Patna High Court
Tarni Prasad Sinha vs Lachuman Sahu on 21 February, 1975
Equivalent citations: AIR 1976 PATNA 69, 1975 BLJR 588, ILR (1976) 55 PAT 119, 1976 PATLJR 97, 1975 BBCJ 540
JUDGMENT S.K. Jha, J.
1. The decree-holder, who was defendant No. 1 in Title Suit No. 149 of 1951 in the Court of the Subordinate Judge. Darbhanga, has come up in a miscellaneous second appeal to this Court. The present miscellaneous appeal arises out of Miscellaneous Case No. 7 of 1962 of the Court of the 3rd Additional Subordinate Judge, Darbhanga, which had been started on an objection filed by one Lachuman Sahu, who is a son of one of the defendants in the aforesaid title suit. Such an objection had been filed in the execution levied by the present appellant in Execution Case No. 31 of 1961/ 1 of 1962. The learned Subordinate Judge who was the Court of first instance rejected the objection filed by the aforesaid Lachuman Sahu and held the execution case to be maintainable. The learned Additional District Judge who was the Court of first appeal reversed the order of the trial Judge and held that the objection raised by the so-called judgment-debtor must prevail.
2. The short facts relevant for the disposal of this appeal may he stated thus. In a certain proceeding for realisation of dues of Income-tax Tarni Prasad Sinha, the decree-holder, appellant in this Court, purchased in a Court auction sale the house of one Ram Charan Sahu, father of Lacbuman Sahu aforesaid for a sum of Rs. 20,000/-. One Gujjar Sahu, who was the sister's husband of Ram Charar. Sahu aforesaid, filed Title Suit No. 149 of 1.951 in the Court of the Subordinate Judge. Darbhanga. praying for a declaration that the house in question which had been the subject-matter of the auction sale belonged not to Ram Charan Sahu but to Gujjar Sahu himself. A consequential relief by way of decree for confirmation of possession or, in the alternative, recovery of possession was also prayed for. Gujjar Sahu aforesaid claimed in the suit to have purchased the properties from Ram Charan for a sum of Rs. 8090/- only by a sale deed dated 10th of September, 1949. In that title suit Tarni Prasad Sinha, the appellant here, was defendant first party and Ram Charan Sahu, father of Lachuman Sahu, respondent No, 1 here, was defendant second party. Tarni Prasad alone contested the suit, and it was dismissed with costs pay-able to defendant No. 1 alone, namely, the present appellant. In that suit it was held by the trial Court that the alleged sale by Ram Charan to Guijar was really a sham and collusive transaction and con-veyed no title to Guiiar Sahu. Against this decision. Gujjar preferred an appeal which was heard by the learned District Judge who upheld the trial Court's decision In appeal. Thereafter. Gujjar Sahu filed a second appeal before this Court which was registered as Second Appeal No. 663 of 1956. In that appeal filed in this Court it was detected by the office that the properties had been purchased for Rs. 20,000/- in Court auction sale but the suit had been valued at only Rupees 8,000/-, and accordingly an order was passed by this Court directing the learned Subordinate Judge to fix the valuation of the properties. The properties in the aforesaid Title Suit No. 149 of 1951 were ultimately found to be the value of Rupees 20,000/-. Having recorded such a finding the learned Subordinate Judge sent the file to this Court. Thereafter this Court directed Guijar Sahu aforesaid to pay the deficit court-fee on the valuation of the suit properties at Rs. 20,000/- for the trial Court, the lower appellate Court and this Court within the peremptory time granted by this Court. The deficit court-fee was not paid and as such Guiiar Sahu's appeal stood dismissed on the 3rd of June 1959.
