Patna High Court
Ramadhar Singh vs Sadan Prasad And Ors. on 3 February, 1998
Equivalent citations: 1999(1)BLJR134
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This Civil Revision application is directed against the order dated 22.7.1996 passed by the Execution Munsif, Civil Courts, Patna, in Execution Case No. 4 of 1994 by which the Court below rejected the petitions of the judgment debtor-petitioner wherein prayer was made for dismissal of the aforesaid Execution Case No. 4 of 1994.
2. For better appreciation of the case of the parties, some facts in detail are necessary to be stated herein. The plaintiffs-opposite parties filed Partition (Title) Suit No. 44 of 1962 for partition of their 1/3rd spare in the suit property, consisting of three plots, being Plot Nos. 768, 772 and 773, situated in Mohalla-Mahendru, PS. Sultanganj, within the district of Patna. The suit properties originally belonged to one Bisheshwar Mistri, who died intestate in the year 1956, leaving behind his widow, named, Sundari Devi and two daughters, namely, Mitra Devi and Ishwari Devi. Sundari Devi sold 2 Kathas of Plot No. 773 to Raghubir Mistri by registered deed of sale dated 22.11.1958. According to the petitioner, Mitra Devi sold her 8 annas right in the suit property to the petitioner under registered deed of sale dated 10.4.1958 in the entire land and the dwelling house. The petitioner was tenant in part of the suit property since 1949 and after purchase of 1/2 share from Mitra Devi, he came in possession of the entire purchased land and dilapidated dwelling house. The suit was eventually decreed by the Munsif in terms of the judgment dated 20.7.1968 and preliminary decree was passed in respect of 1/3rd share of the petitioner in the suit property. The defendant-petitioner then preferred Title Appeal No. 136 of 1968 and by judgment and decree dated 21.7.1984 the appellate Court allowed the appeal in part and decreed the plaintiffs' suit for 1/3rd share in respect of Plot No. 773 only. The petitioner's further case is that thereafter on the application filed by the plaintiffs, a final decree was prepared, sealed and signed on 3.7.1993, but the same was not in consonance with the preliminary decree passed by the appellate Court in T.A. No. 136 of 1968. The plaintiffs then put the final decree in execution being Execution Case No. 4 of 1994. It is stated that during the pendency of the suit, Sundari Devi, widow of Bisheshwar Mistri and Ishwari Devi, died one after another and their shares devolved in the surviving daughter (Mitra Devi), being the sole heir. In view of the subsequent event, during the pendency of the suit, the petitioner filed a petition under Section 43 of the Transfer of Property Act (hereinafter to be referred to as the Act' for short), praying that in view of the death of Sundari Devi and Ishwari Devi, after the preliminary decree, the share of the petitioner in the suit property was augmented from 1/3 to 1/2 share and so the preliminary decree be amended. The said application was, however, rejected by the Court below, which was challenged by the petitioner by filling T.A. No. 24 of 1993. The said appeal was allowed by the learned Additional District Judge, Patna, holding that the petitioner is entitled to 8 Annas share in the suit property. It is stated that the preliminary decree was prepared by the Court below during the pendency of T.A. No. 24 of 1993. The petitioner, therefore, filed several petitions before the Executing Court praying that the final decree under execution is not sustainable as it has merged into the decree made and passed by the appellate Court in T.A. No. 24 of 1993 and the decree of the original Court has become non-est The Executing Court, however, directed the parties to file amended decree in view of the final order passed in appeal. The petitioner is said to have filed various petitions praying therein that the original final decree passed by the Munsif is not executable as the decree has merged into the decree of the appellate Court, which alone is executable. The said prayer was opposed by the opposite parties by filing rejoinder. The Execution Munsif, however, after hearing the parties passed the impugned order dated 22.7.1996 holding that the original final decree was not at all effected by the judgment and decree passed by the appellate Court in T.A. No. 24 of 1993, and directed the plaintiffs-decree-holders to proceed with the Execution Case No. 4 of 1994. Hence, this Civil Revision application by the petitioner.
