JOGESWAR DAS v. SUNDAR SAHU — 1973 DIGILAW 4 (ORI)

JUDGMENT : B.K. Ray, J. - The Appellant is the creditor from whom Chamar took a loan of Rs. 900/- on the basis of a pronate. Chamar died before repayment of the loan. 2. Chamar while living had instituted partition suit No. 28 o 1950 against his two brothers, namely, Sundar and Bhikari and their sons. A preliminary decree was passed in the suit on 18-3-1955 in which Chamar's share in the joint family properties was determined to be 1/3rd. 3. After the passing of the preliminary decree Chamar having died without repaying the aforesaid loan, the Appellant creditor instituted Money Suit No. 58 of 1967 against Chamar's brothers, namely, Sundar and Bhikari and Sundar's natural son Makhan who was then asserting him self to be the adopted son of Chamar. The said suit was decreed against Makhan on his own admission as adopted son and dismissed against Sundar and Bhikari. The date of decree in the said Money suit is 25-8-1958. 4. After the passing of the aforesaid preliminary decree in the partition suit and after the death of Chamar, Bhikari, one of the brothers of Chamar, filed a petition in the Partition suit, while the final decree proceedings in the suit were going on, saying that Chamar had died on 2-3-1957 leaving behind him no other heir except himself and Sundar who were already on record and prayed that Chamar's name be struck off from the record and the share of Chamar be divided into two equal shares afresh between himself and the other brother, Sundar. This application came up for hearing and the learned Subordinate Judge disposed of the said application by his order dated 13-11-1957. The learned Subordinate Judge while disposing of the said application on hearing the parties, held that Makhan was not the adopted son of Chamar and, therefore, directed that the share of Chamar in the properties in suit would vest on Sundar and Bhikari and their descendants, namely their sons and grand sons. This order of the learned Subordinate Judge not having been challenged and the final decree in the Partition suit having been passed on the basis of aforesaid order on 8-12-1958, the said order dated 13-11-1957 as well as the final decree in the Partition Suit have become final and conclusive and binding upon Bhikari, Sundar and their sons. This order of the learned Subordinate Judge not having been challenged and the final decree in the Partition suit having been passed on the basis of aforesaid order on 8-12-1958, the said order dated 13-11-1957 as well as the final decree in the Partition Suit have become final and conclusive and binding upon Bhikari, Sundar and their sons. It may, however, be noted that Chamar having died after the passing of the preliminary decree, he should be deemed to have died in a state of separateness from his other two brothers, namely, Sundar and Bhikari. Therefore, under the Hindu Law his 1/3rd share in the joint family properties would have devolved upon his two brothers, namely, Sundar and Bhikari to the exclusion of their sons and grand sons. Therefore, the learned Subordinate Judge should have allotted 1 3rd share of Chamar to Sundar and Bhikari only. Instead of doing that, the share of Chamar has been divided as per the final decree into two equal shares, Sundar and his sons getting one share and Bhikari and his sons getting the other share. The allotment made by the learned. Subordinate Judge in the final decree having become final, it is binding on the parties to the partition suit. 5. The Appellant-decree holder after the passing of final decree levied Execution Case No. 102 of 1960 against Makhan alone under the provisions of Section 52 of the CPC and sought for attachment of Chamar's share in the hands of Makhan. There was objection in the Execution Case by Makhan and the matter came up before this Court in M.A. No. 106 of 1962. The aforesaid M.A. was heard and disposed of by Hon'ble Mr. Justice G.K. Misra, J., as he then was, by his judgment dated 11-11-1963. His Lordship in the said judgment observed that if some portions of the property of Chamar had come to the hands of the judgment-debtor, Makhan then in respect of that property he is an intermeddler and comes clearly within the definition of a legal representative. Justice G.K. Misra, J., as he then was, by his judgment dated 11-11-1963. His Lordship in the said judgment observed that if some portions of the property of Chamar had come to the hands of the judgment-debtor, Makhan then in respect of that property he is an intermeddler and comes clearly within the definition of a legal representative. His lordship further observed that the decree having been passed against Makhan as the legal representative of the deceased Chamar and the said decree being for payment of money out of the properties of the deceased Chamar, the decree is executable against the property of the deceased in the hands of the judgment-debtor and, therefore, if any of the properties of deceased Chamar is found in the hands of the judgment-debtor, Makhan then such property is liable to be attached and sold in execution. With the aforesaid observations his Lordship remanded the case to the executing Court. After remand the executing Court disposed of the case by its order dated 5-12-1964 in which it held that some of the properties of deceased Chamar were in