Munnu Chamar v. Hari Narain — 1946 DIGILAW 88 (ALL)

JUDGMENT Verma, J. - The appellant was defendant 2 in the suit which was brought by the first two respondents for a declaration that a certain house, belonging to the joint family of which the plaintiffs were members with their father (defendant 1 and respondent 3), was not liable to attachment and sale in execution of a money decree obtained by defendant 2 against defendant 1. The first Court dismissed the suit but, on appeal by the plaintiffs, the lower appellate Court granted a declaration in respect of only the plaintiffs' share in the house on the ground that their father could, if necessary, raise the objection in the execution Court under S. 47, Civil P.C., 2. The material facts are these. On 1-1-1929 respondent 3, Behari (father of the plaintiffs) executed a promissory note in favour of the appellant for a certain sum of money. In the year 1932, the appellant brought a suit, being suit NO. 23 of 1932, in the Court of Small Causes against Behari alone for the recovery of the amount due under the promissory note. It was not alleged by the present appellant in that suit that he had impleaded Behari not only in his personal capacity but also as the Manager of his joint family; in other words, the suit was solely against Behari and not in any manner against the joint family. The suit was decreed on 18-2-1932. Thereafter, the appellant started execution proceedings. It is not necessary to give the details of all the applications. It is sufficient to say that he filed three applications, one after the other. The prayer in all of them was that the decree be executed by the attachment and sale of the house in question and they were all filed in the Court of a Munsif within whose jurisdiction the house was situated. The third of these applications was dismissed on 4-12-1935. He applied for the fourth time, making the same prayer, on 5-9-1988, but, for some unknown reason he Sled this application in the Court of Small Causes. For obvious reasons that Court held that it had no jurisdiction to entertain an execution application in which the prayer was for the attachment and tale of immovable property and we are told by an order, passed on 18-5-1939 "sent" the application to the Munsif's "Court. For obvious reasons that Court held that it had no jurisdiction to entertain an execution application in which the prayer was for the attachment and tale of immovable property and we are told by an order, passed on 18-5-1939 "sent" the application to the Munsif's "Court. It is difficult to see how it could send such an application to the Munsif's Court. The proper order to pass was that the application be returned to the decree-holder for presentation to the proper Court. The decree-holder did not file any fresh application for execution in the Munsif's Court. Thus, even taking a view most favourable to the decree-holder, the earliest date on which he can be said to have made an application for the fourth time in accordance with law to the proper Court for execution was 18-5-1939. It will be noticed that this was more than three years since the date on which the order on the third application was passed, viz. 4-12-1935. The fourth application for execution was dismissed on 21-7-1939. A fifth application was filed and in pursuance there of the entire house in suit was attached. The exact details of this fifth application (e.g., the date on which and the Court in which it was filed, the nature of the proceedings which preceded the attachment, the Court by which the attachment was ordered, etc.) are not available. It is clear, however, that when the attachment was made, the suit giving rise to this appeal was instituted. The plaintiffs based their claim on two grounds: (1) that the debt incurred by their father, Behari, under the promissory note dated 1.2.1929, was tainted with immorality, and (2) that, in any event, the decree in execution of which the attachment had been made was no longer executable as its execution had become barred by limitation and that, therefore, the attachment was illegal. The trial Court held on both these points against the plaintiffs. The lower appellate Court agreed with the trial Court on the first question and held that the plaintiffs had failed to prove that the debt was tainted with immorality. On the second question, however, it differed from the trial Court and held that the execution of the decree was barred by time and that therefore the attachment in question was illegal. It accordingly allowed the plaintiffs' appeal and decreed the suit: hence this appeal by the decree-holder-defendant. 3. On the second question, however, it differed from the trial Court and held that the execution of the decree was barred by time and that therefore the attachment in question was illegal. It accordingly allowed the plaintiffs' appeal and decreed the suit: hence this appeal by the decree-holder-defendant. 