3. Mr. Ashgar Hussain, learned Sr. Counsel appearing on behalf of the judgment-debtor-petitioner assailed the impugned order as being illegal and wholly without jurisdiction. He submitted that the Court, below committed grave error of law insofar as it failed to appreciate the law in the facts and circumstances of the case. Mr. Hussain submitted that admittedly the original Court passed preliminary decree in favour of the plaintiffs in respect of 1/3rd share in all the three plots, but the said judgment and decree was modified in appeal by the appellate Court holding that the plaintiffs are entitled to 1/3rd share in Plot No. 773 alone. But in the meantime final decree was prepared by the original Court. Learned Counsel submitted that subsequently the application filed by the defendant-petitioner under Section 43 of the Act was decided and it was held that the defendant-petitioner is entitled to 8 Annas share in all the three plots. According to the learned counsel, therefore, in view of the subsequent judgment and orders passed by the appellate Court, the final decree became non-est and only a modified decree can be executed. Learned Counsel in support of his contention relied upon the two decisions of the Apex Court in the cases of: (i) Sital Prasad v. Kishorilal , (ii) Muthangi Ayyana Muthangi Jaggctrao ; and the decision of this Court in the case of Syed Ekram Hussain v. Mussamat Urnatul Rasul ILP IX Patna 829.
On the other hand. Mr. Rambalak Mahto, learned Sr. Counsel appearing on behalf of the plaintiffs opposite parties, submitted that the Court below has not committed any illegality in passing the impugned order. According to him in the preliminary decree the plaintiffs were held entitled to 1/3rd share in all the three plots, which decree was modified by the appellate Court to the extent that the plaintiffs are entitled to 1/3rd share in Plot No. 773 only. Thereafter the defendant-opposite party No. 3 sold his entire 1/3rd share to opposite party No. 2 through registered deed dated 4.9.1988 and an application to that effect was filed by opposite party No. 3 in the Court below praying therein to direct the Pleader Commissioner to carve out and allot his 1/3rd share to the plaintiff-opposite party No. 2, which was allowed by order dated 15.3.1990. The final decree was, however, prepared carving out 1/3rd share of the plaintiff in Plot No. 773. According to the learned counsel, after the modification of the judgment in appeal filed against the order passed under Section 43 of the Act, the augmentation of the share confined in Plot No. 768 and 772 only. According to the learned counsel, therefore, eventually the share allotted to opposite parties 1 and 2 in the said final decree is not effected in any way and the final decree is very much executable.
4. Before appreciating the rival contentions made by the learned Counsel for the parties, it would be useful to first look into the various orders time to time passed by the Court below and the subsequent events occurred and brought on record by the parties.
5. The plaintiffs-opposite parties 1 and 2 filed the aforesaid Partition (Title) suit No. 44 of 1962 claiming 1/3rd share in the suit property, bearing Plot Nos. 768, 772 and 773. The suit was decreed by the Munsif. Patna, and preliminary decree was passed on 20.7.1968 in respect of 1/3rd share of the plaintiffs in the aforementioned three plots. The defendant petitioner preferred Title Appeal No. 136 of 1968, which was eventually disposed of by the 1st Addl. Subordinate Judge, Patna, in terms of the judgment and decree dated 21.7.1984. By the aforesaid judgment, the appeal was allowed in part and the suit was decreed in favour of the plaintiffs-opposite parties in respect of 1/3rd share in Plot No. 773 only. The appellate Court held that the plaintiffs are not entitled for any share in Plot Nos. 768 and 772.
