Bishen Dyal Singh vs Sagar Singh and Mohadeo Saran

Ghose, J.—The suit, out of which this appeal arises, is the outcome of two proceedings held by a Munsif, one under secs. 328 to 330 and the other under sec. 332 of the Code of Civil Procedure. It appears that the Defendant, Sagar Singh, obtained a decree against Mohadeo for possession of certain lands. When this decree was being executed, the decree holder was resisted in obtaining possession Thereupon, an application was presented in Court by the decree-holder under sec. 328 upon the ground that Bishen Dyal Singh, the present Plaintiff, at the instigation of the judgment-debtor, Mohadeo, had offered resistance. Another application was made by Bishen Dyal under sec. 332, alleging that, in execution of the decree in question, he had been dispossessed of certain lands, of which he had been in possession for a long time, and that the said lands were not comprised in the decree. The Munsif dealt with both the applications on the same date. He held, in the case instituted by the decree holder, that the resistance had been made by Bishen Dyal at the instigation of the judgment debtor, and that he, Bishen Dyal, was not in possession of the lands on his own account or of any other person; and accordingly the Munsif directed that the decree holder be put into possession under sec. 330 of the Code. In the other case, the Court found that Bishen Dyal had failed to prove his possession and subsequent dispossession, and that there was reason to believe that the judgment-debtor was at the bottom of the affair. There was no distinct finding by the Court that the lands in respect of which the claim had been preferred by Bishen Dyal was comprised in the decree, though it did find that the decree-holder had been dispossessed therefrom by the judgment-debtor. However that may be, the application of Bishen Dyal was rejected under sec. 332 of the Code. The present suit was subsequently instituted by Bishen Dyal for recovery of possession of 3 bighas and 18 cottas of lands, according to the boundaries specified in the plaint, upon the ground that he was entitled thereto as an old Kashtkar, and that, in execution of the decree obtained by Sagar Singh against Mohadeo Saran, which was but a collusive decree, he had been unlawfully dispossessed therefrom. The suit has been dismissed by both the Courts below upon the ground that it does not lie, and that upon the findings come to by the Munsif in the execution department, the only remedy open to the Plaintiff was to appeal under sec. 244 against the order passed under sec. 330 of the Code. The District Judge has stated another ground upon which he considers that the suit ought to fail; and the ground is that the Plaintiff, on his (sic) admission, was not the only person entitled to the land in question, but two other persons were jointly in possession with him, and all three were dispossessed; and therefore the suit does not lie at his instance alone.

Referring to secs. 329 and 330 of the Code, in the first instance it will be observed, that, if the Court be satisfied that the obstruction was caused by the judgment-debtor or some person at his instigation, the Court shall pass such order as it thinks fit; and that if the Court is satisfied that such obstruction was without any just cause, and that the decree holder is still resisted in obtaining possession by the judgment-debtor or some other person at his instigation, it may commit the judgment-debtor or such other person to jail, and direct that the decree holder be put into possession of the property decreed to him. As to whether after such an order has been made, the judgment-debtor or any other person acting at his instigation has any further remedy is not specified in these sections.

Sec 331 provides that if the resistance is offered by any person other than the judgment-debtor, claiming in good faith to be in possession of the property, the matter is to be dealt with as a suit between the decree holder as Plaintiff and the claimant as Defendant, and the order passed by the Court shall have the force of a decree, and shall be subject to appeal as any other ordinary decree.

Sec. 332 lays down " that if any person other than the judgment-debtor is dispossessed in execution of the decree, and such person disputes the right of the decree holder on the ground that the property was bona fide in his possession on his own account or on account of some person other than the judgment-debtor, and that it was not comprised in the decree, or that, if comprised in the decree, he was not a party to the suit in which the decree was passed, he may apply to the Court;" and the Court shall investigate the matter, and shall make an order either in favour of the claimant or against him as the result of the investigation may be. The section allows a separate suit being brought for the establishment of the right of the party against whom the said order may be made.

I have already pointed out that secs. 329 and 330 do not say whether the judgment-debtor or any person acting at his instigation has any further remedy open to him; so far, however, as the judgment-debtor himself is concerned. Sec. 244 of the Code provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the order of the Court executing the decree and not by a separate suit, it has often been held that, if any such question as was raised by Bishen Dyal Singh, had been raised by the judgment-debtor himself, the order pissed by the Munsif under secs. 329 and 330 could "be impeached only by an appeal to the higher Court.

