Patna High Court
Ranchore Prasad Narain Singh And Anr. vs Bibi Tahzibunisa on 7 July, 1967
Equivalent citations: 1968(16)BLJR413
JUDGMENT Shambhu Prasad Singh, J.
1. This is an appeal against an order dismissing the objection of the appellants under Section 47 of the Code of Civil Procedure. On the 18th of Feb. 1947, Hare Krishna Prasad Narain Singh, father of the appellants, executed a usufructuary mortgage in favour of the decree-holder in respect of a house for a sum of Rs. 30,000. Subsequently, when it was discovered that the house had been allotted to other persons by virtue of a preliminary decree passed in Title Suit No. 59 of 1943, on the 18th July, 1947, he executed a security bond as well for the said amount in respect of other properties belonging to him and other members of his family including the two appellants. Both the deeds were executed during the pendency of a partition suit, No. 19 of 1946, which was between the two appellants and Hare Krishna Prasad Narain Singh. When the latter failed to put the decree holder in possession of those properties in respect of which he had executed the security bond, a mortgage suit, No. 41 of 1948, was instituted for realisation of the amount secured by the usufructuary mortgage and the security bond. The present appellants were also made parties to that suit. Hare Krishna Prasad Narain Singh did not contest the suit. The present appellants contested the suit; and one of the defence taken by them was that as the usufructuary mortgage and the security bond were executed during the pendency of the partition suit, they were hit by the doctrine of lis pendens and would not bind them and affect the properties allotted to them on partition in the aforesaid suit. The suit was decreed against Hare Krishna Prasad Narain Singh and dismissed against the appellants before us. It was ordered in the preliminary decree, which was passed on the 5th February, 1951, that in default of the payment of the money by Hare Krishna Prasad Narain Singh, his share in the properties mentioned in schedule 2 attached to the plaint as determined by Title Partition Suit No. 19 of 1948, would be sold away to satisfy the dues. This decree was made final on the 5th January, 1953. The decree-holder levied Execution case No. 6 of 1955, which was dismissed for default in the year 1957; She thereafter filed an execution case out of which the present appeal has arisen for execution of the decree. In the execution petition she made the following three prayers:
1. Attachment of the compensation money payable to Hare Krishna Prasad Narain Singh; against the properties given in schedule A of the execution petition;
2. Attachment of the monies given in schedule B; and
3. Attachment and sale of the properties given in Schedule C. The appellants preferred an objection before the executing court on the ground, amongst others, that the execution case could not proceed as-
1. One Nokhelal Jha, an assignee of a portion of the decree, was not made a party to the execution case;
2. The compensation money was not liable to be attached;
3. the entire compensation money did not belong to their father but also included the share of the appellants and that could not be attached;
4. as a claim case was filed by the decree holder under Section 14 of the Bihar Land Reforms Act, and was dismissed, the prayer for attachment of the compensation money was barred by res judicata; and
5. the decree holder was not correct in saying that Hare Krishna Prasad Narain Singh had inherited one-fifth share out of the share of his deceased wife in the compensation money; rather his share was only one-seventh.
2. The decree holder filed a rejoinder to the aforesaid petition of objection challenging the aforesaid grounds taken therein and also claimed that the appellants were not entitled to maintain such a petition under Section 47, Code of Civil Procedure. The learned Subordinate Judge has found in favour of the decreeholder on all the points except No. 3 and dismissed the petition of objection of the appellants. By order No. 39, dated the 12th August, 1961, he had held earlier that the decree holder could not attach the entire compensation money including the share of the appellants, but could attach only the share and interest in the compensation money payable to Hare Krishna Prasad Narain Singh, and thus decided point No. 3 in favour of the appellants.
3. It was contended by learned Counsel for the appellants that in the previous Execution Case No. 6 of 1955 filed by the decree holder by order No. 1ll dated the 10th May, 1957, it was held that the proper remedy of the decree holder was under Section 14 of the Bihar Laud Reforms Act and his petition stating that the compensation money payable in respect of different shares indifferent tauzis as mentioned in the petition be attached and the decretal dues be realised from the same was rejected and this order would operate as res judicata between the parties. The decree holder did not appeal against this order; rather she elected to proceed accordingly and did file a claim case before the Claims Officer under Section 14 of the Bihar Land Reforms Act, We have per used the order dated the 10th May, 1957, which was marked Exhibit 2(b) in the Court below; and I am satisfied that the executing court decided the matter finally between the parties; and, therefore, this order operates as res judicata between them.
4. Even if there was no such order, in view of Section 14 read with Section 16(2)(a) of the Bihar Land Reforms Act, the decree holder could not have realised her dues from the compensation money. The provisions of the aforesaid Section s of the said Act make it abundantly clear that creditors even after a decree is passed in their favour, cannot proceed against properties which have vested in the State under the said Act and were mortgaged or charged as security of the debt otherwise than under the procedure prescribed under the Act. In the case of Krishna Prasad v. Gouri Kumari Devi it was held that the scheme of the Act postulates that all such creditors have to submit their claims before the Claims Officer and to follow the procedure prescribed under the Act and that they cannot avail of any remedy outside the Act by instituting a suit or any other proceeding in the court of ordinary civil jurisdiction. The Supreme Court has re-examined the matter in a recent case of Raj Kishore Prasad Narayan Singh v. Ram Pratap Pandey and reiterated the same view with approval. In the case of Krishna Prasad the entire mortgage security had vested in the State. In the case of Raj Kishore Prasad Narayan Singh only part of the security had vested in the State and part was not vested. In the latter case it has been observed overruling certain observations made in the two Full Bench decisions of this Court Sukhdeo Bas v. Kashi Prasad and Sidheshwar Prasad v. Ram Saroop , that in respect of the secured property which has not vested in the State no question of election could arise and the creditor could proceed against such property otherwise than in accordance with the Bihar Land Reforms Act but not in respect of vested property. In the circumstances, it is manifest that the court below has erred in allowing the decree holder to attach and proceed against the compensation money payable for the property already vested in the State under the Bihar Land Reforms Act and there is no force at all in its observation that as the compensation money was the substituted security for the property mortgaged which has vested in the State of Bihar, the decree holder can proceed against it inasmuch as in making a claim under Section 14 of the Bihar Land Reforms Act, one proceeds against the compensation, money and not against the proper vested. Different considerations may arise after the compensation money is received by the intermediary from the State, but we are not concerned with that question in the present appeal.
