Patna High Court
Noor Zaman Khan vs Mt. Maimunnissa Bibi And Ors. on 21 February, 1957
Equivalent citations: AIR1958PAT228, 1957(5)BLJR255, AIR 1958 PATNA 228
JUDGMENT K. Sahai, J.
1. The facts which are no longer in dispute in this case are as follows:-- One Musammat Afzul Bibi obtained a decree for Rs. 465/- on 1-12-1848, against respondents Nos. 3 to 5 of this Court. On 11-1-1850, she executed the decree in Execution case No. 22 of 1950. On 3-2-1950, she made a gift of eight annas of her properties including the decide, in favour of her two daughters, who are respondents Nos. 1 and 2 in this Court.
On 8-2-1950, Musammat Afzul Bibi made a gift of the remaining share of her properties, including eight annas of the decree, to her son, Noor Zaman Khan, the appellant in this Court. On 5-5-1950, Execution case No. 22 of 1950 was dismissed on part satisfaction as respondents Nos. 1 and 2 certified payment of the decree to the extent of their eight annas interest which was gifted to them by their mother, Afzal Bibi.
On 18-2-1951, Afzul Bibi cancelled the gift in favour of the appellant. On 11-7-1951, she died. On 29-8-1952, the appellant (sic) a petition for execution of the remaining (sic) annas of the decree on the ground that he was entitled to the entire remaining decree on the basis of the gift made in his favour by his mother. He did not implead respondents Nos. 1 and 2 in the execution case. The judgment-debtors (respondents Nos. 3 to 5) filed an objection under Section 47 of the Code of Civil Procedure on the ground, amongst others, that the execution was not maintainable because respondents Nos. 1 and a had not been made parties.
Respondents Nos. 1 and 2 also appeared and filed an application to the effect that they were interested in the decretal money because the gift in favour of the appellant had been cancelled by Afzal Bibi and they as well as the appellant had inherited the remaining eight annas of the decree as heirs of Afzal Bibi. The learned Munsif, who heard the objections, overruled them. Respondents Nos. 1 and 2 filed an appeal which was heard by the and Addl. Subordinate Judge of Sasaram. By his order dated 14-7-1853, the learned Additional Subordinate Judge allowed the appeal and dismissed the execution case. Hence, the appellant has filed this appeal in this Court.
2. The first point which Mr. Mukherjee has urged on behalf of the appellant is that no appeal at the instance of respondents Nos. 1 and 2 lay in the lower appellate court, and hence the order passed by that Court is completely without jurisdiction. He has made the submission that respondents Nos. 1 and 3 as well as the appellant have claimed to be interested in tht decree as heirs of Afzal Bibi, and a dispute between two sets of persons relating to inheritance from the deceased decree-holder, being a dispute between heirs of the same party inter se, is not a dispute between the parties to the suit or their representatives, and does not, therefore, come within Sub-section (1) of Section 47 of the Codt of Civil Procedure. In support of this submission, he has drawn my attention to the case of Md. Abdul Matin v. Mt. Bibi Hamidan, 13 Pat LT 537: (AIR 1933 Pat 339) (A).
In my judgment, that decision is clearly distinguishable. The dispute between the heirs of the deceased decree-holder in that case related to what the actual share of each was. Such a dispute was held not to come within the purview of Section 47. Where, however, tht controversy between the parties relates not to the share of each of them but to the question whether ont party alone or both parties are legal representatives of a party, the case is clearly covered by Section 47. Sub-section (3) of that section reads :
"Where a Question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court."
3. It seems clear that this sub-section provided for a case of the present kind as the question which arises in this case is whether respondents Nos. 1 and 2 are or are not representatives of the deceased decree-holder.
4. Mr. Mukherjee has also drawn my attention to a Full Bench decision of the Madras High Court in Annamalal Muddali v. Ramasami Mudali, AIR 1941 Mad 161 (B). Two questions arose for decision in that case; firstly, whether an application by a stranger auction-purchaser for delivery of possession was covered by Section 47; and. secondly, whether Section 47 applied to a case where the dispute was between a party and his own representative or two persons representing the same party. The scope of Sub-section (3) of Section 47 was not in question in that case as there was no dispute relating to whether a person was or was not the reoresentative of a party. The decision has, therefore, no application to the facts of this case.
