Ishan Chandra Sarkar and Another vs Benimadhab Sarkar and Kuloda Prasad Roy

The Respondent in this appeal is the assignee of a mortgage-decree ordering sale of the mortgaged properties. The Appellant is the purchaser of one of the mortgaged properties, at a sale in execution of a money-decree against the mortgagor; the date of his purchase being subsequent to that of the mortgage-decree. Upon a previous application by the Respondent for execution of the decree by sale of the property purchased by the Appellant the Court on the Appellant''s objection ordered that the mortgaged proparties be sold together, and after that order the execution case was struck off.

A fresh application for execution having been now made, a sale proclamation was issued for sale in three lots, the property purchased by the Appellant being mentioned as the first to be sold.

The Appellant objected, and his objection was rejected by both the Courts below on the ground that he had no locu standi under Sec. 244 of the Code of Civil Procedure. Against that decision of the Courts below, this appeal has been preferred, and the learned Judges, before whom the appeal came on for hearing, were of opinion that the decision was wrong. But as it is supported by the rulings of this Court in the cases of Narain Acharji v. Gregory 8 W. R. 304 and Gour Sunder v. Hem Chunder Chowdhuri ILR 16 Cal. 35, they have referred the matter to a Full Bench. The referring order, it is true, refers to the Full Bench only the question :--"Whether the cases in 16 Calcutta Series at page 355 and 8 Weekly Reporter 304, so far as they decide that a purchaser at an execution sale of the equity of redemption in mortgaged properties, cannot come in execution proceedings under a decree upon the mortgage as a representative of the judgment debtor under Sec. 244 are rightly decided :" whereas under Rule II of the Rules of this Court relating to Full Bench References (Ch. V of the Rules as published in 1891), the whole appeal ought to have been referred to it; but than does not make any difference in this case, seeing that the question referred to us, is the only material question in the appeal, and the determination of the appeal, depends, upon the determination of that question. If the Appellant is a representative of the judgment-debtor within the meaning of Sec. 244 (c), then, as the questions raised by him in the First Court were questions relating to the execution of the decree, they must be determined by that Court, and he is clearly entitled to be heard: if, on the other hand, he is not a representative of the judgment-debtor within the meaning of that section, this appeal will fail as well as on the merits on the preliminary ground that no appeal lies.

The answer to the question stated in the Reference and the decision of this appeal, depend upon the meaning of the word " representative " as used in Sec. 244 with reference to the judgment-debtor. It may have only the meaning ordinarily attached to the expression "legal representative that is, include only the heir, executor or administrator of the judgment-debtor, but not the purchaser of the judgment-debtor''s interest, whether the purchase is made at a private sale or at an execution sale, as was held by the Allahabad High Court in Zauki Lal v. Jawahir Singh ILR 5 All. 94 and Jagat Narain v. Jag Rup I. L R. 5 All. U. 452; or it may mean a representative in interest, and include a purchaser of the judgment-debtor''s interest who, so far as that interest is concerned, is bound by the decree, whether the purchase is made at a private sale or at an execution sale, as was decided by Pontifex, J, in Rashbehary Mookhopadhya v. Maharani Surnomoyee I L. R, 7 Cal. 403; or it may have a meaning intermediate between these two, being neither so narrow as the former, nor quite so broad is the latter, i.e., it may mean a representative in interest and include a purchaser at a private sale of the judgment-debtor''s interest, who is bound by the decree, but not a purchaser at an execution sale, as held by this Court in Gour Sunder v. Hem Chunder ILR 16 Cal. 355. One thing, however, is clear. Even if the word has either of the two comprehensive meanings and includes a purchaser of the interest of the judgment-debtor, such purchaser must be one who is affected by the decree, but a purchaser of the interest of a party to a suit who is not affected by the decree cannot in any sense be regarded as a representative of that party within the meaning of Sec. 244. Upon this point the authorities are all at one. See Rashbehary Mookhopadhya v. Moharani Surnomoyee ILR 7 Cal. 403; Zauki Lal v. Jawahir Singh ILR 5 All. 94; Shivrav Chintaman v. Jivu I. L. R, 13 Bom. 34, and this is conceded in the argument on behalf of the Appellant, which proceeded on the assumption that the Appellant as purchaser of part of the mortgaged property after the passing of the mortgage-decree was bound by that decree.

The questions that arise for consideration therefore, are first, whether the term "representative" as used in Sec. 244 when taken with reference to the judgment-debtor, means only his legal representative, that is, his heir, executor or administrator, or whether it means his representative in interest, and includes a purchaser of his interest, who so far as such interest is concerned, is bound by the decree; and, secondly, whether if the term has this latter meaning, there is any reason for excluding from its signification an execution-purchaser of the judgment-debtor''s interest.

