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2018 DIGILAW 678 (GAU)

Rina Paul v. Nandita Acharjee

2018-04-19

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. P.K. Roy Choudhury, learned counsel for the petitioner. Also heard Mr. S.K. Ghosh, learned counsel appearing for the respondent. 2. In challenge in the present application under Article 227 of the Constitution of India is the order dated 12.05.2015 passed by the learned Civil Judge, Nagaon in Money Execution Case No.2/2013, thereby rejecting the objection filed by the petitioner under section 47 read with section 151 CPC, by which the prayer was made for setting aside the order of attachment and for dismissing the execution proceeding. 3. The brief facts, relevant for the purpose of this application is that the respondent is the plaintiff in Money Suit No. 19/2000. The said suit was filed against one Nayan Paul, the husband of the petitioner and 2 others. The said suit was allowed against the said Nayan Paul vide judgment and decree dated 07.03.2001. In order to execute the decree, the respondent had filed an execution petition before the Court of learned Civil Judge (Sr. Div), Nagaon which was registered as M. Ex. Case No.6/2002. The petitioner herein claimed that she was married to Nayan Paul (since deceased) on 11.05.2005, after the decree was passed and thereafter, without having any issue, Late Nayan Paul died on 16.02.2007 and his death was registered before the concerned Registrar, Birth and Death, Lanka, Nagaon. 4. By order dated 30.06.2011, passed by the learned Civil Judge, Nagaon, in M. Ex. Case No.6/2002, the name of the petitioner was substituted and a notice of the execution was issued to her. However, the proceeding of M. Ex. Case No.6/2002 was dismissed by order dated 25.07.2012 for non-prosecution. Thereafter, the respondent filed a second execution case being M. Ex. Case No.2/2013. In the said application, the petitioner herein was shown to be the defendant. As per the second execution petition, amongst others, a prayer was made for attachment of 1/3rd of salary of the petitioner, who was working under DRM (P), N. F. Railway, Lumding Division. On the basis of the said application, the learned Executing Court by order dated 11.04.2014, which was passed under the provisions of section 60 and Rule 48 of Order 21 of CPC, ordered the attachment of a sum of Rs. On the basis of the said application, the learned Executing Court by order dated 11.04.2014, which was passed under the provisions of section 60 and Rule 48 of Order 21 of CPC, ordered the attachment of a sum of Rs. 3,370/- and directed that the DDO of the petitioner would deduct the said amount and remit the same to the Court till realization of the decreetal amount. Thereafter, the petitioner had appeared in the proceeding of M.Ex.2/2013 and had filed a written objection under section 47 read with section 151 CPC. In the said petition, it was projected that the husband of the petitioner had died on 16.02.2007 and that she was married only on 10.05.2005 long after the decree was passed. It was projected that under the provision of section 50(2) CPC, the application for execution was liable to be rejected and the order of attachment be set aside. 5. The learned Executing Court by referring to the various orders passed in M.Ex. Case No.6/2002, held that by rejecting the objection filed by the petitioner in M.Ex. Case No.6/2002, by order dated 30.06.2011, the learned Executing Court had held that the objection was not tenable and the petition of the respondent was allowed, as such, it was held that the matter was already decided in M.Ex. Case No.6/2002. Hence, by order dated 11.04.2014 passed in M.Ex. Case No.2/2013, the salary to the extent of Rs. 3,370/- was attached under section 60 read with Rule 48 of Order 21 CPC, from the salary till the realization of the decreetal amount. 6. This Court while issuing notice in this revision, by order dated 26.06.2015 passed an interim order to suspend the proceeding of M. Ex. Case No.2/2013 by further providing that if the salary of the petitioner had already been attached in terms of order dated 11.04.2014, in that event the same shall be released from attachment with immediate effect and until further orders. 7. Case No.2/2013 by further providing that if the salary of the petitioner had already been attached in terms of order dated 11.04.2014, in that event the same shall be released from attachment with immediate effect and until further orders. 7. The learned counsel for the petitioner has submitted that the objection against the execution was filed under section 47 CPC and, as such, the order passed by the learned Executing Court cannot be construed to be an order passed under Order 21, Rule 48 CPC and therefore, the said order dated 12.05.2015 would not become an appealable order within the meaning of Order 21, Rule 58 (4) CPC because this was not an adjudication within the meaning of Order 41, Rule 58 (1) and (2) CPC. 8. It is submitted that the petitioner was not the original defendant in the suit but he was substituted as a legal representative of the judgment debtor in the proceeding of M.Ex. Case No.6/2002. It is submitted that there is a marked difference between the defendant/judgment-debtor and legal representative of the defendant/judgment-debtor in an Executing proceeding. In this context, it is submitted that the situation in the present case was covered by the provisions of section 50 CPC which provides for execution against the legal representative of the deceased where the judgment debtor had died before the decree had been fully satisfied. 