Ajodheya Lal Mahaseth and Another vs Mahanth Brij Kishore Das

Rowland, J.

1.The appellants are the decree-holders in a rent suit. The principal respondent is a person who was not a defendant in the suit but purchased the rent claimed holding on 7th December 1937, in execution of his own mortgage decree obtained against the tenant of the holding who was the defendant of the rent suit. The date of institution of the rent suit was 21st September 1937. The date when the respondent bought the holding was 7th December 1937 and the date of the decree in the rent suit was 28th April 1938. The decree-holder applied to execute the decree and wished to make the respondent a party as transferee and thereby representative-in-interest of the judgment-debtor.

The respondent had brought his purchase to the notice of the landlord decree-holder by paying the transfer fee and selami in accordance with the provisions of the Bihar Tenancy Act, as amended and the landlord, as he was bound to do, had accepted these fees. The respondent objected and prayed that his name be expunged from the execution proceeding on the ground that he was a purchaser subsequent to the decree. The dates which I have just given show that the respondent is not a purchaser subsequent to the decree but a purchaser pendente lite. The Munsif in dealing with the objection observed that payment of the landlord''s fee would not relieve the holding from the liability to pay previous arrears of rent due on it for which the decree under execution has been passed. He said:

Of course the purchaser is not personally liable but previous arrears are always a charge on the holding and his purchase is subject to that charge. Section 73, of the new Bihar Ten. Act, is quite clear on the point. All this is however, no ground for making the objector a party to the execution proceedings.

The District Judge affirmed this decision referring to the provision in Section 73 of the Act which lays down that the transferor is liable for all arrears due before the date of the transfer and said that the real person liable for the payment of rent is the original tenant who is the judgment-debtor and not the purchaser of the holding i.e., the respondent. The District Judge did not consider the provision of the Act which makes rent a first charge on the holding in whosesoever hands the holding may be.

In appeal it is argued that Section 47, Civil P.C., applies to the decision of all questions relating to the execution, discharge and satisfaction of the decree arising between the decree-holder and the judgment-debtor or their representatives and the expression "representatives" is not limited to the legal representatives of a deceased person but includes persons on whom an interest has devolved by assignment, transfer or otherwise.

The corresponding provisions of the former CPC were considered in the Full Bench of the Calcutta High Court in Ishan Chunder v. Beni Madhub (1897) 24 Cal 62. In that case the person regarding whom the question arose was a transferee of the equity of redemption from the mortgagor. He had asked to be added as a party in order that the proceeding for sale of the mortgaged property which he had purchased might be held in his presence and he might have the opportunity of taking such objections as might be open to him u/s 244, corresponding to the present Section 47. The Courts below had refused to allow him to be impleaded, but it was decided by the Full Bench that the term "representative" includes a purchaser of the interest of the judgment-debtor, who, so far as such interest is concerned, is bound by the decree and that the term is wide enough to include an execution purchaser of the judgment-debtor''s interest.

It is contended for the respondent that Order 22, Rule 10, which would be direct and ample authority for adding the respondent as a party in a pending suit as a transferee of the interest of the defendant does not apply to proceedings in execution. As to this it is difficult to find a decision directly in point. Rule 12 of Order 22, which excludes execution proceedings from the operations of Rules 3, 4 and 8 of this Order does not exclude the operation of Order 22, Rule 10. Mr. De for the respondent pointed out that Sections 49 to 53, Civil P.C., expressly apply to the levying of execution against the legal representative of a deceased judgment-debtor and say nothing about transferees. The answer, as I have already indicated, seems to be that Section 47, which has been held to apply to a person who became a representative by being transferee, must be given effect to and I can see no way in which this can be done except by adding the transferee as a party either under Order 22, Rule 10, or in exercise of the inherent powers of the Court on the analogy of that rule.

We have been referred for the respondent to the Privy Council decision in Manindra Chandra Handi v. Ram Kumar Lal AIR (1922) PC 304 where the decree-holder having obtained a decree for possession of six villages together with mesne profits against a defendant who set up his own title sought to add as parties to the proceeding at the stage of ascertainment of mesne profits lessees who had been inducted by the Raja and had since surrendered their leases. Their Lordships held:

Order 22, Rule 10, does not apply. There has been no assignment, creation or devolution of any interest within the meaning of that rule.

Their Lordships'' words would seem to indicate that if there had been an assignment, creation or devolution of an interest within the meaning of the rule it would have been applicable and indeed, their Lordships immediately proceed to refer to the earlier decision in 19 Cal 6833 and the general principle therein expressed that a wide construction should be put upon the provisions of the Act with regard to introducing parties by devolution and to the desirability of ascertaining all possible points in execution proceedings without a fresh suit.

Indeed, there are points which may require to be determined as between the decree-holder-appellant and the present respondent such as whether the respondent is personally liable for the decretal amount or whether the decree is executable as a rent decree so as to be effective against the interest of the respondent. Such questions ought to be determined in the presence of both parties in order that a binding decision may be arrived at. But the appeal has been argued here on behalf of the respondent as if by the application to make him a party to the execution it was sought to conclude him from raising such (points?) as may be available to him against the execution of the decree.

It should perhaps be pointed out that the effect of joining him as a party is not in itself to conclude those objections but make it obligatory on him to take any objection that he may wish to raise in the execution proceeding and not by a separate suit in accordance with the provisions of Section 47, Civil P.C. I would allow the appeal and set aside the order of both the Courts below expunging the name of the objector from the execution proceeding and direct that the execution do proceed in the presence of the objector. Any objection to the execution must be preferred by the objector within a time to be fixed by the executing Court. The appellants are entitled to their costs of this appeal and of the objection and the appeal in the Court below.

Agarwala, J.

I agree.