It appears that in the final decree proceeding, a Pleader Commissioner was appointed. Meanwhile, opposite party No. 3 sold his 1/3rd share in all the three plots to opposite party No. 2 by a registered deed of sale dated 4.9.1988. The opposite party No. 3 also filed an application in the Court below praying for an order directing the Pleader Commissioner to carve out and allot his 1/3rd share to the plaintiff-opposite party No. 2, which prayer was allowed by order dated 15.3.1990. In this way the plaintiffs-opposite parties became entitled to get allotment of shares in all the three plots. The Pleader Commissioner submitted his report showing allotment of shares in all the three plots to the plaintiffs and a final decree to that effect was prepared on 3.7.1993. Simultaneously, the defendant-petitioner filed an application in the Court of the Execution Munsif under Section 43 of the Act for augmentation of his share on the ground of purchase from the co-sharers. The said application was rejected by the Munsif in terms of the order dated 16.1.1993. However, in appeal filed by the defendant petitioner being T.A. No. 24 of 1993, the' appellate Court allowed the appeal and held that the defendant-petitioner is entitled to augmentation of share to the extent of 8 Annas in the suit property. The appellate Court, therefore, held that the preliminary decree and in consequence the final decree be modified to that extent. In the light of the aforementioned facts, the petitioner-judgment-debtor filed an application for dismissal of the execution case on the ground that the final decree without modification cannot be executed.
6. The question, therefore, falls for consideration is whether the final decree became inexecutable because of the subsequent judgment and order passed in T.A. No. 24 of 1993. The main argument of Mr. Hussain is that when the original decree is modified by the appellate Court, the decree of the appellate Court is the only decree capable of execution and final decree became non-est. Before answering the argument advanced by Mr. Hussain I wish to briefly consider some of the case laws and the principles time to time laid down by different Courts. The earliest case on this point is to be found in the case of Sohrat Singh v. Bridgman 1882 ILR (IV) Allahabad 376 (Full Bench). The following question was referred to the Full Bench for consideration:
When a suit is heard in first or second appeal, and a decree passed, is the decree of the Court of last instance, the sole decree which is capable of execution, or may the specification contained in the decree of the lower Court or Courts be referred to and enforced by the Court to which the application for execution has been made?
The Full Bench answered the question by holding as under:
In our opinion the appellate decree is the final decree and the only decree capable of being executed after it has been passed, whether the, same reverses, modifies, or confies, the decree of the Court from which the appeal was made. If such final decree is drawn up with proper care and attention to the provisions of the law, it will necessarily contain, inter alia, "a correct statement of the amount of costs incurred in the appeal (a), and by what parties (b), and in what proportions (c), such costs and also the costs in the suit (d), are to be paid vide Sections 206, 519 and 587 with Form No. 176, Schedule IV, Act X of 1877. If on the other hand an error or defect in any of these particulars is found or alleged in such final decree, it can be amended and supplied by the Court making the decree and by no other Section 206. We may add to avoid future controversy or doubt that we have not overlooked the provisions of Section 638 of the Civil Procedure Code, which exempt Chartered High Courts in the exercise of their appellate jurisdiction from the mandatory terms of Section 579 of the Code. But in the absence of any rules especially framed by the Court for the preparation of its appellant decrees, they should be, and we believe ordinarily are, drawn up in conformity with the rules referred to above. And when they are not so prepared but the decree of the lower Court with all its specifications is simply affirmed by and adopted in the degree of the last appellate Court, it would then be open to the Court executing such last decree to refer to the decree of the lower Court information as to its particular contents. But no question of correctness of the contents could be entertained or given effect to by the executing Court. Objections to the decree of the lower Court which has become that of the last appellate Court could be attended to by the latter Court alone, We should, therefore, say that the decree of the Court of last instance is the only decree susceptible of execution, and that the specifications of the decree of the lower Court or Courts as such may not be referred to and applied by the Court executing the decree.
In the case of Kristo Kinkur Roy v. Rajah Birroda Caunt Roy 1871 72 (IX) Moore's Report, a similar question fell for consideration before their Lordships of the Privy Council. In that case a decree at the first instance was passed under an agreement for maintenance. The decree was confirmed in appeal. The party aggrieved then appealed to her Majesty in Council, but pending such appeal, a compromise was proposed and the proceeding of the appeal was stayed for certain time to enable the compromise to be carried out. However, the proposed compromise was not carried out, but the petitioner paid the amount on account of the sum decreed. Subsequently the appeal was dismissed for want of prosecution and the decree was executed, which was held to be in-executable. In the light of the aforesaid facts. Their Lordships held as under:
The function of an appellate Court is to determine what Decree the Court below ought to have made. It may affirm, reverse, or vary the Decree under appeal. In the first case, it leaves the original Decree standing, super adding, it may be, an Order for the payment of the costs of the appeal, or for interest on the amount originally decreed. In the other two cases it substitutes other relief for the relief originally given.
