Dharohar Singh vs Ram Prasad Narayan Sahi and Another

Das, J.—This is an appeal on behalf of the decree holder and is directed against an order of the learned Subordinate Judge of Muzaffarpore dated the 12th April 1921, by which the learned Subordinate Judge dismissed an execution case against the respondents.

The decree-holder obtained a mortgage decree against Babu Harbans Narain Singh and his sons. The decree was made absolute under the old CPC so far back as the 22nd December 1995. We are not concerned in this appeal with the first application for execution. In 1912 the decree-holder for the* second time applied for execution of his decree and he expressly wanted to sell the property described as lot No. 4 in the mortgage decree. The respondent Babu Ram Prasad Narain Sahi and Babu Ram Rekha Prasad Narayan Sahi intervened in the execution proceedings and objected to the sale of lot No. 4 on the ground that they had purchased lot No. 4 at a revenue sale. The objection was disallowed and the respondents thereupon instituted a suit, being suit No. 152 of 1912 in Chapra for a declaration that the property described as lot No. 4 was not liable to be sold in execution of the decree holder''s mortgage decree. On the 27th of November 1913 a compromise decree was passed in suit No. 152 of 1912 by which the respondents as purchasers of lot No. 4 agreed to pay to the decree-holder Rs. 2,000/-on or before the 30th August 1914.

We are not concerned with the third application for execution which was presented in 1915. The respondents were not parties to that execution as the decree-holder proceeded in that application against properties other than lot No. 4. In 1918 the decree-holder presented his fourth application for execution and it will be necessary to consider the scope and character of that application presently. By that application the decree-holder did want to sell lot No. 4 as well as two other lots of properties described as lots Nos. 5 and 6, he did not bring the respondents on there-cord as parties to that execution proceeding but the respondents intervened in that execution proceeding and admitted their liability to satisfy the decree to the extent of Rs. 2,000/- and in fact paid a portion of the decretal amount. The entire sum of Rs. 2,000/-not having been paid by the respondents, the decree-holder proceeded with the sale of, amongst other properties the property covered by lot No. 4. The sale took place on the 15th March, 1913 and lot No. 4 was purchased by the decree-holder. There was then the inevitable application for setting aside the sale under Order 21, Rule 90 and that application ended in a compromise between the parties on the 7th June 1919. The sale was set aside by consent on the respondents agreeing to pay Rs. 540/- within a month. It was agreed that if the sum of Rs. 54 was not paid on or before the 7th July 1919 the decree-holder would be entitled to sell lot No. 4. It is needless to say that the sum of Rs. 540/-was not paid by the respondents to the decree-holder. On the 26th July 1920 the present application for execution was presented in Court and it was at once met by the respondents with the plea that it was barred by limitation.

The learned Subordinate Judge has dismissed the execution petition on two grounds, first on the ground that the respondents not being parties to the suit in which the mortgage decree was passed cannot be proceeded against in the execution proceeding-arising out of that suit, and secondly on the ground that the application for execution is barred under the provisions of Section 48 C.P.C.

I will first consider whether the learned Subordinate Judge was right in dismissing the execution petition on the ground that the respondents were not parties to the mortgage suit. It is quite true that they were not parties to the mortgage suit but they have undoubtedly purchased one of the properties which was the subject-matter of the suit. They are accordingly representatives in interest of the judgment-debtor unless they can establish that by reason of the fact that they purchased at a revenue sale they are not liable to satisfy the mortgage decree of the plaintiff. They did make an attempt to establish their case in suit No. 152 of 1912 which they instituted in the Chapra Court. By a consent decree which was passed in that suit they took upon themselves the liability for Rs. 2,000 out of the entire decretal amount. They intervened in the fourth execution proceedings and they admitted their liability to pay the decretal amount to the extent of Rs. 2,000 and in fact in that execution case they did pay a sum of money to the decree-holder. In my opinion it is impossible to contend that they were not proper parties to the execution proceedings. In my opinion the learned Subordinate Judge was not right in dismissing the execution proceedings on the ground that those proceedings were not maintainable against the respondents.

So far as the question of limitation is concerned it is clear that execution is prima facie barred under the provisions of Section 48 of the Civil Procedure Code, but Mr. Saroshi Charan Mitter on behalf of the decree-holder urges before us that his present application ought to be regarded as a continuation of the application for execution which he presented in 1918. It is well established that in order to entitle a decree holder to claim that an application should be regarded as a continuation of the previous application, two conditions must be satisfied, first that the previous application was dismissed for no fault or default on his part and secondly that the present application is similar in scope and character to the previous application. If these two conditions are satisfied there is no reason why the Court should not regard the present application as a continuation of the previous application.

