Patna High Court
Karamat Ali And Anr. vs Mt. Sogra on 9 January, 1956
Equivalent citations: AIR1956PAT194, AIR 1956 PATNA 194
JUDGMENT Raj Kishore Prasad, J.
1. The point raised in this second appeal does not seem to be covered by any decision of this Court, and at least none has been brought to my notice, which is directly on the point.
2. The only point which has been argued by Mr. Eaidyanath Jha, appearing for the defendants-appellants, is that the suit of the plaintiff was barred both under Sections 11 and 47, Civil P. C. The facts may briefly be stated thus: The plaintiff-respondent brought a suit for a declaration that her interest in the disputed property was not affected either by the certificate sale, or by the decree for possession passed in the title suit of defendant 1 appellant. Her case was that her husband Rahim Bux got settlement of the suit land sometime in 1929, and shortly after that he transferred that land to her in lieu of her dower debt, and put her in possession of the same, and since then she was in possession of this property.
Subsequently a certificate proceeding (certificate case No. 168 of 1940-41) Was started at the instance of the Purnea Khas Mahal against Rahim Bux. In that certificate proceeding the disputed property was put up to sale as being the property of Rahim Bux, the certificate debtor, and it was purchased by defendant 1 at that certificate sale. In this certificate proceeding admittedly the plaintiff was not a party.
Defendant 1 thereafter in 1945 filed a title suit (T.S. 84 of 1945) only against Rahim Bux, the husband of the plaintiff, and got an ex parte decree against him for his eviction from the land in suit. This suit was a suit for possession, and defendant 1 got a decree for possession against Rahim Bux only, and in execution of that Decree for possession defendant 1 got possession on 27-4-1947 by ejecting the plaintiff.
The plaintiff's case, therefore, was that as she was in possession of the property from 1929 on transfer from her husband in lieu of her dower debt, Rahim Bux had no interest in the land, either at the time when the certificate proceeding was taken out, or when the suit for possession was brought by defendant 1, and, therefore, the sale, as well as the decree for possession, were not binding on her. The suit of the plaintiff was contested by defendant 1 on various grounds. One of such grounds was that the suit was barred by the provisions of Sections 11 and 47, Civil P. C.
3. The trial Court overruled all the objections of the appellants, and held that the sale, as well as the decree, were not binding on the plaintiff, and that she had title to the disputed land since 1929, and since then she was coming in pos-
session, and as such she was not bound by the decree passed in Title Suit 84 of 1945. On these findings it decreed the suit..
4. On appeal by the defendants, the Court of appeal below affirmed the decision of the trial Court, and dismissed the appeal of the defendants. The learned Subordinate Judge, who decided the appeal, found that the certificate sale, or the delivery of possession taken out in the title execution case, could not affect the interest of the plaintiff, and she was not bound by those proceedings, and, therefore, her interest was not affected by either.
5. It may be stated here that when the decree for ejectment of Rahim Bux, obtained against him by defendant 1, was under execution, the sole judgment-debtor, Rahim Bux, died, and in his place the present plaintiff, as the legal heir of her Husband, was substituted in his place.
On these facts it is contended by the appellants that the present suit of the plaintiff is barred both under Section 11 and Section 47, Civil P. C., because the grounds, which have now been taken in the present suit, could have been, and ought to have been taken by her, in the execution proceeding under Section 47 of the Code, when she was substituted as legal representative of her husband in the execution proceeding, and, therefore, her omission to take these objections, operated also as constructive res judicata in the present suit.
6. Mr. B. P. Samaiyar, appearing for the plaintiff-respondent, has, however, contended, that the suit is barred neither under Section 11 nor under Section 47 of the Code, because the grounds taken in the present suit could not be taken in execution, as these objections amounted to a challenge to the decree itself, and as such when the decree itself is challenged, that could be done only by a separate suit, and not by an objection under Section 47 Civil P. C.
7. In support of his contention that the plaintiff could take these objections under Section 47 of the Code in the execution proceeding itself, Mr. Jha has relied on the following cases : -- 'Punchanun Bundopadhya v. Rabia Bibi', 17 Cal 711 (FB) (A), 'Ajo Kuer v. Gorak Nath', 1915 Cal 275 [AIB V 2] (B), 'Naida Bashi Majhi v. Rajendra Chandra', 48 Cal LJ 551 (C), 'Sm. Charusilla Dasi v. Sukhdev Haluai', 1935 Cal 14 [AIR V 22J (D), 'Seth Chand Mal v. Durga Dei', 12 All 313 (FB) (E), 'Kali Charan v. Jewat Dube', 28 All 51 (F), and 'Nauratan Lal v. Mrs. Margaret Anne Stephen', 1922 Pat 572 [AIR V 9] (G).
