Khelat Chandra Roy v. Peary Lal Mallick — 1944 DIGILAW 95 (CAL)

JUDGMENT S.R. Das, J. - This application for execution raises an interesting question. The facts leading up to the present application are not in dispute and may be shortly stated as follows: 2. In 1920, Jagannath, Krishnalal and Gossaindas, three of the defendants in this suit, conveyed a portion of the premises No. 13 Maniktolla Road to the plaintiff. The premises in question was then in the possession of a tenant named Peary Lall Mullick, defendant 1. In 1921 the plaintiffs instituted this suit against the tenant Peary Lall and the three vendors for possession of the premises. On 20th December 1923 a consent decree was passed in this suit. By the terms of settlement embodied in the decree it was provided that the defendants other than the defendant Peary Lall Mullick or any one of them will forthwith make over to the plaintiffs vacant possession of the premises in question. In 1927 the plaintiff Probodh died leaving a son Dhiren. In 1932 the plaintiff Khelat for himself and as certificated guardian of Dhiren applied for execution of the decree and obtained an order for delivery of possession by the Sheriff. It does not appear that any further step was taken on that order. In 1937 the plaintiff Khelat died leaving a will whereby and whereof he appointed Durgabati, Shyamchand and Gopal executrix and executors. Durgabati and Shyamchand obtained probate of Khelat's will. In 1942 Dhiren sold his father's 1/2 share in the decree and the premises which devolved on him to Jagannath, one of the defendants. On 25th May 1943 Durgabati and Shyamchand obtained leave to continue the execution proceedings. 3. The present application was initiated by Durgabati, and Shamchand on a tabular statement filed on 2nd December 1943 and a notice under O. 21, R. 22(1)(a) and (b) was issued by the master. The defendant Krishnalal having died prior thereto the tabular statement and the notice were amended in January 1944. The present application is directed against the defendant Jagannath for self and as son and heir of the defendant Krishnalal since deceased and against the defendant Gossaindas in column 5 of the tabular statement under the heading "whether any adjustment has been made between the parties subsequent to the decree" has been set out the fact of the sale of the interest of the plaintiff Prabodh to the defendant Jagannath. The mode in which the assistance of the Court is required, as set out in column 10, is as follows: We pray that possession of the said premises being No. 13A Ramesh Dutt Street to the extent of the interest of the deceased plaintiff Khelat Chandra Roy being an undivided half share therein more particularly described in the schedule hereto be given to us by the Sheriff and for such direction as to costs as to this Court may seem fit and proper. 4. The defendant Gossaindas has not appeared to oppose this application. The defendant Jagannath has appeared and filed an affidavit in opposition. In para. 6, after reciting the sale of Probodh's share to him, Jagannath concludes as follows: I have by reason of the said purchase become a cosharer with the plaintiff in respect of the said premises and I am in possession thereof. 5. Mr. A.C. Mitra appearing for Jagannath has contended that the decree herein being for delivery of vacant possession, the execution can only issue under O. 21, R. 35(1). By reason of the sale of Probodh's interest to Jagannath, Jagannath has the right to remain in possession in exercise of this new right and cannot be removed from the premises. The decree is for delivery of vacant possession but there can be no delivery of vacant possession of an undivided half share. this Court as the Court executing the decree cannot go behind the decree. The decree, as it stands, has, by reason of supervening events, become incapable of execution. The proper remedy of the applicants is to file a substantive suit for partition. 6. It is now well established that where a decree for payment of money has been, in its entirety, transferred by assignment or by operation of law to one of the judgment-debtors, the decree is wholly extinguished and the transferee judgment-debtor cannot execute the decree against the other judgment-debtors. (See O. 21 R. 16). 6. It is now well established that where a decree for payment of money has been, in its entirety, transferred by assignment or by operation of law to one of the judgment-debtors, the decree is wholly extinguished and the transferee judgment-debtor cannot execute the decree against the other judgment-debtors. (See O. 21 R. 16). It is equally well established that where a decree for payment of money has been passed jointly in favour of two or more persons and the interest of any decree-holder in such decree has been transferred by assignment or by operation of law to one of several judgment-debtors the decree is extinguished to the extent of the interest so transferred and execution can only issue for the rest of the decree: See Banarasi Das v. Maharani Kuar, 5 All. 27 : (1882 A.W.N. 140), which has been followed by this Court in Nagendra Nath Roy and Others Vs. Haran Chandra Adhikary, AIR 1933 Cal 865 . The same principle of merger has been applied where a decree for possession of immovable property has been passed jointly in favour of two or more persons and the interest of any of the decree-holders has been transferred by assignment or by operation of law to one of the judgment-debtors: Shree Kudhai v. Sheo Dayal, 10 All. 570 : (1888 A.W.N. 231), relied on by Mr. S.N. Banerjee. 7. Mr. Mitra has not questioned the correctness of the above principles so far as decrees for payment of money are concerned but has contended that there is practical difficulty in applying those principles to a decree for delivery of vacant possession of immovable property, for, after transfer to a judgment-debtor, the transferee judgment-debtor becomes a co-sharer with the other plaintiff decree-holder and until partition is entitled to remain in possession of the whole premises. Vacant possession cannot be given of an undivided share under O. 21 R. 35(1) and there is no provision in the Code for executing the decree after the happening of such event. 