3. The first point raised by Mr. C.S. Saran for the appellant was that a suit for a declaration that an application or suit was barred by time was unknown to law. It is sufficient to say, with regard to this argument that the suit with which we are concerned did not ask for any such declaration. As has been shown above, the suit giving rise to this appeal was for a declaration that the house in question was not liable to attachment and sale in execution of the decree which the second defendant had obtained against the first defendant. It has not been suggested, and cannot be suggested, that such a suit does not lie. 4. It was next contended that the plaintiffs had no cause of action for the suit. An examination of the pleadings, however, made it clear that this contention was groundless. It was stated by the plaintiffs in para. 4 of the plaint that defendant 2 had on 18-2-1932, obtained from the Court of Small Causes at Mirzapur in Suit No. 23 of 1932 an ex parte decree against the first defendant on the basis of a ruqqa alleged to have been executed by the defendant 1 alone on 1-1-1929 and that the defendant 2, in execution of that decree, had attached the ancestral residential house, specified below, and had got it proclaimed for sale, the date fixed for sale being 11-11-1940. All that defendant 2 stated in his written statement about this paragraph of the plaint' was: "Paragraph 4 of the plaint is not admitted in the way in which it is written". There were several statements in paragraph 4 of the plaint and it is not possible to know which of those statements was intended to be denied by this vague clause in the written statement. The matter is, however, put beyond doubt by para. 5 of the additional pleas of the written statement in which the second defendant-appellant himself described the house as the house under attachment (makan-e-maqruqa) and pleaded that it was liable to sale. The matter is, however, put beyond doubt by para. 5 of the additional pleas of the written statement in which the second defendant-appellant himself described the house as the house under attachment (makan-e-maqruqa) and pleaded that it was liable to sale. It is clear, therefore, that the allegation of the plaintiffs that the house in question had been attached in execution of the decree was correct. The plaintiffs, thus, had ample cause of action for the suit. 5. The third point raised by the learned counsel and considerable stress waylaid on it was that the suit offended against the proviso to S. 42, Specific Relief Act, and that the plaintiffs could not therefore be granted the declaration asked for. The contention is that it was necessary for the plaintiffs to seek further relief than a mere declaration in the shape of an injunction restraining defendant 2 from executing the decree in question by attachment and sale of the house in suit and that no such further relief having been sought, the declaration played for ought to be refused. In our judgment this is a wholly untenable argument. The object of the proviso is to prevent a multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then seeking the remedy, without which the declaration would be useless and which could have been obtained in the same suit, in another. As has been pointed out in various judgments of the: Courts, the expression used by the Legislature' is not "other relief" but "further relief". The further relief must be a relief flowing directly; and necessarily from the declaration sought and a relief appropriate to, and necessarily consequent on, the right or title asserted. Does the argument of the learned counsel stand any of these tests? Can it possibly be sand that the declaration prayed for by the plaintiffs in the present suit would, if granted, be futile without the injunction suggested? All that the plaintiffs will have to do after obtaining the declaration is to file a copy of the decree, granting the declaration, in the execution Court and that Court is bound to accept it. Can it possibly be argued that, after obtaining this declaration, the plaintiffs will have to bring another suit asking for the injunction suggested by the learned counsel ? Can it possibly be argued that, after obtaining this declaration, the plaintiffs will have to bring another suit asking for the injunction suggested by the learned counsel ? Will it be correct to say that the relief of injunction as suggested by the learned counsel, is appropriate to, and necessarily consequent on, the right or title asserted by the plaintiffs or that it flows directly and necessarily from the declaration sought? The answer to these questions must, in our opinion, be in the negative. The suit out of which this appeal has arisen is a well known form of action and it has never been suggested by, any Court that an injunction of the nature contended for by the learned counsel must be sought in such a suit. We asked learned counsel to suggest any suit in which, according to him a mere declaration could be granted, if his argument that the injunction suggested by him ought to have been sought in the present suit was accepted, and the learned counsel could not suggest a single case. To illustrate the point, let us take Illust. (a) to S. 42, Specific Relief Act. If the contention raised by Mr. Saran is accepted, it would have to be held that the Illustration should have said: A may not sue for a declaration that the inhabitants of the neighboring village ate not entitled to the right of way claimed by them across the land without further asking for an injunction restraining those inhabitants from claiming any such right. 