As to the first question one reason for taking the term in its limited sense as including only the heir, executor, or administrator is thus stated by Oldfield, J., in his judgment in Jagat Narain v. Jug Rup ILR 5 All. 452 at p. 456:--"In my opinion the word ''representative'' used to Sec, 244 was not intended to include purchaser of a judgment-debtor''s property. We find special provisions in the Code for enabling transferees of decrees by assignment or operation of law to execute their decrees (See. 232), and for a decree-holder to execute a decree against the legal representatives of a deceased judgment-debtor (Sec. 234). Had it been intended to give power to execute a decree against an assignee of a judgment-debtor, as representative of a judgment-debtor, some similar provision to that in Sec. 234 would probably have been made to effect that object, and his omission, coupled with the fact, which is significant that ''legal representative,'' as used in SEC. 234, is confined to the hears of a deceased judgment-debtor, may lead to the inference that the word representative in Sec. 244 has no more extended meaning than heir, devisee, or executor, which also is the proper signification."

Another reason in favour of the same view is said to be founded on the inconvenience which would result, if the opposite view held to be correct, and the purchaser of any small portion of the judgment-debtor''s property were held entitled to come in as a representative of the judgment-debtor.

These reasons are no doubt entitled to consideration. But it should be borne in mind that it is not every purchaser of judgment-debtor''s property that is sought to be included in the term ''representative'' of the judgment-debtors under Sec, 244.

It is only where the purchaser of the judgment debtor''s property is, so far as such property is concerned, bound by the decree, that the purchaser, according to the Appellant''s contention should be held to come within the meaning of the term, and in such a case, it is difficult on principle to maintain that the purchaser is not a representative in interest of the judgment-debtor or to deny him a hearing, if he has any objection to urge against the execution. He is bound by the decree and is affected by the execution proceedings so far as they relate to the property purchased by him, while, on the other hand, the party who stands on the record as the judgment-debtor may be wholly unconcerned so far as the execution goes against such property for the simple reason that he has no longer any interest in it. In such a case, the execution is really a proceeding against the purchaser, though nominally against the judgment-debtor on he record, and to allow it to go on without hearing the objection of the purchaser, when he may be prepared to show that execution ought not to proceed as prayed by reason of the decree being barred or satisfied or for any other good reason, would be to take a course fraught with such manifest hardship to the purchaser, that I should hesitate to affirm it as correct, unless the law was quite clear on the point.

But is the law so clear ? I cannot say that it is. The CPC in Sec. 244 uses the term "representative," which may well include a "representative in interest," i.e., a purchaser of the interest of the judgment-debtor in any property which is affected by the decree, and this is the view taken by Mr. Justice Pontifex in Reshbehary Mookhopadhya, v. Maharani Surnomoyee ILR 7 Cal. 403

The only case in this Court to which our attention has been called, as apparently taking the opposite view, is that of Narain Acharjee v. Gregory 8 W. R. 304; but upon execution that case does not appear to be one in point. There the decree, sought to be executed, was, as the Court found, a mere money-decree, and the purchaser, who was held not to be a party to the suit nor the personal representative of a party and therefore not entitled under Sec. 11 of Act XXIV of 1861 to appeal against the order of the Lower Court disallowing his objection, was a purchaser of the interest of the judgment-debtors in certain property not covered by the decree.

As for the case of Gour Sunder v. Hem Chunder ILR 16 Cal. 355, though it decides that an execution-purchaser of the judgment-debtor''s interest is not his representative within the meaning of Sec. 244, yes it also expressly decides that a purchaser of the judgment-debtor''s interest at a private sale is. I may add here that the object of Sec. 244 being to prevent multiplicity of litigation it should, as has been observed both by this Court and by the privy Council [See Punchanun Bando padhya v. Rabia Bibi ILR 17 Cal. 711, Prosunno Kumar Sanyal v. Kali Das Sanyal ILR 19 Cal. 683] receive a liberal interpretation.

Thus while the balance of authority in this Court, if not decidedly in favour of, is certainly not opposed to, the view that a purchaser of the judgment-debtor''s interest who, so far as that interest goes is bound by the decree, is his representative within the meaning of Sec. 244, the balance of reason is clearly in favour of that view.

It remains now to consider whether there is any valid reason for limiting the signification of the term "representative" so as to exclude an execution-purchaser of the judgment debtor''s interest. As far as I can see, there is no distinction in principle--beween the case of a purchaser of the judgment-debtor''s interest at a private sale and that of a purchaser of his interest at an execution sale, so long as they are both bound by the decree, in regard to the interest acquired by purchase.

At one time, there was some conflict of opinion as to the application of the doctrine of lis pendens to the case of the latter. See the case of Gourmani v. Read 2 Tay & B. 83 referred to in the judgment of this Court in Raj Kishen Mookerjee v. Radha Madhub Holder 21 W. R. 349.

But the question must now be taken to be practically settled by the decision of the Privy Council in Radhamadhub Holder v. Monohur Mukerjee ILR 15 Cal. 756, and it must be held that an execution-purchaser is bound by the doctrine of lis pendins quite as much as a purchaser at a private sale.