9. By referring to the provision of section 50(2) CPC, it is submitted that if a decree is to be executed against the legal representative, such legal representative i.e. the petitioner in this case, shall be liable only to the extent of the property which was inherited from the deceased. It is further submitted that as the present situation is not a case where a decree was passed against the legal representative of the deceased by substituting the deceased in the course of suit, as such, the provision of section 52 CPC would not be attracted. 10. It is further submitted that in the second executing proceeding being M.Ex. It is further submitted that as the present situation is not a case where a decree was passed against the legal representative of the deceased by substituting the deceased in the course of suit, as such, the provision of section 52 CPC would not be attracted. 10. It is further submitted that in the second executing proceeding being M.Ex. Case No.2/2013, the respondent had misrepresented before the learned Executing Court by projecting that the petitioner was a defendant in the suit and therefore, in the second execution case, the learned Executing Court had proceeded to deal with the petitioner as if the petitioner was the original judgment debtor in the suit and therefore, while the learned Trial Court appeared to have heard the objection as to the attachment under Order 21, Rule 58 CPC, it was required to adjudicate the issues under section 47 CPC for first deciding the issue whether the moveable property which was attached was inherited from the judgment debtor or not. It is also submitted that in the present case, the salary earned by the petitioner was attached, which could not be held to be a property inherited from the deceased even if assuming but not admitting that her employment was on compassionate ground because her income derived from her salary was from her own hard work and was not received from the deceased as a legacy after his death. 11. In support of his submissions, the learned counsel for the petitioner has relied on the following cases:- (i) Pannalal v. Mt. Naraini, AIR 1952 SC 170 , (ii) Babul Ali v. Smt Khirada Dutta & ors, AIR 1993 Gau 56 , (iii) Smt. Radhi Devi & ors v. Lalit Bihari Mohanty, AIR 1991 Orissa 36, (iv) Bandana Srinivassa Rao v. M/S Sreyobhilashi Chit Fund, Wyra & ors, AIR 2008 A.P. 97 , (v) Smt Namita Poul Choudhury @ Biswas & anr. v. Bank of Baroda & anr, AIR 1991 Orissa 115, (vi) Janaki & ors v. Prabath Finance & Partners, AIR 1986 Mad 273 , (vii) Balvant N. Vishwamitra & ors v. Yadav Sadashiv Mule (Dead) & ors, (2004) 8 SCC 706 , (viii) Budhia Swain & ors v. Gopinath Deb & ors, AIR 1999 SC 2089 , (ix) Dhurandhar P. Sinha v. Jai Prakash University, (2011) 6 SCC 534. 12. 12. By relying on the case of Pannalal and another (supra) it is submitted that the Hon'ble Apex Court by referring to the provisions of section 50, 52 and 53 and section 60 CPC, had held that the proceeding for execution of the decree would attract the operation of section 47 CPC, under which all question relating to execution, discharge and satisfaction of the decree would be decided in the same proceeding and not by a separate suit. Hence, it is submitted that notwithstanding anything contained in the provisions of Order 21, Rule 58 CPC, the adjudication of the issues arising in the execution can be decided under section 47 CPC. Hence, it is submitted that notwithstanding the provision of Order 21, Rule 58 (4) CPC, the revision would be maintainable and the petitioner may not be relegated to file an appeal because the issues raised by the petitioner had not been adjudicated by the learned Executing Court. 13. Per contra, the learned counsel for the respondent has made his submission on the maintainability of the present application under Article 227 of the Constitution of India by submitting that as the provisions of Order 21, Rule 58 (4) CPC provides for an efficacious and alternative remedy by way of an appeal, exercising of extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India was not warranted. 14. It is further submitted that the execution proceeding can proceed against the petitioner under the provisions of section 52(2) CPC. In this context, it is submitted that in the present case, the decree holder had the liberty of applying for execution against the petitioner. It is further submitted that once the salary income is received by the petitioner, the same loses its character as salary and it becomes money in the hand of the petitioner and such money was liable to be proceeded by way of execution against the immovable property against the petitioner. It is further submitted that once the salary income is received by the petitioner, the same loses its character as salary and it becomes money in the hand of the petitioner and such money was liable to be proceeded by way of execution against the immovable property against the petitioner. The submissions made by the learned counsel for the petitioner is countered by submitting that it is not that the Executing Court did not have the jurisdiction to pass an order of attachment and once such power was validly exercised there is no question of issue of nullity arising in the execution of the decree and therefore, the order of attachment is deemed passed under Order 21, Rule 48, and then the only remedy which can be availed by the petitioner is by way of an appeal as provided. It is further submitted in terms of the provision of Order 22, Rule 12 CPC, there is no requirement of substitution in the proceeding for execution of a decree. 15. In support of his submissions, the learned counsel for the respondent has relied on the following cases:- (a) Union of India v. Hira Devi and anr, AIR 1952 SC 227 , (b) Lalit Mohan Sharma and ors. v. Baikuntha Lal Mandal, 1981 (0) Supreme (Pat) 80, (c) Radhey Shyam Gupta v. Punjab National Bank and another, AIR 2009 SC 930 . 