6. The point is, in our opinion, elementary, and it is really not necessary to cite any authorities. Reference may, however, be made to the case in ('04) 26 All. 606, Ganga Ghulam v. Tapeshri Prasad. The fact, that the decree in execution of which the property was sought to be sold in that case was a mortgage decree, is of DO materiality, so far as the principle is concerned. The important point is that, if the argument put forward before us by Mr. Saran were sound, it would have been held by the Court in that case that it was necessary for the plaintiff to ask for an injunction restraining Tapeshri Prasad from putting the property to sale in execution of his decree. The important point is that, if the argument put forward before us by Mr. Saran were sound, it would have been held by the Court in that case that it was necessary for the plaintiff to ask for an injunction restraining Tapeshri Prasad from putting the property to sale in execution of his decree. What was held, however, was that there was no obligation on the plaintiff, under the proviso to S. 42 to have asked for any further relief than one of mere declaration. It was observed that all that the plaintiff wanted, and all that the law compelled him to ask for was to have the cloud on his title, which was caused by his property being proclaimed for sale, removed, and to achieve that it was not necessary to ask for any further relief. It may be pointed out that it has not been suggested that the plaintiffs in the case before us are not in possession of the house in question and that it was necessary for them to pray for possession. We may also refer to the decision of their Lordships of the Privy Council in AIR 1943 94 (Privy Council) In that case the plaintiff was the wife of respondent 1. She had handed certain money, which belonged to her, to her husband to be put on deposit in the bank in their joint names. At the time of the suit, viz on 15th September 1934, the said money, after a number of transfers and renewals by the husband, was lying in certain banks in the names of the husband and his son (defendant respondent 2) in fixed deposit which was to mature on 1st October 1934. The plaintiff sued for a declaration that the said sums of money, which were held by the banks on deposit receipts, were her property and not her husband's. She made the banks, as well as the husband and the son, defendants to the suit. It was concurrently found by the Courts in India that the fact alleged by the plaintiff were true and that the moneys in question were her property and did not belong to her husband or her son. The trial Court decreed the suit, but the Chief Court reversed that decree on the ground that under S. 43, Specific Relief Act, the plaintiff was not entitled to the declaration that she asked. The trial Court decreed the suit, but the Chief Court reversed that decree on the ground that under S. 43, Specific Relief Act, the plaintiff was not entitled to the declaration that she asked. Their Lordships of the Privy Council allowed the plaintiff's appeal and, reversing the decree of the Chief Court, restored that of the trial Court. Mr. Saran has tried to distinguish the case on the ground that the banks had been dismissed from the suit, that the action thereafter had been one only against the husband and the son and that that was the basis of their Lordships' decision. The fact, however, remains that, if there were any substance in the argument raised before us by Mr. Saran, their Lordships of the Privy Council would have upheld the decree of the Chief Court on the ground that the plaintiff was bound to ask for an injunction restraining the husband and the son from putting forward the claim that the money belonged to them and from asking the banks to pay it over to them. The contention must, therefore, be rejected. 