5. So far as this Court is concerned, the matter is concluded by two Bench decisions. I refer to the cases of Mt. Muna Koer v. Durga Prasad. 2 Pat LJ 192: (AIR 1917 Pat 623) (C); and Sm. Lalmani Koer v. Sm. Raghubansi Devi, AIR 1944 pat 307 (D). In Mt. Muna Koer's case (C), their Lordships observed:
"Under Section 47 of the Civil Procedure Code where a question arises as to whether any person is or is not the representative of a party, such question shall be determined by the executing Court."
6. In Sm. Lalmani Kuer's case (D), what happened was that on the death of Ramanutar Lal, who had obtained the decree, his sister, Raghubansi Devi, took out execution on the ground that Ramautar Lal was her benamidar and she was the real decree-holder. Ramautar Lal's widow objected. It was held that "the provisions of Sub-section (3) of Section 47, Civil Procedure Code, are wide enough to include a controversy like the present between two persons, each one of them claiming to be in the position of tht decree-holder."
These decisions are binding upon me, and I must, therefore, hold that the dispute between the parties in this case could certainly be decided by the executing Court under Section 47 of the Code of Civil Procedure. I may add that the Judgment-debtors themselves objected to the execution and the controversy between them on one side and the appellant on the other was undoubtedly covered by Section 47. As respondents Nos. 1 and 2 felt aggrieved with the order passed by the Munsif on the objection under Section 47, they could in my Judgment certainly take an appeal against that order, I am therefore, unable to hold that the appeal before the lower appellate Court was incompetent.
7. The next point which Mr. Mukherjee has urged is that respondents Nos. 1 and 3 stated before the Court during the pendency of Execution case No. 22 of 1950 that their full claim was satisfied, and hence they could not be allowed to take the plea in the present execution case that they were interested in the remaining part of the decree. This argument is without any foundation. Exhibit B is a copy of the petition filed by these respondents in the execution case of 1950, and they have clearly stated therein that their claim in the decree was to the extent of only eight annas on the basis of a gift made in their favour by their mother, Afzal Bibi.
They could not then know what future interest in the decree would vest in them on their mother's death, and, indeed, they did not make any statement in the application in that connection. As I have mentioned, they now claim interest in the decree on the basis of inheritance.
8. The third point which Mr. Mukherjee has raised is that the appellant was entitled to maintain the execution case in the circumstances of this case, and that it was not necessary for him to implead respondents Nos. 1 and 2 as parties, In my opinion there is no substance in this argument also. Rule 15 of Order XXI provides that one or more of joint decree-holders may apply for execution of the whole decree for the benefit of all the decree-holders; and the Court may allow such an execution to proceed, but it) shall, in that case, make such order as it considers necessary for protecting the interests of the persons who have not joined in the application.
Two points are perfectly clear from this provision. Firstly, one or more of several joint de-cree-holdere cannot execute the whole decree unless they do so for the benefit of all the decree-holders. Secondly, the executing decree-holders must implead all the other decree-holders as parties because, otherwise, their interests can hardly be safeguarded. Obviously, the appellant did not proceed in this case under Rule 15 of Order XXI as he claimed to be the only person interested in the entire remaining decree on the ground that it was gifted to him by his mother.
He did not seek to execute the decree for the benefit of his sisters, who have been held to be interested in that part of the decree. The execution was, therefore, obviously invalid. I may, in this connection, refer to the case of A. J. Meik v. The Midnaour Zemindary Company, Ltd., 4 Pat LJ 575: (AIR 1919 Pat 286) (E). Jwala Prasad J., who delivered the judgment in that case, Atkinson J., agreeing, observed as follows:
"A joint decree cannot be executed by one of the several joint decree-holders in respect of what the applicant considers his share in the decree. Much less can it be executed by one of the decree-holders in respect of the entire decree unless it is on behalf of the decree-holders for the benefit of them all".
9. Mr. Mukherjee has referred to the case of Kamal Kishore Prasad Singh v. Hari Har Prasad Singh, Am 1951 Pat 645 (F). But, in my judgment, that case does not help him at all. All that was held in that case was that a joint decree-holder need not state in so many words in the execution petition itself that the decree was being executed for the benefit of all the decree-holders.
As that case related to a decree obtained by a joint Hindu Mitakshara family, it was held that an application for execution by the leading members of the family must be assumed to be an application for the benefit of all the members of the family. That case has, therefore, no relevancy in the present case.
10. Mr. Mukherjee has lastly attempted to urge that the findings of fact arrived at by the Court below are not correct. I am not satisfied that there is any merit in this argument.
11. In this result, the appeal fails and is dismissed but in the circumstances of this case, there will be no order for costs.