Chhoti Narain Singh v. Musstt. Rameshwar Koer alias Dulhin Saheba, executrix of the Will of the late Raj Kumari Ratan Koer
1902-05-20
body1902
DigiLaw.ai
JUDGMENT 1. The Appellant in this case was the Appellant before the Privy Council in an appeal arising out of an application for letters of administration with the Will annexed of Raja Ran Bahadur Singh of Tekari Raj Kumari Ratan Koer alias Nanku Saheba was the propounder of the Will, and she was the Respondent before the Privy Council. The appeal was dismissed on the 12th of December 1894, and the Appellant who was then a minor represented by his mother and guardian Musstt. Janki Koer, was directed to pay to the Respondent Ratan Koer the sum of 224-45,-ld. for the costs of the appeal incurred in England, Ratan Koer died on the 26th May 1895, having executed a Will by which she bequeathed all her properties to her daughter Musstt, Bhubanessur Koer. Probate of this Will was taken out by Rameshwar Koer alias Dulhin Saheba. She is the Respondent in this appeal. On her application to this Court under sec. 610, C.P.C., the decree of Her late Majesty in Council was on the 11th June 1901 transmitted to the lower Court for execution. The Appellant could at that time, but did not object to the transmission of the decree for execution. Thereafter on the 27th July Musstt Rameshwar Koer applied for execution of the decree for costs incurred in England by sale of the property which had been hypothecated as security for costs under sec. 602, C.P.C. Before this application was made, the Appellant had attained the age of majority. He opposed the application for execution on several grounds set out in his petition of objection, dated the 2nd September 1901. The District Judge of Gya overruled these objections by his order, dated the 21st of September 1901. The present appeal is against the said order. 2. The main contention of the Appellant before us is that before the decree of the Privy Council was passed, there had been an agreement between one Babu Ambika Pershad Singh and Raj Kumari Ratan Koer that the latter would not realise from the Appellant the amount of any decree for costs that might be made in her favour. This agreement is said to have been made on the 14th of July 1890. We agree with the lower Court in holding that this contention cannot be entertained.
This agreement is said to have been made on the 14th of July 1890. We agree with the lower Court in holding that this contention cannot be entertained. The Court executing a decree cannot go behind it or question its validity Chintaman bin Vithoba v. Chintaman Bojaji Deb ILR 22 Bom. 475 (1896); Dhani Ram Mahata v. Luckmeswar Singh ILR 23 Cal. 639 (1896). If we are to allow the Appellant's contention we should have to declare that the decree for costs made by the Privy Council was of no effect, and that on account of a contract alleged to have been made four years before between a stranger and Ratan Koer. The Appellant was not a party or privy to it. 3. A contract made between the parties to a suit in derogation of a decree which may be passed in future cannot (sic) the subject of an enquiry under sec. 244, C.P.C., in a proceeding for the execution of the decree. Questions under sec. 244, cl. (c), relating to the execution of a decree and arising between the parties to a suit in which the decree was passed or their representatives, must be such as have reference to matters arising subsequent to the passing of the decree and not antecedent to it. An agreement not to execute a decree, if effect is sought to be given to it in execution proceedings, must be a transaction between the parties subsequent to the decree: Mukund Harshet v. Haridas Khemji ILR 17 Bom. 23 (1892) and not one which would make the decree itself void as being in contravention of the agreement. 4. The learned vakil for the Appellant has referred us to Nubokishen Mookerjee v. Deb Nath Roy 22 W.R. 194 (1874) in support of his contention, that the Court in execution proceedings ought to take cognizance of such antecedent contracts as the one pleaded in this case. But we think that that case lends no support to his argument, it may support the opposite view. It was held in that case that such a contract might be enforced by a suit for perpetual injunction restraining the execution of the decree. If the transaction was such that it could be the subject of a separate suit, it was not one which could be dealt with either under sec. 11 of Act XXIII of 1861 or sec.
It was held in that case that such a contract might be enforced by a suit for perpetual injunction restraining the execution of the decree. If the transaction was such that it could be the subject of a separate suit, it was not one which could be dealt with either under sec. 11 of Act XXIII of 1861 or sec. 244 of the present Code of Civil Procedure. 5. It has next been contended that the Appellant also pleaded in the Court below a subsequent contract and satisfaction of the decree, and he was not allowed an opportunity of proving his case. But a perusal of his petition of objection and a judgment of the Court below leads us to hold that such a case was not made by him. In fact it would be inconsistent with the plea of an antecedent contract. There was no subsequent contract pleaded by him and the satisfaction of the decree referred to in his petition of objection was the discharge of the decree by virtue of the antecedent contract alleged to have been made between Babu Ambika Pershad and Raj Kumari Ratan Koer. No other satisfaction or payment or its date has been set out in the petition or suggested either in the Court below or in this Court, There was no adjustment or satisfaction of the decree within the purview of sec. 258, C.P.C., or within the period of limitation prescribed in Art. 173A of the second schedule of the Limitation Act. 6. Lastly, it has been contended that Musstt. Rameshwar Koer has no right to apply for execution of the decree, firstly, because no letters of administration with the Will annexed was ever taken out in the goods of Raja Ran Bahadur Singh, and, secondly, because the amount of this decree was not included in the inventory filed in the goods of Ratan Koer. We are of opinion that there is no force in these contentions. The decree for costs of the Privy Council appeal was no part of the estate of Raja Ran Bahadur Singh, deceased. It was a personal decree in favour of Ratan Koer herself, and the estate of the latter is fully represented by the applicant for execution. She took out the probate of the Will of Ratan Koer and as executrix the estate of the deceased has fully vested in her.
It was a personal decree in favour of Ratan Koer herself, and the estate of the latter is fully represented by the applicant for execution. She took out the probate of the Will of Ratan Koer and as executrix the estate of the deceased has fully vested in her. The non-mention of the debt in the inventory, even if that were a fact, does not take away her representative character with reference to it. 7. The property hypothecated in the security bond filed in this Court and now sought to be sold is said to be land granted in lieu of maintenance, that is to say, babnama allowance. Of this there is no proof. But assuming that it was a maintenance grant, there is no indication in the record of its being of any special nature. The grant itself has not been produced and no attempt was made to file it. We have not been referred to any authority in support of the argument that such grants are exempted from sale in execution of decrees against their holders. They are not ordinarily resumable during the lifetime of the grantees. Beni Pershad Koeri v. Dudh Nath Roy ILR 27 Cal. 156 (1899), Karim Nensey v. Heinrichs 6 C.W.N. 1 (1901). There is nothing in their nature to prevent the alienation of the life interest of the grantees either by voluntary or involuntary transfers. 8. The appeal, therefore, fails and it is dismissed with costs 5 gold mohurs. The rule issued in connection with this appeal for the stay of sale pending its disposal necessarily falls through and is discharged with costs 1 gold mohur.