Orissa High Court
Ghasi Sahu And Anr. vs Himachal Sahu And Anr. on 6 January, 1986
Equivalent citations: AIR1986ORI170, 1986(I)OLR256, AIR 1986 ORISSA 170, (1986) 2 CIV LJ 367, (1986) 61 CUTLT 125, (1986) 1 ORISSA LR 256
JUDGMENT K.P. Mohapatra, J.
1. In this appeal, the appellants have challenged the order passed by the learned Additional District Judge, Sambalpur whereby he confirmed the order of the learned Subordinate Judge, Deogarh rejecting appellants' petition under Order 21, Rule 58 of the Code of Civil Procedure ('Code' for short).
2. The uncontroverted facts relevant for disposal of the appeal are stated in brief. Respondent 1 is the adopted son of respondent 2 and her late husband, Appellant 1 is the minor son and appellant 2 is the wife of respondent 1. They are members of a Hindu Mitakshara joint family living in joint mess and property. In Title Suit No. 9/1 of 1968/80 for partition between respondents 1 and 2 a final decree was passed. In the final decree, schedule 'A' land was allotted to the share of respondent 1 which was made charge for recovery of mesne profits amounting to Rs. 22,930.00 decreed in favour of respondent 2. Respondent 2 brought Execution Case No. 5'of 1982 against respondent 1 in which schedule 'A' land was attached for recovery of the mesne profits.
3. The appellants came up with a petition under Order 21, R, 58 of the Code stating therein that they have l/3rd share each in schedule 'A' land which was not liable for attachment. Therefore, the attachment in respect thereof should be vacated.
4. Respondent 2 opposed the petition on the grounds that respondent No. 1 being the 'Karta' of the Hindu Mitakshara joint family represented the interest of the appellants in schedule 'A' land, Appellant 2, the son of respondent 1 has the moral obligation to repay his fathers debt. Moreover, the joint family property can be attached and sold for legal necessity. Therefore, attachment in respect of the 2/3rd share claimed by the appellants cannot be vacated according to law.
5. Mr. S. K. Mohanty, learned counsel appearing for respondent 2 raised a preliminary objection with regard to maintainability of the second appeal before this Court. According to him, a first appeal before the learned District Judge was competent, but a second appeal to the High Court did not lie. Against the order of the learned Additional District Judge, civil revision lay to the High Court. This point requires careful examination.
6. Order 43, Rule 1 provides as to which of the orders are appealable. There is no mention that an order under Order 21, Rule 58 is appealable Order 43, Rule 1 is however, not conclusive, because of the special provision made in Sub-rule (4) of Order 21, R, 58 which is reproduced for easy reference : --
"Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."
The aforesaid provision clearly indicates legislative intention to the effect that under. Order 21, Rule 58 a claim or objection shall be adjudicated upon as if it were a suit and the final order shall have the force of a decree within the meaning of the definition of 'decree' in Section 2(2) of the Code. Such decree is appealable. This view is supported by a decision of this Court reported in (1979) I Cut WR 147, Kwality Restaurant v. Trilochan Singh Deo, in which it was held : --
"Fourthly, the old Rule gave a right of suit to the aggrieved party under Order 21, Rule 63 C.P.C. but, under the new Rule, the remedy is by way of appeal and not by way of suit. It is only in cases where the Court refuses to entertain the claim or objection, then the remedy will be by way of a suit."
In AIR 1978 Mad 270, M/s. Southern Steelment and Alloys Ltd. v. B. M. Steel, Madras, a Division Bench held that the adjudication referred to under. Order 21, Rule 58 C.P.C. (as amended in 1976) is not summary and as it is the intention of Legislature under the amended Code that it should be a decision as if rendered in a regular suit resulting in an appealable decree, the fuller examination of the rights of parties has to be held after giving them adequate opportunity to place all relevant materials before the Court so that the court could ultimately decide and adjudicate on all questions including questions relating to title or interest in the property attached. In AIR 1979 Delhi 230, Harbans Lal v. Smt. Ram Jawai Devi, a Division Bench held : --
"Rule 58 of Order XXI has undergone a vital change by the amending Act 104 of 1976. The amendment now envisages that the adjudication under Rule 58 would be final and conclusive adjudication, and would be appealable as if it were a decree."
In AIR 1979 Kant 89, Sidramappa Rachappa Chiniwar v. Shankarlingappa Veerappa Bilagi a learned single Judge took an indentical view. In AIR 1981 Pat 292, Ram Krishna Mandal v. Baikuntha Lal Mandal a Division Bench took an identical view and observed : --
"The Sub-rule (2) of Rule 58 directs all questions including questions relating to the right, title or interest in the property attached arising between the parties to the proceeding or their representatives and relevant to the adjudication of the claim to be determined under this rule and a separate suit for the purpose has been barred. If the provision of appeal be held to be inapplicable in case of attachment before judgment, the losing party in such cases will be debarred from agitating his claim and challenging the order against him. The claim of title to immovable properties in other cases are subject to scrutiny by more than one court and it cannot be assumed that the legislature intended to discriminate in cases arising out of attachment before judgment.
In view of the principle laid down in the aforesaid decisions it is beyond the pale of controversy and it is the consistent judicial consensus that an order of adjudication under Order 21, Rule 58 has the force of a decree and is appealable.