The leading case is the case of '17 Cal 711 (FB) (A)', referred to above. In this case only a portion of the mortgage debt was satisfied by sale of the mortgaged properties. During the proceedings in execution the mortgagor-debtor died, and in course of further proceedings taken in execution of that decree after his death against his widow as his representative, certain property was attached as forming portion of his estate. The widow objected on the ground that this property had been sold to her after the decree and before the attachment. Her objection was allowed, and the property was released from attachment.
The decree-holder thereafter brought the suit to have it declared inter alia that the property was of the judgment-debtor, the husband of the widow, and, therefore, it was liable in satisfaction of the decree against him. An objection was taken that the decree-holder's suit was barred by Section 47, Civil P. C., inasmuch as the matter could be properly tried only in execution of the decree as between the decree-holder and the widow, the representative of the original debtor, as it related to the execution, discharge or satisfaction of the decree.
It was held unanimously by the Full Bench, consisting of five Judges, that an objection taken by a person who has become the representative of the judgment-debtor in the course of the execution of a decree to the effect that the property attached in satisfaction thereof is his own property, and not held by him as such representative, is a matter cognizable only under Section 47, Civil P. C., and not the proper subject-matter of a separate suit by a party against whom an adverse order may have been passed under Order 21, Rule 58, Civil P. C. This view of the law was affirmed by the Calcutta High Court in the later case of '1915 Cal' 275 [AIR V 2] (B)'. All these cases above mentioned either related to money executions, or were such in which the decree was not attacked. Where, therefore, the execution is of a money decree, and the decree passed against the judgment-debtor is not attacked, and the person, who is substituted in the execution proceeding, as the legal representative of the deceased judgment-debtor, takes an objection in the course of the execution of a decree to the effect that the property attached in satisfaction thereof is his own property, and not held by him as such representative, is a matter cognizable only under Section 47, Civil P. C., and not the proper subject-matter of a separate suit by a party against whom an adverse order under Order 21, Rule 58, C. P. C., may have been passed.
Therefore, where qua the execution proceedings a person happens to be the representative of the judgment-debtor, any Question raised by him can only be decided under Section 47 of the Code. The distinction between a proceeding under Section 47 and a proceeding under Order 21, Rule 58, is this : that all objections to attachment raised by a party to the suit in which the decree was passed or his representative come under Section 47; but objections to attachment raised by a third party come under Order 21, Rule 58. This is the view taken in the case of '1922 Pat 572 [AIR V 9] (G)'.
It will appear that in the case of ('48 Cal LJ 551 (C)'), the decree under execution was a decree for possession, but the plaintiffs in that case did not attack the decree itself, and, therefore, the decree as against the original debtor was good as it was made. In such circumstances it was held that the plaintiffs' objection that the property in dispute belonged to them and not to their father, against whom the decree for possession was obtained, was a matter falling under Section 47, Civil P. C. It was held that when the judgment-debtor, or the representative impleaded in the execution proceedings claims a right in the property on his own behalf though under a different right Section 47, Civil P. C., applies but when he claims it as the property of another person on behalf of that other person, Order 21, Rule 58 applies.
The Full Bench case of '17 Cal 711 (PB) (A)', was relied upon. Their Lordships further observed that the statement in the latter part of the Full Bench judgment is supported by the Full Bench case of -- 'Kartick Chandra Ghose v. Ashutosh Dhara', 39 Cal 298 (FB) (H), which is a case converse to that of '17 Cal 711 (FB) (A). In those circumstances, it was held that the plaintiffs' suit was not maintainable.
The case of '1935 Cal 14 [AIR V 22] (D)'. decided by a Single Judge of the Calcutta High Court, was a case, in which the decree under execution was a decree for khas possession. In this case the property, in respect of which the decree for possession was passed, was claimed by virtue of a new settlement with the claimant and not in his capacity of heir to the debtor. In spite of this it was held that Section 47 was a bar to the suit. His Lordship in this case followed the Full Bench case of 17 Cal 711 (FB) (A)', and did not decide if the fact that the decree under execution was a decree for possession made any difference in the case. It also appears from this decision that the decree impliedly was not attacked.
In the Full Bench case of '12 All 313 (FB) (E)', it appears that a simple money decree was obtained against a person, who before it could be executed, died. In execution of the decree certain properties were attached and notice was issued to the widow of the deceased judgment-debtor in her own person and as guardian of her minor sons, to appear in the execution proceedings and show cause why the decree should not, be executed against them in that character. As to some of the properties, it was alleged by the widow that these properties had been acquired by her out of her own funds, wholly independent and apart from any inheritance from her husband.
