Deo narain Singh and Others vs Bibi Khatoon and Others

Ramaswami, J.—Miscellaneous Appeal No. 283 of 1946 is on behalf of decree-holder against the appellate order of the Subordinate Judge in an execution case. Miscellaneous Appeal No. 287 and civil Revision No. 819 of 1946 are on behalf of two judgment-debtors Parasnath and Deo Narain in the same case.

The material facts are not in dispute. In Money Suit No. 194 of 1937 the plaintiff claimed that Deo Narain Singh as karta of the joint family had borrowed money on a handnote. He obtained a decree against Deo Narain Singh, his five sons and three grandsons. In Execution case No. 21 of 1938 the decree-holder first applied for executing the decree. In 1940 a second execution case was filed and certain properties were sold But the sale was set aside under Order 21, Rule 90 and the execution case was dismissed for default on 16th July 1941. On the same date the decree-holder for the third time applied for execution against Deo Narain and his three sons Ramsaian, Anup and Bhagwat. The two sons Parasnath and Rajendra and grandsons were not made parties. In the execution petition only three properties, namely, lot Nos. 1, 2 and 3 were mentioned. But on 12th November 1911 the decree-holder filed an amendment petition asking that lot No. 4 should be added to the list. Before the amendment, notice under Order 21, Rule 22 had been served on the four judgment-debtors. After the amendment notice u/s 13, Money-lenders Act, was served. Two judgment-debtors, Deo Narain and Anup, filed objection and offered keen contest on the question of valuation. On 27th November 1942, lot No. 4 was sold and purchased by decree, holder for a sum of Rs. 1,979-8-0.

Deo Narain Singh filed a petition under Order 21, Rule 90 for setting aside the sale. Parasnath, one of his sons, filed a petition u/s 47 to the same effect.

The learned Munsif held that the objections were unfounded and refused to set aside the sale.

In appeal the learned Subordinate Judge pronounced that the share of the judgment-debtors, who were not impleaded, could not be sold in the execution case. He confirmed the sale to the extent of the interest of Deo Narain and his three sons but set aside the sale with respect to the share of the defendants who were not impleaded.

Against this order Deo Narain has moved this Court in revision and the decree-holder and Parasnath have filed second appeal.

In Miscellaneous Appeal No. 287 of 1946 learned Counsel on behalf of appellant concentrated upon one ground of attack, namely, that the amendment of the execution petition by the addition of lot No. 4 really constituted "a fresh application," that no notice under Order 21, Rule 22 was served on the judgment-debtors after the amendment, that in consequence the Court had no jurisdiction to sell the property in dispute.

In support of his argument learned Counsel placed reliance upon three cases Jagannath Das Vs. Chamu Raghunath Khuntia, Maharaja Bahadur Ram Ranbijaya Prasad Singh Vs. Kesho Prasad Singh and Another, and Gajanand Sha and Others Vs. Dayanand Thakur, . In the first case the decree-holder made an application to the Court to amend the original application by inserting certain Immovable properties. A Division Bench held that the decree-holder could not be allowed to proceed against new properties after the decree had become barred by limitation and the difficulty could not be overcome by the assertion of the decree-holder that he merely wanted to amend his original application for execution. In the second case also the decree-holder applied to execute a decree against properties which were not specified in the application as originally presented. The Court held that it was a "fresh application" within the meaning of Section 48, that no such application was entertainable after twelve years from the date of the decree sought to be executed. In the third case also a Division Bench held that decree-holder should not be allowed after the expiry of the date of limitation to execute a decree against property which was not specified in the execution petition, as originally presented. Fazl Ali J., (as he then was) observed that when the decree-holder tried to substitute a new property which was quite different from the property against which he wished to proceed in the first instance, his application must be regarded as a fresh application for execution.