In all these cases the Decree of the appellate Court may be regarded either as a direction to the Lower Court to make and execute a Decree of its own accordingly, or as an independent Decree, whether it is to be executed by the appellate Court or by the Lower Court. In the latter case a further question arises, viz., whether the original Decree, if wholly affirmed (or so much of it as has been affirmed, if it has been particularly affirmed), is to be treated as merged or incorporated in the Decree of the appellate Court as the sole Decree capable of execution, or whether both Decrees should be treated as standing, execution being had on each in respect of what is enjoined by the one, and not expressly enjoined by the other.
Their Lordships, however, further held as under:
If the questions were res integra, their Lordships would incline to the view taken by the Judges of the High Court in the present case, viz; that the execution ought to proceed on a Decree, of which the mandatory party expressly declares the right sought to be enforced. Considering, however, that, for the reasons already given, the question is not of much practical importance their Lordships will not express dissent from the rulings of the Madras Court, and of the Full Bench of the Bengal Court further than by saying, that there may be cases in which the appellate Court, particularly on special appeal, might see good reasons to limit its decision to a simple dismissal of the appeal, and to abstain from confirming a Decree erroneous or questionable, yet not open to examination by reason of the special and limited nature of the appeal. Their Lordships may further suggest that in all cases it may be expedient expressly to embody in a Decree of affirmance so much of the Decree below as it is intended to affirm, and thus avoid the necessity of a reference to the superseded Decree.
In the case of Ekram Hussain (supra), on which the petitioner put heavy reliance, the question fell for consideration was: whether if the decree of the first Court is affirmed on appeal, the decree holders can seek execution of mandatory part of the first Court decree as affirmed by the appellate Court. Their Lordships after considering the ratio of the decisions referred to hereinabove has held as under:
The case of Sohrat Singh v. Bridgman was however explained in a later case Gobardhan Das v. Gopal Ram where the facts were these: The first Court of appeal affirmed the decree of the Count of first instance and the High Court affirmed the decree of the lower appellate Court and dismissed the appeal. The decree-holder made an application in which he did not expressly as the Court to execute the decree of the last instance but it could be gathered from the application of the decree-holder that his object was to have execution taken under the decree of the appellate Court by carrying out the mandatory part of the decree of the Court of first instance. It was held in these circumstances that the objection that the decree-holder did not in his application expressly ask the Court to execute the decree of the last instance was under the circumstance a mere technical objection and there was no reason why the execution asked for should not be allowed. In my opinion this decision will govern the present case where also, although the decree holders have not expressly asked the Court to execute the decree of the appellate Court, yet they do mention that an appeal was preferred on behalf of the judgment-debtors in the High Court of Patna and was decided in favour of the decree-holders oh the 20th April, 1925. It is thus clear that what the respondents were trying to execute was the mandatory part of the decree of the first Court as affirmed by the Court of appeal and it will be the merest technicality to say under these circumstances that the decree-holders were asking for the execution of the decree of the first Court, something distinct from the decree of the appellate Court.
