf of all) and does not amount to a pro tanto satisfaction even to the extent of what is regarded to be a share in the decree of the decree-holder who receives payment. These observations apply with stronger force, to a decree for joint possession of some premises where the shares, of the decree-holders are not specified in the decree.
Mr. Mitra who drew my attention to the case reported in (1883) TLR 9 Calcutta 831 (Tarruck Chunder Bhuttacharjee v. Divendro Nath Sanyal contended that the decision of the Bombay High Court should not be regarded as a correct decision. It is, no doubt true that in the Calcutta case a judgment-debtor was given credit for a sum of money paid bona fide to one of the several joint decree-holders, and duly certified to the Court by the latter. It was further held that the other joint decree-holders were not competent to execute the decree for more than their shares. It seems that to some extent there is a conflict between the case of the Bombay High Court referred to above and the Calcutta case where a decree is one for money. The present decree, however was one for khas possession of certain premises. Such a decree stands on a different footing from the decree for payment of money. It cannot also be said that adjustment of such a decree with some of the decree-holders to the exclusion of the rest is a bona fide adjustment. For this reason and in view of the wording of Order XXI, Rule 2 (i) of the Code of Civil Procedure, I am of opinion that an adjustment of a joint decree of this nature by some out of the entire body of decree-holders is not valid in law. That being the position the remaining decree-holders are entitled to execute the whole decree, as it was originally passed. Should such an adjustment at the instance of some of the decree-holders be recognised, then the original decree for khas possession would be converted into a new decree for joint possession and it is not permissible for the Court to create such a new decree which should be at variance with the original decree. This view gains support from the case , Azizur Rahman Choudhury v. Aliraja Choudhury. In this view of the matter I am of opinion that the so-called adjustment was not a valid or legal adjustment and it should be ignored, and the lower appellate Court is right in holding that the entire decree for possession is capable of execution at the instance of the decree-holders who were not parties to the adjustment. The first contention raised on behalf of the appellant therefore, fails.
The only other contention raised on behalf of the appellant was that the appeal before the lower appellate Court was filed out of time and was not maintainable in law inasmuch as the appeal was not presented within time from the date when the adjustment was ordered to be recorded. That order was passed on 1st December, 1953 and the appeal in the lower appellate Court should be regarded as having been filed out of time if the period of limitation is computed from that date. It, however, appears from the records of the executing Court that the final order dismissing or rather striking off the execution case was passed on 31st May, 1954. The appeal was presented in time if the period of limitation is calculated from that date. The order regarding the adjustment was an interlocutory order, and in my opinion, the starting point for filing of the appeal was 31st May, 1954 on which date the execution case was struck off. The appeal before the lower appellate Court was, therefore, presented in time and the contention of Mr. Mitra to the contrary is negatived."
21. Mr. Bagchi submitted that in view of the legal position as submitted by him the instant second appeal should be dismissed.
22. Heard the Learned Counsel for the parties. Considered the respective submissions and considered the judgment and decree passed by the Courts below as well as the evidence on record. Let me first look into the entire factual aspects of the case in brief. One ex parte decree for eviction was passed against the defendant No. 1. The decree-holders that is the three plaintiffs put the decree in execution. When the execution proceeding was going on, pro forma defendants Nos. 2 to 12 made an application before the Executing Court. In the said application the said pro forma defendants Nos. 2 to 12 prayed for stay of the execution proceeding. According to them on adjustment of the decree they have given a fresh tenancy to the defendant No. 1, more so an agreement of tenancy has been executed by and between the pro forma defendants Nos. 2 to 12 and the defendant No. 1 on 24-3-1981 and as such the plaintiffs cannot proceed further in the execution proceeding. However, according to the plaintiffs, on 22-9-1981 with the help of the police they evicted the defendant No. 1 and got the delivery of possession. According to them, the decree was satisfied. On the very same date that is on 22-9-1981 in the night the defendant No. 1 entered into the said premises with the help of some unruly elements. Now, the instant suit, for eviction of the defendant No. 1 was filed alleging that the defendant No. 1 on and from 23-9-1981 has been occupying the premises as trespasser. According to the appellants herein the learned Trial Judge without going into the question as to whether after the full satisfaction of the decree the suit for eviction comes out of a new cause of action or not decided that adjustment of the decree has been made between the pro forma defendants who are some of the decree holders and the defendant No. 1, but this adjustment of decree at the instant of some of the decree holders is illegal and it is not permissible for Court to create such new decree which would be at variance with the original decree. The appeal Court also adopted the same view and in this regard relied on the provisions of Order 21 Rule 15 of the C.P.Code. Now let me see the position of Order 21 Rule 15 of the C.P. Code. The said provision is quoted hereinbelow :--
"Rule 15. Application for execution by joint decree-holder. (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may. unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application."
23. Then comes the question of joint decree which means a decree jointly passed in favour of more persons than one. The Division Bench of this High Court in (supra) has clearly held that a decree for joint possession is to be executed in the manner laid down in Order XXI Rule 15. But that Rule obviously contemplates execution by the joint decree-holders against persons liable under the decree. Execution of a decree for joint possession by and between the joint decree-holders against the others is an impossible notion.
24. The decision reported in (1971) 75 Cal WN 502 (supra) is also clear regarding the position as to what would be the effect if during the pendency of the suit the interest of some of the co-sharers is transferred to somebody else. From the decision cited above it is clear that when a joint decree, which is a decree obtained by body of decree-holders is sought to be executed by some of the co-sharers then the said co-sharers can invoke provisions of Order XXI Rule 15 of the C.P. Code. In so far as the application filed by the defendant No. 3 Gita Mukherjee who is the respondent No. 3 herein enclosing two deeds of conveyance from those it appears that Gita Mukherjee purchased the entire suit premises.
25. Now it is a question as to whether this purchas is going to change the position of the decree or not inasmuch as in the instant case the tenancy agreement executed on 24-3-1981 by and between the appellant defendant No. 1 and the pro forma defendants Nos. 2 to 12 have been considered by the Courts-below and both the Courts below observed rightly that the said tenancy agreement is an illegal tenancy agreement, by adjustment of decree by some of the decree holders when it is a joint decree and in terms of Order 21, Rule 2 (1) of the Civil Procedure Code here is a body of decree-holders. After the purchase of the entire suit property by Gita Mukherjec, the plaintiff No. 3, she can obviously ask for invocation of the provisions of Order 22, Rule 10 of the Code of Civil Procedure and in fact she has applied.
26. In fact, immediately when the plaintiffs on 22-9-1981 took possession of the suit premises with the police help in the earlier ex parte decree, there is satisfaction of the Joint decree and thereafter the respondent/plaintiffs can obviously take advantage of the provisions of Order XXI Rule 15 of the C.P. Code inasmuch as if the plaintiffs want to treat defendant No. 1 as trespasser.
27. In that view of the matter both the Courts-below, in my opinion, rightly passed the judgments and decrees.
28. In view of the discussions made above, all the above substantial questions of law go against the appellant. The instant appeal is dismissed. The judgments and decrees passed by the Courts-below are affirmed. Let the decree be drawn up accordingly Considering the position the defendant No. 1 is given six months time to vacate the suit premises, in default the plaintiffs will be entitled to put the decree in execution.
29. Let the L.C.R. be sent down to the Courts below expeditiously.
30. Urgent xerox certified copy, if applied for, will be supplied to the parties expeditiously.