All these cases are authorities for the construction of Section 48, Civil P.C. But they are not relevant for the decision of the question involved in the present appeal. The question is whether on an application to add a new property in the execution petition before the decree is time barred a fresh notice under Order 21, Rule 22 is required to be served on the judgment-debtors.

The decision in Rai Bahadur Ram Sumran Prasad v. Ram Bahadur AIR 1923 Pat. 224, is important. In that case a Division Bench held that a Court was competent at any time before execution proceeding terminates and before decree is barred by limitation to allow a decree-holder whose application for the execution of decree is pending to amend the application by the addition of other properties to the list of properties sought to be attached. Following the decision of the Calcutta case in Canendra Kumar Roy Chowdhury v. Sri Sri Shyam Sunder A.I.R.1918 Cal. 73, Mullick J. observed:

Where the decree is still alive, I do not see why an application for amendment cannot be allowed, if the Court so chooses at any time before the close of the execution proceedings. To hold otherwise would mean that, although the decree-holder has discovered property belonging to the judgment-debtor, which is within his grasp and although he knows that the properties which he has already attached will not satisfy his decree, he cannot have any relief till the disposal of the execution case, which may, as in the present instance, be protracted for a considerable time.

The facts of the present case are similar and, in my opinion, the decree-holder is entitled to amend his application by addition of a new property provided that the decree has not become barred by limitation.

If the amendment petition is not construed as "a fresh application" it follows that no fresh notice under order 21, Rule 22 is required to be served on the judgment-debtors. In the present case, the lower Courts have found that notice under Order 21, Rule 22, Civil P.C., had been served on 29th October 1941 on the persons impleaded in the execution petition, namely, Deo Narain and big three sons. The fourth lot was added by amendment petition on 9th December 1941, After the amendment, notices u/s 13, Money-lenders Act were served and Deo Narain and Anup, two judgment-debtors, appeared in Court and filed objection in the miscellaneous case. Order 21, Rule 22 only requires that the Court shall issue notice on the persons against whom execution is applied

requiring to show cause on the date fixed why the decree should not be executed against him.

Such a notice was served on the judgment-debtors in the present execution case. The notice under Order 21, Rule 22 does not require that the judgment-debtors should be appraised of the particular properties against which the decree-holder wishes to proceed. But the lower Courts have found that notice u/s 13, Money-lend-era'' Act was served on the judgment-debtors after the amendment of the execution petition. It cannot hence be maintained that the judgment-debtors had no notice that the decree-holder intended to proceed against the fourth lot. To argue that even so judgment-debtors ought to have been served with fresh notice under Order 21, Rule 22 showing amendment of the petition would be merely "piling unreason upon technicality," in the phrase of Rankin C.J., Chandra Nath v. Nabadwip Chandra AIR 1981 Cal. 476. Learned Counsel made reference to Raghunath Das v. Sunder Das Khetri AIR 1914 P.C. 129 in which the Judicial Committee held that in the absence of a notice under Order 21, Rule 22 the Court had no jurisdiction to sell any property in execution. But in that case there was a mere notice to the Official Assignee to show cause why he should not be substituted for the judgment-debtors who had been insolvent. There was no notice under Order 21, Rule 22 against the Official Assignee and the Judicial Committee held that the Court had no jurisdiction to sell the properties. But in the present case the facts are different. The impleaded judgment-debtors had notice under Order 21, Rule 22 of the original application for execution. To argue that the Court had no jurisdiction to sell because after the amendment no fresh notice was served would be carrying the logic of Rule 22 to an unreasonable extent.

