Patna High Court
Sri Chandra Chur Deo vs Musammat Shyam Kumari on 17 July, 1931
Equivalent citations: 139IND. CAS.397, AIR 1932 PATNA 261
JUDGMENT Fazl Ali, J.
1. The appellants are three sons or one Babu Jagadhar Narayan Prasad and they having unsuccessfully objected to the execution of a decree for costs passed against their father and one Rai Bahadur Ram Sumeran Prasad have preferred this appeal against the decision of the Subordinate Judge of Patna. It appears that Jagadhar Prasad and Ram Sumeran Prasad instituted a suit in the Court of the Subordinate Judge at Darbhanga, against the opposite party and certain other persons in 1912 The suit was dismissed and so were the appeals which they preferred in the first instance before the High Court and then to the Privy Council. The trial Court awarded separate costs to the various defendants and in the High Court a certain amount of cost was awarded to respondents Nos. land 2 and 4 to 10. The Privy Council awarded costs only to respondents Nos. 1 and 4 on whose behalf the present execution petition has been filed. It appears from the execution petition that certain previous applications were made to the Darbhanga Court by the respondents on several dates in the year 1926 and the decree was subsequently transferred to Patna where execution was first taken out on the 31st January, 1927, but dismissed on the 8th June, 1927. Ultimately the present execution petition was filed on the 22nd January, 1926. A number of objections were taken by the appellants in their petition of objection which they filed on the 3rd August, 1927; but it appears that only ten of these objections were pressed before the Subordinate Judge of Patna who overruled all of them and directed the execution to proceed. Some of those very objections have been raised again in appeal though there are one or two objections which are urged for the first time before this Court and which do not appear to have been pressed before the Subordinate Judge.
2. The first and the most serious objection is that the Privy Council decree against Jagadhar Narayan Prasad is a nullity and cannot be executed against the appellants. This contention is based on the fact that Jagadhar Prasad died in the year 1920 whereas the case was decided by the Privy Council sometime in the year 1922. It is argued that the Privy Council decision is a nullity, as nobody represented the interest of Jagadhar and as it was given against a dead person. This is precisely the point which arose in Deo Nandan Prasad Singh v. Janki Singh 56 Ind. Cas. 322 : 5 P.L.J. 314 : 1 P.L.T. 323 : 2 U.P.L.R. (Pat.) 108 : (1920) Pat. 266 and it was decided by a Division Bench of this Court that the fact that one of the parties in the appeal to the Privy Council had died before the appeal was heard and his legal representatives had not been brought on the record, did not make the decree of the Privy Council nullity. This decision was followed in Rai Bhadur Baijnath Goenka v. Maharaja Sir Ravaneshwar Prasad Singh Bahadur 58 Ind. Cas. 212 : 1 P.L.T. 426 and the same view was taken by the Madras High Court in Kalyani Pillai v. Thiruvenkadaswami Ayyangar 80 Ind. Cas. 85 : 47 M. 618; (1924) M.W.N. 439 : 47 M.L.J. 154 : 20 L.W. 99 : 35 M.L.T. 50 : A.I.R. 1924 Mad. 695 and in 103 Ind. Cas. 618; Adummilli Gopalkrishnayya v. Kosuri Venkataratnam 103 Ind. Cas. 618 : (1927) M.W.N. 626 : 26 L.W. 72 : 53, M.L.J. 226 : 39 M.L.T. 29. All three decisions are based on the constiution of Section 23 of an English Statute passed in 1833 (III and IV William III, c. 41) and reference is also made in the two decisions of this Court to Flood v. Egan (1899) 20 N.S.W. Reports 337. The report of this case is not available to us and it will, therefore, be unsafe to base our decision upon it. The whole question, therefore, turns upon the construction of Section 23 of the Statute of 1833 which runs as follows:
And be it enacted that in any ease where any order shall have been made on any such appeal as last aforesaid, the same shall have full force and, effect notwithstanding the death of any of the parties interested therein; but that in all cases where any such appeal may have been withdrawn or discontinued or any compromise made in respect of the matter in dispute, before the hearing thereof, then the determination of His Majesty in Council in respect of such appeal shall have no effect.
