Patna High Court
Nandlal Singh And Anr. vs Mt. Baratan And Ors. on 10 July, 1959
Equivalent citations: AIR1960PAT82, AIR 1960 PATNA 82
JUDGMENT Shib Chandra Prasad, J.
1. This is a second appeal by the plaintiffs against the concurrent judgments of the courts below based in a suit filed under Order 21 Rule 63 of Civil Procedure Code.
2. The plaintiffs had obtained a money decree for Rs. 1500 against the original defendant No. 1 and others. Some of the respondents objected to the execution of that decree claiming that the property attached had been in their possession by virtue of conveyances.
The executing court allowed this objection and released the property from attachment. As against this, the plaintiffs-appellants came to the court of the 1st Munsif, who had pecuniary, jurisdiction of Rs. 2,000, with a prayer under Order 21, Rule 63 of the Civil Procedure Code, for a declaration that the property was attachable as it belonged to and was in the possession of the judgment-debtor defendant No. 1, The value of the suit was put at Rs. 1150/-. It is not clear how and under what circumstances it was subsequently held by the 1st Munsif that the value of the property in question was more than Rs. 2000, i. e., beyond the pecuniary limit of his jurisdiction. However, the plaint was ordered by him to be returned to the plaintiffs to be filed in the court of competent jurisdiction. The plaint was actually received by the lawyer of the plaintiffs two days after the aforesaid order was passed but was re-filed in the proper court on the day the plaint was received by the lawyer of the plaintiffs. It may also be mentioned here that the plaint had been filed originally by the plaintiffs in the court of the 1st Munsif on the last day of the period of limitation.
3. The case of the plaintiffs was that ths property in dispute bad remained the property of the judgment-debtor who was in possession of it and that the conveyances in favour of the respondents claimants were farzi transactions.
4. The defence was that those transactions were not farzi but were real ones and that the objector-defendants were in possession of the property attached, in their own rights, and, therefore, the plaintiffs were not entitled to get any declaration that they could proceed against the property in execution of their decree. Another defence was that the suit of the plaintiffs was barred by limitation because the plaintiffs had originally filed the plaint in a court which had no jurisdiction to hear it and having regard to the fact that they had done so deliberately, they were not entitled, for the purpose of limitation, to a deduction of the time during which they had been prosecuting the suit in that court (the court of the 1st Munsif) where they had originally filed the plaint.
5. Both the courts below found that the plaintiffs' case in respect of the lands, except 10 kathas, was not correct so far as the genuineness of the transactions of the conveyances by defendant No. 1 to the claimants was concerned. In respect of the possession of those lands also the courts below held that the claimants had been in possession in their own rights. These findings of the courts below have not been challenged before me by the learned counsel for the plaintiff-appellants.
6. There is also a concurrent finding of the courts below in respect of 10 kathas of land of plots Nos. 277 and 278 said to have been conveyed by defendant No. 1 to respondent No. 1 by a kebala. The courts below have held that that conveyance was not a genuine one and that this area had remained in possession of defendant No. 1 (judgment-debtor) as his property. Consequently, the plaintiffs were entitled to attach, and sell this land in execution of their decree against defendant No. 1. But the entire suit has been dismissed by the courts below upholding the case of the defendants regarding limitation.
The learned Subordinate Judge has held that under Section 14 of the Indian Limitation Act, the plain-tiffs were not entitled to a deduction of the period during which they had been prosecuting the suit in the court of the 1st Munsif who had no jurisdiction to try that suit because the real and actual value of the property concerned was more than Rs. 2,000, and the plaintiffs had deliberately undervalued it at Rs. 1150 in order to file the suit in a court of lesser jurisdiction.
7. It may be mentioned that so far as the case against respondent No. 1 is concerned, the case against her was decided ex parte throughout. She did not, I am told, appear in the courts below at any stage nor has she appeared in this Court. Nevertheless learned Counsel for the other respondents has urged that the point which has been raised by the learned counsel for the appellants should not be allowed to be raised here because it had not been put forward in the courts below. The new point raised is that in a suit under Order 21 Rule 63 of the Civil Procedure Code the value of the suit for the purpose of jurisdiction, when the amount decreed is less than the value of the property involved, would be the decretal amount and it is the decretal amount of the suit which will determine the pecuniary jurisdiction of the court where such a suit has to be filed. Learned Counsel for the appellants has relied upon four decisions, viz., the cases of Phul Kumari v. Ghanshyam Misra, ILR 35 Ca! 202 (PC); Ankamma v. Subbaya, AIR 1920 Mad 940; Mool Chand Moti Lal v. Ram Kishan, AIR 1933 All 249 (FB), and Radhabai v. Madhorao, AIR 1944 Nag 308. Learned Counsel has also distinguished two Patna cases which have been relied upon by the learned Subordinate Judge in his judgment, namely, the cases of Bibi Sairah v. Mt. Golab Kuar, AIR 1919 Pat 345 and Ramchandra Singh v. Mt. Khodaijatul Kubra, AIR 1945 Pat 369.