7. Coming back to the instant case, as noticed above, it will appear that in the preliminary decree the plaintiffs-opposite parties were held to be entitled to 1/3rd share in all the three plots and the appellate decree entitled the plaintiffs 1/3rd share in respect of only one plot, being plot No. 773. Thereafter a proceeding for preparation of final decree in terms of the appellate decree was sought for and in the said proceeding one of the co-sharers-opposite party No. 3 filed a petition for allotment of his share to the plaintiff-opposite party No. 2 on the ground that he sold his share to her. The said prayer was allowed. The Pleader Commissioner taking into consideration all the facts and the decree passed both by the Court of the first instance and the appellate Court carved out 1/3rd share of the plaintiff in the suit property and a final decree was accordingly prepared. Against that final decree, admittedly no appeal was filed by the defendant-petitioner; rather he filed an application under Section 43 of the Act for augmentation of his share and the said application was allowed in appeal and it was held that the defendant was entitled to 8 Annas share in the suit property and it was further held that the decree may be modified to that extent. No application for modification of the final decree was filed by the defendant; rather the defendant filed an objection challenging the executability of the final decree on the ground that the decree was modified in appeal. As stated above, the final decree was passed in respect of 1/3rd share of the plaintiffs in the suit properties. However, by reason of the judgment and order passed in appeal, which had arisen out of an application under Section 43 of the Act, the final decree was not in any way effected, so far the plaintiffs are concerned; inasmuch as even if the defendant is held to be entitled to 8 Annas share the shares of the plaintiffs remained intact in the two plots. Since the augmentation of the share of the defendant petitioner by virtue of the judgment and order passed under Section 43 of the Act does not effect the share of the plaintiffs, the final decree prepared in the light of the decree passed in T.A. No. 136 of 1968 cannot be held to be in-executable. The Court below has, therefore, rightly held that the execution case against the final decree cannot be dismissed on that ground.
8. Mr. Hussain put reliance on the decision in the case of Sita Prasad (supra). In that case, considering the similar question Their Lordships held as under:
There can in our opinion be no doubt that if in appeal the preliminary decree is reversed, the final decree must fall to the ground for there is no preliminary decree thereafter in support of it. It is now necessary in such a case for the defendant to go to the Court passing the final decree and ask it to set aside the final decree. Even if the defendant does not make an application to the Court, for setting aside the final decree within three years because the preliminary decree has been reversed, the decree-holder cannot get the right to execute the final decree which has no preliminary decree in support of it. If an execution petition is made on such a final decree even though more than three years after the decree in appeal has been reversed, the defendant has simply to ask the Court where the execution petition is made to refuse to execute the degree on the ground that the preliminary decree in support of it has been set aside. It seems to us that in such a case it is the duty of the executing Court to take note of the fact that the preliminary decree in support of the final decree has been reversed and it should refuse to execute the final decree even though the fact is brought to its notice more than three years after the decree in appeal reversing the preliminary decree. In such a case in our opinion no question of limitation arises.
Their Lordships further held that:
We are further of opinion that even where there has been a variation in the decree, the final decree, if passed in the meantime, requires no formal amendment in view of the form of which a final decree for sale is prepared. All that happens is that where the preliminary decree is varied one way or the other, the final decree which is entirely depending on the preliminary decree stands varied by its own terms in accordance with the terms of the preliminary decree passed in appeal. It is the duty of the executing Court when it is executing the final decree passed in the meantime to see that the execution is in accordance with the preliminary decree passed in appeal which is the support of the final decree. Of course, if the appellate Court when deciding the appeal gives any particular direction with respect to the preparation of a fresh preliminary decree that direction has to be carried out.
Mr. Hussain has further put reliance on the decision of the Supreme Court in the Muthangi's case (supra). In that case, the question fell for consideration before the Apex Court was different; i.e. whether the final decree can amend or go behind the preliminary decree on a matter determined by the preliminary decree. In my opinion, the law laid down by the Apex Court in the aforesaid two cases, does not in any way help the petitioner.
9. One more important aspect has to be looked into, i.e. parties have been in litigation for the last more than three decades and although the final decree was prepared in 1968 and was put in execution but till date the litigation has not come to an end on one ground or the other. Now it is the high time when the parties should get the fruits of the decree by obtaining delivery of possession of the shares so allotted. Since the defendant petitioner is entitled to get the final decree modified and prepared in respect of his share and get possession of the same, I do not find any reason why the plaintiffs opposite parties should be dragged further into litigation.
10. Having regard to the facts and circumstances of the case and the points of law discussed hereinabove, I do not find any reason to interfere with the order passed by the Court below.
11. In the result, there is no merit in this application and the same is accordingly dismissed.