Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2954 (ALL)

Sankatha Prasad v. Thakur Prasad Pandey Trust

2013-12-05

PANKAJ MITHAL

body2013
JUDGMENT Pankaj Mithal, J. 1. A decree of the year 1953 for recovery of possession of a house passed in original suit of 1948 is under execution. The objections of the petitioners under section 47 of the C.P.C. were rejected and the order has been affirmed by the Revisional Court leading to the filing of this writ petition. The factual matrix of the case leading to this writ petition is summarised herein under for deciding the controversy raised. 2. One Badli Ram Agrahari was the owner and in adverse possession of two houses which have acquired the shape of one house. He gifted the said house to his daughter Mst. Devi Kullan by means of gift deed dated 22.11.1928 and provided that after her it will go to her son Mata Prasad. 3. Babu Nandan Lal and Hira Lal purchased the aforesaid house from the successors of Badli Ram Agrahari vide sale-deed dated 16.5.1948. 4. They instituted original suit No. 5 of 1948 for recovering possession of the said house against the occupants Mst. Sahdei, Bhagwan Das, Narayan Das, Mool Chand, Hari Chand, Baldev, Bhim and Mst. Bagesara. The suit was decreed vide judgment and order dated 19.12.1953 against all the defendants except Mst. Sahdei, who was allowed to occupy the portion of the house in dispute to be vacated by Baldev till her life time. 5. The heirs of one of the co-owners and the joint decree holder Hira Lal transferred his share in the said house by an instrument of Dastbardari dated 17.12.1953 in favour of one Thakur Prasad, who in respect thereof created a trust known as Thakur Prasad Pandey Trust. At the same time the other co-owner and decree holder Babu Nandan Lal by a sale-deed dated 1.2.1954 sold and assigned all his rights in the said property as well as the decree in favour of two of the Judgment debtors Mool Chand and Hari Chand. Later, Hari Chand by mutual settlement transferred all his rights in favour of Mool Chand, who thus acquired full and complete rights of Babu Nandan Lal in the property as well as under the decree. 6. Mst. Sahdei against whom no decree was passed, alone preferred First Appeal No. 127 of 1954 for its modification. The appeal was dismissed on 24.7.1968. 6. Mst. Sahdei against whom no decree was passed, alone preferred First Appeal No. 127 of 1954 for its modification. The appeal was dismissed on 24.7.1968. She then preferred Second Appeal No. 345 of 1969 wherein vide interim order dated 19.7.69 only her dispossession was stayed. 7. During the pendency of the second appeal on 30.8.1954 Thakur Prasad applied for his impleadment as he had acquired the rights of one of the decree holder Hira Lal in the said house. He was permitted to be impleaded. Later it appears that he created a trust and transferred his share in the said house to the trust. Accordingly, vide order dated 16.2.1982 Thakur Prasad Pandey Trust through its trustee was permitted to be substituted in appeal. 8. The said Second Appeal was dismissed on 18.2.1982. 9. It was during the pendency of the Second Appeal that Thakur Prasad on 18.4.1969 applied for the execution of the decree. It was registered as execution Case No. 13 of 1969. It is in the aforesaid execution that the petitioners, the successors of Mool Chand, who had purchased all rights of one of the decree holder Babu Nandan Lal, filed objections under section 47, C.P.C. The said objections were registered as Misc. Case No. 47 of 1994. The objections were dismissed on 7.9.2012 whereupon a revision No. 96 of 2012 was preferred which was also dismissed on 17.11.2012. 10. The aforesaid two orders dated 7.9.2012 and 17.11.2012 have been impugned by the petitioners in this writ petition. 11. I have heard Sri Anil Kumar Aditya, learned Counsel for the petitioners and Sri D.P. Singh alongwith Sri K.S. Tiwari, learned Counsel for respondent No. 1. The other respondents are only formal parties who have not participated in the execution proceedings. 12. In execution as also in this petition, the contest is regarding the execution of the decree dated 19.12.53 passed in Original Suit No. 5 of 1948 between Thakur Prasad Pandey/Trust that has acquired rights in the property of one of the decree holder Hira Lal and the sons of Mool Chand who was one of the Judgment debtor but had acquired rights of other decree holder Babu Nandan Lal in the property as also under the decree. 13. Counsel for the parties have exchanged necessary affidavits and are agreeable for the final disposal of the petition on merits at the admission stage itself. 14. 13. Counsel for the parties have exchanged necessary affidavits and are agreeable for the final disposal of the petition on merits at the admission stage itself. 14. Sri Aditya, learned Counsel for the petitioners has advanced three arguments that (i) the execution is barred by limitation; (ii) the petitioners have stepped into tae shoes of one of the joint decree holders and the decree cannot be executed inter se the two decree holders; and (iii) Thakur Prasad Pandey or the Trust who is seeking execution of the decree is not a decree holder entitle to get it executed. 