But the question that arises here is whether Bishen Dyal could be regarded as a party to the suit in which the decree was obtained within the meaning of sec. 244.

It is, indeed, true that the Munsif, in the course of his investigation, found that the resistance to the decree holder was caused by Bishen Dyal at the instigation of judgment-debtor, and that he had no possession on his own account. But the question is, would that fact--the part taken by him (Bishen Dyal) in the course of the execution of the decree--make him a party to the suit in which the decree was passed, when he took no part in the suit and was consequently no party to it? I think not.

In the case of Mohendra Narain Chaturaj v. Gopal Mondal I. L. R. 19 Cal. 769, the decree was purchased by a person in the benami of another party, and, in execution of that decree, a property was sold and purchased by the beneficial holder of the decree in the benami of another person, in fraud of the judgment-debtor and a suit was brought to set aside the sale on the ground of fraud. PIGOT, J., in delivering the judgment of the majority of the judges, composing the Full Bench, observed as follows :--"I think that if we were to hold sub-section (c) of sec. 244 as governing cases in which the decree or the purchase was made benami, and to apply it on the footing that the persons really interested were, within the meaning of the sub-section, parties to the proceedings, we should run the risk of applying the section, so as perhaps in some cases to work hardship. I do not think we are bound to go further than the express words of the section, and therefore think that in the present case the suit may be held to lie. We already intimated this at the close of the argument. There is no doubt, of course, that the fraud found was of the grossest character; and the suit, not being barred by sec. 244 as the questions in it did not arise between the parties to the former suit, in execution, will lie for relief against the fraud charged and proved." If this is a correct exposition of the law, there can be no doubt that the present Plaintiff, Bishen Dyal Singh, although he had been in the matter that was before the Munsif in the execution department acting in the interest of the judgment-, debtor, could not be regarded as a party to the suit in which the decree was obtained within the meaning of sec. 244 of the Code. It seems to me that the principle which underlies the decision of the Full Bench in the case just referred to applies equally if not with greater force in the present case, and in this view of the matter, there can be no doubt that a suit lies at the instance of Bishen Dyal Singh for the relief which he has asked for in his plaint.

But apart from this consideration, it seems to me that the order, that was made against Bishen Dyal under sec. 332 of the Code was not appealable, but was final subject, however, to the result of a separate suit, if any, that he might bring; and this is the suit that he has instituted. Secs. 329 and 330 refer to a resistance offered in the course of the delivery of possession in execution of a decree, while sec. 332 refers to a subsequent stage, viz. to the event which may arise as the result of the delivery of possession. Supposing that no opposition was offered by Bishen Dyal at the time of the-execution of the decree but it was the judgment-debtor himself who did offer such opposition and the Court decided the matter against him under secs. 3(sic) and 330 could it be contended that Bishen Dyal assuming that the was a benamidar for, or acting at he instigation of, the judgment-debtor, was precluded from presenting an application under sec. 332 of the Code for obtaining relief under that section. And could it be also contended that, upon such application being rejected, he would not be entitled to bring a suit, though expressly allowed by the last paragraph of that section ? The whole question depends upon the consideration whether Bishen Dyal could be regarded as a party to the suit in which the decree was obtained, and it seems to me that, for the reasons already given, he could not be so regarded and that he is entitled to institute this suit.

As regards the other ground assigned by the District Judge for dismissing the suit, it appears to me to be equally untenable. No doubt, it was brought upon the allegation that he, Bishen Dyal, was solely entitled to the property in suit. If it afterwards transpired that he was not so entitled, but that two other persons had also a right in it, all that the Court could do would be, supposing he made out a good case to decree to him only such share in the property which he might be found entitled to. But the suit could not be dismissed altogether. Moreover, in the present case, when the other parties who were said to have been jointly entitled to the property in question, applied to be made co-Plaintiffs before the suit came to a termination, there was no reason why the Court, in the exercise of its discretion under sec. 32 should not have allowed the names of those parties to be added as co-Plaintiffs.

We accordingly set aside the decrees of both the Courts below, and send the case back for retrial by the Court of first instance. The costs will abide the result.

Ameer Ali, J.

I must confess that I am not free from doubts in this matter, but my doubts are not sufficient to justify me differing from the judgment just delivered. Without agreeing in all the reasons given by my learned brother, I concur in remanding the case.