Patna High Court
Shital Prasad Singh And Ors. vs Surendra Nath Chatterji And Ors. on 19 December, 1949
Equivalent citations: AIR1950PAT253, AIR 1950 PATNA 253
JUDGMENT Reuben, J.
1. This is an appeal by four judgment-debtors against an order of the Subordinate Judge of Bhagalpur dated 15th February 1917, reviving an execution case in which, on 3rd April 1946, he had recorded an order of dismissal on full satisfaction.
2. It arises in the following circumstances. The decree under execution was a mortgage decree obtained in the year 1938 by four brothers Jitendra Nath Chatterji, Surendra Nath Chatterji, Nripendra Nath Chatterji and Brajendra Nath Chatterji against as many as twenty six judgment-debtors. The execution was taken out for the realisation of Rs. 14,000 and odd as the decretal amount. On 3rd April 1945, a satisfaction petition was filed in the Court of the Subordinate Judge purporting to be on behalf of all the decree-holders but signed by only one of them Surendra Nath Chatterji, It also bore the signature of Mr. B.K. Neogi, Advocate, who had represented the decree-holders in the suit. By this petition, it was stated that the parties had agreed to settle the matter at Rs. 12,000 remitting the remaining decretal amount, that out of this amount Rs. 2,400 was already deposited in Court and the balance Rs. 9,600 was being paid in cash to the decree holders that day. Three days later, on 6th April 1945, a petition was filed by Amarendra Nath Chatterji and others representing Brajendra Nath Chatterji deceased, asserting that they were not parties to the compromise, and that the petition of satisfaction has been filed in fraud of them. A similar petition was filed on the 10th by Nripendra Nath Chatterjee and the representatives of Jitendra Nath Chatterji deceased. They sought the setting aside of the order of (dismissal and ?) revival of the execution case. This has been allowed. Hence, the present appeal.
3. Mr. Ragho Saran Lal for the appellants urges, first of all, that it is not open to the decree-holders applicants to question the com-promise because, by their subsequent conduct, they have acquiesced in it. He relies upon the fact that, at a later stage, they have applied for their shares of the money said to have been taken by Surendra Nath Chatterjee from the judgment-debtors. The circumstances in which this happened are clear from the papers to which we have been referred. On 23rd May 1945, Jitendra Nath Chatterjee and Nripendra Nath Chatterji applied to the Court for the prosecution of Surendra Nath Chatterji and others under Section 196, 206 and 209, Penal Code, in connection with the filing of the petition of satisfaction. This petition wag dismissed by the Subordinate Judge, who was of the opinion that no criminal offence was made out. Before him Surendra Nath Chatterji expressed his willingness to deposit the shares of the other decree-holders out of the amount of Rs. 9600 received by him, and in accordance with this, the Subordinate Judge, on 18th February 1946, directed him to make the deposit. It was only after this order was passed that the other decree holders, from time to time, applied to the Subordinate Judge for directing deposit of their shares. There was at no stage any acceptance by them of the alleged compromise. Under the decree, they were certainly entitled to share in the amount realised by Surendra Nath Chatterji. All that they asked for was their shares, but they did not give up their rights to proceed against the judgment-debtors for tbe balance.
4. Mr. Ragho Saran Lall next relies on the provisions of Order 3, Rule 4, Civil P. C. He concedes that, as regards two of the original judgment-debtors (judgment-creditors?), namely, Jitendra Nath Chatterji and Brajendra Nath Chatterji, who were dead at the time of the filing of the satisfaction petition, it cannot be urged that they were represented by Mr. Neogi. He contends, however, that Mr. Neogi represented the brother Nripendra Nath Chatterji and to that extent it should be held that the compromise is binding. There are two difficulties in the way of this contention. Firstly, the vakalatnama under which Mr. Neogi derived his authority is not before us and no attempt has been made to show that his authority extended to tbe compounding of the case on behalf of his clients. Our attention has been drawn to Sourendra Nath v. Tarubala Dasi, 34 C. W. N. 463 : (A. I. R. (17) 1980 P. C. 158), as an authority that the power to compromise was within the general powers of Mr. Neogi as an Advocate. The observations of their Lordships to this effect have regard to the powers of Advocates appearing without a vakalatnama. They made it clear that different considerations apply where the Advocate derives his authority under a vdkalatnama; in such a case, his powers depend upon the instrument which empowers him. Secondly, it appears from the petition of satisfaction itself that Mr. Neogi signed merely as filing the petition. There is nothing in his endorsement to indicate that he filed it in exercise of authority to compound on behalf of his clients.