8. Learned Counsel for the appellants has also argued that on the facts of this ease the court of appeal below was not justified in holding that the plaintiffs had mala fide undervalued the suit in order to file it in a court of lesser jurisdiction and, therefore, Section. 14 of the Limitation Act was not applicable and the period during which the plaintiff-appellants had been prosecuting the suit in the court of the 1st Munsif, where they had originally filed the plaint, ought to have been deducted in order to calculate the period of Limitation.
9. In my opinion, the first argument of the learned Counsel for the appellant is sound. In the Privy Council case referred to above ILR 35 Cal 202 (PC) the question that had come up for decision before the Judicial Committee of the Privy Council was in respect of the amount of court fee payable in a suit brought for a declaration of the plaintiff's right to the property regarding which the plaintiffs claim for attachment in the execution proceeding had been rejected. While deciding this matter some observations were made, the relevant portion of which is as follows:
"The value of the action must mean 'the value to the plaintiff.' But the value of the property might quite well be Rs. 1,000, while the execution debt was Rs. 1.0,000. "It is only of the execution debt is less than the value of the property that its amount affects, the value of the suit'."
I have underlined (here into ' ') the important portion of the above observation which supports the contention of the learned counsel for the appellants also. This authority of the Privy Council was followed in Ankamma's case, AIR 1920 Mad 940 referred to above which was suit for a declaration that an attachment in execution of a decree against the judgment-debtor did not affect a mort gage of the property in the plaintiff's favour the substance of the mortgage not being in dispute, and it was held that the proper valuation for the purpose of jurisdiction was not the value of the property but the amount for which the execution was sought.
10. In the Allahabad case, AIR 1933 All 249 which is a Full Bench decision of that Court, this point was raised in almost similar circumstances as here. The appellants before that Court had obtained a simple money decree against one Lalman. In execution of the decree the appellants caused the attachment of certain immovable properties to which two of the respondents before that Court had preferred an objection on the ground that some of the properties attached belonged to them and not being the property of the judgment-debtor, had been improperly attached. Their objection was disallowed by the executing court and thereupon they filed a suit for a declaration that the properties, the attachment of which had been objected to, were their properties and could not be attached and sold in execution of the decree obtained against Lalman.
The decree-holders and Lalman had been impleaded in that suit. Lalman had not entered appearance. The decree-holders alone contested the suit. The suit was heard on merits by a Munsif, it having been valued at Rs. 1,342/- which was the amount then due on the decree in execution against Lalman. The plaintiffs lost the suit and when they came up in appeal before the District Judge, they raised the point that the property in dispute was really worth Rs. 20,000, and, therefore the Munsif had no jurisdiction to hear the suit. The learned Subordinate Judge, who heard the appeal, held that a suit of a large valuation had been heard by a Munsif and that was a fact which was by itself sufficient for holding that the plain-tiffs had been prejudiced by the trial and, therefore, the learned Judge reversed the decree of the Munsif and directed that the plaint be returned to the plaintiffs for presentation to the proper court.
Against that order the appeal was filed before the Allahabad High Court. A Division Bench of that Court, however, referred the appeal to the Full Bench and one of the questions framed by the Division Bench was as follows: "What, in the circumstances of the case, would be the true valuation of the suit?" On this point the Full Bench of the Allahabad High Court held that it was the amount of the decree that should determine the value of the suit where the property involved was of a larger value than the amount due under the decree, and, that where the decretal amount was larger than the market value of the property involved, it was the market value of the property that should determine the value of the suit.
The reason given for this proposition of law was that the whole of the property was not in dispute. Moreover, the attachment and the sale following execution of a decree might not be of the whole of the property, but only of so much as will be sufficient to discharge the liability thereunder. Consequently, the value of the subject-matter of the suit should be the amount of the decree and not the amount of the actual value of the property or the value for which the claimant might allege to have purchased it. I think this view, if I may say so with respect, is correct.
11. In the Nagpur case, AIR 1944 Nag 308 referred to above, in almost similar circumstances the same view appears to have been taken and the Privy Council case, mentioned above, ILR 35 Cal 202 (PC) was relied upon and a large number of other cases were also reviewed.
