Ram Chunder v. Musstt. Hamiran — 1906 DIGILAW 245 (CAL)

JUDGMENT Rampini, J. - This is an appeal against an order passed by the District Judge of Purneah, on the 20th December 1905. It is difficult to say under what section of the Code the District Judge's order was passed. The facts are that the parties to this case are two rival decree-holders. The Appellant, Ram Chandra, has obtained a decree declaring that certain sale proceeds of a putni mehal, formerly belonging to one Hamiran are his. The opposite party, the Court of Wards, representing the zemindar of Khagra, under whom the putni was held, is trying to execute a decree for arrears of rent due previous to the sale of the putni, against the putnidar Hamiran. The Appellant's suit was instituted on the 1st July 1905. He obtained a decree on the 8th August 1905. The Khagra zemindar's suit was instituted on the 20th June 1905, but he did not obtain a decree till the 16th November. On the other hand, he had obtained an order for attachment of Rs. 912 out of the sale proceeds of Rs. 1,011, on the 7th July, while the decree-holder Ram Chandra attached the balance of Rs. 99 on the 8th August 1905, and applied to execute his decree against the whole sum on the 26th August 1905. The Khagra zemindar succeeded in getting the sale proceeds attached in execution of his decree prior to the attachment at the instance of the Appellant. In these circumstances the Judge observed that each party had much in its favour, but that he did not see that the claim of either was so superior to that of the other that either ought to get the whole of the money to the exclusion of the other. He accordingly ordered that the surplus sale proceeds be rateably divided. 2. The Appellant Ram Chandra appeals. A preliminary objection is preferred on behalf of the Khagra zemindar that no appeal lies, as the order of the Judge is not one under sec. 244. The preliminary objection must, I think, prevail, for the contesting parties in this case are not decree-holders and judgment-debtors, but two decree-holders. The judgment-debtor is indifferent as to which of the decree-holders gets the money. It is clear that the judgment-debtor Hamiran has no interest in the contest. 3. 244. The preliminary objection must, I think, prevail, for the contesting parties in this case are not decree-holders and judgment-debtors, but two decree-holders. The judgment-debtor is indifferent as to which of the decree-holders gets the money. It is clear that the judgment-debtor Hamiran has no interest in the contest. 3. But the Appellant's pleader urges that he is a representative of the judgment-debtor, and cites the case of Krishnan v. Venkatapathi I. L. R. 29 Mad. 318 (1905), in which an attaching creditor of a decree-holder who sought to execute his debtor's decree was held to be the representative of the decree-holder, whose decree he had attached. But this case is not in point, and even by analogy lends no support to the argument of the Appellant's pleader. An attaching creditor of a decree-holder may be held to be the representative of his debtor whose decree he has attached, because his interest is to execute the decree just as it was his debtor's interest to execute it. But it is not the interest of the judgment-debtor Hamiran that either the decree-holder Ram Chandra or the Khagra zemindar should execute their decrees. Her interest is that neither should be executed, though she may now be indifferent as to which of them executes it. But her interest is certainly not identical with, but opposed to, that of the Appellant, and I consequently cannot regard the Appellant as in any way the representative of the judgment-debtor Hamiran, so as to bring the case within the provision of sec. 244, C. P. C. 4. I would, therefore, dismiss this appeal with costs and I would estimate the hearing fee at 5 gold mohurs. Mookerjee, J. 5. On the 15th May 1905, a putni mehal, Taluk Kalughat, was sold by the Collector of Purneah under Reg. VIII of 1819 for arrears of rent due from the recorded tenants, Mussamatt Hamiran and others. After satisfaction of the claim of the zemindars, a sum of over one thousand rupees remained in the hands of the Collector to the credit of the putnidars. It appears that on the 7th March 1905, that is prior to the sale under the Regulation, one Ram Chandra, the Appellant" before us, had purchased the putni at a sale in execution of a mortgage decree held by him against the putnidars. It appears that on the 7th March 1905, that is prior to the sale under the Regulation, one Ram Chandra, the Appellant" before us, had purchased the putni at a sale in execution of a mortgage decree held by him against the putnidars. The surplus sale proceeds, therefore, although they stood to the credit of the recorded putnidars, belonged in reality to Ram Chandra. 6. On the 1st July 1905, Ram Chandra brought a suit against the recorded putnidars for declaration that the money belonged to him and for a decree entitling him to withdraw it from the Collectorate, and on the same date he obtained an injunction upon the Defendants restraining them from dealing with the money during the pendency of the suit. Meanwhile the zemindars had on the 20th June commenced an action against the recorded putnidars for recovery of arrears of rent antecedent to those for which the sale under the Regulation had taken place and on the 7th July they effected an attachment before judgment upon the surplus sale proceeds to the extent of Rs. 912. When the order of injunction obtained by Ram Chandra on the 1st July came to be served on the Collector, it was found that the zemindars had already effected their attachment and Ram Chandra was consequently allowed to attach the balance only. Ram Chandra obtained a decree in his suit on the 8th August 1905, and on the 26th August applied for execution. On the 16th November 1905, the zemindars obtained a decree in their suit and on the same date they preferred an objection to the execution taken out by Ram Chandra. On the 20th December 1905, the District Judge in whose Court Ram Chandra's decree was being executed, decided that the surplus sale proceeds should be divided rateably between the two contesting decree-holders. Ram Chandra now appeals to this Court and contests the