7. The next and last point raised was that the decision of the lower appellate Court, that the attachment was illegal because the decree, in execution of which the attachment had been made, was no longer executable as its execution had become barred by limitation, was incorrect. This argument must, in our opinion, be rejected for, so far as this Court is concerned, the matter has been settled by a series of decisions which are all one way. It will be sufficient to refer only to a few of them, and we shall do so presently. The relevant statutory provision is contained in parlor cl. 5, col. 3, Art. 182, Limitation Act (9 [IX] of 1908). The appellant argues that the date from which time must be taken to run is 21-7-1939, that is, the date on which the fourth application for execution was dismissed. That at once raises the question whether the application for execution which was dismissed on 21st July 1939, was an application "made in accordance with law to the proper Court". That application was the one made on 5th September 1938, and it will be recalled that, although the prayer was that the decree be executed by the attachment and sale of immovable property, viz. That application was the one made on 5th September 1938, and it will be recalled that, although the prayer was that the decree be executed by the attachment and sale of immovable property, viz. the house in question, it was filed in the Court of Small Causes. It will also be recalled that the Court of Small Causes declined-as it was bound to do-to entertain it and, on 18th May 1939, passed an order "sending" the application to the Munsif's Court. The result is that, even taking a view most favourable to the appellant, the earliest date on which the appellant can possibly be said to have filed the fourth application for execution in accordance with law to the proper Court is 18-5-1939. By that time, however, an application for the execution of the decree had become barred by limitation, as the time for making such an application had run out by 4-12-1938. It was however contended for the appellant that the application made to the Court of Small Causes on 5th September 1938 was an application made in accordance with law to the proper Court. The question is whether this contention can be accepted. Our conclusion is that it cannot be accepted. 8. The first case to which we wish to refer is that in ('90) 12 All. 64, Chattar v. Newal Singh. It was held there that the expression "applying in accordance with law" must mean applying to the Court to do something in execution which by law that Court is competent to do, and that it does not mean applying to the Court to do something which, either to the decree-holder's direct knowledge in fact or from his presumed knowledge of the law, he must have known the Court was incompetent to do. That was a decision under Art. 179 of Act 15 [xv] of 1877, but Act 9 [IX] of 1908 made no change in the paragraph or clause with which we are concerned. Subsequently by Act 9 [IX] of 1927 an amendment was made by which the words "the final order passed on an application" were substituted for the word "applying." That also does not affect the question before us. The case just cited has always been regarded as the leading case on the subject in this Court. 9. We shall next refer to the case in Sheo Prasad Vs. Mt. The case just cited has always been regarded as the leading case on the subject in this Court. 9. We shall next refer to the case in Sheo Prasad Vs. Mt. Naraini Bai The report in the Indian Law Reports is not satisfactory. The judgment has been reproduced in full in Sheo Prasad Vs. Mt. Naraini Bai We have also sent for the paper-book and perused the original judgment. The essential facts of that case were these. The appellant, Sheo Prasad, obtained a money decree against the husband of the respondent, Naraini Bai, from the Court of the Munsif, East Budaun, on 9-3-1915. On 12-11-1918, he filed an application for execution. This application was within time, as he bad already made two earlier applications for execution which had both been struck off for non-prosecution, and the application of 12-11-1918 was his third application. This third application was struck off on 23-1-1920, with the decree-holders' consent. He then made a fourth application for execution on 4-3-1921. This application was filed in the Court of the Munsif, East Budaun, and the prayer was that certain property be attached and sold. All the property sought to be attached and sold was, however, situated outside the jurisdiction of the Court of Munsif, East Budaun. Consequently, the application was rejected on 29-4-1921. He then applied for execution for the fifth time on 12-1-1923. This application was dismissed by both the Courts below on the ground that it was time-barred. The Courts held that limitation was not saved by the application filed on 4-3-1921, because that application was not one in accordance with law. The decree-holder filed a second appeal in the High Court. The learned Judges, who heard the appeal, observed, after stating the facts, that "the sole question" which arose for their consideration was whether the proceedings on the application of 4th March 1921, constituted an 'application in accordance with law to the proper Court for execution or to take some step-in-aid of execution. The learned Judges, who heard the appeal, observed, after stating the facts, that "the sole question" which arose for their consideration was whether the proceedings on the application of 4th March 1921, constituted an 'application in accordance with law to the proper Court for execution or to take some step-in-aid of execution. A little lower down they again made this observation: There is, therefore, only