The Appellant made his purchase after decree in the mortgage suit and before it was satisfied. His purchase is, therefore, subject to the rights created by the decree. But it is not necessary to discuss this point any further, as there is no question raised on either side as to the Appellant being bound by the decree, and the arguments on both sides proceeded on the assumption that his purchase was subject to the rights created by the decree.

Of the two cases, mentioned in the referring order, I have already considered one, namely, the case of Narain Acharjee v. Gregory 8. W. R. 304 and that is clearly distinguishable from the present. The other case, namely, that of Gour Sunder v, Hem Chunder ILR 16 Cal. 355 at p. 360 is no doubt in point and requires examination.

The ground of the decision, so far as the point under consideration is concerned, is stated by the learned Judges in the judgment in these words:--"The Plaintiff is a purchaser in execution of a money-decree against the mortgagors. He is, consequently, not a voluntary purchaser, and as has been held by their Lordships of the Judicial Committee of the Privy Council, his title is not one of privity with the mortgagors, but in some respects adverse to them. We think, therefore, that he cannot be considered as a representative of the judgment-debtor''s mortgagors within the terms of Sec. 244."

The cases, to which we refer, are Dinendro Nath Sanyal v. Raj Coomar Ghost ILR 7 Cal. 107, gAnundomoyee Dassee v. Dbonendro Chunder Mookerjee 16 W. R. (P. C.) 19 and we may also refer to the case of Lalla Prabhulal v. Mylne I. L. R.14 Cal. 401.

It is true that an execution purchaser makes his purchase, not from the judgment-debtor and often against his wish, and he is not bound by some of the acts of the judgment-debtor such as alienations made by the latter to defeat the decree; but that does not show that his rights are not derived from the judgment-debtor or that he is not the representative in interest of the judgment-debtors in any sense or for any purpose.

Even a purchaser at a private sale is not bound by any prior alienation made by the vendor to defraud him. (See Sec. 53 of the Transfer of Property Act), but that does not show that such purchaser is not a representative in interest of the vendor. As for the cases relied upon in the judgment in Gour Sunder v. Hem Chunder ILR 16 Cal. 355, the two Privy Council decisions do not in my opinion afford any basis for the broad proposition deduced from them.

The first mentioned case, Dinendro Nath Sannyal v. Raj Coomar Ghose ILR 7 Cal. 107, decides that the rights of a purchaser at a sale in execution of a decree are, in some respects, superior to those of a purchaser at a private sale, the former acquiring the property freed from all alienations or incumbrances by the judgment-debtors subsequently to the attachment in execution of decree. In the second case that of Anundmoyee v. Dhonend o Chunder Mookerjee 16 W. R. (P.C.) 19, their Lordships say " that the title of a judgment-creditor or of a purchaser under a judgment decree cannot be put on the same footing, as the title of a mortgagor of a person claiming under voluntary alienation from the mortgagor," and they hold " that the possession of a purchaser under such circumstances is really not the possession of a person holding in privity with the mortgagor or holding so as to be an acknowledgment of the continuance of the title of the mortgagor."

These cases only show that the rights of an execution-purchaser are in some respects different from those of a purchaser at a private sale, but because that is so, it does not follow that the execution purchaser is not to be regarded as a representative in interest of the judgment-debtor even in those respects in which and for those purposes, for which his rights are no higher than those of the judgment-debtor, whose right, title, and interest he has purchased. Whereas in this case, it is admitted, that the purchaser at a sale in execution of a moneydecree is bound by the mortgage-decree sought to be executed, in the same way as the judgment-debtor is bound.

It is difficult to understand why he should not be treated as a representative in interest of the judgment-debtor. The third case relied upon in the judgment in Gour Sunder v. Hem Chunder I. L.R. 16 Cal. 355, namely, that of Lalla Prabhulal v. Mylne ILR 14 Cal. 41 does not require any detailed examination, as it is based, chiefly, upon the two Privy Council decisions just referred to.

On the other hand, in the recent case of Mir Mahomed v. Keshori Mohun Roy ILR 22 Cal. 909.(S. C.) L. R. 22 IndAp 129 their Lordships of the Privy Council have held that the equitable principle of estoppel laid down in the case of Ramcoonar Koondoo v. McQueen 18 W. R. 166, which applies to any person is equally binding on the purchaser of his right, title and interest at a sale in execution of a decree.

For the foregoing reasons, I am of opinion, that the question stated in the referring order should be answered in the negative and that the Appellant be held entitled to be heard in support of his objections, as a representative of the judgment-debtor within the meaning of Sec. 244 (c) of the Code of Civil Procedure.

I would accordingly decree this appeal with the costs set aside the orders of the Courts below, and send the case back to the First Court with direction to hear and determine the objections urged by the Appellant.