possession of the judgment-debtor and his father and the decree was to be proceeded against 1/15th share and not against 1/10th share as given in the execution petition. This order of the executing Court was confirmed in Misc. Appeal No. 3 2 of 1965 where after the judgment-debtor, Makhan filed M.A. No. 159 of 1965 before this Court. This M.A. came for disposal before Hon'ble Mr. G.K. Misra, J., as he then was, who by his judgment dated 4-9-1968 held that Makhan would be liable to the extent of only 1/30th share in the entire joint family properties. When matter again went back to the executing Court, Sundar, father of Makhan filed an objection petition under Order 21, Rule 48 of the Code of Civil Procedure, containing therein that the execution cannot proceed against the properties which he inherited from Chamar or against his own share in the joint family properties. The executing Court allowed the objection of Sundar in Misc. Case No. 19 of 1965 and dismissed the execution petition. This order of the executing Court was set aside in M.A. No. 44 123 of 1965 and Sundar, therefore, preferred M.A. No. 43 of 1968 in this Court. Hon'ble Mr. The executing Court allowed the objection of Sundar in Misc. Case No. 19 of 1965 and dismissed the execution petition. This order of the executing Court was set aside in M.A. No. 44 123 of 1965 and Sundar, therefore, preferred M.A. No. 43 of 1968 in this Court. Hon'ble Mr. Justice R.N. Misra, J. disposed of the said M.A. by his judgment dated 19-11-1969 in which he held that if Sundar was liable, it had to be shown that Chamar's property was in the hands of Sundar Particularly when by the time of Chamar's death, he did not have his interest carved out in species. His Lordship further observed that it was very difficult to find out what was the 1 3rd interest of Chamar. With the aforesaid observation, His Lordship, however, remanded the case to the learned lower appellate Court for determination of the question as to whether in the circumstances of the case Sundar could be held to be liable for satisfaction of the money decree. It is alleged that the learned Subordinate Judge in complete disregard to the decisions of this Court in M.A. Nos. 106 of 1962, 159 of 1966 and 43 of 1968 allowed the objection of Sundar. The relevant portion of the judgment of the learned Subordinate Judge is quoted hereinbelow: In fine, I find that there is no evidence that Makhan is in possession of any property or interest left by Chamar and the liability of Sundar cannot be enforced, no execution having been levied against him. Having thus found I would agree with the ultimate conclusion of the learned Munsif that the claim of Sundar was to be allowed but however, not for all the reasons stated by him. The appeal is therefore dismissed on contest but in the peculiar circumstances of the case the parties are directed to bear their own costs till this stage. Being aggrieved by the aforesaid judgment of the learned Subordinate Judge dated 18-8-1971 the Appellant creditor has preferred this appeal. 6. Mr. B.K. Pal, the learned Counsel for the Appellant contends that as per the definition in Section 2(11) CPC one who in law represents the estate of a deceased person or one who intermeddles with the estate of the deceased, is a legal representative. 6. Mr. B.K. Pal, the learned Counsel for the Appellant contends that as per the definition in Section 2(11) CPC one who in law represents the estate of a deceased person or one who intermeddles with the estate of the deceased, is a legal representative. u/s 52 of the said code where a decree is passed against a party as the legal representative of a deceased person and the decree is for payment of money out of the property of the deceased, it may be executed by attachment and sale of any such property. Therefore, Makhan being one of several persons to whom the share of Chamar was allotted under the final decree in the Partition suit is a legal representative either as a person who in law represents the estate of Chamar or as a person who intermeddles with such estate. Hence the decree in the Money Suit instituted by the Appellant having been passed against Makhan as the legal representative of Chamar and the decree being for payment of money out of the properties of the deceased it may be executed by attachment and sale of any such property. According to him, whatever may be the law of inheritance under the partition decree Makhan having been given a share in the estate of the deceased Chamar, the Appellant is entitled to execute the decree at least in respect of the share allotted to Makhan under the partition decree and this share as per the decision in M.A. No. 159 of 1966 having been determined to be 1/30th interest of the total joint family properties belonging to Chamar. Sundar and Bhikari, the Courts below should have allowed the execution to proceed in respect of the same interest. This contention of Mr. Pal is well founded. The only difficulty of Mr. Pal is that Sundar who is now Respondent was not a party in M.A. 159 of 1966 in which the assets of the deceased Chamar in the hands of Makhan were determined. 7. This contention of Mr. Pal is well founded. The only difficulty of Mr. Pal is that Sundar who is now Respondent was not a party in M.A. 159 of 1966 in which the assets of the deceased Chamar in the hands of Makhan were determined. 