12. So far as the two Patna cases upon which reliance was placed by the learned Sub-Judge in his judgment are concerned, I think that the learned Counsel for the appellants has rightly distinguished them. In the first case. i. e., the case of Bibi Sairah, AIR 1919 Pat 345, the suit was originally valued at Rs. 1500 whereas the actual value of the property was Rs. 5,000 and the decree was for Rs. 38,000. In this view of the matter, the above principle was certainly not applicable because the plaintiff in that case was not justified in valuing the suit originally at Rs. 15,00. In the second case. AIR 1945 Pat 369 it is not clear from the report as to what was the amount of the decree.
The only thing which appears clearly from it is that the suit related to properties worth Rupees 13,000. In the absence, therefore, of the actual amount of the decree, it cannot be said that this case is an authority for the proposition, that even where the amount of the decree is less than the property involved in a suit under Order 21 Rule 63 of the Civil Procedure Code, it is the value of the property which will determine the forum of the suit. I think, therefore, that the learned Counsel for the appellants is right in arguing that these two Patna cases do not conflict with the proposition of law which he has been contending before me, namely, that where the value of the property is more than the decretal amount, it is the decretal amount which will determine the value of the suit and upon that will depend the jurisdiction of the Court, and, as in this case the Munsif, 1st Court, before whom the plaint was originally filed by the plaintiffs, had admittedly jurisdiction up to Rupees 2000 the plaint in dispute had been correctly tiled in the proper court. It is urged, therefore, that the subsequent proceeding taken by the Munsif consisting of return of the plaint and its re-filing in another court cannot in any way affect the right of the plaintiffs.
13. The question of application of Section 14 or the Limitation Act did not really arise in view of the above facts. For the purpose of jurisdiction, I think, it must be held that the plaint had been filed in the right court within the period of limitation.
14. It is true that an endorsement had been made by the Munsif 1st Court on the plaint on 21-4-1953, directing the return and that it had actually been received by the pleader for the appellants on 23-4-1953 on which day it was re-filed in the court of the 2nd Munsif. It is true that there was a gap of two days and the learned Subordinate Judge has observed that the deduction of these two days will depend on various factors, and, as it was not known under what circumstances this delay of two days had been made, the plaintiffs were not entitled to claim this deduction and, therefore, the plaint having been filed originally in the court of the 1st Munsif on the last day of limitation, even if the period during which the suit was being prosecuted in the court of the 1st Munsif were deducted the suit was still barred by limitation because of the gap of the aforesaid two days. In my opinion, however, this question could have arisen only when it would have been necessary for the plaintiff-appellants to call to their aid Section 14 of the Limitation Act.
But as I have already observed above, having regard to the position that in law the plaintiffs must be held to have rightly filed the plaint originally in the right court which had full jurisdiction to try it, the plaintiffs cannot be prejudiced by any subsequent illegal order of the Munsif in returning the plaint for re-filing it in another court. It is true that the plaintiffs did not raise any objection to this order of the learned Munsif and their lawyer actually received back the plaint and re-filed it, but these facts, in my opinion, cannot alter the position that the suit must be deemed to have been filed within time in the right court. I also think that in the circumstances of the case it shall be deemed that the suit had remained pending throughout. The gap of two days during which the plaint had remained in the custody of the lawyer for the plaintiffs did not affect this position. This gap cannot have the effect as if the suit which the plaintiffs had filed originally in the court of the 1st Munsif had terminated and a fresh suit had been filed when the plaint was presented in the other court two days after its return.
The case of Ram Kishun Rai v. Ashirbad Rai, AIR 1950 Pat 473 relied upon by the trial court rather supports the view in so far as it says that the institution of the suit by refiling the plaint in the court of competent jurisdiction is not a continuation of the previous plaint, if the court in which the suit was ori-gnally filed had no jurisdiction to entertain it. Here the case, as already shown, is altogether different. The 1st Munsif had complete jurisdiction in the matter. The re-filing of the plaint must, therefore, be taken as continuation of the suit.
15. The question that this was a new point raised here for the first time does not arise, because ultimately it was not pressed.
16. Having regard to the above position, it is not necessary to express any opinion on the second argument of the learned Counsel for the appellants.
17. The result, therefore, is that the appeal is allowed and the judgments and decrees passed by the courts below are set aside. The suit is decreed in part in respect of 10 kathas of land of plot Nos. 277 and 288. As regards the rest, the suit of the plaintiffs is dismissed. The plaintiffs shall get proportionate costs throughout.