Lakhpat Lal vs Makhan Ram and Others

Agarwala, J.—The appellant and respondent 3 each obtained a decree in the Small Cause Court against the same judgment-debtor. In each case the decree was transferred to the regular jurisdiction of the Munsif for execution. The appellant''s execution case was No. 746 of 1940, and the execution case of respondent 3 was No. 750 of 1940. In each execution case it was sought to attach a house. The boundaries stated in each of the applications for execution however were not the same. On 17th July 1940 in Execution Case No. 750 of 1940, that is to say, in the case in execution of the respondent''s decree the appellant made an application for rateable distribution alleging that the house sought to be sold in execution of both the decrees was the same. He also prayed that the description of the house given in Execution Case No. 750 of 1940 should be corrected. This application for rateable distribution and for correction of the description of the house was rejected by the Munsif on the ground that what was being sought to be sold by the decree-holders was not one house but two different houses. On 22nd July, respondent 3, in execution of his decree, put up the house for sale and purchased it himself. He then applied in the case in which the appellant''s decree was being executed, namely, No. 746 of 1940, for exemption of the house from sale in execution of the appellant''s decree, alleging that the appellant proposed to sell the very same house which the respondent had already purchased, although the respondent himself had, a month previously, denied that the two houses were the same. This application of respondent 3 was opposed by the appellant on two grounds: first, on the ground that the respondent was not a representative of the judgment-debtor and, therefore, had no right to make an application u/s 47, Civil P.C., and, secondly, that if the application of the respondent was regarded as an application under Order 21, Rule 58, it ought to be dismissed on the ground that the order of 17th July had been brought about by the respondent''s representation that the houses sought to be sold were different and that the, respondent was, therefore, estopped from now asserting that there was only one house. This objection by the appellant was upheld. The learned Munsif held that the application of the respondent was not an application u/s 47 and that he was estopped from alleging that there was only one house.

The respondent preferred an appeal to the District Judge. While this appeal was pending the appellant''s application for execution, namely, No. 746 of 1940, was proceeded with and resulted in the house being put up for sale and purchased by the appellant. ''Thereafter the respondent''s appeal was heard by the District Judge who remitted to the Munsif an issue as to whether the respondent had in fact made any representation on 17th July 1940, that there were two houses and not one. The Munsif took evidence on this issue and found as a fact that there has been no representation at all by the respondent. On receipt of the Munsif''s finding on this issue the District Judge disposed of the appeal by remanding it to the Munsif for decision on the merits. It is against this order that this appeal has been preferred.

The respondent took a preliminary objection that as the decree in execution is a decree of a small cause Court a second appeal is barred by Section 102, Civil P.C. To this the appellant replies that the Court of appeal below had no jurisdiction to entertain the respondent''s appeal inasmuch as the respondent was not a representative of the judgment-debtor within the meaning of Section 47, Civil P.C., but that as the Court below did entertain the respondent''s appeal the appellant is entitled to maintain this second appeal. In Ram Ratan Prasad and Others Vs. Banarsi Lal and Others, it was held that if a District Judge entertains an appeal which does not lie to his Court, a second appeal lies against his decision. This was followed in Banka Das Vs. Srinivas Padhi, . These decisions being decisions of Division Benches are binding on me and I am, therefore, bound to hold that the present second appeal is maintainable.

The question of law which now arises is whether an appeal lay to the District Judge from the order of the Munsif and that question depends upon whether the respondent 3 is the legal representative of the judgment-debtor within the meaning of Section 47, Civil P.C. The respondent is a purchaser in execution of a money decree in another suit. Such a person has been held not to be a representative of the judgment-debtor, see Madhu Sudan Shaha Vs. Ram Pershad Chimanlal, Firm and Others, . The test for determining whether a person is the representative of a judgment-debtor within the meaning of Section 47 is that laid down by the Full Bench decision of the Calcutta High Court in Ishan Chunder Sirkar v. Beni Madhub Sirkar (''97) 24 Cal. 62. It was there held that a representative in interest within the meaning of Section 47 includes a purchaser of the judgment-debtor''s interest, who, so far as that interest is concerned, is bound by the decree whether the purchase was made at a private sale or at an execution sale. The interest purchased by the respondent in execution of his decree is in no way bound by the purchase made by the appellant in execution of his decree, the respondent not being a party to the suit in which the appellant''s decree was passed. I must, therefore, hold in the present case that respondent 3 is not a representative of the judgment-debtor, so as to entitle him to appeal from the order of the Munsif. If the application to the Munsif be regarded as an application under Order 21, Rule 58 the remedies open to the respondent against the order dismissing his application were either by an application in revision to this Court or by the institution of a suit under Rule 63 of Order 21. There is no application in revision to this Court. The only remedy now open, therefore, is by a suit under Rule 63 of Order 21, subject, of course, to the law of limitation. The result is that the appeal must be allowed, the order of the District Judge set aside and that of the Munsif restored. The appellant is entitled to his costs in this Court and in the Court of appeal below.