In Miscellaneous Appeal No. 283 learned Counsel for the appellant addressed the argument that the Subordinate Judge erroneously decided that the interest of the two sons, namely, Parasnath and Rajendra, could not be sold by the executing Court. Learned Counsel based his argument on two grounds. In the first place, he urged that in the execution case the father represented the interest of the unrepresented sons and grandsons whose title hence passed in the execution sale. But it is admitted that the sons and grandsons were impleaded as parties to the suit and the plaintiff had obtained a decree in terms against the father, the five sons and three grandsons. That being so, it cannot be contended that the father represented the sons and the grandsons or that the plaintiff obtained a decree against the father in the capacity of representative. As observed by Khaja Mohamad Noor J. in Prahlad Das Vs. Dasarathi Satpathi and Others, "when the sons and grandsons are parties to a suit, the question of their father representing them cannot possibly arise." Learned Counsel referred to Manrup Mandal v. Badrisao AIR 1942 Pat. 883 , but the ratio of this case is of no avail to the appellant. A suit for arrears of rent was instituted against the father as karta and as representing the sons, but it was dismissed against the sons. It was held that the decree was a rent decree and the holding including the share of the sons in it passed at the execution sale. Fazl Ali J. (as he then was) did not express his final opinion on the point whether the decree obtained against the father at the karta would be binding on the sons. The decision was based on the ground that the decree against the father was passed against him as representing the holding and in execution of such a decree the whole holding will pass. In the second place, learned Counsel presented the argument that even though the decree was not against father in representative capacity the sons were under pious obligation to pay the father''s debt and hence their share would pass in the execution sale. We cannot accept this argument. It is true that the liability of a son arising out of his pious obligation is distinct from that of his father though arising out of the latter''s debt. This liability can be enforced against the son by a decree obtained against father against the entire family estate including son''s interest therein provided of course that the debt is neither illegal nor immoral. But if the son is joined in the suit and a decree is obtained binding his interest also, the claim against him based upon his pious obligation must be deemed to have been litigated in the suit and merged in the decree. The only mode of enforcing such A claim is by executing the decree and not otherwise. In Desayi Venkatranga Reddi and Others Vs. Paraku Chinna Sithamma and Another, a decree for mesne profits bad been obtained against a Hindu father and his undivided minor sons. But the decree-holder had allowed it to become time barred. The father was precluded from opposing the execution proceeding on the plea of limitation by reason of previous order against him alone. As the decree was enforceable against the father, the decree-holder sought to execute it against the sons also by reason of the pious obligation rule. The Bench of the Madras High Court considered that the matter was no longer governed by Hindu law but by the relevant provision of the CPC and the decree-holder cannot claim to proceed against the share of the sons in execution of the decree against the father when it can no longer be directly executed against them owing to the bar of limitation.

Similarly in the present case the decree-holder cannot proceed against the shares of Parasnath and Rajendra. Though they had been impleaded in the suit and a decree had been obtained against them, they were not impleaded in the execution case and no notice under Order 21, Rule 22 was served on them. The decree-holder cannot, therefore, directly proceed against their shares. That being so, he cannot be permitted to proceed indirectly against their shares in execution of the decree against the father under the pious obligation rule.

For the decree-holder it was, however, pointed out that since Parasnath alone had moved the executing Court for setting aside the ale the Subordinate Judge was not justified in letting aside the sale so far as Rajendra and grandsons were concerned. The general rule is that on an appeal by one of several plaintiffs or defendants, the appellate Court can reverse or vary the decree of the trial Court only in favour of the party appealing. When the person affected has not appealed, it is no part of the Court''s duty to interfere and give gratuitous relief. For the respondent, reference was made to the exceptions enacted in Order 41, Rule 4 and Order 41, Rule 33. But these rules do not apply, for Rajendra and grandsons were not parties in the execution cage, and it has also not been shown that the exercise of these powers is essential for doing complete justice. In my opinion the learned Subordinate Judge ought to have set aside the execution sale only with respect to the interest of Parasnath and not with respect to Rajendra and the three grandsons.

To this extent I would allow Miscellaneous Appeal No. 283 of 1946.

Miscellaneous Appeal No. 287 of 1946 and Civil Revision No. 819 of 1946 are dismissed.

I do not propose to make any order as to costs.

Agarwala C.J.

I agree.