8. It appears to me there are several answers to Mr. Mitra's contention: (i) Where the interest of any of the joint decree-holders in a decree for vacant or khas possession of immovable property is transferred to one of the judgment-debtors, either the decree is extinguished pro tanto by merger or it is not. 8. It appears to me there are several answers to Mr. Mitra's contention: (i) Where the interest of any of the joint decree-holders in a decree for vacant or khas possession of immovable property is transferred to one of the judgment-debtors, either the decree is extinguished pro tanto by merger or it is not. If no part of the decree is extinguished then there can be no difficulty in executing the whole decree for the benefit of the remaining decree-holders and the transferee judgment-debtor by removing the other judgment-debtors from possession of the property under O. 21 R. 35(1). On the other hand if there be a partial merger, as in my judgment there must be, on the authorities I have referred to, then the decree is extinguished pro tanto as regards the property and the result of such partial extinguishment as regards the property necessarily implies that thereafter the decree must be regarded as one for delivery of joint possession. In other words the transfer of the interest of one of the joint decree-holders to one of the judgment-debtors brings about a change in the subject-matter of the decree as also in its character and incidents. It will be wrong to assume, as Mr. Mitra's argument does, that although the decree is extinguished to the extent of the interest transferred, yet it remains as decree for delivery of vacant or khas possession. If as the executing Court I am to take note of the change in the subject-matter of the decree I ought not to overlook the necessary consequences which must flow therefrom. In this view of the matter, the decree, as it now stands, i.e. after the transfer of the interest of one of the decree-holders to one of the judgment-debtors, may well be regarded as one for joint possession in favour of the remaining decree-holder and executed in the manner prescribed under O. 21, R. 35(2) of the Code. (ii) The second answer to Mr. Mitra's argument appears to be this: By virtue of the transfer the transferee judgment-debtor has become entitled to occupy the premises and as such transferee he is not bound by the decree to relinquish such occupancy. (ii) The second answer to Mr. Mitra's argument appears to be this: By virtue of the transfer the transferee judgment-debtor has become entitled to occupy the premises and as such transferee he is not bound by the decree to relinquish such occupancy. Therefore the position appears to be that the applicants have a decree for the delivery of property in the occupancy of a person entitled to occupy the same and not bound by the decree to relinquish such occupancy. In this view of the matter I see no impediment in the way of executing the decree, as it now stands, in the manner prescribed by O. 21, R. 36 of the Code. (iii) If it be held that neither O. 21, R. 35 nor O. 21, R. 36, in terms applies to this decree in the circumstances that have happened, I do not see why the executing Court should not proceed under cl. (e) of S. 61 of the Code and execute the decree in such manner as the altered nature of the decree may require, namely, by directing delivery of symbolical possession. (iv) Mr. Mitra's argument that in the present circumstance, the only remedy of the applicants is to sue for partition completely overlooks the existence of the other judgment-debtor Gossaindas. A fresh suit for possession, as against that judgment-debtor will clearly be hit by the provisions of S. 47 of the Code, There is no averment that that judgment-debtor is not also in possession of the property. Therefore as against him the applicants must proceed by way of execution and the only mode of execution as against him now available to the applicants is by delivery of symbolical possession. (v) Mr. Banerjee has argued that although the decree entitles his clients to vacant possession there is nothing to prevent them from waiving that and asking for less and taking symbolical possession, I am not of opinion that this argument is wholly without any substance. (vi) To accede to Mr. Mitra's argument will be to subscribe to the doctrine that a decree for possession can only be executed as a whole and not partly by one of the plaintiffs-a doctrine, which, as pointed out by their Lordships of the Judicial Committee in Hurish Chander Chowdhury v. Kali Sundari Debi, 9 Cal. (vi) To accede to Mr. Mitra's argument will be to subscribe to the doctrine that a decree for possession can only be executed as a whole and not partly by one of the plaintiffs-a doctrine, which, as pointed out by their Lordships of the Judicial Committee in Hurish Chander Chowdhury v. Kali Sundari Debi, 9 Cal. 482 at p. 494 : (10 I.A. 4) would lead to the consequence that a defendant could prevent the execution of a decree by buying the interest of one of the plaintiffs. Such a consequence cannot be permitted to occur if it can be avoided. In my judgment such a consequence can be avoided in the present case by directing delivery of symbolical possession under O. 21, R. 35(2) or R. 36 or S. 51(e) of the Code. 9. Mr. Banerjee at one stage of his argument urged that as the matter was between the parties to the suit and the decree, this Court should, under S. 47 of the Code, in execution appoint a Commissioner to partition the property and thereafter deliver possession of a divided and separated half share to the applicants. This was not very strenuously pressed and I express no opinion as to whether the adoption of such a course is permissible in execution. 10. The result is that I accede to this application and direct that the Sheriff do deliver possession in the manner prescribed for delivery of symbolical possession. The applicants will have costs of this application. Certified for counsel.