Ganga Singh v. Badri Singh — 1945 DIGILAW 197 (ALL)

JUDGMENT Ghulam Hasan and Kaul, JJ. - These are two appeals preferred u/s 12 (2j Oudh Courts Act against the decision of a learned Judge of this Court by which second appeals Nos. 306 and 308 of 1940 were allowed and the decrees of the Courts below set aside. The main question which arises for consideration in both these appeals is whether a person who is impleaded as a legal representative of the judgment-debtor in proceedings connected with the execution of a decree for sale obtained against a Hindu widow on the basis of a mortgage of her husband's property and fails to plead in such proceedings that the decree was not binding upon him as the mortgage was not given for legal necessity, is precluded from raising that question sub- sequently in a separate suit or proceeding. It arose on the following facts : 2. One Khanjan Singh was the owner of some zamindari property. On the 8th of June, 1886, he mortgaged it with posses sibn with the predecessors of the appellants in second appeal No. 306 ol 1940. On his death he was succeeded bj his widow Bhawani Bai. On the 7th o: September, 1907, Bhawani Bai created i simple mortgage over some of hei husband's property in favour of hei nephew Komil Singh. On Komil Singh's death the mortgagee rights devolved upon his brothers. Komil Singh's heirs broughl a suit on the basis of the mortgage deed of 1907, and on the 31st of March, 1920 ob;ainerf a preliminary decree for sale' This was followed by a fiaal decree on the 8th of January, 1921. Execution of this decree was taken out. Bhawani Bai died in the meanwhile and the names of the reversioners-of Khanjan Singh were substituted on-record as the legal re- presentatives of the deceased judgment- debtor (Bhawani Bai). It appears that on the 15th of September 1904 the appellants in second appeal No. 308 instituted a suit for a declaration that the deed executed by Bhawani Bai not having been given for legal necessity was not binding upon them. But before it could be decided some of the reversioners' of Khanjan Singh, including the plaintiffs in the declaratory- suit. purchased the final decree for sale which was obtained by Komil Singh's heirs on the basis of the deed executed by Bhawani Bai. But before it could be decided some of the reversioners' of Khanjan Singh, including the plaintiffs in the declaratory- suit. purchased the final decree for sale which was obtained by Komil Singh's heirs on the basis of the deed executed by Bhawani Bai. The names of the purchasers were substituted for those of the- original decree-holderson the record and the property mortgaged "by Bhawani Bai was sold. It was purchased by some persons who on the 29th of January, 1936, along with others, applied u/s 4 of the Encumbered Estates Act. It may be mentioned that having acquired the decree-holders' rights the plaintiffs in the declaratory suit allowed it to be dismissed for default. The property purchased by the applicants landlords (under Section 4 of the Encumbered Estates Act) was included in the list published in the gazette u/s 11. Claims with regard to this property were' preferred by the reversioners of Khanjan Singh. It was contended on their behalf that the mortgage created by Bhawani Bai was not for legal necessity and so could not bind the estate which devolved upon them. Though the parties were at controversy on a number of points in the Courts below, the claims were thrown out on the ground that these ought to have been raised in execution proceedings. Not having done so the claimants were bound by the same. It was also held that some of the appellants in appeal No. 308 being plaintiffs in the declaratory suit to which reference has already been made, and which was dis- missed for default were estopped by the principle of res judicata from preferring their claim. 3. As already stated the main question which is common to both these appeals and was argued before the learned Judge of this Court against whose decision these appeals are preferred was whether the appellants were precluded from maintaining their claims because they had failed to prefer them in execution proceedings. The. learned Judge differing from the Courts, below held that Section 47 was no bar to the maintainability of the claims. He allowed the appeals and set aside the decrees of the Courts below. The same contentions which were urged in second appeal were repeated before us. The. learned Judge differing from the Courts, below held that Section 47 was no bar to the maintainability of the claims. He allowed the appeals and set aside the decrees of the Courts below. The same contentions which were urged in second appeal were repeated before us. It was contended by the learned Counsel for the appellants that u/s 47 of the CPC