16. Having heard the learned counsel for the parties, the only issue which arises in the present application is whether the impugned order is vitiated by jurisdictional error. 17. At the outset, it is deemed fit to reproduce the para 13 and 14 of the case of Pannalal and another (supra) : "13. We now come to the last and the most controversial point in the case, namely, whether a decree passed against the separated sons as legal representatives of a deceased debtor in respect of a debt incurred before partition can be executed against the shares obtained by such sons at the partition ? As has been said already, the shares of the separated sons in the family property may be made liable for pre-partition debts, provided they are not tainted with immorality and no arrangement for payment of such debts was made at the time the partition. As has been said already, the shares of the separated sons in the family property may be made liable for pre-partition debts, provided they are not tainted with immorality and no arrangement for payment of such debts was made at the time the partition. The question, however, is whether this can be done in execution proceedings or a separate suit has to be brought for this purpose. Mr. Kunzru argues that what could not be done during the lifetime of the lather in execution of a decree against him cannot possibly be done alter his death simply because the lather died during the pendency of the suit and the sons were made parties defendants not in their own right but as representatives of their deceased lather. It is pointed out that the appellants in the present case were not allowed to raise any plea which could not have been raised by their father and they never had any opportunity to show that they were under Hindu law not liable for these debts. It is undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for debts under Hindu law; but this opportunity can certainly be given to them in execution proceedings as well. A decree against a father alone during his lifetime cannot possibly be executed against his sons as his legal representatives. As we have said already, the decree against the father after the partition could not be taken to be a decree against the sons and no attachment and sale of the sons' separated shares would be permissible under section 60, Civil Procedure Code. The position, however, would be materially different if the sons are made parties to the suit as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands. A proceeding for execution of such a decree would attract the operation of section 47 of the Civil Procedure Code under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or their representatives would have to be decided in execution proceedings and not by a separate suit. Section 52 (1), Civil Procedure Code, provides that when a decree is against the legal representatives of a dead person and is one for recovery of money out of the properties of the deceased, it may be executed by attachment, and sale of any such property. Then comes section 53 which lays down that "for purposes of section 50 and section 52 property in the hands of a son or other descendants which is liable under Hindu law for payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative." It is to be noted that before the Civil Procedure Code of 1908 came into force, there was a conflict of opinion as to whether the liability of a Hindu son to pay his father's debts could or could not be enforced in execution proceedings. Under the Hindu law an undivided son or other descendant who succeeds to the joint property on the death of his father or other ancestor does so by right of survivorship and not as heir. In the old Code the term "legal representative" was not defined and the question arose as to whether the son could be regarded as the legal representative of his father in regard to properties which he got by survivorship on the father's death and whether a decree against the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose. It was held by the Madras and the Allahabad High Courts that the liability could not be enforced in execution proceedings, whereas the Calcutta and the Bombay High Courts held otherwise. Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts. It was held by the Madras and the Allahabad High Courts that the liability could not be enforced in execution proceedings, whereas the Calcutta and the Bombay High Courts held otherwise. Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts. One reason for introducing this section may have been or undoubtedly, was to enable the decree holder to proceed in execution against the property that vested in the son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a comprehensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either the decree has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under section 50 of the Civil Procedure Code. In both these sets of circumstances the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all. 14. As we said have already, section 53 of the Civil Procedure Code being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father's debts. 