validity of the order in question. The Respondents take a preliminary objection to the hearing of the appeal on the ground that the order of the District Judge is not one under sec. 244 of the Civil Procedure Code, and is consequently not appealable. To determine the validity of the objection taken by the Respondents, it is necessary to examine the terms of sec. The Respondents take a preliminary objection to the hearing of the appeal on the ground that the order of the District Judge is not one under sec. 244 of the Civil Procedure Code, and is consequently not appealable. To determine the validity of the objection taken by the Respondents, it is necessary to examine the terms of sec. 244, C. P. C. It may be conceded that the question which has been determined by the Court below is a question relating to the execution of the decree obtained by the Appellant. That however is not enough. To bring it within sec. 244, it must also be a question arising between the parties to the suit in which the decree was passed or their representatives. Clearly no question here arises between the parties to the suit in which the Appellant obtained his decree; the judgment-debtors of the Appellant have not at any stage raised any objection to the execution of the decree obtained by him. We have therefore to determine the force of the words " or their representatives." Now it has been laid down by a Full Bench of this Court in Ishan Chunder v. Benimadhub I. L. R. 24 Cal. 62 (1896), that the term "representative " as used in sec. 244 of the Civil Procedure Code. when taken with reference to the judgment-debtor, has not a limited signification; it means not merely his legal representative, but also his representative in interest, who is bound by the decree and is affected by the execution proceedings. Bearing this interpretation in mind, we have to see whether the Respondents may be regarded as the representatives in interest of the judgment-debtors of the Appellant. Now what is the position of the Respondents ? In execution of their decree for rent they have effected an attachment of money which they allege belong to their judgment-debtors who also happen to be the judgment-debtors of the Appellant. They are therefore attaching creditors of the judgment-debtors of the Appellant. They do not claim through the judgment-debtors, but rather claim adversely to the judgment-debtors. Furthermore, they are not bound by the decree obtained by the Appellant, because they were not made parties to the suit. They are therefore attaching creditors of the judgment-debtors of the Appellant. They do not claim through the judgment-debtors, but rather claim adversely to the judgment-debtors. Furthermore, they are not bound by the decree obtained by the Appellant, because they were not made parties to the suit. It is impossible to say therefore that they are representatives of the judgment-debtors of the Appellant in respect of the decree obtained by him and the property attached in execution of that decree. It may further be pointed out that the money which the Appellant has attached, according to his own case was never the property of his judgment-debtors His case is that the money in question is his money but that it stood in the name of the Defendants because they were the recorded owners of the putni. If this is so, it becomes still more difficult to hold that the Respondents have become representatives of the judgment-debtors of the Appellant by attaching money in which, according to the Appellant himself, his judgment-debtors had not at any time any beneficial interest. The view I take is supported by the decision of the Allahabad High Court in Mahanund Tukya v. Lalta Dei All. W. N. for 1906, p. 62. The learned vakil for the Appellant referred to the decision of the Madras High Court in Krishnan v. Venkatapathi I. L. R. 29 Mad. 318 (1905) and Sahman v. Kanagasabapathi I. L. R. 16 Mad. 20 (1892), to show that an attaching creditor of the decree-holder is a representative of the decree-holder within the meaning of sec. 244, C. P. C. Those cases, however, are clearly distinguishable. As was pointed out by this Court in Peary 'Mohun v. Romesh Chunder I. L. R. 15 Cal. 371 (1888), a person attaching a decree is a representative of the decree-holder because he is entitled to enforce execution of the decree which he has attached in the same manner as the original decree-holder. On the same principle it was held by the Allahabad High Court in Badri Narain v. Jai Kishen I. L. R. 16 All. 483 (1894), that a transferee of a decree is a representative of the decree-holder. It is obvious that the principle which underlies these decisions has no application to the case before us. It was suggested by the learned vakil for the Respondents that the order in question was made under sec. 483 (1894), that a transferee of a decree is a representative of the decree-holder. It is obvious that the principle which underlies these decisions has no application to the case before us. It was suggested by the learned vakil for the Respondents that the order in question was made under sec. 295 of the Civil Procedure Code, and is on that ground not appealable as pointed out in Kashiram v. Maniram I. L. R. 14 All. 210 (1892). I am unable to adopt the view, that the order was made under sec. 295, because the assets were here not realised by sale in execution of a decree, nor did the contesting decree-holders apply for execution prior to the realisation of the assets. But I agree in the observation of Sir John Edge, that the contest is here in substance between two rival decree-holders neither of whom was a party to the suit brought by the other, and that in these proceedings they cannot be treated as representatives of each other or of their common judgment-debtor. On these grounds, I must hold that the order which the Appellant seeks to challenge is not an order under sec. 244 of the Civil Procedure Code, and is not appealable. The Appellant has his remedy by a suit against the Respondents, if they have, as he alleges, taken away in execution of their decree against their judgment-debtors, property in which the judgment-debtors had no interest and to which the Appellant was entitled. The appeal therefore fails and must be dismissed with costs.