Now in this case clearly there were no laches on the part of the decree-holder. The respondents entered into a compromise with him, they agreed to pay Rs. 540 to him on of before the 7th July 1919, and on the faith of the representation made to him by the respondents the decree holder consented to have the sale in his favour set aside. Therefore the decree-holder has satisfied one of the condition; namely that there was no fault or de fault on his part at all.

The next question is, can the present application for execution be regarded as similar in scope and character to the previous application? I take it that all that is necessary for the decree-holder to establish is that, in substance, though it may not be in form, the present application is similar in scope and character to the previous application.

Mr. Nirsu Narayan Sinha on behalf of the respondents urges before us that the present application cannot be regarded as similar in scope and character to the previous application; he points out that the previous application was an application which arose out of Suit No 41 of 1906 and that the respondents were not parties to that application and that the present application is stated by the decree-holder himself to arise both out of Suit No. 41 of 1908 and Suit No. 152 of 1912.

Now it is quite true that the decree-holder in his petition for execution recited both the suits, that is to say Suit No. 41 of 1906 and Suit No. 152 of 1912. In this I think he was wrong. The Muzzafferpore Court could have no power whatever to execute the consent decree which had been passed by the Chapra Court in Suit No. 152 of 1912, but I do not think that makes any difference in the substance of the application which was presented by the decree-holder. He undoubtedly recited Suit No. 41 of 1906, he recited all the facts which would enable the Court to determine what was the sum of money that was still due and owing by the respondents to the decree-holder.

In regard to the argument that the respondents were not parties to the previous application for execution, all that I need point out is, that they were undoubtedly parties to that execution not indeed when that application was presented but when it was struck off. They intervened in that application and they took upon themselves the responsibility for at least Rs. 2000/- out of the decretal amount claimed by the decree-holder. In my opinion no argument can be founded upon the fact that the present application recites the fact that there was a suit in Chapra by the decree-holder against the respondents.

It is next urged that the decretal amount shown in the previous application is Rs. 14,564/- whereas the decretal amount shown in the present application is Rs. 2,000. This is relied upon by Mr. Nirsu Narayan Sinha as snowing that the present application for execution has been made not in Suit No. 41 of 1906 but in Suit No. 151 of 1912. As I have said before the decree-holder was ill-advised in saying anything about Suit No. 152 of 1912 in his petition for execution, but that is merely the form of the application. Can it be urged that in substance it makes any difference because the decree-holder in his present application for execution instead of mentioning that the decretal amount is Rs. 14,564/- has stated that the decretal amount is Rs. (sic). I think not, for the argument goes net to the substance of the thing but merely to the form of the thing.

Then it is urged that the names of the judgment-debtors are different, that whereas the previous application for execution shows that Hiarbans Narayan Singh and his sons are the judgment-debtors, the previous application for execution shows the respondents as the judgment-debtors. That undoubtedly is so, but then as I have said before, the present respondents intervened in the previous application, so that they were undoubtedly parties to the execution proceedings. It is true that the present execution petition is not against Harbans and his sons but that is, because, so far as the claim of the decree-holder against them is concerned it has been satisfied by them.

Lastly it is urged that the properties are not the same. It is necessary to mention that the previous application for execution was in respect of the properties described as lots Nos. 4, 5 and 6, whereas the present application for execution is in respect of lot No. 4. But it appears that so far as the claim of the decree-holder is concerned in respect of lots Nos. 5 and 6 the judgment-debtors namely Harbans Narain and his sons satisfied the claim of the decree-holder so that it was impossible in the present application for execution to claim any relief in respect of lots Nos. 5 and 6. In my opinion in order to determine whether an application may be considered as similar in scope and character to a previous application, a fair test to apply would be to see if the decree-holder could have got the relief in the previous application which he now claims, supposing his previous application had not been struck off. If this were not the rule it would in many cases be impossible to hold that an application should be regarded as a continuation of the previous application. To take the present case, the claim of the decree-holder in relation to lots Nos. 5 and 6 has been satisfied. It would therefore, be impossible for the decree-holder in the present application to claim any relief in respect of lots No. 5 and 6. But if we apply the test which I have mentioned, it is easy to nee that the decree-holder in the previous application could have got the relief which he now claims in the present application, for, inspite of the fact that the claim of the decree-holder in respect of lots Nos. 5 and 6 was satisfied by Hurbans Narain Singh, it was open to the decree holder in the previous application to proceed against the respondents in respect of lot No. 4. Applying the test, it would appear that the relief claimed in the present execution proceedings is substantially the same as that claimed by the decree-holder in the previous application, that is to say that in substance the present application is similar in scope and character to the previous application, If that be so, and if the present application be regarded as a continuation of the previous application, no question of limitation arises.

I would allow the appeal, set aside the order of the learned Subordinate Judge and direct that the execution case do proceed. The appellant is entitled to the costs of this appeal.

Adami, J.

I agree.