Patna High Court
Bhagirath Prasad Kamalia vs Sm. Jamuna Devi And Anr. on 5 September, 1949
Equivalent citations: AIR1950PAT211, AIR 1950 PATNA 211
JUDGMENT Reuben, J.
1. This appeal arises out of an application for the execution of a decree for sale. The property sought to be sold is 3 annas 6 pies share in a house bearing holding no. 136 in Ward no. 2 in the Municipality of Gaya.
2. This house formerly belonged to one Gopalji who executed a mortgage bond in 1930 hypothecating this property. The mortgagee sued on the bond on 19th September 1936 (Suit No. 62 of 1936), and obtained a preliminary decree on 28th January 1938, The decree was made final on 4th August 1941. One Bajrang Sahay figures in the final decree as judgment-debtor no. 51. The respondents, who are transferees from the heirs of Bajrang Sahay, objected to the execution of the decree on the ground that Bajrang Sahay died on 21st May 1941 and that, as no substitution was made in his place, the decree cannot be executed against them. The objection has been sustained. Hence, the present appeal.
3. Before the Subordinate Judge there was a contest as to whether Bajrang Sahay died before the decree was made final. The correctness of the finding that he died has not been challenged before us. The only point pressed by Mr. Janak Kishore for the appellant is that Bajrang Sahay acquired his interest in the property during the pendency of the mortgage suit, that he was therefore not a necessary party in the mortgage suit and the failure to implead his legal representatives will not affect the executability of the decree, Mr. Raj Kishore Frasad resists this contention, asserting that Bajrang Sahay's interest in the property commenced before the institution of the suit. He also raises a preliminary point, that the opposite party being strangers to the decree their objection was not under Section 47 but under Order 21, Rule 58, Civil P. C., and so no appeal lies.
4. As I consider that on the merits the appeal fails the preliminary point is of academical interest. Since it has been argued before us I would express my opinion. Had a decision been necessary, I would have rejected the contention relying on Jungli Lall v. Laddu Ram, 4 P. L. J. 240 : (A. i. R. (6) 1919 Pat. 430 F. B.). The facts in that case were similar to the one before us, A final decree was passed against a deceased judgment-debtor, and his legal representatives challenged its executability. The Courts below rejected the objection, holding that the execution Oourt could not go behind the decree. The decision was reversed by a Full Bench of this Court, which held that the dispute was one which arose between the parties within the meaning of Section 47 (vide pp. 247, 251 and 261 of the report).
5. The papers necessary for the decision of the question of fact involved in the remaining point have been filed before us. The relevant facts are as follows. Gopi Nath filed a partition suit and obtained from the Court an interim maintenance order against the karta Gopalji for a monthly allowance of Rs. 160. The suit was finally disposed of by compromise on 1st August 1931. Nevertheless, Gopinath took out execution of the order for payment of maintenance as if it was a decree. Gopalji appealed against the order permitting the execution to proceed (M. A. No. 46 of 1932). Certain property was sold in the course of the execution proceeding and Gopi Nath deposited Rs. 1082-6-0 under Order 21, Rule 89 for setting aside the sale. Under the order of the High Court in M. A. no. 46, Gopalji withdrew this money after furnishing security for its re-payment in the event of the appeal being decided against him. The security was given on 31st May, 1932, and consisted of the sixteen annas interest in the house in question. The appeal was ultimately decided in favour of Gopi Nath on 5th September 1933, and the amount which Gopi Nath was entitled to recover (including the amount deposited by him) was assessed at Rs. 1933. On 16th August 1936, Gopi Nath transferred his dues under the High Court order to Bajrang Sahay by a registered document. Bajrang Sahay executed this order in Execution Case no. 252 of 1936 in the Court of the Subordinate Judge, 1st Court, Gaya. and put to sale and himself purchased the sixteen annas interest in the house on 8th March 1937. By reason of this purchase, Bajrang Sahay was impleaded as a defendant in Mortgage suit No. 62 of 1936 on an application filed by the plaintiff on 31st March 1937. A previous petition filed by the plaintiff on 10th February 1927, was dismissed on 18th February 1927, on the ground that no document had been filed bo show that Bajrang Sahay had any interest in the equity of redemption.
6. The question is whether Bajrang Sahay'a interest in the property commenced on 15th August 1936, or on 8th March 1937. Mr. Janak Kishore points out that the transfer under the deed of assignment of 15th August 1936, was expressly confined to the decretal amount. In my opinion there is no force in his contention. The transaction is governed by Section 8, T. P. Act :
"Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof."
Instances of what is meant by "incidents" are given in the section and among them we find an exact analogy :
'Where the property is a debt or other actionable claim, the securities therefore (except where they are also for other debts op claims not transferred to the transferee), but not arrears of interest accrued before the transfer."
In this case the deed of transfer, though expressed to refer to the debt alone, clearly shows the intention that the security should be transferred at the same time, for in para, 7 of it we find:
'That the vendee has also been informed that the house in Ward No. 2, bearing former holding No. 138, present holding No. 136, (situate on the road) at Sonarpatti where jewellers reside, is in security and is liable for the said decree; that is, Gopal Jee, the decree-holder, filed a petition in Execution Case No. 359 of 1931 is the First Court of the Subordinate Judge for withdrawing the amount deposited by me, the executant, against which I, the executant-appellant, took steps in the High Court for issue of injunction. But the lower Court took the said property in security and paid She money deposited by me, the executant, to Gopal Jee, the decree-holder, it was in this hope that the vendee-claimant purchased the said decree on payment of sufficient consideration money. Hence the claimant also shall be fully competent to realise (the amount) from the property given in security in the said execution case or by such other means as he may think proper, I, the executant, or my heira neither have nor shall have any objection to this and if I put forward any claim It shall be deemed quite illegal."
The deed of transfer having been duly registered there was nothing to prevent the security from passing along with the decretal dues.
7. Mr. Janak Kishore has stressed that the execution taken out by Bajrang Sahay was not a mortgage execution, that he proceeded not merely in respect of the secured amount but for the whole decretal amount, and that he asked for attachment of the property prior to sale--a procedure which would not be necessary if he intended to enforce the security. I cannot see that the nature of the execution taken out by Bajrang Sahay affects the question before us, By his purchase on 15th August 1936, Bajrang Sahay acquired an encumbrance on the pro-perty and became a necessary party to the suit. By his purchase of the property in his execution case he increased his interest in the property. This increase in his interest could not put him in a worse position than he was in before. Hence, he must have continued to be necessary party.
8. It follows that the objection of the respondent a has rightly been sustained. It is not necessary for us to consider in this appeal what remedy, if any, is now open to the decree-holder.
9. On the above grounds, I would dismiss this appeal with costs.
Shearer, J.
10. I agree.