7. Mr. S. K. Mohanty next urged that even if an order of adjudication under Order 21, Rule 58 is appealable to the first appellate court, a second appeal to the High Court will not lie. On the other hand a civil revision will lie. This contention can be repelled by making reference to Section 100(1), according to which, save as otherwise expressly provided in the Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. An order of adjudication of any claim or objection under Order 21, Rule 58 has the force of a decree not only before the executing court but also before the first appellate court. In other words, the order of the executing court has the force of a decree and the order passed by the first appellate court has also the force of a decree. An almost identical question with reference to Section 28 of the Hindu Marriage Act (Act 25 of 1955) came up for consideration before a Division Bench of this Court. After examining a large number of decisions it was held in ILR (1978) 1 Cut 559, Barabati Pandeyandi v. Jogendra Pandey as follows : --
"The position, therefore, is that Section 28 of the Act makes the decrees under the Act appealable and law to be applied is to the Code of Civil Procedure. There is no bar provided by the Act to the right of appeal except as in the proviso. Therefore, following the dictum of law laid down by Viscount Haldane, L. C., it must follow that the right of appeal is regulated by the Code of Civil Procedure. Once the Code applies, and we have already found that the decree under the Act is a decree as defined in the Code of Civil Procedure, Sections 96 and 100 of the Code apply, to such decrees and an appeal under Section 96 and a further appeal under Section 100 of the Code are thus available subject to the limitations as provided in the Code itself."
In the present case, the position seems to be much better, because, there is clear provision in Order 21 Rule 58(4) that the order of adjudication of any claim or objection shall have the same force and be subject to the same condition as to appeal or otherwise as if it were a decree, and a decree has been defined in Section 2(2) of the Code as the formal expression of any adjudication which so far as regards the courts expressing it, conclusively determines the rights of the parties with regard to all or any matters in controversy in the suit and may be either preliminary or final. Therefore, without any shadow of doubt, the order of adjudication of any claim or objection passed by an executing court under Order 21, Rule 58 shall in law be deemed to be a decree and the order passed by the first appellate court shall also be deemed to be a decree as defined in Section 2(2) of the Code. This being the position, there is no escape from the conclusion that by operation of the provision of Section 100(1) of the Code, a second appeal to the High Court against the order of the first appellate court on a matter arising out of a petition under Order 21, Rule 58 is competent and maintainable subject to the condition that a substantial question of law is involved for decision. The contention of Mr. S. K. Mohanty is therefore untenable.
8. Mr. S. K. Mohanty next contended that the concurrent findings of the learned courts below to the effect that appellant 1 has the moral obligation to repay the debt of his father, respondent 1 which was not tainted with immorality should not be disturbed.
The undisputed facts which were specifically admitted by appellant 2 who gave evidence in the trial court are that both the appellants and respondent No. 1 are members of Hindu Mitakshara joint family of which respondent 1 is the Karta. They are in joint possession of schedule 'A' land and enjoy the usufructs thereof. In the final decree of Title Suit No. 9/1 of 1968-80 schedule 'A' land was allotted in favour of respondent 1 from out of joint family property of his adoptive father the late husband of respondent 2. It was further decreed that he should pay mesne profits of Rs. 22,930/- to respondent 2 for realisation of which a charge was created on schedule A land. The sum of Rs. 22,930/- which respondent 2 is entitled to realise from respondent 1 is in the nature of a debt. There is nothing on record to show that the mesne profits represented an amount tainted with immorality. Therefore, according to the principle of Hindu Law, it is the duty of respondent No. 1 to pay the mesne profits to respondent 2 and if he defaults, it is the pious obligation of appellant No. 1 to repay the debt of his father. Further, according to the principle of Hindu Law, mesne profits of the nature of a debt have got to be realised from the joint family property of the appellants and respondent No. 1 namely, schedule 'A' land. In this connection reference may be made to a decision reported in AIR 1953 SC 487, Sidheswar Mukherjee v. Bhubaneswar Prasad Narain Singh, B. K. Mukherjee, J. speaking for the Court made a lucid exposition of Hindu Law with regard to liability of the descendants of a Hindu for a payment of debts incurred for legal necessities and observed : --
"So far as the first point is concerned, the question whether the sons of defendant 1 were liable in law to discharge the decretal debt due by their father could be answered only with reference to the doctrine of Mitakshara law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality.
This doctrine, as is well-known, has its origin in the conception of Smriti writers who regard non-payment of debt as a positive sin, the evil consequence of which follow the undischarged debtor even in the after-world. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father's debts. The doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts.
We do not find any warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the joint family, or that the family must be composed of the father and his sons only and no other male member. No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Where a debt is incurred for necessity or benefit of the family, the manager, whether he be the, father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts irrespective of the fact as to who actually contracted the debts."
It is, therefore, clear that schedule 'A' land being the joint family property of the appellants and respondent 1 is liable to be attached and sold for realisation of the decretal dues representing the mesne profits of Rs. 22,930/-which respondent 2 is entitled to get. So, as rightly contended, the concurrent findings of the learned courts below cannot be disturbed.
9. For the foregoing reasons, the appeal is without any merit and is dismissed with costs.