15. Sri D.P. Singh, learned Counsel on behalf of Thakur Prasad Pandey/Trust, has submitted that though the limitation for executing the decree for recovery of possession over immovable property is governed by Article 136 of the Schedule to the Indian Limitation Act, 1963 (hereinafter referred to as the Limitation Act) but the period of 12 years for its execution provided therein would run from the date when the decree becomes enforceable. The decree became enforceable only on the death of Mst. Sahdei, who expired on 12.2.1974. The execution as such is not barred by limitation. 16. His second submission is that Thakur Prasad Pandey/Trust is a decree holder having acquired the rights of one of the decree holders Hira Lal vide instrument dated 17.12.1953 and where there is a joint decree and the shares are defined there is no difficulty for one of the decree holders to execute the decree. Lastly, the scope of section 47, C.P.C. is very limited. 17. In the facts and circumstances of the case and the arguments advanced before me, the following three points arise for determination: (i) whether the execution is barred by limitation; (ii) whether Thakur Prasad Pandey/Trust who is seeking to execute the decree is a decree holder entitle to execute it; and (iii) whether the petitioners have stepped into the shoes of the other decree holder Babu Nandan Lal and if so can the decree be executed against them by the other decree holder or his representative or inter se the joint decree holders. 18. It is important to first deal with the status of the contesting parties i.e., the petitioners and Thaukur Prasad Pandey/Trust vis-a-vis their rights to object to the execution of the decree and to execute it. 19. 18. It is important to first deal with the status of the contesting parties i.e., the petitioners and Thaukur Prasad Pandey/Trust vis-a-vis their rights to object to the execution of the decree and to execute it. 19. The decree dated 19.12.1953 passed in original suit No. 5 of 1948 is a joint decree for recovery of possession in favour of Babu Nandan Lal and Hira Lal. Its consequential effect is eviction of the judgment debtors including Mool Chand and Hari Chand. 20. Babu Nandan Lal had transferred all his rights in the said property and under the decree in favour of Mool Chand and Hari Chand vide sale-deed dated 1.2.1954. The said sale-deed is Annexure-3 to the petition. It clearly recites that all rights in the said property as well as the rights under the decree are being assigned in favour of Mool Chand and Hari Chand. In view of the aforesaid sail-deed the transferees Mool Chand and Hari Chand have stepped into shoes of Babu Nandan Lal and have acquired the status of the joint decree holders with that of Hira Lal. 21. There is no dispute that Hari Chand had later transferred all his rights which he had acquired vide sale-deed dated 1.2.1954 in the property and under the decree in favour of Mool Chand. Thus making him the exclusive owner of the rights of Babu Nandan Lal in the property and under the decree. 22. The aforesaid Mool Chand though one of the judgment debtors having acquired the co-ownership rights in the house and rights of one of the decree holders no longer remained to be a judgment debtor. He became the co-owner and the joint decree holder or the transferee of the decree entitle to execute it in accordance with the provisions of Order XXI, Rule 16 of the Code of Civil Procedure. 23. The petitioners are the sons of the aforesaid Mool Chand whose interest in the house and under the decree devolved upon them. Thus, they have acquired the status of co-owners of the house and that of joint decree holder entitle to execute it as successors of the transferee. 24. 23. The petitioners are the sons of the aforesaid Mool Chand whose interest in the house and under the decree devolved upon them. Thus, they have acquired the status of co-owners of the house and that of joint decree holder entitle to execute it as successors of the transferee. 24. The other decree holder Hira Lal transferred his rights in the said house in favour of Thakur Prasad Pandey on 17.12.1953 by means of a Dastbardari which has been held to be a deed of relinquishment in Rajendra Gupta v. Chief Controlling Revenue Authority and others 2013 (99) ALR 706 . It means that all rights of Hira Lal in the said house stood extinguished and transferred in favour of Thakur Prasad. The instrument of Dastbardari dated 17.12.1953 is annexure-1 to the counter-affidavit. A bare reading of it reveals that it nowhere assigns any rights under the decree in favour of Thakur Prasad. There is nothing on record to establish that Thakur Prasad was ever assigned any right under the decree or the right to execute the decree. He is not the assignee or the transferee of the decree. Therefore, he only became the co-owner of the said house with no right to execute the decree. It is settled that mere transfer of property is not transfer of decree. A transfer of property is not the same thing as transfer of a decree. 