one question remaining for determination namely, do the facts, that all the property specified was outside the jurisdiction of the Court and that there was no prayer at any time before the application was struck off (though the Court allowed time for amendment) to transfer the decree for execution to the Court in whose jurisdiction the property was situated, render the application of 4th March 1921, 'one not in accordance with law' ? In spite of the fact that, this was the sole question which arose for determination the learned Judges proceeded to consider whether the application of 4th March 1921, had been made with the "bona fide intention of proceeding to execution" or it had beep made "merely with the intention of saving limitation." A long discussion of this matter followed and the conclusion arrived at was that it was "impossible to hold that the application of 4th March 1921, was a bona fide application with the intention of obtaining execution. What had been stated to be the sole question that had arisen for determination was taken up towards the end of the judgment as 'the second point." Reference was made to the cases in ('90) 12 All. 64, Chattar v. Newal Singh, ('05) 27 All. 619, Munawar Husain v. Jani Bijai Shankar, ('06) 28 All. 387, Langtu Pande v. Baijnath Saran and Musammat Jamilunnissa Bibi Vs. B. Mathura Parshad, AIR 1921 All 208 and it was held that, at any rate, so far as this Court was concerned, it was well settled that, where the Court in which the application for execution was filed could not give the relief asked for, the application was not one in accordance with law. B. Mathura Parshad, AIR 1921 All 208 and it was held that, at any rate, so far as this Court was concerned, it was well settled that, where the Court in which the application for execution was filed could not give the relief asked for, the application was not one in accordance with law. The learned Judges, accordingly, came to the conclusion that the application for execution filed by Sheo Prasad on 4th March 1921 "was further not in accordance with law because it was made to a Court which was not competent to grant the relief asked for." In the result the appeal of the decree-holder was dismissed. 10. We may next mention the case in Ram Raj Dassundhi Vs. Mt. Umraji and Another, AIR 1926 All 345 in which Sulaiman J. referred to the cases in ('05) 27 All. 619, Munawar Husain v. Jani Bijai Shankar and ('90) 12 All. 64, Chattar v. Newal Singh and held that "applying in accordance with law" means "applying to the Court to do something which by law that Court was competent to do." 11. The views expressed by the learned Judges who had decided the case in Sheo Prasad Vs. Mt. Naraini Bai on the subject of the bona fides of an application for execution gave rise, for somewhat obvious reasons, to considerable discussion and it was felt that the matter required reconsideration. The result was that a Full Bench of five Judges was constituted in the year 1929 for a consideration of the matter- Kayastha Co. Ltd. Vs. Sita Ram Dubey -and the following question was referred to it: If a decree-holder makes any application or takes any step mentioned in the third column of Art. 182, Limitation Act, will such step be ineffectual to keep his decree alive and to save limitation, unless he can, satisfy the Court that he took such step or instituted such proceedings with a genuine intention of obtaining execution of the decree, if reasonably possible, and that he did not abandon such proceedings except upon a genuine belief that it would not be reasonably possible to obtain execution? The question was, answered in the negative. The result was that that part of the judgment in Sheo Prasad Vs. Mt. The question was, answered in the negative. The result was that that part of the judgment in Sheo Prasad Vs. Mt. Naraini Bai in which it had been held that the bona fides or mala fides of an earlier application was an important ingredient in determining whether that application was effective to save limitation for a later application was overruled. The soundness of the other proposition, namely, that the earlier application had to be one in accordance with law, has, however, never been doubted. Having regard to the language of the statute, it is difficult to see how it can be doubted. 12. Mr. C.S. Saran vehemently argued that, as the application dated 5th September 1938, had been filed in the Court which had passed the decree, namely, the Court of Small Causes, it had been made to the proper Court and could therefore save limitation. It is not necessary to express any opinion on the question whether the application had been made to the proper Court, for, it is sufficient to point out that the statute requires not only that the application should be made to the proper Court but also that it should be in accordance with law. We have already shown that the application made on 5th September 1938, was not one in accordance with law. The appeal is without force. It is accordingly dismissed with costs.