2. It was argued on behalf of the appellants that Section 23 must be read with Section 22 and it was clear that if so read, it could apply only to a special class of cases which were referred to in Section 22. The argument of the appellant that the present case is not covered by Section 23 seemed, therefore, at first sight to be unanswerable, but it was soon discovered that Section 22 has been repealed by the Statute Law Revision Act of 1881 (24 and 25 Vict. c. 101) and, therefore, Section 23 must now be read along with Section 21. When so read it is difficult to say that the construction put upon it by the learned Judges of this Court and of the Madras High Court in the decision to which I have referred is either unreasonable or errdhebus. It is argued on behalf of the appellants that the order referred to in Section 23 must be an order passed after the appeal has been decided by the Privy Council and means an order as to the execution of the Privy Council decree, otherwise there is no meaning in the rules relating to the abatement of appeals while pending before the Privy Council and their revival at the instance of the parties affected. There is no doubt that there is something to be said in support of this argument, but at the same time having regard to the wide language used in the section, it is difficult to hold that it refers only to those cases where the parties have died after the Privy Council decree. In the latter part of the section it is provided that the order shall have no effect if the appeal has been withdrawn, discontinued or compromised before the hearing of the appeal: but it is nowhere expressly stated that the death of the party referred to in the section must have taken place after the hearing of the appeal. Besides, when the section was originally framed it was undoubtedly intended to be read with Section 22 and it is conceded that when so read, it would cover a case in which a party died before the hearing of the appeal. If, therefore, any narrower meaning was intended to be attached to it, when e. 22 was repealed, Section 23 would also have been suitably amended to convey that meaning. In my judgment the view taken in the two previous decisions of this Court is correct and the contention put forward by the appellants that the decree of the Privy Council is a nullity must fail.
4. The next contention put forward on behalf of the appellants was that under Section 50 of the Civil Procedure Code, assuming that the section applied to this case, the application to execute the decree against the legal representative of the deceased judgment-debtor should have been made before the court which passed the decree and not before the court to which the decree was transferred for execution. This objection is based on the allegation that no application was in fact made before the Subordinate Judge of Darbhanga by whom the original suit had been tried, to proceed against the appellants is legal representatives of Jagadhar Prasad. The appellants, however, have not printed any document in the paper-book of this appeal which would show conclusively whether this allegation is well founded or not and it is not usual for this Court to investigated an allegation of fact which either was not made before the court of first instance or which that court was not invited to examine. Assuming, however, that the allegation is correct, the matter seems to be covered by the decision of the Privy Council in Jang Bahadur v. Bank of Upper India 109 Ind. Cas. 417 : 55 Ind. Ap. 227 : 5 O.W.N 502 : A.I.R. 1928 P.C. 162 : 32 C.W.N. 790 : 26 A.L.J. 681 : 48 C.L.J. 23 : 28 D.W. 25 : 3 Luck. 314 : 30 Bom. L.R. 1373 : 55 M.L.J. 545 : (1928) M.W.N. 363 (P.C.), It was conceded in that case that where the judgment-debtor dies and the decree-holder wants to proceed against his representatives, the court which made the decree is by Section 50 of the Civil Procedure Code, the proper court to order that the execution shall proceed against his representatives. But it was pointed out at the same time that the getting of an order of substitution from the court which passed the decree is only a matter of procedure and not of jurisdiction and if there is no compliance with such procedure the defect may be waived and the party who has acquiesced in the court exercising it in a wrong way cannot after wards turn round and challenge the legality of the proceedings. In this case although it is urged that the point was raised by the appellants in para. 9 of their objection petition, it is not difficult to see that it could have been raised in clearer language and there is no doubt that it was not urged at all before the learned Subordinate Judge, because he has formulated all the ten objections raised by the appellants before him, but he does not refer anywhere to the present objection. It is also conceded that this objection is not covered by any of the numerous grounds taken in the memorandum of appeal filed in this Court. In these circumstances the objection may well be taken to have been waived and as it was not raised at the earliest possible moment, it cannot be urged for the first time in this Court.
5. The next point which is urged is that the decree-holders cannot proceed against the appellants as representatives of the deceased Jagadhar Prasad in execution without bringing a suit against them and having them adjudged liable to satisfy the decree passed against Jagadhar Prasad. It is conceded that Section 53 of the Civil Procedure Code, how enables the decree-holder to proceed in execution against the property in the hands of a Hindu son who is liable for the payment of the debt due from his deceased father in respect Of which a decree has been passed. It is however, contended that Section 53 can apply only if Section 50 applies and that Section 50 will apply only to those cases where the judgment-debtor dies after the passing of the decree and before it is fully satisfied. There is no doubt that the case of Narendi a Bahadur Chand v. Gopal Sah 20 Ind. Cas. 506 : 17 C.L.J. 634 seems at the first sight to support the contention of the appellants as to the scope of Section 50. It appears to me, however, that when a decree is passed against a party who dies before the passing of the decree, that decree would ordinarily be a nullity and it is not a nullity is this particular case owing to the special provision made by Section 26 of the Statute of 1833 Ordinarily, therefore, where a decree is passed against a dead person the execution may be successfully attacked by appeal representatives of the deceased judgment debtor against whom it is sought to be executed even apart from Section 50 of the Code of Civil Procedure. When, however, we closely examine the language Section 50 we find that it does not, expressly exclude those cases where the judgment-debtor dies before the passing of the decree. It only refers to the death of the judgment-debtor before the decree has been fully satisfied and where, therefore, the decree is a good decree, a in the present case, notwithstanding the death of the judgment-debtor before the passing of the decree, the case comes well within the terms of the section, because that death takes place also before the decree has been fully satisfied. In view of the wide language used in the section, I am unable to hold that the present case is not covered by it and I think that if the facts of a case like the present had been before the learned Judges of the Calcutta High Court who decided the case of Narendra Bahadur Chand v. Gopal Sah 20 Ind. Cas. 506 : 17 C.L.J. 634 the decision would have been given in more guarded terms. In my opinion both Sections 50 and 53 apply to this case and it is open to the decree holders to proceed in execution against the property in the hands of the appellants.