3. The bone of contention in the present appeal is the execution of the decree for costs alone passed in the aforesaid Title Suit No. 149 of 1951 right up to the stage of the appeal, and the question which falls for consideration in this appeal can be briefly summed up as --whether in execution of the decree for costs passed against Gujjar the decree-holder, namely, the present appellant, can proceed to attach and pursue the properties belonging not to Gujjar but to Ram Charan who was the defendant second party in the aforesaid title suit. For a decision of this question, some more facts have to be stated. As already stated, the decree for costs in the suit filed by Guiiar was in favour of Tarni Prasad Singh, the present appellant. Such a decree was against Gujjar alone. The present appellant levied Execution Case No. 31 of 1961 in the Court of the Additional Subordinate Judge, Darbhanga, for realisation of the costs alone. This execution case, on transfer to the Court of the 3rd Additional Subordinate Judge, was renumbered as Execution Case No. 1 of 1962. In the meantime, both Guiiar and Ram Charan had died and their heirs have since been impleaded as parties to the proceedings in the execution case. Three miscellaneous cases were filed in the aforesaid execution case by four sons of Ram Charan on the ground that since the decree for costs of Title Suit No. 149 of 1951 was against Guijar alone and not against their father Ram Charan. their properties could not be proceeded against for realisation of the costs. One of such petitions was filed by Asarfi Sahu. one of the sons of Ram Charan. It was numbered as Miscellaneous case 10 of 1962. Jagat Narain Sahu and Ram Prasad Sahu, two of the other sons of Ram Charan. filed similar objection in Miscellaneous Case No. 11 of 1962. The present respondent No. 1. Lachuman Sahu, who is the fourth son of Ram Charan, filed an objection which was registered as Miscellaneous Case No. 12/3 of 1962. In all these three miscellaneous cases the four sons of Ram Charan Sahu had prayed for release of the properties belonging to Ram Charan which had devolved on them on Ram Charan's death from attachment and sale in execution of the decree for costs against Guiiar. Miscellaneous Case No. 12/3 of 1962 was dismissed for default on the 14th of July 1962. The other two Miscellaneous Cases 10 and 11 of 1962 were allowed in part, but substantial objections were disallowed by the learned Subordinate Judge by an order dated the 16th of July 1962, therein it was held that since Ram Charan was not liable to pay the costs awarded by the decree the properties of his three sons, who were applicants in the two Miscellaneous Cases 10 and 11 of 1962, could not be sold and the properties against which the decree-holder had proceeded in the execution case were not the subiect-matter of the title suit, and as such any decision in that suit could not affect the title of Ram Charan or his heirs to the properties. It was, therefore, held that the decree-holder could proceed in execution against such of the properties of Gujjar alone as were described in the Schedules of the Miscellaneous petitions of both these miscellaneous cases. On the same date, however, that is. 16-7-1962, the present respondent No. 1, Lachuman Sahu, whose application had been dismissed for default previously on 14-7-1962, filed a fresh miscellaneous case, which was numbered as Miscellaneous Case 7 of 1962. This case was, however, registered under Order 21, Rule 58 of Civil P. C, It is, however, admitted at the Bar, as was done in course of the proceedings in the Courts below, that in reality and in substance the application was not under the provisions of Order 21. Rule 58 of the Code but under Section 47 of the Code. The decree-holder, the present applicant, contested this case. The miscellaneous case was eventually dismissed by the Additional Subordinate Judge by en order dated 19-2-1963 as being not maintainable in view of the fact that the dismissal for default of the previous application on the 14th of July, 1962, was a bar to the maintainability of the subsequent application. He invoked the principle of res judicata in putting such a bar to its maintainability. Against the decision in the three miscellaneous cases, viz., Miscellaneous Cases 10 and 11 of 1962 and Miscellaneous Case No. 7 of 1962, three Miscellaneous Appeals arose.
4. The learned Additional District Judge who heard the appeals allowed Miscellaneous Cases 10 and 11 of 1962 on the finding that none of the properties attached in the execution case were liable to be attached as they belonged to Ram Charan and subsequently, on his death, to his sons, none of whom was liable under the decree for costs passed against Gujjar. The Miscellaneous appeal which arose out of Miscellaneous Case No. 7 of 1962 filed by Lachuman, the present respondent No. 1, was numbered as Miscellaneous Appeal No. 24 of 1963 in the Court of the Additional District Judge. This miscellaneous appeal of Lachuman. however, failed on the technical ground that the second application was barred by the principles of res judicata. Against this last mentioned decision of the learned Additional District Judge, Lachuman filed Miscellaneous Appeal No. 248 of 1964 before this Court This Court held that Miscellaneous Case No. 7 of 1962 initiated by Lachuman, the present respondent No. 1, was not barred by res judicata. Since Miscellaneous Appeal No. 24 of 1963 of the Court of the Additional District Judge which had arisen out of Miscellaneous Case No. 7 of 1962 had not been decided on merits the appeal before this court was remanded to the Lower Appellate Court for fresh hearing and disposal pf the appeal in the light of the observations made by this Court. The present impugned order of the learned Additional District Judge is the order passed on remand.