7. The law is well settled that where a person institutes a suit bona fide against another in possession of the estate of a deceased in assertion of a claim to succeed to that estate for realisation of money due from the deceased and obtained a decree and where a person purchases the property bona fide in execution of that decree such purchaser gets the full title to the property purchased by virtue of such sale and the real heir is bound thereby. See Sarat Chandra Deb and Others Vs. Bichitrananda Sahu and Others. For this proposition Mr. Pal relies upon several decisions reported in Chaturbujadoss Kushaldoss and Sons Vs. Rajamanicka Mudali by father and next friend Ekambara Mudaliar and Another Bibhuti Bhusan Ray and Ors. v. Narendra Narayan Ghose and Ors. AIR 1951 Cal. 1128, Shunmugham Chettiar Vs. K.A. Govindasami Chettiar and Others N.K. Mohd Sulaiman Sahib v. N.O. Mohd Ismail Saheb and Ors. 1966 I.O.D. 462, besides Sarat Chandra Deb and Others Vs. Bichitrananda Sahu and Others referred to above. It is worthwhile to refer to these decisions. 8. Corning first to the decision reported in N.K. Mohn Sulaiman Sahib v. N.O. Mohd. Ismail Saheb and Ors. 1966 I.O.D. 462, the following relevant portions of the decision may be quoted: Where on account of a bona fide error, the Plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the Plaintiff - has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against that person impleaded as heir binds the estate, even though other persons interested in the estate are not brought on the record. This principle is a part of the law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law xx xx xx xx There is no difference between the principle in the case where a debtor who is sued for recovery of debt, dies after the institution of the suit and his legal representatives are brought on record and a case where the creditor after making a diligent and bona fide enquiry, impleades certain heirs as parties to his suit in the genuine belief that they are the only person interested in the estate. In both the cases the whole estate of the deceased may be duly represented by those persons who are brought on the record or impleaded and the decree would be binding upon the entire estate. xx xx xx xx This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir or where there are other circumstances which indicate that there has not been a fair or real trial or that the absent heir had a special defence which was not and could not be tried in the earlier proceeding. In this case certain property was mortgaged by three Muslims to A. One of the mortgagors died. A, the creditor finding that the two mortgagors and three widows and a daughter of the deceased mortgagor were in possession of mortgaged property, obtained a decree on his mortgage against them and in execution thereof purchased the property himself with permission of the Court. It was also found that A, the creditor had made bona fide enquiry and had not came to know a bout the existence of any other heirs. On these facts it was held by their Lordships that the-principle of representation of the estate by the heirs who were joined as parties applied to the case and the decree and the sale in pursuance of it were binding of persons who claimed to be the sons of the deceased mortgagor. 8. In the case before me the facts are on a better footing than the facts in the aforesaid case. 8. In the case before me the facts are on a better footing than the facts in the aforesaid case. The decree in the present case was obtained against Makhan and the final decree in the partition suit shows that Makhan had been allotted a share in the estate of the deceased Chamar who was the original debtor. In the face of these facts there can be no escape from the conclusion that Makhan at least represents a share in the estate of the deceased Chamar that has been allotted to him in the final decree. That being so, at least the share allotted to Makhan in the final decree out of the estate of the deceased Chamar is liable to be attached and sold in execution of the decree obtained by the Appellant in the Money suit. 9. In the case reported in Shunmugham Chettiar Vs. K.A. Govindasami Chettiar and Others the mortgagee after the death of the mortgage T instituted a suit on the mortgage against a person whom he (Mortgagee) considered as the legal representative of the mortgagor and who was in possession of the mortgaged property after a bona fide enquiry. The mortgagee obtained a decree in the suit. It was held that the decree thus obtained by the mortgagee would be binding on any other legal representatives who might be in existence. 10. In the decision reported in Shunmugham Chettiar Vs. K.A. Govindasami Chettiar and Others the Plaintiff in good faith sued a person who appeared to be proper legal representative of the deceased debtor and there was no fraud or collusion in the proceeding. It was held that the decree obtained by the creditor was binding on the debtor's estate whoever might be the actual legal representative. 