Manrup Mandal and Another vs Badri Sao and Another

Fazl Ali, J.—This second miscellaneous appeal arises out of an execution proceeding. The facts of the case may be briefly stated as follows: In 1935 respondent 1 instituted a rent suit against the appellants and their father, Rameshwar Mandal, to recover rent for the years 1339 to 1342 F. Ultimately the suit was compromised and a compromise decree was passed in favour of respondent 1 and one of the appellants signed the compromise petition on behalf of his father, Rameshwar Manual. It appears that Rameshwar Mandal was described as a karta of the family in the plaint, and he alone filed a written statement in the suit in which he stated that as he was the karta of the family the suit should have been instituted against him alone and his sons, defendants 2 and 3, were not necessary parties. As the appellants did not appear in the suit, the decree was passed as against defendant 1 alone and as against them the suit was dismissed for default.

The question which now arises is whether the share of the appellants in the holding which is advertised for sale can be sold in execution of the decree. It is contended on their behalf that inasmuch as the suit was dismissed as against them, their share in the holding cannot be sold. Both the Courts below have overruled this contention, and they have now preferred this second miscellaneous appeal.

The learned advocate for the appellants has urged before this Court that their objection ought to have been upheld by the Courts below, and in support of his contention he relies mainly upon the decision of this Court in Prahlad Das v. Dassrathi Satpathi AIR 1940 Pat. 117. It was held in that case that where a decree-holder obtained a decree against the father in a suit against the father and son, and wanted in execution to sell the share of the son also, the decree being against the father only in his individual capacity and not as representing the son and also there being no decree against the son, it could not be executed against the interest of the son. It is contended that the principle laid down there is fully applicable to the present case, and the interest of the appellants cannot therefore be sold in execution of the decree.

Now, the facts of the case upon which the learned advocate for the appellants relies were these. In that case the plaintiff had brought a suit to enforce a simple mortgage executed in his favour by defendants 1 to 3, but he had also impleaded in the suit their respective sons as defendants 4 to 6. The suit was decreed and the mortgaged properties were sold in execution of the decree. As however the sale proceeds were found to be insufficient to satisfy the decree, the plaintiff applied for a decree under Order 34, Rule 6, Civil P.C., and in his application he specifically asked for a decree against defendants 1 to 3 only, and not against their sons, defendants 4 to 6. The result was that a money decree was passed against defendants 1 to 3 only, and in execution of it the plaintiff brought to sale the shares of those defendants in the joint family property. The decree however still remained unsatisfied and he accordingly wanted to sell the shares of the sons, namely, defendants 4 to 6 also in the joint family property.

It was held upon these facts that he could not proceed against the shares of defendants 4 to 6 in the joint family property. It is to be noted that in that case although the plaintiff had obtained a mortgage decree against defendants 4 to 6 also, yet when he afterwards applied for a decree under Order 34, Rule 6 he specifically asked for a decree against defendants 1 to 3 only, and not against defendants 4 to 6. The fact that he understood his decree to be against defendants 1 to 3 only was apparent from the steps taken by him immediately after having obtained the decree under Order 34, Rule 6, because when he proceeded to execute that decree in the first instance he brought to sale the shares of defendants 1 to 3 only in the joint family property. Thus, inasmuch as there was no decree under Order 34, Rule 6 against defendants 4 to 6 (the sons), it could not but be held that he could not in execution of that decree proceed to sell the interest of those defendants in the joint family property. Mohammad Noor, J. who delivered the judgment of the Court in that case, referred in the course of his judgment to and relied-upon the case in AIR 1938 7 (Privy Council) which was a case decided by the Privy Council. In that case for the mortgage executed by a father a suit was instituted against his sons and grandsons. The grandsons were dismissed from the suit, but afterwards the decree was sought to be executed against their shares in the family property.

Their Lordships of the Privy Council held that the suit having been virtually dismissed against the grandsons, the decree could not be executed against their shares in the family property. The point to be noticed, so far as this case is concerned, is that the suit had not been brought against the karta or the managing member of the family, but had been brought against all the members of the family including grandsons but for some reason or other the grandsons were subsequently dismissed from the suit. In the present case, however, Rameshawar Mandal (defendant 1) was expressly stated in the plaint to be the karta of the family, and one of the pleas taken by him in the written statement was that inasmuch as he was the karta of the family his sons were not necessary parties. If, in such circumstances, the sons had been dismissed from the action on the ground that they were not necessary parties, inasmuch as the suit had been brought against their father as the karta of the family, I venture to suggest that it would have been difficult to hold in that case that a decree obtained against the father as the karta of the family would not bind the sons. In the present case, there is no order dismissing the appellants from the action on the ground that they were not necessary parties; but as I have already stated, a compromise decree was passed only as against Rameshwar Mandal and the suit was dismissed for default as against them. Why the suit was dismissed for default as against these appellants, when they did not appear to contest the suit, is not quite clear. But the order is there, and the learned advocate for the appellants contends that the necessary corollary from that order should be that the appellants'' share in the holding cannot be sold in execution of the decree.

The order passed by the trial Court in the rent suit was undoubtedly a peculiar one, but the fact remains that the decree was passed against Rameshwar Mandal as the karta of the family. That being so, I would have hesitated to hold that such a decree will not be binding upon the sons, but it is unnecessary for me to express any final opinion on this point, because I think that this appeal can be decided on a very short ground.

In my opinion, the real question to be decided in this appeal is whether the decree which is being executed is a rent decree or it is a money decree. If it is a rent decree, then the entire holding is to be sold in execution of the decree. But if it is a money decree, then only the right, title and interest of the person against whom the decree has been obtained can be sold. Apart from the fact that Rameshwar Mandal was the karta of the family, to which the appellants belong, it has been definitely found by the lower appellate Court that Rameshwar Mandal alone was recorded in respondent 1''s serishta as the tenant of the holding which was the subject-matter of the rent suit and that Rameshwar Mandal represented the holding. That being so, the decree which is being executed must be deemed to be a rent decree, and not a money decree. The learned advocate for the appellants, however, relies in this connexion on para. 3 of the plaint in which it is stated that on 7th May 1931, the defendants had transferred 4.5 acres of the original holding to the son of the plaintiff and on the agreement of the plaintiff and the defendants a new holding was thereafter created bearing a rental of Rs. 99-1-0 besides cess of which the defendants were the tenants.

It is contended that the statement made by the plaintiff himself shows that not only Rameshwar Mandal but the appellants also were the tenants of the new holding, and it is contended that in these circumstances all the tenants including the appellants were necessary parties to the suit and unless a decree was obtained as against all of them it could not be regarded as a rent decree. In my opinion, however, this contention is not correct. It may be that there may be several tenants of a particular holding but they may allow the holding to be represented by one of themselves in the landlord''s serishta, in which case the landlord -would be entitled to bring a suit only against that person who represents the holding, and the decree obtained by him in such a suit will be a rent decree and not a money decree. This is precisely the case here. It has been found as a fact by the lower appellate Court that Rameshwar Mandal, the father of the appellants, represented the holding, and as a decree has been obtained here against Rameshwar Mandal, that decree must be held to be a rent decree. It follows that in execution of the decree, the entire holding can be sold, and that being so, the appellants'' objection to the execution proceedings must fail.

In my judgment, the view taken by the Courts below is correct, and I would accordingly dismiss this appeal with costs.

Harries, C.J.

I agree. The decree against Rameshwar Mandal was passed against him as representing the holding. In execution of such a decree-the whole holding will pass as stated by my learned brother.