14. As we said have already, section 53 of the Civil Procedure Code being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father's debts. It however lays down the procedure to be followed in cases coming under this Section and if the son is bound under Hindu law to pay the father's debts from any ancestral property in his hands --and the section is not limited to property obtained by survivorship alone--the remedy of the decree holder against such property lies in the execution proceedings and not by way of a separate suit the son would certainly be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing court under section 47, Civil Procedure Code. This seems to us to be the true scope and the meaning of section 53, Civil Procedure Code. In our opinion the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of Atul Krishna v. Lala Nandanji, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that section 47, Civil Procedure Code, could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under sections 50 and 52 of the Civil Procedure Code on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under section 47, Civil Procedure Code." 18. It is seen from above that in categorical terms in para 13 and 14 of the above referred order, the Hon'ble Apex Court has held that if sons are made parties to the suit as legal representatives of their father and a decree was passed against them relating to the assets of the deceased in their hand, to proceed such decision would attract operation of section 47 CPC. The same is not the situation in the present case in hand. In the present case, the execution had proceeded against the predecessor of the petitioner and upon his death, the name of the petitioner was arrayed as judgment debtor in the proceeding of M. Ex. Case No.6/2002. 19. In section 47 CPC, the language used would show that all question arising between the parties to the suit in which a decree was passed or their respective and relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree. Therefore, by necessary implication, the satisfaction of the decree in relation to the parties to the suit would mean only the parties of the suit or their legal representatives. 20. The connected issue which arises in this case is whether the petitioner was a defendant in the suit as projected in the proceeding of M.Ex. Case No.2/2013. It is seen from the judgment dated 07.03.2009 passed in M. Ex.19/2000 that there is no dispute that the present petitioner was not a party to the suit. As per the impugned order dated 12.05.2015 passed in M.Ex. Case No.2/2013, the learned Executing Court had recorded that as per the order dated 30.06.2011, after the death of the judgment debtor No.1, Nayan Paul is the sole legal heir i.e. his wife Smt. Rina Paul had been substituted and notice was issued to her. Therefore, the present petitioner was not the original judgment-debtor in M.Ex. 19/2000 and/or the defendant in M.S. 19/2000. As per the submissions made by the learned counsel for the respondent, there was no requirement for substitution of a deceased judgment debtor by following the procedure under Order 22, Rule 12 CPC. The only provision for substitution which this Court finds is contained under section 50 CPC by virtue of which the Executing Court by an order passed under section 50(1) CPC may permit the execution proceeding to proceed against the legal representative of the judgment debtor. The only provision for substitution which this Court finds is contained under section 50 CPC by virtue of which the Executing Court by an order passed under section 50(1) CPC may permit the execution proceeding to proceed against the legal representative of the judgment debtor. Under the circumstances it is seen that the present petitioner is not a stranger to the proceeding. She has the status of a legal representative of the deceased/defendant and, as such, the petitioner is found to have right under section 47 CPC to object to the execution under section 47 CPC in terms of the ratio laid down by the Hon'ble Apex Court in the case of Pannalal & anr. (supra). 21. It is seen that the learned Executing Court while passing the impugned order dated 12.05.2015 had heavily relied on the order passed in the proceeding of M.Ex.6/2002. In the opinion of this Court, if an execution proceeding is dismissed for non-prosecution, the order passed therein could not be stated to have attained finality because upon the dismissal of the proceeding interlocutory orders passed therein could not be stated to have attained finality. Therefore, in the opinion of this Court merely because an order was passed in the proceeding of M.Ex.6/2002 for substituting the present petitioner in place of the original judgment debtor No.1 which would not give the petitioner a status of the defendant in the original suit. 22. It would be required for the respondent decree holder to proceed against the petitioner by invoking the provisions of section 50 CPC to proceed against the petitioner representative of the deceased judgment debtor No.1, but it would not relegate the petitioner to the status of the original defendant in the suit. Notwithstanding that the substitution made in the proceeding of M.Ex.6/2002 would be valid even in respect of the second execution petition i.e. M.Ex. Case No.2/2013, the petitioner would, nonetheless remain as a legal representative of the deceased defendant No.1 and had not become the substituted defendant No.1 as shown in the execution petition. 23. Therefore in the opinion of this Court by proceeding against the petitioner as the defendant in the suit has led to jurisdictional error because the learned Executing Court relied on the orders passed in M.Ex. 23. Therefore in the opinion of this Court by proceeding against the petitioner as the defendant in the suit has led to jurisdictional error because the learned Executing Court relied on the orders passed in M.Ex. Case No.6/2002 to construe as if the objection raised by the petitioner had been rejected and accordingly, the learned Trial Court failed to adjudicate the issues raised by the petitioner. 