25. The said Thakur Prasad had filed one Original Suit No. 426 of 1954 for declaration of his rights over the said house alleging that Hira Lal was only the Benamidar whereas he was the actual owner. The suit was decreed vide judgment and order dated 15.11.1957 and the attachment of the house for recovering the loan against Hira Lal was lifted. Thakur Prasad as per the said decree may be the real owner of the house to the extent of the share of Hira Lal but it does not mean that he was substituted as the decree holder in the decree of original suit No. 5 of 1948. Therefore, Thakur Prasad/Trust is not the decree holder of original suit No. 5 of 1948. The rights of the decree holder under the said decree were never assigned to him. He is not the transferee of the said decree. He cannot execute the decree as the assignee or transferee. Therefore, Thakur Prasad/Trust is not the decree holder of original suit No. 5 of 1948. The rights of the decree holder under the said decree were never assigned to him. He is not the transferee of the said decree. He cannot execute the decree as the assignee or transferee. It is a different matter that by virtue of section 146 of the Act he may to some extent be recognized as the representative of one of the decree holder Hira Lal to take appropriate proceedings. 26. To sum up, the status of the petitioners is that of the co-owners of the house and the successors, assignees and the transferees of one of the joint decree holder, Babu Nandan Lal. 27. On the other hand Thakur Prasad or the Trust created by him is only the co-owner of the house to the extent of the share of the other decree holder Hira Lal. They are not the assignees or the transferees of the decree. 28. His Lordship of this Court in Kedar Ram v. Additional District judge IInd Ballia and others 2004 (55) ALR 4 , was seized with a similar controversy regarding execution of a decree wherein the decree holder had sold the suit property and the transferee sought to execute the decree thereafter. His Lordship held that the subsequent purchaser is only the purchaser of the suit property and not the assignee of the decree and therefore the decree not being transferred to him or by operation of law he had no right to pursue the execution. He can at best file an application under section 146, C.P.C. as a representative of the decree holder within the limitation period of 12 years. 29. In Jugal Kishore Saraf v. M/s. Raw Cotton Co. Ltd. AIR 1955 SC 376 , the Supreme Court observed that the transfer in writing of a property without in terms transferring the decree passed in relation to that property does not entitle the transferee to apply for the execution of the decree under Order XXI, Rule 16, C.P.C. 30. The next question which arises for consideration is about the limitation as to whether the execution filed by the Thakur Prasad or the trust is barred by time. 31. The next question which arises for consideration is about the limitation as to whether the execution filed by the Thakur Prasad or the trust is barred by time. 31. It is not disputed to the parties that the limitation for executing the decree for recovery of possession is governed by Article 136 of the Schedule to the Limitation Act. The limitation is 12 years from the decree or when it becomes enforceable. 32. In Manohar and others v. Jaipalsingh and others 2008 (70) ALR 153 (SC), the Supreme Court clarified that the decree for possession becomes enforceable immediately on its passing and the application for execution filed after 12 years is beyond limitation. 33. In Ram Bachan Rai and others v. Ram Udar Rai and others 2006 (62) ALR 490 (SC), it has been categorically laid down by the Supreme Court that the limitation for execution of the decree for recovering of immovable property commences from the date of the judgment and decree. 34. The decree is for the recovery of possession against all the defendants to the suit except Mst. Sahdei. The decree against the judgment debtors leaving Mst. Sahdei become enforceable the day it was passed. The exemption of Mst. Sahdei from the said decree in no way meant that the decree in respect of the other decree holders was not enforceable during the life time of Mst. Sahdei. The decree for recovery of possession was confined to the seven judgment debtors and all of them were bound by the said decree. It was enforceable against each one of them with immediate effect unless there was any stay by the Court passing the decree or by any Higher Court in appeal. 35. Admittedly, none of the judgment debtors had appealed against the decree and there was no stay in their favour either from the Court granting the decree or by any Higher Court. Even in the first appeal filed by Mst. Sahdei against whom there was no decree, no stay was granted. It was only on her filing the second appeal that on 19.7.1969 an interim order was passed for the first time. The said interim order was only to the effect that proceedings of ejectment against Mst. Sahdei shall remain stayed. The said order nowhere provided for the stay of the decree. It in no way affected the execution of the decree against the other judgment debtors. The said interim order was only to the effect that proceedings of ejectment against Mst. Sahdei shall remain stayed. The said order nowhere provided for the stay of the decree. It in no way affected the execution of the decree against the other judgment debtors. Even otherwise the said stay was meaningless as there was no decree for the ejectment of Mst. Sahdei. 36. It is important to note that by the time the above interim order dated 19.7.1969 could be passed the limitation for executing the decree which had started running from the date of the decree i.e., 19.12.1953 had expired on 18.12.1965. 