Kishori Lal Marwari vs Kumar Chandra Narain Deo and Another

Rowland, J.—The order under appeal was an injunction issued at the instance of the plaintiff restraining defendant 1 from putting up to sale certain properties in execution of a mortgage decree obtained by him for the sale of those properties. The mortgage had been executed on 27th February 1911, in favour of the appellant for one lakh of rupees with interest by Thakur Pratap Narain Deo, the proprietor of the Lachmipore estate. This gentleman died on 23rd November 1913, childless and leaving several widows. By a will he appointed his senior widow, Thakurain Kusum Kumari to be administration of the estate and to have authority to adopt a son to him. She obtained a grant of Letters of Administration to the estate on 5th August 1915. The mortgage suit of the appellant was instituted on 25th April 1928, the claim being laid at Rs. 2,00,000 after remitting Rs. 15,000; and the defendant was the administration representing the estate.

On 27th May 1928 the lady executed a compromise agreement under which the suit was to be decreed for Rs. 13,4,000 with future interest and costs. The agreement was filed in Court on 6th June 1928, but the lady resiled from it by a petition which she presented on 4th September 1929. Later she reconsidered her position and on 25th January 1930, presented a petition withdrawing her petition of withdrawal.

Then on 28th February 1930 a final decree was passed in accordance with the compromise and it is this decree that defendant 1 as decree-holder seeks to execute. The lady on 2nd June 1930 reopened her challenge to the compromise by a fresh petition which was dismissed by the Subordinate Judge on 29th August 1931. Against that order she brought Miscellaneous Appeal No. 259 of 1931 before the High Court. Among the interlocutory proceedings in that appeal were an order of remand under Order 41, Rule 25, dated 15th November 1934, by which the Subordinate Judge was directed to enquire into some alleged payments and to send a finding on that point; and also as to whether in view of S. 6 of the Santhal Parganas Regulations, the decretal amount was in excess of what was permissible under the damdupat rule. The finding of the Subordinate Judge was re turned to the High Court on 17 the April 1935, and was to the effect that legally the plaintiff''s dues amount to Rupees 1,23,680.10-5, whereas the'' compromise decree was for Rs. 1,38,804-0-9, this in. eluding Rs. 3,872-8-0 as costs. The decree, holder however challenged these findings asserting that the accounts presented by him were correct and the amount decreed was not in excess of that due. On 19th March 1937 Appeal No. 259 of 1931 was disposed of in this Court. It was noted:

The appellant does not now challenge the correctness of the judgment and decree of the Court below, but accepts the correctness of the decree passed by that Court.

It was ordered therefore that the appeal be dismissed. Thereafter the decree-holder took out execution and the lady objected u/s 47, Civil P.C. on grounds similar to those taken before. These objections were disallowed on 17th December 1937. Against that order the lady preferred Miscellaneous Appeal No. 18 of 1938 which was dismissed by this Court on 25th February 1938. The present suit is instituted by the plaintiff who is said to have been adopted on 28th February 1929 by Thakurain Kusum Kumari as a son to her deceased husband; and he attacks the decree of defendant 1 and seeks to restrain him from executing it against the properties of the estate. The suit was instituted on 14th February 1938. Before its institution, the plaintiff had on 9th December 1937, moved the High Court u/s 301, Succession Act, to remove Thakurain Kusum Kumari from her position as administration. A formal petition of objection was presented by the lady, but the Court passed are order discharging the lady and directing her to make over the property to the plaintiff. It was observed in that order that the lady was representing the estate hitherto in the capacity of administration and not in any other capacity. She had claimed that under the will she was the sole owner of the estate so long as she lived and the estate would not vest in the son till after her death. This was negatived.

The suit has been instituted on a valuation of Rs. 10,000 with the prayer that defendant 1 be restrained by a permanent injunction from executing the decree, the decree was said to be void and incapable of execution, obtained by fraud and collusion. A prayer for interim injunction restraining execution of defendant 1''s decree was made and this prayer was allowed by the Subordinate Judge in face of objection by defendant 1. The objections pressed in this Court are three: first, it is said that the suit cannot proceed on a valuation of Rs. 10,000 when the decree has amounted to over two lakhs; secondly, it is said that practically all the objections taken by the plaintiff against the validity of the decree were taken by his adoptive mother and had failed, and it is said that these objections are no longer open to the plaintiff; thirdly, it is said that on the balance of convenience the defendants ought rather to be allowed to execute his decree than the plaintiff to delay its execution. On the first point, the defendant''s contention appears to be right. The position is covered by the authority in Brij Krishna Das v. Chowdhury Murli Rai A.I.R (1920) Pat. 656 . The plaintiff must be required to value his suit according to the amount of the decree which he seeks |to avoid; and he must pay the court fee ad valorem on this amount before he can be permitted to proceed further with the suit. The amount appears in the papers before us to be stated as Rs. 2,06,368-2-3.

On the second point the appellant contends that Thakurain Kusum Kumari as administration was the sole and proper person to represent the estate in all litigation and in all transactions up to the date of her removal from that position by the order of this Court on 9th December 1937. Any decree obtained against her before that date therefore binds the estate. Prima facie that argument would appear to be in accordance with law. But the plaintiff retorts that acts of the administration in order to be binding on him must have been done in the bona fide exercise of her powers and within their limits, whereas the com. promise decree which she suffered to be passed against the estate was collusive and fraudulent and therefore in no way binding on him.

It was beyond her powers in a compromise to suffer a decree for more than was legally payable on the mortgage. A reference in this connexion was made to the finding of the Subordinate Judge dated 17th April 1935. No doubt, it is the plaintiff''s case that the compromise is collusive and invalid; but it is to be noted that the Subordinate Judge on 29th August 1931, had found the compromise to be a good one and had rejected the lady''s attack on it in a decision on the merits. The appeal from this decision was eventually dismissed by this Court on 19th March 1937, the Judges-being assured by the advocate that the'' correctness of the decree of the Court below was now admitted by the appellant. It will not be presumed that the advocates or the parties were acting corruptly or against the interest of the estate, though of course it will be open to the plaintiff to establish any such thing if he is in a position to do so.

The fact that an allegation is made in the plaint is not at all sufficient to establish a prima facie case of that allegation being true. Proceedings of the Courts on their face are considered prima facie to be sound and not prima facie unsound and invalid. My view therefore on the second ground is that whereas the plaintiff is not precluded from maintaining the suit to'' show that the proceedings taken and suffered by his adoptive mother were collusive and invalid against him, the fact that he has made these allegations in the plaint is not in itself sufficient to raise a prima facie case that these allegations are true.

The third ground to be seen is the balance of convenience and in this case it is to be noticed that the original mortgage which was created by the last full owner of the estate himself, was dated as far back as February 1911; that the suit to enforce the mortgage was commenced on 25th April 1928, more than 11 years ago, and that the execution has now been pending for about two years. I am of opinion that the balance of convenience in the circumstances of this case is in favour of permitting the execution to proceed. I would allow the appeal with costs and discharge the injunction. The plaintiff respondent undertakes to make good the deficit court-fee in the Court of the Subordinate Judge within two months from this date. Should the execution proceedings result in any change in the circumstances or position of the parties, it will be open to the plaintiff to apply to the Subordinate Judge for riecessary amendment of the plaint as occasion may arise.

James J.

I agree.