5. The trial Judge before remand by this Court had found on facts that both the items of property which were said to be pursued against by the decree-holder appellant and which were two houses situated in Darbhanga town belonged to Lachuman Sahu, respondent No. 1, and he was in possession of the same. The learned Subordinate Judge had further observed that but for the maintainability of the application on the ground of res judicata, he would not have had the slightest hesitation in ordering the release of the attached properties, as none of the properties sought to be attached or actually attached belonged to either Gujjar or his heirs and Ram Charan or his heirs were in no way bound by the decree for costs. The learned Additional District Judge by the impugned order has as he was bound to do, set aside the finding of the learned Subordinate Judge regarding the bar of res judicata. It has been held by the lower appellate Court that both on principle and in view of the decision of this Court in Miscellaneous Appeal No. 248 of 1964 Miscellaneous Case No. 7 of 1962 could not be held to be barred by res judicata. That being the position in law the learned Additional Dist. Judge has also affirmed the finding of fact of the learned Subordinate Judge that the properties sought to be attached did not belong to the judgment-debtor of Title Suit No. 149 of 1951 but actually belonged to Ram Charan. It has further been held that the decree for costs passed against Guiiar could not be realised from out of the properties belonging to Ram Charan or his heirs.
6. Mr. Ram Nandan Sahai Sinha, learned counsel for the appellant, vehemently urged that since it had been held in Title Suit No. 149 of 1951 that Gujiar was merely a name-lender for Ham Charan and that actually the properties which were purchased at the auction sale by the appellant were held not to have been transferred at all in favour of Lachuman under the alleged deed of sale of the 10th of September, 1949, the decree-holder could very well pursue the remedy of execution for decree for costs as against the farzidar by getting the properties of the beneficial owner, namely, Ram Cha-ran, proceeded against in the execution case. Learned counsel contended that it was well-settled principle of law that the benamidar sufficiently represents the real owner and the decision in the proceeding brought by or against the benamidar will bind the real owner, even though he may not have been joined as a party. The proposition of law as enunciated by learned counsel seems to me to be unexceptionable, for it is well-settled that in a proceeding by or against the benamidar the person beneficially entitled is fully affected by the rules of res judicata. It is open to the beneficial owner to apply to be joined in an action, but whether he is or is not made a party, a proceeding by or against the benamidar, who is his representative in its ultimate result, is fully binding on him. Reference in this connection may be made to a decision of the Judicial Committee of the Privy Council in Gur Narayan v. Sheo Lal Singh, (1919) 46 Ind App 1) = (AIR 1918 PC 140), a paragraph from which has been quoted with approval by the Supreme Court in Ragho Prasad Gupta v. Shri Krishna Poddar, (AIR 1969 SC 316 at p. 318). The proposition as baldly stated above admits of no controversy. There are, however, numerous insurmountable difficulties in the way of the appellant. In the first place, the finding in the title suit was, as appears from the order of the Lower Appellate Court, that the alleged transaction of sale in favour of Gujjar was a sham and collusive transaction and not a benami one. The fundamental difference between these two classes of transaction is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is no passing of title at all. The question of pursuing against any property of the beneficial owner on the doctrine of representation by the ostensible, owner does not arise in such cases. Secondly, from the materials on record there does not appear to be any finding in the title suit that the suit itself was in any manner collusive. That being so, can it be said that in the event of a decree having followed in favour of Gujjar in the title suit Ram Charan could recover the same ? Certainly not for if a fraud succeeds, the property must lie where it falls.
