Jagat Prasad Singh vs Surjoo Lal and Others

Dawson-Miller, C.J.—This is an appeal on behalf of the judgment-debtor in execution proceedings from an order of the Subordinate Judge of Gaya. Certain objections to execution wore put in before the Subordinate Judge on behalf of the judgment-debtors. These wore rejected by the Subordinate Judge and the execution was ordered to proceed.

The execution in question arises out of a decree obtained by the decree-holders in the year 1918. The decree-holders were mortgagees and there were a number of mortgage bonds. Between 1918 and 1921 satisfaction of the decree to the extent of Rs. 11,000 or thereabouts had been obtained by the decree-holders, but still there was a very considerable balance due in January 1921 when a fresh execution petition, numbered 2 of 1921, was filed by the decree-holders. In that execution case one of the judgment-debtors was one Phagoo improperly described as Phari in the petition, He, however, was dead and he died in the previous year leaving a Will. Under this Will the properties, of which he was in possession, and which it is sought to sell in the present application for execution, were left by him to his grandson Jagat Prasad who was at that time a minor. The petition having been filed on the 3rd January 1921 it appears that on the 10th January the decree-holders applied for and obtained an order for substitution of the widows and the grandchildren of Phagoo as his legal representatives in his place. The grandchildren, who were his daughter''s sons, included Jagat Prasad, then a minor, under the guardianship of his brother Gupteshwar.

On the 14th February 1921, in answer to the application for execution, it was Jagat himself, acting under the guardianship of his father-in-law Firangi, who filed the objections to the decree-holders'' petition. The petition asked that the mortgaged properties should be sold in a certain order, the first properties to be sold being those owned by the deceased man Phagoo which had been given by his Will to the added judgment-debtor Jagat Prasad. Jagat Prasad, acting, as I have said, through one Firangi, his father-in-law as his guardian, filed an objection in that case. On the 17th June 1921 the learned Subordinate Judge allowed the objection and decided that the decree-holders were not entitled to sell the properties in the order in which they claimed but ought to sell them in the order in which they were named in the mortgage bonds.

From this order the decree-holder appealed to the High Court. Their memorandum of appeal to the High Court was filed on the 22nd June 1921. In the meantime on the 21st June the learned Judge of the executing Court having decided that the decree-holders were not entitled to sell the properties in the order which they claimed required them to proceed with the execution as against the other properties. The order he passed was made on an application by the decree-holders for what they called a stay pending the disposal of the appeal preferred to the High Court. It is in these terms:

The decree-holders file a petition for stay of sale till disposal o� appeal preferred in the High Court. The petition is vague and the reason is not by itself enough for, staying execution of the decree but since the decree-holder does not want the sale to hi held the execution case be dismissed.

Now the meaning of that appears to me to be obvious. When the learned Judge says that

since the decree-holder does not want the sale to be held in execution.

what he means is that the decree-holder did not want the properties to be sold in any order except that in which he claimed to sell them and he was not content to sell them in the order which the Judge directed, therefore, there was a deadlock, and in these circumstances the learned Subordinate Judge directed that the execution case should be dismissed. But I may point out that the only reason why the learned Judge directed the case to be dismissed was because the decree-holder did not accept the directions which the learned Judge had laid down as to the order in which the properties were to be sold, and had in fact appealed from his decision.

The appeal to the High Court proceeded and on the 17th November 1922 after hearing arguments on behalf of both the decree-holders and on behalf of Jagat Prasad the Court allowed the appeal and set aside the order of the Subordinate Judge and directed that the properties foe sold in the order mentioned in the petition of the decree-holders.

Subsequently, on the 31st October 1924, the application out of which this appeal arises was made by the decree-holders asking that the properties should be sold in the order in which they originally placed them and that the present application should be treated as a continuation of the previous proceedings in execution case No. 2 of 1921. To this application Jagat Prasad again entered and put in various objections. He contended, in the first place, that the estate of his grandfather Phagoo had never been properly represented in the proceedings and that therefore any application to sell the property of Phagoo could not stand. He further contended that the present application of the 31st October 1924 was barred by limitation on the ground that it was brought more than three years after the previous application for execution or after any application'' had been made for taking a step in the execution proceadings. The learned Judge in the judgment under appeal decided in favour of the decree-holders on both these points and directed the properties to be sold in execution in the order named by the decree-holders.

From that decision the judgment-debtor Jagat has appealed. With regard to the question of limitation the case seems to me to lie within a small compass. In my opinion the present application of the 31st October 1924 must be treated as merely a continuation of the proceedings started on the 3rd January 1921 which were held up by the Subordinate Judge under the mistaken impression that the decree-holder was not entitled to sell the property in the order which ha chose. From that decision an appeal went to the High Court and, in my opinion, that execution case was still continuing throughout the whole time that the appeal was pending in the High Court.

Indeed the appeal to the High Court was preferred with the very object of obtaining a decision to the effect that the refusal of the learned Subordinate Judge to sell the properties as demanded could not stand, and I cannot see how on any view of the case while that appeal was pending, the execution case had terminated. It is quite true that the learned Judge ordered it to be dismissed, but when the High Court gave its judgment in favour of the decree-holders directing the properties; to he sold in the order mentioned, that is, in the original petition of the 3rd January 1921, whatever may have bean the fate of the application in the execution Court, the effect of that order was, if the proceedings had in fast; come to an end, to revive them and to direct that the properties should be sold in those proceedings. That was the only case which was before the Court at that time.

