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1959 DIGILAW 7 (CAL)

Mihir Bose v. Jobeda Khatun

1959-01-08

RENUPADA MUKHERJEE

body1959
JUDGMENT 1. THE principal question of law which arises for my determination in this appeal is whether some of the decree-holders dan adjust a decree for eviction by entering into a compromise with the judgment-debtor where a joint decree for eviction has been passed in favour of several decree-holders. It is an admitted fact that appellant Mihir Bose was a tenant under the seven respondents of this appeal in respect of certain premises bearing No. 10, Syed Ameer Ali Avenue, Calcutta. A suit for eviction was brought against the appellant jointly by the seven respondents, and the suit was decreed ex parte. The decree for possession which was passed in favour of the decree-holders was put to execution on behalf of all the decree-holders by their constituted attorney, one Sk. Abdur Rahaman. The execution petition was filed on 21st September, 1953. Several objections were filed on behalf of the judgment-debtor against the execution of the decree. I am not concerned with some of those objections. I am concerned with the objection which was filed by the judgment-debtor in miscellaneous judicial case No. 73 of 1954 That objection was to the effect that two of the decree-holders who are proforma respondents Nos. 6 and 7 of this appeal had adjusted the decree with the judgment-debtor and allowed the judgment-debtor to continue as a tenant in occupation and they are receiving rent from him. It was, therefore, contended that the remaining decree-holders were not entitled to get khas possession of the disputed premises by evicting the appellant. This objection was allowed by the executing court in view of the fact that the adjustment alleged by the judgment-debtor had been recorded as certified. 2. THE decree-holders who were not parties to the alleged adjustment preferred an appeal from the order passed by the executing court, and the lower appellate court allowed the appeal and directed that the execution of the decree would proceed in so far as it related to delivery of possession of the entire premises. This second miscellaneous appeal has been preferred by the judgment-debtor from the order passed by the lower appellate court. Mr. Mitra appearing on behalf of the judgment-debtor appellant submitted two points for my consideration. In the first place, he argued that although the decree was admittedly one for khas possession of the disputed premises by all the decree-holders, two of them who are proforma respondents Nos. Mr. Mitra appearing on behalf of the judgment-debtor appellant submitted two points for my consideration. In the first place, he argued that although the decree was admittedly one for khas possession of the disputed premises by all the decree-holders, two of them who are proforma respondents Nos. 6 and 7 of this appeal and who have admittedly got 5 annas share in the disputed premises have entered into an adjustment with the judgment debtor and they have recognised him as a tenant and are not agreeable to his eviction. Mr. Mitra submitted that in these circumstances, the decree for khas possession cannot be executed, and at the utmost, the remaining five decree-holders who were not parties to the adjustment, may be given possession of the disputed premises. This contention of Mr. Mitra does not appear to me to be sound in law. 0. XXI, r. 15 of the Code of Civil Procedure enables any one of several decree-holders to execute the whole decree, where it has been passed jointly in favour of more persons than one. There can, therefore, be no question that the entire decree can be executed at the instance of the 5 principal respondents of this appeal, Mr. Mitra contended that the adjustment entered into by two of the decree-holders owning a 5 annas share in the disputed premises is a bar to the execution of the entire decree. 3. ON behalf of the contesting decree-holders, Mr. Sinha submitted that the alleged adjustment is not valid or operative in law inasmuch as the decree was a joint and indivisible one, and such a decree could be adjusted only by the entire body of the decree-holders and not by some of them. In support of this contention Mr. Sinha relied on 0. XXI, r. 2 (1) of the Code of Civil Procedure. That sub-rule runs in the following terms: "2 (1). Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly". 4. THE expression "to the satisfaction of the decree-holder" in my opinion means the entire body of the decree-holders, where a decree is joint and indivisible. 