6. It was next contended that the decree for costs passed by the Privy Council is a money decree and can be executed against the property in the hands of the appellants only so long as the debt is not barred. It is conceded that the appellants being the sons of Jagadhar are under a pious obligation to satisfy his debts, but it is said that the obligation lasts only so long as the debt is not barred and it is contended on the authority of Swaminatha Ayyar v. Vaidyanth Shastri 28 M. 466 that the present debt is barred as more than six years have elapsed since the passing of the decree by the Privy Council. It appears to me that there is good deal of confusion behind this argument. It cannot be disputed that Article 183 applies to this case and the execution may be commenced any time within 12 years of the passing of the decree. If so, the present decree is still a good decree and the obligation of the sons to pay continues so long as the execution is commenced within 12 years of the date of the decree. The case decided by the Madras High Court on which reliance was placed was decided before Section 53 had been enacted and when a decree against a Hindu deceased father could not be executed against his son without bringing a suit to fix his liability. Under those circumstances it was held that Article 120 of the Limitation Act applied and the suit must be brought within six years of the passing of the decree. Under the present Civil Procedure Code, however, a person who has obtained a decree against the father can proceed at once against the property in the hands of his son who is liable under the Hindu Law for the payment of the debt of his deceased father and it is no longer necessary to apply Article 120, Limitation Act, because in such cases either Article 182 or Art 183 will directly apply. It is urged by the learned. Advocate for the appellants that although a proceeding under Section 47 is not designated as a suit, yet it is of the same character as a suit and so Article 120 would still apply. This argument may be shortly met by pointing out that if a proceeding under Section 47 cannot be designated as a suit and is always initiated by means of an application, Article 120 which is meant to be applied to suits and suits only is manifestly inapplicable. It is then urged that Article 181 which is a residuary Article for application should, be applied in this case; but here also the appellants may be met with the answer that the residuary Article would be wholly inapplicable because Article 183 is directly applicable. This point also must, therefore, be decided against the appellants.
7. The last point that was urged was that the decree-holders are not competent to execute this decree under Order XXI, Rule 15, on behalf of the other decree-holders because it is not a joint decree. This objection is based on the fact that the trial Court awarded propagate coats to defendants Nos. 1, 4, 5 to 8, 9, 10 and 11 respectively and it is urged that the liabilities of the judgment-debtors to the various defendants being separately denned, the decree passed cannot beheld to be a joint decree passed cannot be held to be a joint decree. The Court below has dealt with this point in the following manner In spite of the fact that the liabilities of the judgment-debtors to the different I decree-holders were specified in the decree of the Subordinate Judge that fact would not take away from it the force of a joint decree. At page 609 of D.F. Mulla's Code of Civil Procedure, 8th edition, it is said--"It is no less a joint decree because the shares of A and B in the decretal amount have been determined by the decree. Thus if it is determined by the decree that the share of A is Rs. 2,000 and the share of B is Rs. 3,000 the decree is still a joint decree." I, therefore, hold that the decree of the first Court was a joint decree and the present decree-holders are entitled to execute it under the provisions of Order XXI, Rule 15, Civil Procedure Code.
The view of the learned Subordinate Judge seems to be supported to some extent by the decision of the Judicial Committee in Hurrish Chunder Chowdhry v. Kali Sunderi Debi 9 C. 482 : 10 I.A. 4 : 12 C.L.R. 511 : 4 Sar. 406 : 7 Ind. Jur. 161 (P.C.). In that ease the effect of a Privy Council judgment being that each of two co-plaintiffs was entitled to a moiety in a taluk in the possession of the defendant, who then purchased the interest of one of them, it was held that the other co-plaintiff could obtain execution according to the extent of her interest in the estate. The learned Advocate for the appellants has attempted to distinguish that case and there is no doubt that the facts in that case were somewhat different from the facts of the present case. But it is to be remembered in the first place that the term "joint decree" is wide enough to apply to a case where the rights of several parties have been determined by one sand the same decree and in the second place that in this particular case the last decree passed by the Privy Council was admittedly a joint decree in the sense that the liability of the appellants to the various contesting respondents was not separately assessed or specified. If, therefore, the last decree into which the decree of the courts below has merged is a joint decree and it is this final decree which is to be executed, such a case would, in my opinion, come within Order XXI, Rule 15.
8. As these are the only objections urged in this Court against, the execution of the decree and as all of them fail, I would dismiss the appeal with costs.
Wort, J.
9. I have had the advantage of reading the judgment just now delivered and am in agreement with it and have nothing to add.