37. The argument that the date of enforceability would be 12.2.1974 when Mst. Sahdei had died may appear to be somewhat attractive but is without substance for the simple reason that had the decree become enforceable on 12.2.1974 there was no occasion for Thakur Prasad to have applied for its execution prior to the said date. The execution as stated was applied on 8.4.1969. Therefore, he himself had not treated 12.2.1974 as the date of enforceability of the decree. 38. The execution was applied under Order XXI, Rule 16, C.P.C. which was not available to Thakur Prasad/Trust, not being the assignee or transferee of the decree, as held by the Supreme Court in Jugal Kishore Saraf (supra) and the Allahabad High Court in Kedar Ram (Supra). 39. The decree was passed on 19.12.1953. The execution was applied on 18.4.1969. The limitation for executing the decree being 12 years as provided under Article l36 of the Schedule to the Limitation Act expired in 1965. Accordingly, the execution No. 13 of 1969 is patently barred by limitation. 40. In the present case respondent No. 1 Thakur Prasad or the Trust has not applied for the execution of the decree in a representative capacity under section146, C.P.C. rather the execution was under Order XXI, Rule 16 which permits execution by the assignee or transferee only. 41. Even the said execution in a representative capacity under section 146, C.P.C. had to be within time prescribed. Therefore, if it is treated to be as such it was also barred by time as has been held in Kedar Ram (supra). 42. The Court below have held the execution to be within time by applying the 'doctrine of merger' saying that the decree of 1953 merged with the appellate judgment and order. Therefore, if it is treated to be as such it was also barred by time as has been held in Kedar Ram (supra). 42. The Court below have held the execution to be within time by applying the 'doctrine of merger' saying that the decree of 1953 merged with the appellate judgment and order. It is here that the Courts below fell in error. The principle of merger has no application in the present case. The decree was not challenged by any of the judgment debtors in appeal. Therefore, it was enforceable against all of them from the day one. The filing of appeal by a person other than the judgment debtor is now affected its enforceability. Thus, the finding on this score is unsustainable and is set aside. 43. Now even assuming that Thakur Prasad or the Trust is entitle to execute the decree in a representative capacity of Hira Lal the said decree could not have been executed by one decree holder or his representative against the other decree holder or its assignee/transferee or his successors. The petitioners, who are successors of one of the judgment debtors Mool Chand, who acquired the status of co-owner as well as the assignee of the decree can no longer be treated to be a judgment debtor liable for eviction under the decree. 44. It is also pertinent to note that Babu Nandan Lal and Hira Lal were the joint purchasers of the house in question. There share is not actually specified though being joint purchasers inference has been drawn that they have equal rights to the extent of 50% each but there is no division of shares between the two. The house had not been partitioned between them. 45. In such a situation both of them would be treated to be the co-owners having complete rights over each and every part of it until and unless their shares are demarcated or partitioned. 46. In Jagdish Dutt and another v. Dharam Pal and others AIR 1999 SC 1694 : 1999 (3) SCC 644 , which has been relied upon by both the parties it has been held in a case of joint decree for possession where one of the joint decree holders assigns his interest to one of the judgment debtors, the decree cannot be given effect to without ascertaining the rights of decree holders through partition suit. It has also been held that the dispute between joint decree holders is completely foreign to section 47 of the C.P.C. 47. In view of the aforesaid decision it is crystal clear that the present dispute which is one between the two joint decree holders and the co-owners cannot be decided in execution proceedings initiated under section 47, C.P.C. The Courts below have completely overlooked the scope of section 47, C.P.C. in rejecting the objections of the petitioners. 48. It is true that the scope of section 47, C.P.C. is limited and is further narrowed down when the matter comes up before the High Court in writ jurisdiction but nonetheless where the orders of the Court below on the face of it appears to be illegal and against the settled principles to avoid miscarriage of justice this Court cannot sit back and allow the party to suffer on account of the error on part of the Courts below in applying the law. 49. Thus, when ex facie the execution was barred by limitation and that the decree could not have been executed against the petitioners, it becomes the duty of the Court to strike down the orders in the ends of justice. 50. Accordingly, in the facts and circumstances of the case, the impugned orders dated 7.9.2012 and 17.11.2012 cannot be sustained and are hereby quashed. The objections of the petitioners are sustained as a result of which the execution is struck off. The writ petition is allowed.