24. The order of attachment petition in the proceeding of M. Ex. Case No. 6/2002 is deemed to have lapsed with the dismissal of Money Execution Case No.6/02. Therefore, in the proceeding of the present M.Ex. 2/2013, as the learned Executing Court had passed an order dated 11.04.2014 to attach the salary of the petitioner under section 60 read with rule 48 of Order 21, Rule 21 CPC, the petitioner had a right to object with the said attachment. If the learned Executing Court had adjudicated the matter on its own merit, then the order would be within jurisdiction and would have been considered to be an appealable order within the meaning of Order 21, Rule 58(4) CPC. However, in the present case, the learned Executing Court had failed to adjudicate the issue to raise before it by relying on orders passed in M.Ext.6/2002, which had already been dismissed for non-prosecution. 25. At this stage, the learned counsel for the respondent by relying on the case of Dhurandhar Purna Singh v. Jay Prakash University, AIR (2001) 6 SCC 534 , has submitted that the provision of section 47 CPC can be invoked only in a case where the decree is challenged on the ground of being in capable of execution and, as such submissions that the objection as to the attachment is not the issue which can be raised under section 47 CPC and would necessarily be a question decided under Order 21, Rule 48 read with Order 21, Rule 58 (1) and (2) CPC. 26. 26. In this connection it has been stated herein before that the Hon'ble Apex Court in the case of Pannalal and another (supra) had referred to the provisions of section 50 and 52 CPC and had held that in a proceeding for execution of a decree against the legal representative it would be limited to the assets of the deceased in the hands of the substituted legal representative and that it was also held that a proceeding for execution of such a decree would attract the operation of section 47 CPC. Therefore, in the opinion of this Court, the issue does survive for decision under section 47 CPC that whether by applying the provisions of section 50(2) CPC, execution can be limited only to the extent of property of the deceased which has come to the hands of the petitioner. Therefore, depending on the result of such adjudication it can be seen if the proceeding of execution beyond the said legacy would be sustainable or not, which is why the Hon'ble Apex Court in the case of Pannalal and another (supra) has, inter-alia, has held that the execution of a decree would attract section 47 CPC. The judgment rendered in the case of Pannalal and another (supra) was by a corm of 3 Hon'ble Judges, permitting objection to be raised in section 47 CPC. 27. In the present case, the objection raised by the petitioner was not adjudicated on merit by the learned executing Court. Under the circumstances, the petitioner has been able to make out a case of jurisdictional error. Therefore, this Court is inclined to set aside the said order dated 12.05.2015 by remanding back the matter to the learned Executing Court to decide the matter afresh without being influenced by any observations made herein. 28. Under the circumstances, the petitioner has been able to make out a case of jurisdictional error. Therefore, this Court is inclined to set aside the said order dated 12.05.2015 by remanding back the matter to the learned Executing Court to decide the matter afresh without being influenced by any observations made herein. 28. It is in this context that as there was no adjudication under section 47 CPC, in view of the ratio laid down in the case of Pannalal and another (supra), the case of Lal Krishnan (supra), Manab v. Barhi (supra), cited by the learned counsel for the respondent are not found applicable because in the said case it appears that the claim under Order 38, Rule 8 CPC was decided on the evidence laid by parties and therefore, it was held that the order was appealable under Order 38, Rule 8 CPC and therefore, the revision was held to be not maintainable, which is not the situation in the present case. 29. In the present case the attachment of salary has been made at the employer's end. The provision of section 60 CPC would guide such attachment subject to limitation provided therein. However, as per the facts of the case of Radhey Shyam Gupta (supra) and Smt Hira Devi and another (supra), the Hon'ble Apex Court was dealing with the issues that when the money reaches the judgment-debtor it loses the character of provident fund and would be a moveable property in the hand of the judgment debtor. Therefore, on facts, the said cited cases are distinguishable, because in the present case the money did not reach the hands of the petitioner herein. 30. It is further provided that in view of the provisions of section 50 CPC, there would be no bar for the execution proceeding to proceed against the petitioner as a legal representative of the deceased, namely, Late Nayan Paul. 31. Therefore, having found that the impugned order is vitiated by jurisdictional error, this revision stands allowed. The matter is remanded back to the learned Executing Court who would decide the fate of the objection raised by the petitioner under section 47 CPC in accordance with law. 32. The parties, who are duly represented by their respective learned counsels, would appear before the Court of the learned Civil Judge, Nagaon, in the proceeding of M.Ex. The matter is remanded back to the learned Executing Court who would decide the fate of the objection raised by the petitioner under section 47 CPC in accordance with law. 32. The parties, who are duly represented by their respective learned counsels, would appear before the Court of the learned Civil Judge, Nagaon, in the proceeding of M.Ex. Case No.2/2013, on 22.05.2018 without any notice for appearance, and by producing a certified copy of this order, the parties shall seek further instructions from the said learned Court.