Baidya Nath Banerji vs Himangsu Bala Bose and Another

Reuben, J.—The petitioner obtained a decree against opposite party No. 1, the wife, and opposite party No. 2, the son of the late Upendra Nath Bose, on the foot of a handnote executed by Upendra Nath Bose. During the pendency of the suit, certain property, to which the present petition relates, was attached under the provisions of Order 38, Civil P. C. A claim to the property was set up by opposite party No. 1 in her personal capacity. The Court, however, refused to go into the matter till the disposal of the suit. The question was raised subsequently in the course of the execution of the decree in Miscellaneous case No. 108 of 1945 in the Court of the Munsif, Giridih. The objection was rejected by the Munsif. In appeal, this order has been reversed by the Judicial Commissioner of Chota Nagpur, and the claim of opposite party No. 1 has been allowed. This petition is directed against the order of the Judicial Commissioner. The petition was filed on 28th November 1946.

One day previously, the petitioner filed Miscellaneous Appeal No. 350 of 1946 against the same order. This appeal has been dismissed in limine as time barred, by the order of a Division Bench dated 17th March 1917. Mr. Choudhuri, on behalf of the opposite party, has, therefore, contended that the petitioner should not be allowed by way of civil revision to get a remedy, his prayer for which has already been rejected in the miscellaneous appeal. In reply, the contention of Mr. De is that the civil revision petition must be considered as distinct from the miscellaneous appeal. According to him, in this case, his relief lies rightly by way of civil revision and, therefore, he claims, he is not affected by the dismissal of his miscellaneous appeal. In these circumstances, it becomes of some importance to decide whether a civil revision or a Miscellaneous appeal properly lies in this case.

Opposite party No. 1 was impleaded in the suit as the representative of her deceased husband, whereas, in the claim case, she claimed the property in her personal capacity. According to Mr. De, therefore, her claim properly fell within the provisions of Order 21, Rule 58, Civil P. C., and not u/s 47. It follows that no appeal lay to the Judicial Commissioner, and his order was without jurisdiction, thus, laying itself open to this Court''s power in revision. A possible answer to this argument is that, in several cases, it has been held that, where a Subordinate Court wrongly entertains an appeal when it has no jurisdiction to do so, a second appeal against that Court''s order lies in this Cour Sagar Mull Vs. Hira Maharaj and Others, and Ram Ratan Prasad and Others Vs. Banarsi Lal and Others, . As against this, my attention has been drawn to Samhautta Singh v. Bhagwati Singh 5 P. L. J. 97: A. I. R. 1920 Pat. 703 , in which Sultan Ahmed J. entertained a civil revision in such circumstances and Mt. Champa Debi Vs. Ram Chandra Marwari and Others, , in which a Division Bench of this Court held that in such circumstances, the remedy is either by appeal or by civil revision. In the present case, it is not necessary to consider this point, because I think the petition must fail on another ground.

This ground is that the claim of opposite party No. 1 must be regarded as one u/s 47, and not under Order 21, Rule 58, so that the appeal to the Judicial Commissioner was a competent appeal. There is a long series of authorities to this effect, of which I need only mention a few:--Punchanun Bundopadhya v. Rabia Bibi 17 Cal. 711 , Dinbai Hormasji Mirapurwala Vs. Bamansha Jamasji Shet, , Srt. Charusilla Dasi Vs. Sukhdev Haluai and Others, ; Swaminathan Chettiar v. Somasundaram Chettiar A. I. R. 1938 Mad. 731: A. I. R. (1938) Mad. 1080, Nauratan Lal Vs. Margaret Anne Stephen and Others, , Mt. Khodaijatul Kubra Vs. Damodar Prasad and Others, , Mt. Imtiaz Bibi Vs. Mt. Kabia Bibi and Ma Shwe Mra Pru v. Maung Ba On 5 Ran. 659; A. I. R. 1928 Ran. 29 . Mr. De relies for the contrary proposition on a decision of a Division Bench of this Court reported in Lachhmilal and Others Vs. Firm Sriniwash Ram Kumar and Others, , in which heir Lordships followed Kartick Chandra Ghose v. Ashutosh Dhara 39 Cal 298 : 12 I. C. 163 . The facts of Lachhmilal and Others Vs. Firm Sriniwash Ram Kumar and Others, are somewhat difficult to follow from the report. It seems clear, however, that there was some doubt in the case as to whether the claimant to the property was or was not the representative of the judgment-debtor, his father, for their Lordships say:

"Here the complainant was held not to be the representative of the judgment-debtor although in the decision of the learned Judge in the Court below from which this appeal ia preferred, it baa been held that in the sense that the son of a deceased member of a joint family holds the property of the deceased within the meaning of 8. 53, the complainant was the representative of the judgment-debtor."

and again,

".........it seems difficult to hold that once the appellant has successfully contended that he is not the legal representative of the judgment-debtor, how can we now allow him to be heard in stating that he is the legal representative?"