Thirdly, let us assume for the sake of argument that both benami and sham transactions stand on the same footing for the purposes of present case. Then, the most pertinent question which arises in the present case, however, is as to whether in the suit filed by Gujjar as against the present appellant and Ram Charan, if a decree is passed against Gujiar alone in favour of the appellant, can the decree for costs which is not the subject-matter of the benami transaction be said to be constructively saddled on the beneficial owner of the properties which were the subject-matter of a sham transaction ? As I understand the law a benamidar represents the true owner or the beneficial owner only in so far as the properties which are the subject-matter of the benami or sham transactions are concerned. The decree awarded against Gujjar for costs in favour of the present appellant cannot be said to be, in any way, subject-matter of the collusive transaction between Gujjar and Ram Charan. In that view of the matter, the decision of the Supreme Court in Ragho Prasad Gupta's case, AIR 1969 SC 316 cannot be of any avail to the learned counsel for the appellant, for this distinction is clearly focussed in the judgment of the Supreme Court in paragraph 3 of the report wherein it has been said that the decision in any proceeding brought by or against the benamidar will bind the real owner though he Is not joined as a party unless it is shown that the benamidar could not or did not in fact represent the interest of the real owner in that proceeding (underlined by me). Can it on the facts of the instant case be said that in the title suit in which costs have been awarded the benamidar did in fact represent the interest of the real owner in so far as the costs for his reprehensible act are concerned ? My plain answer to this query is in the negative.
7. It is true, as observed by Kerr in his treatise on Fraud and Mistake (Seventh Edition) at page 665. "if a man has abetted a fraud, the absence of a personal benefit resulting from it is no excuse; he may be justly made responsible for its results, and even if no other relief can be had against him, he may be compelled to pay the costs of the action". But that principle can have no application here, for the matter could have been quite different if on account of the collusion between Gujjar and Ram Charan the Court deciding Title Suit No. 149 of 1951 had also awarded a decree for costs as against Ram Charan, which the court in law and in equity could well be justified to do. It is again a different matter that the decree which is sought to be executed by the present appellant may afford him a distinct cause of action for claiming such relief as may be devisable under law by proceeding in a different suit against Ram Charan or his heirs for wrongs done to him on account of the collusion, but with the matter we are not concerned here.
There is thus no substance in the first contention of the learned counsel.
8. It was next contended on behalf pf the learned counsel that this appeal in any event ought to be allowed, as the lower appellate Court had no pecuniary jurisdiction to decide the appeal there. This point had also been raised before the learned Additional District Judge but was held by him to be not tenable, and, in my view, rightly so. The title suit was instituted by Gujjar aforesaid before the Subordinate Judge valuing the suit properties at Rs. 8,000/- only. The present appellant, who was defendant No. 1 in the title suit, did not raise any objection with regard to the amount of value of the suit properties. Gujjar having lost in the Court of first instance preferred an appeal before the Lower Appellate Court, wherein the present appellant was Respondent No. 1. That was the earliest opportunity when the present appellant appearing as a contesting respondent in that appeal could have raised the question of valuation in order to shut out the jurisdiction of the Lower Appellate Court to go into the merits of the case. The appellant did not choose to do so and took a chance of a decision in his favour. If the objection with regard to the pecuniary jurisdiction had been taken by the present appellant at the earliest stage, namely, when the appeal had been filed by Gujjar before the Lower Appellate Court, the matter with regard to valuation could have been very well gone into at that stage, and if it had then been found that the properties were valued at more than Rs. 20,000/- the memorandum of appeal could have been returned to Gujjar to be presented before the proper court, viz., this Court. Having taken a chance there and letting Gujjar stand to prejudice in his case by not affording him a chance to come up in first appeal to this Court but to make him confined to the provisions of Section 100 of the Code of Civil Procedure, it is too late in the day now in the course of the execution proceedings to permit the appellant to raise the objection with regard to the pecuniary jurisdiction of the Court. Not only that, even when Miscellaneous Case No. 7 of 1962 filed by the present respondent No. 1 was dismissed on the ground of res judicata and the appeal was preferred by him before the Lower Appellate Court, the question with regard to the pecuniary jurisdiction of the lower Appellate Court was not raised at all. Nor for that matter, when the matter was pursued by way of a miscellaneous second appeal to this Court in Miscellaneous Appeal No. 248 of 1964 was such a question raised. Learned Counsel for the appellant contends that since on that occasion this court had not gone into the merits of the case but had merely remitted the matter for decision on the merits to the Lower Appellate Court, it would have been quite out of place to urge this point before this Court on that occasion. This is an argument advanced merely to be rejected. As I have shown above, the earliest opportunity when such an objection could have been raised was when the decree in the title suit was under appeal before the Lower Appellate Court. The second occasion when such an objection could have been raised was when Miscellaneous Case No. 7 of 1962 gave rise to Miscellaneous Appeal No. 24 of 1962 before the Additional District Judge; and the third occasion when such a failure occurred when this court remanded the matter while disposing of Miscellaneous Appeal No. 248 of 1964. That being the position the decisions relied upon by the learned counsel in Bahrein Petroleum Co. Ltd. v. P. J. Pappu, (AIR 1966 SC 634) and Bandhu Kunjra v. Rahman Kunjra, (AIR 1966 Pat 209) (FB) are of no avail to the appellant.