the reversioners of Khanjau Singh were bound to raise the question upon which they sought a decision by preferring claims u/s 11 of the Encumbered Estates Act, in other words they ought to have contended before the Court executing the decree that as reversioners of Khanjan Singh they were not bound- by the decree passed against Bhawani Bai who was only a life estate holder and who had given the mortgage in question without any legal necessity. They should have, the learned Counsel further argued, asked the executing Court to hold on a proper interpretation of the decree obtained by the heirs of Komil Singh against Bhawani Bai that it ordered the sale of the widow's interest only. Having failed to do so, he contended, they were precluded from raising that question subsequently. In support of his contention he relied mainly on the decision of the Madras High Court in Kuriyali v. Mayan (1884) 7 Mad 255 which was approved of in Prosunno Coomar Sayal v. Kasi Das Sanyal (1892) 19 I A 160 and Babu Lal v. Janaki Dulari (1926) 48 All. 426. In the Madras case the appeal arose out of a mortgage suit and in execution proceeding the legal representatives of the mortgagor claimed an interest in the mortgaged property. 4. The claim was investigated by the District Munsif in execution proceedings, but on appeal to the District Court it was held that the District Munsif had no power to decide the legal representathe's title and that the proper course was for the decree-holder to attach the property and for the legal re- presentatives to make a claim. This course was adopted and resulted in the legal representative's claim being rejected. Thereupon he brought a suit to cancel the sales which had taken place in course of execution of the decree and it was held that the suit did not lie. This case, as already observed, was cited with approval by their Lordships of the Judicial Committee in 19 1 A 166. Thereupon he brought a suit to cancel the sales which had taken place in course of execution of the decree and it was held that the suit did not lie. This case, as already observed, was cited with approval by their Lordships of the Judicial Committee in 19 1 A 166. In Babu Lal v. Janak Dulari (1926) 48 All. 426 one Maheshi Lal left a widow surviving him who executed two mort- gages under circumstances which are not known. The moitgagee, shortly before the death of the widow, sued her and obtained a decree for sale. On the death of the widow or some little time after- wards, he applied for execution, and sought to join, or bring on the record, two daughters of the deceased widow and of their father, the deceased Maheshi Lai. on the ground that they were the legal representatives of the judgment-debtor. The daughters objected on the ground that they were not the legal representa- tives of their deceased mother because" there was nothing to represent. They contended that they were the legal representatives of their deceased father and the decree against the widow could have no more binding effect than the mortgage contract which she created in her capacity as a Hindu widow with a Hindu widow's estate. The Munsif rejected this objection, taking the view that they were the legal representatives of the widow and that in questioning wl ether the decree was binding upon the estate in the hands of the reversioners, they were seeking to go behind the decree in the execution Court. 5. On an appeal brought to the Subordinate Judge this view was overruled, the Subor- dinate Judge holding that in substance the decision of the first Court really begged, the whole question and that the daughters were entitled to contest the view in the execution Court that they were the legal, representatives of their deceased mother, inasmuch as it had never been decided whether the mortgage, or the decree based thereon, bound thje whole estate, or anything more than the interest of the Hindu widow. He accordingly remitted the case to enable that question to be decided. Against this order the decree-holder appealed. Walsh and Dalai JJ. before whom the appeal came for hearing dismissed it. 6. He accordingly remitted the case to enable that question to be decided. Against this order the decree-holder appealed. Walsh and Dalai JJ. before whom the appeal came for hearing dismissed it. 6. Section 47 of the CPC runs thus : (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit." (2) .................. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. 