5. The third point raised is that notices were not served on several judgment-debtors before reviving the execution case. In the circumstances of this case, this objection appears to be more or less of a technical nature. There is no doubt that, as regards the service of notice, there has been an irregularity. The petitions for revival were filed soon after the execution case was dismissed on full satisfaction. Instead of issuing notices in the ordinary course, the Subordinate Judge directed that they be put up in the presence of the parties, and the order-sheet shows that, from time to time the judgment-debtors or the lawyers of the judgment-debtors appeared in the case. The case was adjourned from date to date till February 1947 when it was finally disposed of. During all this time, there was no objection on the part of any of the judgment-debtors that notices had not been served on them all, or that any of the judgment-debtors was unaware of the proceeding. In particular, as regards the appellants before us, there is no suggestion even now that they did not know of the proceedings, and that the order of the Subordinate Judge was passed behind their back. The objection is entirely rested on orders NOS. 86, 87 and 89 of the Subordinate Judge, which show that he directed the issue of notices to some of the judgment-debtors, who are residents of Banka Sub-division, but, as talbana was filed only in respect of some of them, notices did not issue upon them all. The last order, however, is to the effect that notices need not issue on the remaining judgment-debtors because of a petition by the decree, holder to the effect that notices were not necessary so far as those judgment-debtors were concerned. We have nothing be fore us to show who those judgment-debtors were and whether they were necessary parties to this proceeding. In these circumstances, I do not think, there is any reason for interfering with the order passed by the Subordinate Judge.
6. Finally, objection is taken to the form in which the order of the Subordinace Judge has been passed. The Subordinate Judge directed that execution should proceed for twelve annas share out of the balance of the decretal dues after excluding Rs. 9,600 said to have been paid to the decree-holder Surendra Nath and further that it should issue for such amount of the other decree holders' share of that sum as was not deposited by Surendra Nath in Court. In other words, the Subordinate Judge directed that credit should be given to the judgment, debtors for such portion of that amount of Rs. 9,600 as Surendra Nath might deposit for payment to the other decree-holders and, for the balance, execution should issue against the judgment-debtors. The learned counsel objects that there is no finding of fraud against the judgment-debtors, and it is not equitable that they should be penalised for the fraud of one of the decree, holders. Accepting the contention that there was no fraud on the part of the judgment debtors, we have two innocent parties to decide between, On the one hand, the remaining decree-holders are not blameworthy in any way. On the other hand, the judgment-debtors have entered into negotiations with one of the decree-holders, who had no authority to represent the other decree-holders, and with a lawyer who had represented the decree-holders in the original suit, but who admittedly did not do so in the execution proceedings, the different sets of decree-holders having engaged other lawyers in the execution proceedings. In acting as they did, the judgment-debtors acted at their own risk and if there is any loss, it must fall on them and not on the innocent decree-holders. The general impression that one gets from a perusal of the order-sheet which shows that the hearing of this miscellanous matter extended over nearly two years in the course of which several attempts were made to induce Surendra Nath Chatterji to deposit the shares of the other decree-holders, is that the Subordinate Judge did all he could to save the judgment-debtors from suffering as a result of the mistake committed by them. I do not think the order finally passed by him is open to any objection.
7. On the above grounds, I consider that the appeal has no merit and must be dismissed with costs.
Das, J.
8. I agree.