9. In the case of Bahrein Petroleum Co. Ltd., aforesaid the Supreme Court was dealing with a case where the question of territorial jurisdiction had been raised. When the suit was filed in the Cochin Court, before the defendant in that suit participated in any way in the proceedings, an application under Section 34 of the Arbitration Act was filed, praying for stay of the proceedings on the ground that the matter was governed by the Arbitration clause. The objection with regard to the territorial jurisdiction of the court was also taken in the application for stay under Section 34 of the Arbitration Act. While rejecting the prayer for stay under Section 34 on merits, the trial Court did not go into the question of jurisdiction at all. Such an order pf refusal of stay was confirmed by the High Court on appeal also. Subsequently, however, in the second round of litigation arising from the decree passed by the Cochin Court, the question that arose for consideration was as to whether the objection with regard to the territorial jurisdiction of the trial Court could be taken up in appeal, and their Lordships of the Supreme Court while dealing with this matter held that such an objection with regard to the territorial jurisdiction had been taken at the very initial stage in the application for stay filed under Section 34 of the Arbitration Act, and in such view of the matter it was held that there could not be any waiver and that the decree passed by a Court having no territorial jurisdiction was a nullity. The question of prejudice was actually alien to the scope of the point in controversy before the Supreme Court. The Full Bench decision of this court in the case of Bandhu Kunjra, (AIR 1966 Pat 209) (FB) is not at all relevant to the point at issue. In that case this Court was seized with the question as to under what circumstances the validity of a previous order of remand could be gone into when the matter came up at a subsequent stage to this Court and as to what was the true meaning and import of the term 'judgment' within the meaning of the Letters Patent of the Patna High Court.
10. In support of the view that I have taken I may merely refer to the decision of the Supreme Court in Kiran Singh v. Chaman Paswan. (AIR 1954 SC 340). In that case although it was held by the Supreme Court that it was a fundamental principle that a decree passed by a Court without jurisdiction was a nullity and that its invalidity could be set up whenever and wherever it was sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings, yet it was held that the principle underlying Section 11 of the Suits Valuation Act, 1887, is that a decree passed by a Court, which would have had no jurisdiction to hear an appeal but for over-valuation or under-valuation, is not to be treated as what it would be, but for the Section, null and void, and that an objection to jurisdiction based on valuation should be dealt with under that Section and not otherwise. And the principle incorporated in the provisions of Section 11 of the Suits Valuation Act clearly envisaged that unless the over-valuation or under-valuation has prejudicially affected the disposal of a suit or appeal on its merits, the appellate Court shall not interfere with it. It shall do so only if prejudice such as is mentioned in the Section results. Such a prejudice as is contemplated by Section 11 must be directly attributable to over-valuation or under-valuation. An error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or undervaluation. Nor for that matter, mere errors in the conclusions on the points for determination can be held to be prejudice within the meaning of that statutory provision. Authorities may be multiplied for which I see no necessity. In the instant case, no prejudice worth the name on merits could be shown to us by learned counsel for the appellant. In that view of the matter. I think the learned Additional District Judge was quite justified in resorting to the provisions of Section 11 of the Suits Valuation Act as one of the reasons for rejecting the contention put forward on behalf of the appellant.
11. No other point was raised in this appeal. I would, therefore, hold that there is no merit in this appeal, and it is accordingly dismissed. In the circumstances of the case, however. I shall make no order as to costs.
S.N.P. Singh, C.J.
I agree.