11. In the decision reported in Chaturbujadoss Kushaldoss and Sons Vs. Rajamanicka Mudali by father and next friend Ekambara Mudaliar and Another where a suit was instituted by a creditor of the deceased against his wrong legal representative, the decree passed in the suit are the sale of the property of the deceased in execution of that decree were held to be binding on the true legal representative. Rajamanicka Mudali by father and next friend Ekambara Mudaliar and Another where a suit was instituted by a creditor of the deceased against his wrong legal representative, the decree passed in the suit are the sale of the property of the deceased in execution of that decree were held to be binding on the true legal representative. While indicating the law their Lordships in the decision said that the estate was to be deemed as sufficiently represented if the suit was instituted bona fide against the alleged legal representative and the decree was obtained without any fraud or collusion between the parties their Lordships further said that the binding nature of the decree was not limited only to the items of property in possession of the alleged legal representative but extended to the whole of the estate of the deceased. 12. In this view of the law, I am firmly of opinion that the Appellant having instituted the Money suit against Makhan under the bona fide belief that the latter was the legal representative of the deceased debtor and further the final decree in the partition suit either rightly or wrongly having allotted a share in the estate of the deceased debtor to Makhan, the Appellant is entitled to attach and sell the properties of the deceased debtor without even obtaining a decree against the real legal representative of the deceased debtor, Chamar. 13. Mr. R.N. Sinha, the learned Counsel for the Respondent urges that under the law the Appellant creditor is entitled to realise his dues against the deceased debtor out of his assets in whosoever hand; they may be. But before realising his dues the Appellant-creditor has to obtain -a decree against the true legal representative of the deceased debtor. In the present case, according to Mr. Sinha, the decree has been obtained by the Appellant against Makhan and, therefore, the decree can be executed only against Makhan who is the only judgment-debtor. The execution case has been levied against Makhan alone. Therefore, if Makhan has not inherited any property of Chamar and Chamar's properties have been inherited by Sundar and Bhikari the Appellant-creditor cannot proceed against the properties inherited by Sundar and Bhikari after the death of Chamar in an execution proceeding levied against Makhan. The aforesaid decisions provide a complete answer to the contention of Mr. Sinha. Therefore, if Makhan has not inherited any property of Chamar and Chamar's properties have been inherited by Sundar and Bhikari the Appellant-creditor cannot proceed against the properties inherited by Sundar and Bhikari after the death of Chamar in an execution proceeding levied against Makhan. The aforesaid decisions provide a complete answer to the contention of Mr. Sinha. True, after the death of Chamar under the Hindu law of Inheritance his properties would be inherited by his two brothers, namely Sundar and Bhikari and not by their sons, one of whom is Makhan. But the final decree in the partition suit shows that half share in the properties left by Chamar has been allotted to Sundar and his sons and the other half share in the said properties has been allotted to Bhikari and his sons. This final decree according to Mr. Sinha is contrary to the law of inheritance. According to him, inspite of this decree Sundar and Bhikari alone inherited the properties of Chamar. I do not think that such a contention can be accepted. The rights of the parties in the partition suit in respect of Chamar's share in the joint family properties have been finally determined in the final decree and that decree has not been challenged by the parties thereto. Therefore, whatever may be the correct legal position, the said final decree is binding on Sundar, Bhikari and their sons including Makhan. Once such a conclusion is reached, the Appellant-creditor cannot be penalised if he obtains a decree for realisation of his dues against Makhan. Further, the facts of the case reveal that in Money suit No. 58 of 1957 Makhan, Sundar and Bhikari were impleaded as Defendants. Makhan in his defence in the said suit claimed that he was the adopted son of Chamar and inherited all the properties of Chamar to the exclusion of Sundar and Bhikari. He further contended that Sundar and Bhikari were not necessary parties to the suit. Sundar and Bhikari in their turns did not challenge the assertion of Makhan that he was the adopted son of chamar. Consequently the suit was decreed against Makhan only and dismissed against Sundar and Bhikari. Subsequently however, in the partition suit the Court held that Makhan was not the adopted son of Chamar. Sundar and Bhikari in their turns did not challenge the assertion of Makhan that he was the adopted son of chamar. Consequently the suit was decreed against Makhan only and dismissed against Sundar and Bhikari. Subsequently however, in the partition suit the Court held that Makhan was not the adopted son of Chamar. In these circumstances, on the authorities of the decisions referred to above, the Appellant-creditor is entitled to proceed against the estate of Chamar in the hands of Sundar and Bhikari even if the decree has been passed against Makhan only whom the creditor has accepted as the only legal representative of Chamar bona fide. That apart, Makhan having been given a share in the estate of Chamar under the final decree, the decree-holder would be entitled to proceed against Makhan at least so far as his interest in Chamar's properties determined under the final decree, is concerned. 