7. It will be seen that under this section all questions relating to the execution, discharge, or satisfaction of the decree arising between the parties to the suit or their representatives must be determined by the Court executing the decree. They cannot be determined by a separate suit. It is further clear that under sub-Section (3) the question whether or not a person is a representative of a party must be determined by the execution Court. The question which arises for consideration is whether a person who is brought into . Court in execution proceedings merely as the legal representative of the judgment- debtor is compelled to have his own claim to the property in suit decided in these proceedings or whether he can establish his right by a separate suit. It is well settled, as observed, in Hamidgani Ammal v Ammasahib Ammal I L R 1942 Mad, 271 at 279 : that when a person comes into Court in execution proceedings as the legal representative of a deceased party he cannot question the decree which has been passed. If the decree concerns property in wihch he claims an interest, the decree will not be binding upon him unless he was a party to the suit. If he was not a party to the suit............his rights will be entirely unaffected and he will be in a position to enforce (hem in a suit instituted by him for that purpose. 8. If he was not a party to the suit............his rights will be entirely unaffected and he will be in a position to enforce (hem in a suit instituted by him for that purpose. 8. Chief Justice Leach who delivered the judgment of the Full Bench in the above noted case further observed as follows : Section 47 of the CPC only requires to be decided in execution proceedings those questions which arise between parties to the suit in which the decree has been passed or their representatives and which relate to the execution, discharge or satisfaction of the decree. Where a stranger to the suit claims as his immoveable property which has been the subject-matter of a.decree, that claim cannot in law be regarded as being a question relating to the execution, discharge, or satisfaction of the decree. There are decisions of this Court to ihe effect that in execution proceedings arising out of money decrees questions relating to the property attached must be decided in execution proceedings and not by a separate suit, but this is an entirely different matter 'because the correctness of the decree is not called into question, Therefore the correct ness of such decisions does not arise. We are here dealing with a case where it is said that a person who is not a party to the suit, but is brought into Court in execution proceeding as the legal representative of a deceased party, can in those proceedings be allowed to challenge the decree and if he fails to do so he has for ever lost the right claimed by him in the suit property. Obviously the answer must be that he cannot in (execution say the decree is wrong, and he has his remedy by suit. 9. A distinction is drawn in cases where a decree directs the sale of certain property and those in which a money decree is passed and in execution proceedings property belonging to the judgment debtor is sought to be attached and brought to sale. In the latter class of cases it is open to the legal representatives of the judgment-debtor, just as it would be open to a third party, to prefer objections against the attachment. In the latter class of cases it is open to the legal representatives of the judgment-debtor, just as it would be open to a third party, to prefer objections against the attachment. Indeed in this class of cases the judgment-debtor himself can prefer objections to attachment if the decree passed against him was personal and the property attached was not held by him in his individual capacity. It was held in Shah Nairn Ata v. Girdhari Lal (1927) 1 O W N 102, that where a decree is passed against a judgment-debtor in his individual capacity and he takes an objection to the attachment of certain property in his possession upon the ground that although it is in his possession but not in his personal capacity, the question is one between the parties to the suit in which the decree was passed relating to the execution, discharge or satisfaction of the decree and the objection lies u/s 47 and should be determined by the Court executing the decree under the provisions- of that section and not by a separate suit, it being a question arising between the parties to the suit in which the decree was passed. The same reason, however, cannot be applied to the other class of cases to which reference has been made, namely, those in which specified property is ordered to ba sold by the decree. Such are cases arising out of mortgages, To allow the judgment debtor or his legal representative to contend in execution proceedings in these cases that the psoperty cannot be brought to sale would be tantamount to permit him to challenge the decree. Just as a title paramount cannot be brought into controversy in a mortgage suit, the legality of the decree ordering sale of property cannot be permitted to be challenged by a . party to the suit or his legal representa- tive in execution proceedings. This essential difference between decrees which direct sale of immoveable property and decrees for money must be borne in mind. 10. No doubt it is always open to a person who is sought to be brought on the record in execution proceedings as the legal representative of a judgment debtor to say that he does not occupy that capacity, and this question, if raised, must be determined by the Court. 