4. THE expression "to the satisfaction of the decree-holder" in my opinion means the entire body of the decree-holders, where a decree is joint and indivisible. In the present case, the decree was passed for khas possession of the disputed premises by evicting title appellant. No share of the decree-holders were specified, and the decree was a joint and indivisible decree in the true sense of the term. In my opinion such a decree can be adjusted only by the consent of the entire body of decree-holders and not by some of them. In this connection Mr. Sinha drew my attention to a case reported in A. I. R. (1953) Bombay 137, (1) Vaichand Guluchand Manekbai Hirachand. That was a case of adjustment of a money decree, and it was held by their lordships of the Bombay High Court that payment to one of the several joint decree-holders cannot be recognised as a payment to all (unless he was authorised to receive such payment on behalf of all) and does not amount to a pro tanto satisfaction even to the extent of what is regarded to be a share in the decree of the decree-holder who receives payment. These observations apply with stronger force to a decree for joint possession of some premises where the shares of the decree-holders are not specified in the decree. Mr. Mitra who drew my attention to the case reported in I. L. R. 9 Calcutta 831, (2) (Tarruck Chunder Bhuttacharjee v. Divendro Nath Sanyal) contended that the decision of the Bombay High Court should not be regarded as a correct decision. It is, no doubt, true that in the Calcutta case a judgment-debtor was given credit for a sum of money paid bona fide to one of the several joint decree-holders, and duly certified to the court by the latter. It was further held that the other joint decree-holders were not competent to execute the decree for more than their shares. It seems that to some extent there is a conflict between the case of the Bombay High Court referred to above and the Calcutta case where a decree is one for money. The present decree however, was one for khas possession of certain premises. Such a decree stands on a different footing from a decree for payment of money. It seems that to some extent there is a conflict between the case of the Bombay High Court referred to above and the Calcutta case where a decree is one for money. The present decree however, was one for khas possession of certain premises. Such a decree stands on a different footing from a decree for payment of money. It cannot also be said that adjustment of such a decree with some of the decree-holders to the exclusion of the rest is a bonafide adjustment. For these reasons and in view of the wording of 0. XXI, r. 2 (i) of the Code of Civil Procedure, I am of opinion that an adjustment of a joint decree of this nature by some out of the entire body of decree-holders is not valid in law. That being the position, the remaining decree-holders are entitled to execute the whole decree, as it was originally passed. Should such an adjustment at the instance of some of the decree-holders be recognised, then the original decree for khas possession would be converted into a new decree for joint possession and it is not permissible for the court to create such a new decree which should be at variance with the original decree. This view gains support from the case reported in 32 C. W. N. 434, (3) Azizur Rahaman Choudhury v. Aliraja Choudhury. In this view of the matter. I am of opinion that the so-called adjustment was not a valid or legal adjustment and it should be ignored, and the lower appellate court is right in-holding that the entire decree for possession is capable of execution at the instance of the decree-holders who were not parties to the adjustment. The first contention raised on behalf of the appellant, therefore, fails. 5. THE only other contention raised on behalf of the appellant was that the appeal before the lower appellate court was filed out of time and was not maintainable in law inasmuch as the appeal was not presented within time from the date when the adjustment was ordered to be recorded. That order was passed on 1st December, 1953 and the appeal in the lower appellate court should be regarded as having been filed out of time if the period of limitation is computed from that date. That order was passed on 1st December, 1953 and the appeal in the lower appellate court should be regarded as having been filed out of time if the period of limitation is computed from that date. It, however, appears from the records of the executing court that the final order dismissing or rather striking off the execution case was passed on 31st May, 1954. The appeal was presented in time if the period of limitation is calculated from that date. The order regarding the adjustment was an interlocutory order, and in my opinion, the starting point for filing of the appeal was 31st May, 1954 on which date the execution case was struck off. The appeal before the lower appellate court was, therefore, presented in time and the contention of Mr. Mitra to the contrary is negatived. 6. BOTH the points taken on behalf of the appellant having failed, this appeal is dismissed with costs to the decree-holders respondents. I allow time till 31st March, 1959, to the tenant appellant to vacate the disputed premises.