Haleem Khan (deceased by L.Rs.) and Others vs Mukhteshwar Rai and Others

Deoki Nandan, J.—The suit giving rise to the appeal and the cross objection in this case was for cancellation of a sale-deed, dated 27th November, 1958, that was executed by Habib Khan, son of Saeed Khan by his second wife, Smt. Saeedan Bibi. The Plaintiff-Appellants Haleem Khan, Shamashuddin Khan and Smt. Anawari Bibi respectively, of whom Haleem Khan has since died during the pendency of the appeal in this Court, are the sons and daughter of Munir Khan, another son of Saeed Khan, by his first wife, Smt. Sharfun Bibi. It was claimed that the house was originally the Chhaoni, and thus part of the Zamindari property of Saeed Khan. He made a gift of his zamindari in the village Nagesar Nawaza Rai to Smt. Sharfin Bibi. The gift included the house as it was his Chhaoni and appurtenant to the zamindari. The gift was made by a registered instrument. Later on, Smt. Sharfun Bibi sold the zamindari to Bashir Ahmad in the year 1933, but she continued in possession of the houses and became their owner by adverse possession. The site and the land appurtenant also came to belong to her u/s 9, U.P. Zamindari Abolition and Land Reforms Act.

According to the defence, the houses in suit were not the subject of gift made to Smt. Sharfun Bibi, and, whatever was gifted to her, was transferred to Bashir Ahmad in 1933. The houses remained the property of Saeed Ahmad Khan so long as he lived, and, after his death, Habib Khan succeeded to them as nearest heir, his sister having surrendered her rights in his favour. Certain other pleas were also raised, and as many as eight issues were raised at the trial. Issues 1, 2 and 8 raised the question of the Plaintiff''s title to the houses. The trial Court held that the Plaintiffs are owners to the extent of 1/8 share in the property, and the sale-deed was invalid to the extent of the Plaintiffs'' 1/8 share, and decreed the suit accordingly.

The three points raised before the lower appellate Court were those covered by the issues 1, 2 and 8. There was a cross-objection also before the lower appellate Court. The lower appellate Court confirmed the judgment and decree of the trial Court with the finding that the Plaintiff-Appellants and Habib Khan were co-owners of both the houses in suit and were in possession thereof as such prior to the execution of the sale-deed dated the 27th November. 1958 by Habib Khan, and that the share of Habib Khan in the house was 7/8, while that of the Plaintiffs, it was only 1/8, and the sale deed was invalid to the extent of the Plaintiffs 1/8 share

The principal contention raised by Mr. S.K. Verma, for the Appellants in this appeal was that the finding of the two Courts below that the houses in suit belonged to Saeed Khan was bad in law, inasmuch as, on an objection u/s 47 of CPC (Misc. Case No-30 of 1930) in Execution Case No. 9 of 1930 in the Court of the Subordinate Judge, Ghazipur, filed by Smt. Sharfun Bibi), it had been held that the houses in suit were not the property of Saeed Khan. A certified copy of the judgment, dated the 31st May, 1930 on that objection, is Ext. 2 on the record. Mr. Verma contended that the judgment operated as res judicata.

An application was made in this Court in the year 1974 for admission of certified copy of the plaint of the suit giving rise to the execution case, in which that judgment was passed, in order to show that Habib Khan and his mother Saeedan Bibi were parties to that proceeding, and the two Courts below had wrongly observed that they were not parties thereto.

Mr. Sankatha Rai, appearing for the Defendant-Respondents, met the contention of Mr. S.K. Verma by saying that the objection, though described as one u/s 47 Code of Civil Procedure, in the opening line of the judgment, dated 31st May, 1930, Ext. 2 was, in fact and in law, an objection under Order 21, Rule 58, Code of Civil Procedure, that had been preferred by Smt. Sharfun Bibi against the attachment of the house property, which is how hi'' suit in execution of the decree for costs that was passed against Saeed Khan in that case; and according to the law declared by the Supreme Court in'' Mangru Mahto and Others Vs. Shri Thakur Taraknathji Tarakeshwar Math and Others, ; a decision, on an objection under Order 21, Rule 58, CPC does not operate as res judicata on a question about title to the property in a regular suit.

Mr. Verma tried to assert that a decision of an objection u/s 47, CPC in execution proceedings operates as res judicata, but, when it came to showing whether the objection filed by Smt. Sharfun Bibi in Execution Case, 9 of 1930, was an objection under Order 21, Rule 58 or u/s 47. CPC Mr. Verma utterly failed to show that the objection was one u/s 47 Code of Civil Procedure, notwithstanding its description, as such, in the first line of the judgment thereon vide-Ext. 2. A perusal of the judgment shows that in the suit giving rise to that execution case, the decree holder, Haji Bashir Ahmad Khan, had obtained a decree against Saeed Ahmad Khan and others, but costs were awarded only against Saeed Ahmad Khan personally, and, when Haji Bashir Ahmad Khan put his decree for costs into execution by attaching, (1) a house No. 194 with Court-yard (2) a house which is in ruins, and (3) a Court-yard situate in front of house No. 196, Sharfun Bibi, one of the wives of Saeed Ahmad Khan, filed an objection that the property was not liable to attachment and sale in execution of that decree. The Court found in favour of the objector and held that the property was not liable to an attachment and sale in execution of that decree, and, on that finding ordered its release from attachment and sale.

It was thus clearly an objection of the nature provided for by Rule 58, Order 21, CPC Even if Smt. Sharfun Bibi was a party to the suit, the decree under execution, that is to say the decree for costs, was personally, against Saeed Ahmad Khan alone. She was not the judgment debtor under the decree, in execution of which the property was attached and put up for sale. Her position was that of a third party objector, and the objection was incorrectly described as one u/s 47 Code of Civil Procedure. It was clearly an objection under Order 21, Rule 58 CPC and the law declared by the Supreme Court in Mangru Mahto and Others Vs. Shri Thakur Taraknathji Tarakeshwar Math and Others, squarely applies to the facts of the present case. The Supreme Court held (at p.1393):

A claim proceeding under Rule 58 is not a suit or a proceeding analogous to a suit. An order in the claim proceeding does not operate as res judicata. It is because of Rule 63 that the order becomes conclusive. The effect of Rule 63 is that unless a suit is brought as provided by the rule, the party against whom the order in the claim proceeding against the other party or any person claiming through him the question whether the property was or was not liable to attachment and sale in execution of the decree out of which the claim proceeding arose, but the bar of Rule 63 extends no further.

The cases cited by Mr. Verma were all of them besides the point, and accordingly I have not considered it necessary to refer to them.

I may add that Mr. Sankatha Rai also raised the argument that the proceedings on the objection referred to above, were collusive. Saeed Ahmad Khan and his wife were both interested in defeating the creditors claim. They were husband and wife, and, in such circumstances, the order could not operate as res judicata. Apparently, the argument of Mr. Sankatha Rai appears to be plausible, but in view of the law declared by the Supreme Court that an order disposing of an objection under Order 21, Rule 58 CPC does not operate as res judicata, it is not necessary to decide the question of collusion.

In the result, the appeal fails and is dismissed with costs.