10. No doubt it is always open to a person who is sought to be brought on the record in execution proceedings as the legal representative of a judgment debtor to say that he does not occupy that capacity, and this question, if raised, must be determined by the Court. But once he is brought on the record as the legal representative of the judgment debtor he cannot be permitted to raise questions which would amount to challenging the decree or going behind the decree. Just as under Order 22 rule 4 sub-Section (2) any person who is made a party to a suit as the legal representative of a deceased defendant may make any defence appropriate to his character as legal representative of the deceased defendant and not defences and objections raised by him in his personal capacity, similarly the legal representative of a judgment debtor in proceedings rela- ting to execution of a mortgage decree cannot be permitted to raise pleas which would be foreign to the scope of the suit which resulted in the decree. We are not oblivious of fact that the provisions of order 22 rule 4 do not apply to execution proceedings in term, but with regard! to the matter under conaderation the principle is the same. 11. With these observations of a general character we will proceed to examine how far the cases r.elied on by the learned Counsel for the appellants help. The facts of the case Kuriyali v. Mayan' have already been mentioned. It was distinguished by a Division Bench of the same High Court in Kumaretta Servaigaran v. Sabapathy Cliettiar (1907) 30 Mad 26 where it was held that an objection by the defendant in a mortgage suit to the sale of property directed to be sold by the decree in such suit, on the ground that such property is not liable for the decree is not an objection relating to the execution, discharge or satisfaction of the decree within the meaning of Section 244 (e) of the Code of Civil Procedure, but one questioning the validity of the decree itself and cannot be entertained in execution procesdings. The present Section 47 of the CPC corresponds to Section 244 of the Code of Civil Procedure, 1882. The present Section 47 of the CPC corresponds to Section 244 of the Code of Civil Procedure, 1882. It was dissented from in Sreeman Maha Mandaleswara Katari Salva Mahraja Umade Rajah Maharaja Raja Kumara Tirumal- raju Bahadur Deva Maharajulungaru v. Shree Mahant Dossji Varu (1909) 32 Mad. 429, which held that if an impartible estate in the hands of a son is attached in execution of decrees obtained against his father, it it not open to the son In execution to take objection on the ground that such estate is by custom inalienable. Such objection can only be taken by the heirs in a separate suit. The learned Judges observed that a decree for sale under the Transfer of Property Act cannot be impeached in execution proceedings but only by a separate suit. The case in ILR. 7 Mad. 255 was again considered by a Full Bench of that High Court in Hamidgani Animal v. Ammasahib Ani- mal. In this case the following observations of White C. J. and Abdur Rahim J. in 32 Mad. 429 were quoted with approval: The case of Kuriyali v. Mayan no doubt support the contention that the rights of the judgment creditors who have obtained mortgage dec- rees can be determined in execution proceedings, but as Mr. Sundara Ayyar pointed out in that case the Court would seem to have overlooked the fact that the decree itself contained a direction for sale and that notwithstanding the decree for sale the properties had been attached as if the proceedings had been in execution of a money decree. Apparently all the cases in which Kuriyali v. Mayan is cited with approval are cases in which the dec- ree sought to be executed was a simple money decree, or at any rate, was not a mortgage decree and the question we have to determine did not arise. 12. It is not necessary for us to go so far as to hold that Kuriyali v. Mayan was wrongly decided as was done in Hamid- gani Ammal v. Ammasahib Animal (I L R 1942 Mad. 271 at 219). As we have al- ready observed it was referred to with approval by their Lordships of the Judicial Committee in Prosunno Coontar Sanyal v. Kasi Das Sanyal (1892) 19 I A 160 (L R 19 I A 166 at 169). 