Patna High Court
Anand Das vs Ram Bhusan Das on 14 December, 1936
Equivalent citations: 170IND. CAS.139, AIR 1937 PATNA 380
ORDER
1. The opposite party who claims to be the lawful Mohanth of a math in the district of Darbhanga has obtained a decree for possession of the property of the math against the petitioner. The petitioner, after having appealed against the decree, moved this Court to stay the delivery of possession and on August 14, 1936, this Court rejected the petition but directed that before any order for delivery of possession is made, the respondent should furnish security to the satisfaction of the Subordinate Judge for 3 years' income of the math property together with such additional security as the Subordinate Judge may think necessary on account of the movables. The Subordinate Judge after some calculation directed the opposite party to furnish security to the extent of Rs. 1,53.473 and such security has been offered on behalf of the opposite party by five persons and has been accepted by the learned Subordinate Judge by his order dated December 3, If 36. It is this order which is the subject of the present application.
2. A question arose at the time of the argument whether the order of the learned Subordinate Judge should be deemed to be one under Section 47, Civil Procedure Code, and whether an appeal or an application in revision lay against it. It appears that there has been some difference of opinion in the Calcutta High Court on this question. In Budra Narain Jana v. Naba Kumar Das 22 CWN 657 : 44 Ind. Cas. 156 : AIR 1919 Cal. 471, it was held that such an order was not an interlocutory order and an appeal lay against it. A contrary view was, however, taken in Saraswati Barmonya v. Moti Barmoya 41 C 160 : 20 Ind. Cas. 72 : AIR 1914 Cal. 149 : 17 CWN 1240. The learned Judge who decided the case held that an order for security to stay execution was not an order determining the rights of the parties and that it being neither an order under Section 47 nor a decree within the meaning of Section 2,' 2, Civil Procedure Code, was not appealable. The facts of the two GSIS6S somewhat differ from each other. In the first case it had been ordered that upon furnishing security of a certain value specified in the order the decree-holder was at liberty to proceed with the execution. In the latter case the. order was that the execution was to be stayed on the judgment-debtor furnishing security to the satisfaction of the Subordinate Court. It has been contended before us on behalf of the opposite party that the two cases are hardly distinguishable from each other in principle because in both cases the order of the Subordinate Court may be said to be an order relating to the execution of the decree and. it would thus not be quite logical to hold that an appeal lay in the first case but it did not lie in the other. However that may be, the view which we are inclined to take in the matter is quite a different one. In our opinion the question whether an appeal lies against the order of the Subordinate Court in such a case can arise only if the order is passed by the Subordinate Court suo motu as a Court of execution. Here the Subordinate Judge has passed an order not on his own initiative but under the direction of this Court.
3. It is true that the order has been passed in the course of an execution proceeding, but this Court had jurisdiction as an Appellate Court having seisin of the appeal from the decree sought to be executed to order the decree-holder to furnish security, before taking possession of the disputed property. In our opinion the Court which directs security to be furnished is directly interested in seeing whether its orders have been complied with or not and though it may have delegated the function of enquiring into the sufficient of security to a Subordinate Court and left it entirely to that Court to decide the sufficiency or otherwise of the security, it can always intervene if the Subordinate Court misdirects itself in conducting the enquiry, This Court while making the original order can always direct the Subordinate Court to apply the principles which it would have itself applied if it had not delegated its function to the latter and if the Subordinate Court has committed any error of principle it can also correct such error. At the same time if certain matters have been left to the discretion of the Subordinate Court, this Court will interfere only when the Court below has acted perversely or either misconstrued or misdirected itself on any principle of law and justice. It will do so on the principle that it cannot suffer any wrong or unreasonable order to be passed when such order has in law the same force and sanctity as an order passed by this Court.
