Lachhmilal and Others vs Firm Sriniwash Ram Kumar and Others

Wort, J.—The only point in this cases apart from the minor question to which I shall in a moment refer, is whether this suit lay. It is contended by Mr. Sushil Madhab Mullick that the application which at one time was treated as an application under Order 21, Rule 58, was in fact an objection u/s 47, Civil P.C., and that that decision is final and would bind the parties failing an appeal, which in this case, has not been preferred.

The appeal was not preferred because the plaintiff who is the respondent before us in this appeal, treated the former application (as I have already indicated) as an application under Order 21, Rule 58, and having failed in that claim case, proceeded to bring a suit under Order 21, Rule 63. It is only when he got into the Court of the Munsif that he was met with the objection to which I have already referred. Now the other point raised be Mr. Sushil Madhab Mullick on behalf of the defendant-appellants relates to the last part of the order of the Munsif which runs thus:

The suit as against defendant 1 is hereby dismissed but in view of my other findings against him, I make no order as to costs.

To explain the position it is only necessary to make one statement. The property which was the subject-matter of the proceedings to which I have referred was held by the Judges in the Courts below to be the joint family property and not the separate property of defendant 1 as alleged. But it being the joint family property, the Judges in the Courts below have divided the property in the sense of making that share of the property, which would represent the share of the deceased father, liable in execution.

It seems to me that what the learned Judge of the trial court meant was that the share of defendant 1 was released from execution, and in that sense and to that extent, the suit was dismissed against defendant 1. It was contended (as perhaps what I have observed indicates) that, as the claim case failed and as the suit against defendant 1 was dismissed, the effect would be that defendant 1 is entitled to have the whole of the property released from execution; and, as no appeal was preferred from the decision of the Munsif on this point, the effect which I have indicated as being the substance of the argument would result. In my view however, the common sense view has got to be taken of the Munsif''s judgment and I interpret his words in the way I have stated (it is impossible to interpret it in any other way), namely that the share of defendant 1 was not liable to attachment and sale in execution.

The other point can be very shortly stated and Mr. Sushil Madhab Mullick in support of the point relies upon the decision of the Full Bench of the Calcutta High Court in Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711 in which it was held that the objection between the representatives of the judgment-debtor and the decree-holder in relation to property taken in execution is an objection u/s 47, Civil P.C., or the then Section 244, and not a case under Sections 278 to 283 of the then Code, or Order 21, Rules 58 and 63 of the present Code.

There is another Full Bench decision of the Calcutta High Court in Kartik Chandra Ghose v. Ashutosh Dhara (1912) 39 Cal. 298, in which the judgment-debtor raised an objection purporting to be under the then Section 278, Civil P.C., with regard to a property which he claimed to be the property of a deity of which he was the shebait; and the learned Judges deciding that case held that Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711, to which I referred a moment ago, was the converse of the case before them. I understand that'' to mean that whereas in the case in Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711 it was held that the application was u/s 244, in the circumstances of the case then before them, the Judges were bound to hold that it was a case u/s 278 and Section 283, and not u/s 244 of the then Code. I repeat that that is what'' I understand to be the meaning from the following words in the judgment:

It does not however decide the question now in controversy, but merely deals with the converse question.

This observation was made while referring to the decision in Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711. The essence of the decision is that if a person has two capacities, there is no reason why he should be limited to one, Mr. Sushil Madhab Mullick contends that the position of a person who was the judgment, debtor on the one hand and the shebait of a deity on the other may be treated in two separate capacities, and that is not the case (so it is contended) in the appeal before us. It is the same person merely objecting to the execution against the property which is his own personal property. In my judgment I find it quite impossible to distinguish the case before us from Kartick Chandra Ghose v. Ashutosh Dhara (1912) 39 Cal. 298.

The appellant was not a judgment-debtor, indeed it would have been an entirely different position had he been so. But he was a representative of the judgment-debtor, and that was a capacity; which was quite distinguishable from the, capacity in which he came forward and claimed the property to be his own personal property. The decision in Nauratan Lal Vs. Margaret Anne Stephen and Others, has followed the Full Bench decision in Punchanun''s case reported in 17 Cal. 711 . In Nauratan Lal Vs. Margaret Anne Stephen and Others, Mrs. Stephen never contended that she was anything other than the representative of the judgment-debtor and indeed the Court treated her as such.

So it was in Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711 where the Manager died during the proceedings and after his death further proceedings were taken in execution against his widow as his representative and her objection was not that she was not the legal representative but that the property which the decree-holder sought to sell in execution was her own personal property. Had the Courts been minded or had they been forced, in the circumstances of the case, to consider whether she was the representative or not, it might have made a considerable difference. If we are to treat Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711 as conclusive with regard to this matter as well as Naurattan Lal v. Margaret Anne Stephen A.I.R (1922) Pat. 572 then it amounts to this: The decree-holder has merely to make the assertion that a person is the representative of the judgment-debtor (however far that may be from the truth) and once that assertion is made, the parties are confined to an objection u/s 47 and are not entitled to adopt the procedure laid down in the CPC under Order 21, Rule 58.

The learned Judge of the Calcutta High Court has stated, perhaps with some difidence, that the law as laid down in Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711 is good law: but Kartik Chandra Ghose v. Ashutosh Dhara (1912) 39 Cal. 298 has never been overruled and it seems to me that the only possible way to distinguish the cases is that in Punchanun Bundopadhya v. Rabia Bibi (1890) 17 Cal. 711 the complainant was in fact and was treated as the representative of the judgment-debtor but here we have entirely different state of affairs. Here the complainant was held not to be the representative of the judgment-debtor although in the decision of the learned Judge in the Court below from which this appeal is preferred, it has been held that in the sense that the son of a deceased member of a joint family holds the property of the deceased within the meaning of Section 53, the complainant was the representative of the judgment-debtor. I would decide this appeal on the footing of the statement made by the learned Judges of the Calcutta High Court in Kartick Chandra Ghose v. Ashutosh Dhara (1912) 39 Cal. 298 to the effect that if a person has two capacities, there is no reason why his objection should be limited to one. Here the appellant proceeds in the matter in his personal capacity and there is no reason why he should be limited to the objection (if such it may be treated) u/s 47, Civil P.C., to the effect that he was not the legal representative of the judgment-debtor.

There is another aspect of the case which seems to me to be material and that is that it seems difficult to hold that once the appellant has successfully contended that he is not the legal representative of the judgment-debtor, how can we now allow him to be heard in stating that he is the legal representative? The decision in Nauratan Lal Vs. Margaret Anne Stephen and Others, is binding upon us, but in my judgment that decision does not govern this case for the reason which I have stated. The appeal fails and is dismissed with costs.

In appeal No. 743 of 1937 the appellants were judgment-debtors, there is no dispute about that. There is no objection by them to the sale of the property and it is rather surprising to learn that they took part in the proceedings in this case. Costs have been awarded against them, but they should have been, had they insisted, dismissed from the suit. "We cannot now dismiss them from the suit as they have taken part in the proceedings in the Court below, but we would set aside the order of the Judge in the Court below ordering them to pay costs. To that extent the appeal is allowed. There will be no order for costs in regard to that appeal in this Court.

Agarwala J.

I agree.