14. Sundar, the Respondent in the present appeal has filed the application under Order 21, Rule 58, CPC objecting the execution of the decree against the properties which he has inherited on the death of Chamar. The question which arises for consideration is as to whether Sundar could file an application in the execution case under Order 21, Rule 58, CPC on the plea that he is not the judgment-debtor. The explanation to Section 47, CPC reads thus: For the purposes of this section a Plaintiff whose suit has been dismissed and a Defendant against whom the suit has been dismissed, are parties to the suit. That being the position, there can be no dispute that Sundar's application objecting to the execution of the decree out of which petition this appeal arise, is one u/s 47, CPC and he cannot file a claim under Order 21, Rule 58, CPC on the ground that he has an interest in the property sought to be proceeded against in execution under the decree and that such property is not liable to attachment or sale. In this view, therefore, the question raised by Sundar in his application comes within the jurisdiction of the executing Court for its determination u/s 47, Code of Civil Procedure. On the position of law that emerges from the aforesaid decisions, the assets of Chamar in the hands of Sundar is liable for satisfaction of the decree obtained by the Appellant-creditor. In this view, therefore, the question raised by Sundar in his application comes within the jurisdiction of the executing Court for its determination u/s 47, Code of Civil Procedure. On the position of law that emerges from the aforesaid decisions, the assets of Chamar in the hands of Sundar is liable for satisfaction of the decree obtained by the Appellant-creditor. The decision of the question of liability raised by Sundar is within the competency of the executing Court. Therefore, both the Courts below have clearly gone wrong in allowing the objection petition of Sundar and in dismissing the execution petition. For the proposition that even though the Money Suit has been dismissed against Sundar, his objection petition to the execution of the decree against the properties inherited by him from Chamar comes within Section 47, Code of Civil Procedure, see the decision reported in Shiva Pujan Dubey and Another Vs. Baban Lal and Others. In this case A obtained a decree for mesne profits 3 ex parte against B and his minor sons C and D. Before the decree was put into execution, C and applied under Order 9, Rule, 13, CPC for setting aside the ex-parte decree. The application was allowed and the decree was set aside as against C and D on the ground that they being minors were not duly represented and as such the decree was void against them. Thereafter the decree was put in execution against 3 and the property which included the decrees of C and D were sold and purchased in auction by the decree holder, A, C and D applied u/s 47, CPC objecting to the delivery of possession' but the objection was rejected and A got delivery of possession. The appeal against the order was also dismissed by the High Court. C and D then, on becoming major, sued for declaration that the execution sale in respect of their shares in the property was a nullity and for recovery of possession. It was held by their Lordships that though the decree was set aside against C and D by virtue of explanation to Section 47. CPC they must been deemed to be parties to the suit and having attacked the execution sale the question arising between them and the decree-holder auction purchasers was a question between the parties to the suit within Section 47. Code of Civil Procedure. CPC they must been deemed to be parties to the suit and having attacked the execution sale the question arising between them and the decree-holder auction purchasers was a question between the parties to the suit within Section 47. Code of Civil Procedure. It was further held that the question raised by C and D was clearly a question relating to the execution discharge or satisfaction of the decree within the meaning of Section 47 of the Code. This authority fully supports the view that the question raised by Sundar in his application in the executing Court is one within Section 47. Code of Civil Procedure. Further, according to the position of law already indicated above in execution of the decree obtained by the Appellant-creditor against Makhan's property inherited by Sundar and Bhikari from Chamar can be proceeded against. Sundar's objection petition u/s 47. CPC is therefore liable to be dismissed. 15. In the result, the appeal is allowed with costs throughout. The order of the learned Subordinate Judge. Bargarh dated 18-8-1971 in Misc. Appeal No. 44 12 3 of 1965 and the order dated 19-7-1965 of the Munsif. Bargarh in Misc. Case No. 19 of 1965 dismissing the execution petition, are set aside and the execution petition s restored to file. The petition filed by Sundar under order 21, Rule 58. CPC in the Court of the Munsif, Bargarh registered as Misc. Case No. 19 of 1965 of the said Court is dismissed.