4. In the present case the most important point raised on behalf of the petitioner is that the learned Subordinate Judge has accepted securities offered by a single member of the joint Mitakshara family even where it consists of other members including minors. Now the persons who have furnished security are Laksbminarain Gupta, "Ram Sewak Thakur, Bhuvaneshwar Prasad Ohoudhury, Nathu Choudhury and the Mohant of Marghoghi. As to Bhuvaneshwar Prasad Choudhury, it has been stated that he has two adult brothers and they have either joined or are going to join with him in the execution of the necessary bonds and if these facts be correct, no difficulty arises in his case. It has, however, been stated on" behalf of the petitioners that Lakshminarain Gupta has 3 minor sons, Ram Sewak Thakur has one minor son and Nathu Ohoudhury has minor and 2 major sons. If these facts, which ought to have been fully investigated by the learned Subordinate Judge are correct, the bonds executed by these persons should not be accepted. It has been clearly pointed out in Amar Dayal Singh v. Her Pershad Sahu 5 PLJ 605 : 58 Ind. Cas. 72 : AIR 1920 Pat. 433 : 1 PLT 511, that a mortgage by an individual member of a Mitakshara family of the whole or a share of the joint family property where no family necessity or antecedent debt is proved, is void and inoperative as against a property hypothecated and gives the mortgagee no right even against the mortgagor's undivided share. This view has been affirmed by the Judicial Committee in several cases and therefore its correctness is beyond question. The learned Subordinate Judge proceeded upon a decision of this Court in Gobind Chandra Das v. Hayagriba Upadhaya 10 Pat. 94 : 138 Ind. Cas. 414 : AIR 1932 Pat. 162 : 13 PLT 473 : Ind. Rul. (1932) Pat. 181, where various forms of surety debts have been discussed. In that case the particular surety bond which was in question was held to be unenforceable and on a referenc e to the report of that case at p. 100* it will appear that in the bond the sureties, apart from hypothecating certain properties, had also undertaken to be personally liable for a sum of Rs. 10,000. It therefore became necessary to discuss whether the bond could be enforced against the sons of the sureties. As the learned Subordinate Judge has, so far as this question is concerned, proceeded on a mistaken view of law, his order will have to be set aside. Since the whole matter will have to be re-considered by him, I think that it is proper that his attention should be directed to the following points:
(1) In ascertaining the value of the property of the Mahant of Marghoghi the learned Subordinate Judge has instead of trying to ascertain the value of the property upon the basis of the income has valued it on the basis of the Government revenue and cess payable in respect of the property. That is clearly wrong. If, therefore, the learned Subordinate Judge is satisfied that the property going to be hypothecated by this person is not math property and he is entitled to hypothecate it, he will have to ascertain the income of the property and value it on the basis of the income. (2) The learned Subordinate Judge should require the sureties to file their title-deeds and examine their title with reference to them instead of resting his decision on their oral statement as to their title. (3) In some cases the learned Subordinate Judge has proceeded upon somewhat slender materials in assessing the Value. He has for example, in valuing the lands of Bhuneshwar Prasad Choudhury and Nathu Choudhury near the Dalsing Sarai Bazar proceeded merely on the basis of a patta (Ex. 4) which relates to 5 kathas 18 dhurs of land. It appears to us that one solitary document cannot form a satisfactory basis for the valuation of the land and the learned Subordinate Judge should require the parties to place before him further materials before arriving at his final conclusion as to the value of these lands. We are fully aware of the fact that the opposite party have in the present case to furnish security in landed property for a very large amount and nothing should be done to add to their difficulties. It may also be that the security bond may not have-to be enforced at all. At the same time it is the duty of the Subordinate Judge to examine the titles of the sureties carefully and be reasonably satisfied as to the validity and the sufficiency of the bonds so that no difficulty may arise in their enforcement if it becomes necessary to enforce them in future.
5. With these observations we set aside the order of the learned Subordinate Judge against which this application has been directed and remit the matter to him for further investigation upon the lines indicated by us. If no security is furnished by the opposite party to the satisfaction of the learned Subordinate Judge within two months the matter should be reported to this Court which will then take such action as may be deemed necessary. Until the security is furnished, the petitioner will continue to be in possession as a Receiver as before and will also be as such Receiver accountable to the Court for the profit and income realized for the property.