Jadab Chandra Poddar vs Rameshwar Marwari

Wort, J.—This is an appeal in a case in which the plaintiffs claimed a declaration of title to and possession of a certain property in the following circumstances. In the first place I might state that the plaintiffs succeeded in their suit in the trial Court and in the lower appellate Court.

The defendant in the suit was a defendant in a suit in which there was a money decree obtained against him; and on 21st February 1916 the plaintiffs purchased in execution of that decree a residential house which was the property of the defendant. The purchase-price was Rs. 150. On 9th January 1917, a compromise was entered into by which the defendant undertook to pay the sum of Rs.200 forthwith and a further sum of Rs. 315 on 30th May in discharge of the decree under which the house was purchased by the plaintiffs. There was failure on the part of the defendant to perform the terms of this compromise; and on 2nd January 1918, a further execution was taken out by the plaintiffs which was further compromised on 20th December 1918, the terms of the compromise being that if the balance of the sum then due plus the Rs. 150 credited against the decree-holder for the house purchased by him, be paid to him by Chaitra, he would give up all claim to the house; and in case the payment was not made according to the agreement, the decree-holder would realize Rs. 150 by execution and also take delivery of possession of the house through Court. It is not necessary to state in detail what happened subsequent to this compromise except to say that the terms of the compromise were not complied with by the judgment-debtor.

An application was, therefore, made by the plaintiffs on 2nd February 1924, for delivery of possession under Order 21, Rule 95, Civil P.C. In the meantime, I should have stated, the sum of Rs. 180 had been recovered by the plaintiffs against the defendant''s surety, The application to which I have made reference, that is to say, the application under Order 21, Rule 95, was rejected by reason of its being time barred; and the plaintiffs instituted this suit.

Two points are raised in this appeal, the first being that the suit is not maintainable; and the second, that if it is maintainable then the defendant is entitled to a relief against what he alleges is a forfeiture and should have been allowed to pay up the balance of the amount due under the compromise, and, therefore, relieved from giving up possession of his residential house. Now on the first point, the substance of the argument actually amounts to this that owing to the state of the authorities on the point of law which arises, this case should be referred to a Pull Bench of this Court for a final decision of this matter.

The argument which was raised by the learned advocate for the appellant is this, that the suit is not maintainable for the reason that the application to which the plaintiffs are entitled is one u/s 47, Civil P.C. relating to execution, discharge or satisfaction of the decree and, therefore, the plaintiffs should have adopted that procedure and it was not open to them to bring the suit which is now before us. The cases which the learned Government Pleader has brought to our notice will be dealt with now. The first case Abdul Ghani v. Raja Ram [1916] 1 Pat. J.L. 232 is a Full Bench decision of this Court in which it was decided that the application in circumstances similar to the present is not an application u/s 47 of the Code and, therefore, there was no appeal against the application in the circumstances of the case.

In the course of his judgment the then Chief Justice Sir Edward Chamier reviewed a large number of authorities and it was pointed out that that there was a great conflict of decisions. He came to the conclusion on the balance of the authorities that the cases of the Calcutta High Court should be followed and that the matter did not come u/s 47, Civil P.C. Now the first point which the learned Government Pleader makes is that the decision of the learned Chief Justice was subsequently reviewed in the case of Kailash Chandra Tarafdar Vs. Gopal Chandra Poddar, . In the first instance that was a decision of Cuming, J., which was referred to a Full Bench and the Full Bench came to the conclusion that where a decree-holder as an auction-purchaser applies for the possession of a property, as in this case, under Order 21, Rule 95, he comes u/s 47, Civil P.C. as it is a question arising, "between the parties" and it is a proceeding relating to the "execution, discharge or satisfaction of the decree." The argument which was addressed to us or the suggestion which was made before us is that having regard to that decision which impliedly, if not expressly, overruled the decisions of the Calcutta High Court upon which this Court relied in the case of Abdul Ghani v. Raja Ram [1916] 1 Pat. J.L. 232, this case should be sent to a Full Bench for final disposal. Now so far as this Court is concerned, there is another case: Sridhar Sirdar v. Jageshicar Singh [1919] 4 Pat. L.J. 716. In that case the Chief Justice and Jwala Prasad, J., reviewed that the authorities which were quoted in the case of Abdul Ghani v. Raja Ram [1919] 4 Pat. L.J. 716, to which I have already referred, and came to a conclusion, following the decision of the Full Bench of this Court in Abdul Ghani v. Raja Ram [1919] 4 Pat. L.J. 716, which may be expressed in the words of Jwala Prasad, J.:

The long course of decisions in the Calcutta High Court indicates that the balance of opinion in that Court has been strongly in favour of the view that the question relating to the delivery of possession does not relate to the execution, discharge or satisfaction of the decree and does not come u/s 47 of the present Code or Section 318 of the old Code,

Not only are there those cases to which I have made reference, but there are cases to the same effect in the other High Courts, the first of which is the case of Bhagiuati v. Banuari Lal [1909] 31 All. 82. This is a decision of the Pull Bench of the Allahabad High Court which held (the Chief Justice dissenting) to the same effect as the cases to which I have already made reference. There is another authority in Hargorind Fulchand v. Bhudar Raoji AIR 1924 Bom. 429 which is to the effect that where a decree-holder, who is himself the auction-purchaser at a Court sale held in execution of his decree, seeks to get possession of the property so purchased, he does not do so in execution of his decree but by virtue of the title acquired as purchaser; and his claim based on such title does not relate to the execution, discharge or satisfaction of the decree, and the provisions of Section 47, Civil P.C, therefore, do not prevent his filing a separate suit for possession. In my judgment, in view of these authorities it seems to me that this Court is bound not only by the authority of the otter High Courts, but by the Full Barch decisions of this Court-Haji Abdul Ghani v. Raja Ram [1916] 1 Pat. J.L. 232 and Sridhar Sirdar v. Jageshivar Singh [1919] 4 Pat. L.J. 716 and at seems to me idle in these circumstances to refer the case to a Full Bench of this Court. The first point, therefore, which is raised in this appeal, that is to say, whether this suit is maintainable, is answered in the affirmative.

The next question is whether the defendant in the circumstances is entitled to equitable relief. The lower Courts have dealt with this matter as if it were a penalty. In my opinion the expression "penalty" in connexion with a case of this kind is irrelevant. The real point that does come up before us is not whether the defendant is entitled to relief against a penalty but to relief against a forfeiture. It is said by the learned Government Pleader that the Court has jurisdiction in circumstances of this kind to relieve the defendant against the forfeiture which arises by reason of non payment of that part of the compromise which remains unsatisfied. Now, in the first instance there is no suggestion either in the written statement or in the evidence nor is there any finding by the Courts below that, the defendant is ready and willing to discharge his obligation under the compromise: in fact if there be any finding at all, it is to the contrary. That in my judgment is sufficient to deprive the defendant of the relief which he now seeks. The point, if it be a question of law, is whether this Court or the Courts below had jurisdiction to grant the defendant the relief. In my opinion (and I wish to say nothing further with regard to the matter having regard to what I have already said on this point) the doctrine of granting equitable relief in the case of a forfeiture does not apply to a case of this kind. If the Court had jurisdiction in the case of a payment under compromise, it would seem to me to be a jurisdiction u/s 148, Civil P.C. which provides:

Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

That section in my judgment does not apply for the simple reason that the section expressly states that

the period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code.

Now the payment of these sums was not an act prescribed or allowed by the Code. That to my mind seems to be the short answer to that point.

In my judgment both on the facts and law the defendant is not entitled to the relief which he sought and, therefore, the decision of the lower Court is right and the appeal must be dismissed with costs

James, J.

I agree.