5. In view of the finding recorded above that the decree holder cannot attach and proceed; against the compensation money so long it is with the State of Bihar and the fact that learned Counsel for the appellants confined his arguments, only as to the liability of that money being attached and proceeded against in the execution case, it is not necessary to deal with the other findings of the court below except one with regard to the maintainability of the petition of objection of the appellants, under Section 47, Code of Civil Procedure. It was contended by Mr. S. Asghar Hussain appearing for the decree holder-respondent that the appellants were not necessary parties to the mortgage suit and were mere surplusages and on that account they cannot be said to be parties to the suit within the meaning of Section 47, Code of Civil Procedure; and the objection filed by them was not maintainable. We have looked into the judgment of the mortgage suit No. 41 of 1948, Exhibit 1, and it appears from it that in the suit a prayer was made for realisation of the mortgage money from the entire property, which was given in security by the bond dated the 28th July, 1947, including the interest of the appellants therein. The appellants contested that claim successfully and it was held that their interest in the aforesaid property was not liable for realisation of the mortgage money and the decree holder could realise it only from the interest of their father in that property. It cannot, therefore, be said that the appellants were not necessary parties to the suit or were mere surplus ages. In the circumstances, in my opinion, they were parties to the suit within the meaning of Section 47 of the Code of Civil Procedure, and could maintain an objection under that Section.
6. The explanation to Section 47 says that for the purposes of this Section a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit. The words "and a purchaser at a sale in execution of the decree" were added by the amending Act of 1956. This Explanation was construed not to cover the cases of those who were not necessary party to the suit and whose names were struck off from the plaint before the decision of the suit. The above-discussed contention was put forward by Mr. S. Asghar Hussain on account of the aforesaid construction put on the Explanation in Judicial decisions. Even in cases where a party had no concern with the suit, but his name was not removed from the record, it was held that he was not a party to the suit for the purposes of Section 47, Discussions in these decisions, however, leave no room for doubt that in a case where the plaintiff abandons the claim against a defendant and the suit is dismissed as against him, he is a party to the suit for the purpose of Section 47 of the Code of Civil Procedure. A Bench decision of this Court in the case of Suresh Mohan Thakur v. Shatnal Mall Bubna , after discussing the various decisions of the different High Courts on the point took the same view. In another Bench decision of this Court in the case of Shiv Pujan Dubey v. Baban Lal , it was held that minor defendants who had succeeded in setting aside the ex parte decree against them on the ground that they were not duly represented and as such the decree was void against them in an application under Order 9, Rule 13 of the Code, were parties to the suit within the meaning of Section 47, Code of Civil Procedure, by virtue of the Explanation to the Section. In the case of Mt. Kusmi v. Sadasi Muhto A.I.R. 1942 Pat. 432, another Bench decision of this Court, it was held that two sons, who set up a plea of separation from the joint family prior to the mortgage on which the suit was based, were not parties to the suit for the purposes of Section 47 even though the suit was dismissed against them. It, however, appears from the facts of the case that it was held that they were not necessary parties; and the question raised by them was left open and not adjudicated upon. In the instant case, the question raised by the appellants in the mortgage suit was adjudicated upon. Therefore, the rule laid down in the case of Mt. Kusmi is no assistance to the decree holder-respondent. Learned Counsel for the respondent decree holder placed strong reliance on a single judge decision of the Madras High Court in the case of Chittirala Mahalakshmamma v. Senisetti Hanumayya but on a closer examination it appears that the decision does not support the contention. It makes a distinction between a party who had been dismissed from the suit and another against whom the suit sad been dismissed, and lays down that a party against whom the suit had been dismissed would be a party for the purpose of Section 47, Code of Civil Procedure. The present case being a case where the suit was dismissed against the appellants on contest, this Madras decision also is of no help to the decree holder-respondent.
7. It was also contended for the decree holder-respondent that after the passing of order No. 39 dated the 12th August, 1961, the appellants were not left with any interest in the subject-matter of execution; and they should not have been allowed to proceed with their objection thereafter. There appears to be no substance in this contention as well, inasmuch as it was claimed in the execution petition that the father of the appellants whose interest in the compensation money was attached, had one-fifth share in the interest of his deceased wife in the compensation money; and according to the appellants no had only one-seventh interest in it, because the wife of Hare Krishna Prasad Narain Singh had died leaving four sons, two daughters and one husband.
For the foregoing reasons, the appeal is allowed and the order of the court below dismissing the objection petition of the appellants is set aside. It is made clear that in this judgment the question as to the decree holders right to proceed against properties other than the compensation money has not been discussed and decided and is left open. In the circumstances of the case, the parties will bear their own costs of this Court.
Ramratna Singh, J.
8. I agree.