Four of the learned Judges, out of the five Judges, who constituted the Pull Bench, held that where a judgment-debtor dies after the passing of the decree, and his legal representatives are brought on the record in execution proceedings to represent him in respect of the decree, questions which they raise as to property which they say does not belong to his assets in their hands, and as such is not capable of being taken in execution, are questions which under Section 47, Civil P. C., must be determined in the execution department, and not by separate suit.
But where the legal representative asserts that the property is his own, and has not come to him from the deceased judgment-debtor, he cannot set up a jus tertii, so as to come in under Order 21, Rule 58, and the following sections of the Code. He can only do so where he opposes execution against any particular property on the ground that, although it is vested in him, it is vested in him not beneficially by reason of his being the representative of the judgment-debtor, but as trustee or executor of some one else. In that case either party may have the question of jus tertii determined in a separate suit.
But Tyrrell, J., who took the contrary view, in this Full Bench case, held that where the legal representative of a deceased party to the decree appears, not in his capacity of legal representative contesting a question arising between the parties and relating, to the execution, discharge or satisfaction of the decree, but in his personal character independent of the suit and decree, and prefers a claim under Order 21, Rule 58, on the ground that the decree has no operation against certain property attached, for reasons personal to the objector and antagonistic to all the parties and their representatives as such, the objector is not debarred from bringing a separate suit by the mere accident that he is a legal representative in the execution proceedings.
Even the case of '28 All 51 (F)', which followed the earlier Full Bench decisions of the Allahabad and Calcutta High Courts, mentioned above was not a case of a decree for possession. In this case the decree under execution was a mortgage decree, but the objection raised was to the inclusion in the sale of any share in excess of 10 gandas and odd, which they said was the only mortgaged property. The decree under execution was not attacked. By some error or oversight the mortgaged share mentioned was in excess of the share actually mortgaged. In those circumstances, it was held that this objection was cognizable under Section 47, Civil P. C. A review of the above authorities, therefore, reveals that if the decree under execution is not attacked, or if the decree under execution is a money decree, then an objection by the legal representative of the judgment-debtor regarding the liability of the property attached could be taken under Section 47, Civil P. C. The above decisions, therefore, are no authority for the present case, in which the decree under execution is attacked as a nullity, and the decree under execution is a decree for possession. To such a case, in my opinion, the Full Bench decision in -- 'Hamidgani Ammal v. Ammasahib Animal', 1941 Mad 898 [AIR V 28] (FB) (I), relied upon by Mr. Samaiyar, appearing for the respondent, has application. His Lordship Leach, C; J., delivered the opinion of the Full Bench. The following observations of his Lordship, in my opinion, are very apposite :
"Section 47, civil P. C., only requires to be decided in execution proceedings those questions which arise between parties to the suit in which the decree has been passed or their representatives and which relate to the execution, discharge or satisfaction of the decree. Where a stranger to the suit claims as his, immovable property which has been the subject-matter of a decree, that claim cannot in law be regarded as being a question relating to the execution, discharge or satisfaction of the decree.....
In execution proceedings arising out of money decree questions relating to the property attached must be decided in execution proceedings and not by a separate suit, but this is an entirely different matter because the correctness of the decree is not called into question..... We are here dealing with a case where it is said that a person who is not a party to the suit, but is brought into Court in execution proceedings as the legal representative of a deceased party, can in those proceedings be allowed to challenge the decree and if he fails to do so he has for ever lost the right claimed by him in the suit property. Obviously the answer must be that he cannot in execution say the decree is wrong, and he has his remedy by suit."
8. In my opinion, as in the present case the plaintiff has attacked the decree itself, which is a decree for possession, and not a money decree, the question raised by the plaintiff in the suit was not a question which could form the subject-matter of an objection under Section 47, Civil P. C., because it did not relate to execution, discharge or satisfaction of the decree, and as such the plaintiff's suit would not be barred by Section 47, civil P. C.
9. As I have held above that the objection, which the plaintiff has taken in her present suit could not be taken in the execution proceeding, her omission to take this objection in the execution proceeding would not also bar her present suit by the principle of constructive res judicata.
10. In my opinion, therefore, the Courts below have taken a correct view of the law on the question, and they have rightly disallowed the objection of the appellants based on the plea of Sections 11 and 47, Civil P. C.
11. In the result, the appeal fails, and is dismissed with costs.