The attention of their Lordships was drawn to the decision of a Full Bench of the Calcutta High Court in Punchanun Bundopadhya v. Rabia Bibi 17 Cal. 71.

In distinguishing that case, they observed:

"Had the Courts been minded or had they been forced, in the circumstances of the case, to consider whether she was the representative or cot, it might have made a considerable difference."

It seems that their Lordships felt some difficulty in reconciling this decision of the Full Bench with the later decision of another Full Bench in Kartick Chandra Ghose v. Ashutosh Dhara 89 Cal. 298 : 12 I. C. 163 . In this connection, I would refer to the explanation given by Sir Aautosh Mookerjee and C. P. Beachcroft JJ. in Ajo Koer v. Gorak Nath 20 Cri. L. J. 481: A. I. R. 1915 Cal. 275:

"It is further plain from an examination of the terms of Order 21, Rule 60 that while it applies to the class of cases of which Kartick v. Asutosh 39 Cal. 298: 12 I. C. 163 may be taken as the type, it cannot by any stretch of language be made to cover the class of cases of which Punchanun v. Rabia Bibi 17 Cal. 711 is the leading example. In the former class of cases, the judgment-debtor objects that he is in possession as trustee and not on his own account within the meaning of Order 21, Rule 60; in the latter class of cases, the representative of the judgment-debtor objects that the property in his hands is not assets available to the decree-holder. The objections in the two classes of cases are obviously of fundamentally different kinds."

Their Lordships were, therefore, of the opinion that there was no conflict between the two decisions, a view which was shared by the Bench, which decided Lachhmilal and Others Vs. Firm Sriniwash Ram Kumar and Others, . Further in Lachhmilal and Others Vs. Firm Sriniwash Ram Kumar and Others, , their Lordships did not question the correctness in Nauratan Lal Vs. Margaret Anne Stephen and Others, . They expressly stated that it was binding on them, but did not apply it to the case before them.

The facts of Nauratan Lal Vs. Margaret Anne Stephen and Others, were that a decree obtained against Mr. Stephen in 1909 was, after his death, being executed against his legal representatives, including, among others his widow Mrs. Margaret Anne Stephen, and she claimed the property, which was being proceeded against, as belonging to her personally Following Punchanun Bundopadhya v. Rabia Bibi 17 Cal. 711 , it was held that the objection was within the meaning of Section 47, Civil P. C. Mr. De has contended that the case is distinguishable from the present one on two grounds, namely, that, in this case, the decree was obtained against opposite party No. 1 and she was not merely brought in at the execution stage, and, secondly, that her claim to the property was put forward during the pendency of suit before there was any question of execution. Section 47, Civil P. C. how ever, relates to questions arising between "the parties to the suit ..... or their representatives". I do not think, therefore, that it can make any difference that the objection in question is filed by a person who is the judgment-debtor and not by one, who, is the judgment-debtor, having been impleaded in the suit as the legal representative of the executant of the handnote, and not by a person, who, after the decree was obtained against the executant of the handnote, was substituted as his legal representative in the course of the execution. Among the cases, which I have cited above, Dinbai Hormasji Mirapurwala Vs. Bamansha Jamasji Shet, and Ma Shwe Mra Pru v. Maung Ba On 6 Ran. 659: A. I. R. 1928 Ban. 29 are cases where the objection was raised by a person against whom the decree had been obtained in a representative capacity. As regards the second point of distinction, there is a provision in Order 38, Rule 8, for the investigation of claims made to the property attached before judgment. Here, the objection, with which we are concerned, was taken up and decided in the course of the execution of the decree. The order passed by the Munsif, therefore, may rightly be treated as an order u/s 47, Civil P. C. The fact that the claim was preferred originally during the pendency of the suit, in my opinion, makes no difference.

The facts in Mt. Khodaijatul Kubra Vs. Damodar Prasad and Others, were similar to those in Nauratan Lal Vs. Margaret Anne Stephen and Others, . There too, the decree was against the deceased husband of the claimant, who objected that the property sought to be proceeded against belonged to her alone. It was held by a Division Bench that the objection was within the scope of Section 47. It may be noted that Wort J. who delivered the leading judgment in this case also did so in Lachhmilal and Others Vs. Firm Sriniwash Ram Kumar and Others,

On the above grounds, I think that the order of the Munsif must be taken to be one u/s 47. That being so, an appeal lay to this Court against the order of the Judicial Commissioner, and this petition in revision is incompetent.

The petition is dismissed with costs. The hearing fee is assessed at one gold mohur.