271 at 219). As we have al- ready observed it was referred to with approval by their Lordships of the Judicial Committee in Prosunno Coontar Sanyal v. Kasi Das Sanyal (1892) 19 I A 160 (L R 19 I A 166 at 169). It will be noticed, however, that the case before the Privy Council was also one concerned with a money decree and apparently their Lordships assumed that the case of Kuriyali v. Mayan was decided on the basis of an assumption that it was a case in which property was attached in execution proceedings, In these circum- stances the appellants cannot derive much help from the decisiDa in Kuriyali v. Mayan. 13. The case of Babu Lal v. Janak Dulari3 is already distinguishable. On a close examination it will be found that the question decided there was not the same as we have to consider. There the judgment- debtor contended that he was not the legal representative of Maheshi Lai's widow. This will be clear from the following observation of their Lordships at page 432: But the old Section 244 has been altered and the provisions of Section 47 of the present Code mike it quite clear that the question whether or not alleged legal representative do s or does not occupy that capacity so as to be bound by the dec- ree, is one which is to be decided in the execution Court. 14. This is unexceptionable. In fact Section 47 sub-Section (3) says in so many words that where a question arises as to whether any person is or is inot the representative of a party such question shall, for the purposes of this section, be determined by the Court. It is however one thing to say whether a certain person is or is not the legal representative of" a judgment-debtor and quite another to hold that a person after having been substituted on the record on the legal representative of a judgment-debtor can raise questions challenging the decree itself. In the case before us Khanjan Singh's reversioner; were substituted on the record as the legal representative of his widow Bhawani Bai. They occupied two capacities : they were the legal representatives of Bhawani Bai as well as reversioners of her husband. In the case before us Khanjan Singh's reversioner; were substituted on the record as the legal representative of his widow Bhawani Bai. They occupied two capacities : they were the legal representatives of Bhawani Bai as well as reversioners of her husband. It would appear therefore on principle that having been substituted on the record as Bhawani Bai's legal representatives they could not be permitted to object to the sale of the property. Possibly the reversioners of Maheshi Lal in the case reported in ILR 48 All. 429 were not the legal representatives of his widow. There is a long line of cases in which tha view enunciated in ILR 1942 Mad. 271 has been acceptee as the correct law See Sanwal Das v. Bhmillah Bsgam (1897) 19 All 480; Liladhar v. Chaturbhuj (1899) 21 All 277 and Jagar Nath Singh v, Sheo Ghulam (1909) 31 All 46. It was sought in Babu Lai v. Janak Dulari3 to distinguish the case of Jagar Nath Singh v. Sheo Ghulam10 on the difference in wording of Section 244 of the old Code and 47 of the new Code, It is true that under the old Code it was competent to the Court either to s'ay execution of the decree and refer the parties to have the question, who is the legal representative of the deceased judgment-debtor, determined by a separate suit, or to itself determine the question; while under present Code this question must be determined by the executing Court" and not by a separate jsuit. This change in the law, however, does not affect the question which arises for our cosideration. What we have to consider is not whether a certain person is or is not tha legal representative of a deceased judgment-debtor b ut whether lifter having been held to be the legal representative of a judgment-debtor he can be allowed to challenge the decree, or go behind it. 15. Reference may in this connection with advantage bj male to the following cases : 16. Lloyads Bank v. Mst. Rehmat Bibi (1939) 20 Lah 493. In this case in execution of a mortgage decree, the widow of the judgment-debtor was brought on the record as his legal representative. The Receiver, appointed to take over possession of the mortgaged property, wanted to dispossess her from a house, a part of the mortgaged property. Lloyads Bank v. Mst. Rehmat Bibi (1939) 20 Lah 493. In this case in execution of a mortgage decree, the widow of the judgment-debtor was brought on the record as his legal representative. The Receiver, appointed to take over possession of the mortgaged property, wanted to dispossess her from a house, a part of the mortgaged property. She applied to the Court, stating that she could not be dispossessed as had got the house in lieu of her dower. The question for determination was whether the executing Court was competent to entertain her application u/s 47 