Many decisions have been given on this and somewhat similar points dealing with the question whether an application is a fresh application, or merely a revival of a previous application, and the view generally taken is that if there has been some bar imposed upon the continuation of the proceedings under an application for execution which is subsequently removed by an order of an appellate Court or by any other order lawfully made, then any fresh application for execution is to be treated merely as a continuation of the proceedings which were suspended. In this case, to my mind, the proceedings never came to an end at all. The whole question was still undetermined throughout the whole time that the case was on appeal to the High Court and the result of that decision, as I have already said, was to direct in fact that the proceedings should continue. The present application which was made within two years of that date is clearly, within time for such an application and the learned Judge was right, in my opinion, in dismissing the judgment-debtor''s objections on this part of the case.

The other point which has been urged before us is what I may perhaps describe as one of a highly technical character, From what I have already said it is quite clear that the objector in this case, Jagat Prasad, has from the very outset, at all events from within a week of the date when the first petition was filed in 1921, been on the record as a party in one capacity or another and it is he, and he alone, acting through his guardian whilst he was a minor and subsequently acting sui juris after he attained his majority who has raised ail the objections and who appeared in the High Court upon the decree-holders appeal. He contends, however, that the property of which he is now undoubtedly in possession was never properly represented because the representatives of his grandfather Phagoo were never properly brought on the record.

It appears that Phagoo left a Will but probate of that Will was not granted until sometime after the proceedings before the learned Subordinate Judge in execution came to an end. Nobody therefore could possibly say on the 10th January 1921, when Phagoo''s heirs and legal representatives were substituted in his place, who eventually would be the executor of Phagoo''s Will and, in my opinion, the widows of Phagoo were properly brought on the record as representing the estate. Jagat Prasad as one of his grandchildren was also brought on the record and whether he was a personal representative or not, he, at ail events, was a person who subsequently took an interest in the property under the Will and he did in fact, as early as the 14th February 1921, take the objections to which I have already referred. It appears that an application for probate of Phagoo''s Will was made.

Under the Will Firangi, the father-in-law of Jagat Prasad, was appointed executor pending the minority of Jagat Prasad and on the 18th April 1921 Firangi was appointed by the probate Court administrator pendente lite, but at that time he had apparently no power to administer of deal with the estate. Then on the 29th August 1922 probate was granted to Firangi until Jagat should attain his majority. Finally on the 27th September 1923 Jagat was appointed executor, probate being granted to him, he having by that time attained his majority, and as I have said Jagat at a later period, on the 22nd July 1925, entered the objections in this case. It will be seen from that that the property eventually devolved upon Jagat and I take it that from the moment when he became-executor in 1923 he actually acquired the legal interest in the property not as executor but as legatee, because he being both executor and legatee it may be assumed that in one capacity he accepted the legacy and in the other consented to it. It may be that even earlier the property vested in Jagat for when Firangi was appointed executor in August 1922 it seen highly probable that he as the father-in-law of Jagat Prasad would consent to the legacy vesting in his son-in-law. It is contended that the estate of the deceased Phagoo was never properly represented because his executor was never brought upon the record as executor.

I have already pointed out that in the initial stages I think the estate was properly represented, this is to say, at the period before the probate was granted. Even if after probate was granted, and I admit that would take retrospective effect, there was a change of ownership in this property, then no doubt the proper person to be brought upon the record would be the executor, in the first place, Firangi and subsequently in 1923 Jagat Prasad. Both these parties have been on the record in one capacity or another. Mrangi did appear in a very early part of the proceedings acting as the guardian of Jagat and making objections on his behalf, and Jagat himself, as I say has been on the record all along. Whatever defect there may have bean, assuming that there was a defect, seems to me to have been set an end to on the 27th September 1923 when Jagat had, I must assume, actually acquired a legal Interest in the property. He was then on the record and was in fact the legal owner of the property, and even if between the date of the probate and that date there had been no proper representation of the estate of Phagoo still it was quite competent to the Court at that stage to bring the proper parson upon the record. That was not in fact required because Jagat was already there on the record and the interest had come to him. I consider therefore that the proceedings are now regular.

Although Jagat Prasad in his present objections has taken up the position that lie holds this property as executor and that the estate has not yet been administered, it seems to me perfectly clear from the evidence given in the case by one of his own witnesses, a relation, that Jagat Prasad is in fact in possession of the properties left by his grandfather not as executor but as legatee because I find in the evidence of that witness a direct statement to that effect. He says that Jagat Prasad also got the properties which he had to get under the Will. He is speaking now about the administered properties:

Jagat Prasad is in possession of all those properties since the date Jagat Prasad got probate of the Will, Jagat Prasad is in possession of the properties left by Phagoo under the Will. He Is in possession as owner.

Nothing could be clearer than that and therefore as he has been on the record all along and as ha has been since the date when probate was granted to him in 1923, proprietor of those properties, I do not think it can now be said that the property is not properly represented. Whatever defect there may have been at an intermediate stage that was cured as from the grant of probate in September 1923. The second point therefore also fails and this appeal must be dismissed with costs.

Foster, J.

I agree.