of the Code of Civil Procedure. It was held by Addison and Abdul Rashid JJ. that there was a clear distinction between a money decree and a mortgage decree, even in cases where the legal representative of the judgment debtor, raises an objection, which was'-not open to the judgment debtor, but which was based on an independent title of the legal representative. In the case of money decrees it is for the executing Court to determine how the decretal amount is to be recovered from the judgment-debtor and which property, if any, has to be sold in execution of the decree. In the case of mortgage decrees the method of recovery is determined by the trial Court and forms a part and parcel of the decree itself. Any claim by the judgment debtor or his legal representative that certain property is not liable to sale in execution of the mortgage decree is a claim challenging the validity of the decree and such a claim cannot be entertained by the executing Court u/s 47 of the Code of Civil Procedure. The same view was taken by a single Judge of the Lahore High Court in Fazal Ilahi v. R. B. Sabel & Co (1935) 160 IC 789; by the Calcutta High Court in Tripti Prokas Nandy v. Biseswar Lal Wlarwari (1932) 138 I C 380, Kalidas Roy v. Girindra Mohan Bahshi (1921) 25 Cal. W N 192; and Asmatullah Pramanik v. Gamir Pramanik (1929) 33 Cal. W N 659, by the Patna High Court in Amrit Lal Seal v. Jagat Chandra Thakur (1925) 4 Pat. 696, and by the Bombay High Court in Tatyagouda Ranoji Patil v. Mohodin Sultan Mullain (1935) 154 IC 642. 17. It will be noticed that many of these cases were decided under the present Code of 1908. W N 659, by the Patna High Court in Amrit Lal Seal v. Jagat Chandra Thakur (1925) 4 Pat. 696, and by the Bombay High Court in Tatyagouda Ranoji Patil v. Mohodin Sultan Mullain (1935) 154 IC 642. 17. It will be noticed that many of these cases were decided under the present Code of 1908. Thus on principle as well as on authority we are clear that having been brought on the record as the legal representatives of Bhawani Bai the reversionary of Khanjan Singh could not object to the sale of the property. 18. It was argued by the learned Counsel for the appellants that Khanjan Singh's reversiosers ought to have asked the Court to interpret the decree passed against Bhawani Bai and to hold that on a correct interpretation thereof it was a decree binding only the widow's estate. It: is true that though the legal representative of the deceased judgment debtor cannot in execution proceedings relating to a mortgage decree challenge the validity of the decree, he can ask the Court to interpret the decree. We have examined both the final and the preliminary decrees obtained by Komil Singh's heirs against Bhawani Bai, but there is nothing in either of them to suggest that they ordered the sale of only the widow's estate. 19. We are dear that the learned Judge of this Court, against whose decision these appeals were filed, came to the correct conclusion in repelling the contention that Section 47 operated as a bar to the entertainment of a claim preferred u/s 11 of the Encumbered Estates Act. 20. Another point raised by the learned Counsel for the appellants, and which relates only to appeal No 9 of 1934, was that the dismissal of the declaratory suit brought by some of the reversioners of of Khanjan Singh, which they allowed to be dismissed for default would by the principle of res judicata operate as a bar against the entertainment of a claim with regard to that property by those who were plaintiffs in that suit. As was pointed out by the learned single Judge the cause of action for the declaratory suit which was dis- missed in default was not the same as that for the claim preferred u/s 11. Ex A3 is the plaint in the previous suit. As was pointed out by the learned single Judge the cause of action for the declaratory suit which was dis- missed in default was not the same as that for the claim preferred u/s 11. Ex A3 is the plaint in the previous suit. The cause of action for that suit was the attempt to execute the decree obtained against the widow of Khanjan Singh on the basis of the mortgage executed by her without any legal necessity against Khanjan Singh's property which had become vested in the reversioners on the widow's death. A fresh cause of action arose when the property was sold and purchased by the landlords who applied u/s 4 of the Encumbered Estates Act. We may mention that it has now been found that the deed executed by Bhawani Bai was not for legal necessity. We agree with the learned single Judge of this C-urt that the dismissal of the declaratory suit does not in the circumstances bar the claim preferred u/s 11 of the Encumbered Estates Act. 21. The result, therefore, is that both the appeals are dismissed with costs.