Mt. Bhagerna Kuer vs Ramdeni Rai and Others

Manohar Lall, J.—This is an appeal by the plaintiff who is aggrieved by the decision of the learned Additional Subordinate Judge of Chapra dated 28th February 1946, by which he reversed the decision of the learned Munsif in the circumstances about to be narrated. The question for decision is whether the maintenance decree of the plaintiff cannot be executed against the properties in suit on the ground of res judicata and on the ground that the defendants have obtained dear title to it by reason of the sale in execution of an order passed in favour of the Government to realise the court fee.

On 80th June 1936, the plaintiff obtained a maintenance decree against defendants 2 to 6 who were members of a joint family and by that decree a charge was created on the properties in dispute in the present suit. The suit having been instituted in forma pauperis, defendants 2 to 6 were directed to pay the court-fee payable on the plaint. The court-fee not having been paid, the Government proceeded to realise the amount of the court-fee by selling the property which had been declared subject to the charge of the plaintiff. In 1987, defendant 1 became the auction purchaser of the property in the present suit. In the same year, the plaintiff; executed her decree for maintenance for the amount which had fallen in arrears, and proceeded to attach the property in dispute. Defendent 1 preferred an objection objecting to the attachment, and the objection was allowed under Order 21, Rule 58, Civil P.C. The plaintiff thereupon in the year 1988 filed a suit under Order 21, Rule 68, Civil P.C. to set aside that order, but the suit was dismissed for default.

In the year 1941, the plaintiff again executed the decree for the arrears which had become due subsequently. Defendant 1 again filed an objection under Order 21, Rule 68, Civil P.C. to the attachment, but that objection was disallowed on the ground that it was not maintainable as Order 21, Rule 58, Civil Procedure has no application to such cases. That objection was disallowed on 23rd December 1941. The plaintiff having executed the decree became the auction purchaser of the lands in suit in January 1942, and got delivery of possession, but the possession was resisted by defendant 1. Thereupon, the proceedings were started under Order 21, Rule 100, Civil P.C., and the Court passed an order under B. 101. As such an order is conclusive subject to the result of a regular suit, as provided by Rule 103, the plainlife was forced to bring this suit giving rise to this appeal to establish her right to possession of the property.

The main contention of the defendants was that the decision in the earlier claim case under Order 21, Rule 58, Civil P.C., was res judicata in the present suit, and secondly, that the execution sale in which defendant 1 made a purchase in 1937 rendered the property free from the maintenance charge of the plaintiff by reason of the fact that under Order 33, Rule 10, Civil P.C., the amount of court-fee directed to be paid by the Subordinate Judge in the pauper suit was a first charge on the subject-matter of that suit.

The trial Court overruled the contention of the defendants, but the appellate Court has taken a contrary view and has held that the plaintiff did not derive any title to the property by reason of her auction purchase in January 1942, and therefore, is not entitled to recover possession. Hence, the second appeal to this Court.

The view of the Subordinate Judge regarding the validity of both the objections of the defendants has been ably supported by Mr. B.C. De on behalf of the respondents. But in my opinion, that view is not tenable in law.

To take up the first contention as to whether the purchase of the first defendant was subject to the charge of the plaintiff, defendant 1 purchased the property in 1937 in execution of an order for payment of court-fees by defendants 2 to 6 to the Government. He had full notice of the charge, created by the decree of the Subordinate Judge. By reason of the amended provision of the second clause of Section 100, T.P. Act, made in 1929, the charge of the plaintiff can be enforced against the property which is in the hand of the first defendant, because it has been transferred to him with notice of the charge of the plaintiff''s maintenance dues from time to time. Section 39, T.P. Act, is also to the same effect, and it has been pointed out by Sir Dinshah Mulla on p. 168 of his commentaries, 1936 edition, that "Section 39 has been enacted to effectually protect the right of the widow to her maintenance".

It was argued that by the provisions of Order 33, Rule 10, Civil P.C., the amount of court-fee is the first charge on the subject-matter of the suit, and therefore, the purchase of defendant 1 wiped off the charge in favour of the plaintiff. Now, what was the subject-matter of the earlier suit? Surely, it was the amount of maintenance which should be decreed to the plaintiff. Assuming, however, that the subject-matter of that suit can be stretched to include the property over which the charge had been declared in the earlier suit, the statutory charge by Order 33, Rule 10, Civil P.C. must itself be subject to the charge which already had been declared by the decree on the property in the present suit. The Court decreed the suit declaring that the arrears of maintenance are a charge on the property, and then the statute declares the court-fee to be a charge which must mean the second charge on the property. Take the case of a mortgagee who sues as a pauper to enforce his rights. If the suit succeeds, can the amount of court-fee payable to the Government override the charge which already exists in favour of the plaintiff mortgagee? The answer undoubtedly is in the negative, and this was conceded by Mr. De, but he argued that in the present case the charge was not declared before the suit was filed. I do not think this makes any difference because the Court itself has first declared the arrears of maintenance to be a charge on the property by crystallizing the charge which was merely a floating charge on all the properties of the joint family, and that crystallization was made before the statutory charge came into operation.

The objection of defendant 1 can be be met in another way. When the Provincial Government proceeded to execute the order for payment of court-fees, the execution was of an order which directed defendants 2 to 6 to pay the court-fees to the Government. The execution proceedings took the shape of a money execution. The plaintiff was made no party to the execution proceedings, and thereby the plaintiff was deprived of the right to redeem the charge in favour of the Government. For these reasons also, the purchase by defendant 1 was subject to the charge in favour of the plaintiff of which he had full notice. This view is supported by a Calcutta case, Gadadhar Mandal v. Manaka Dassi A.I.R.1926 Cal. 869 and by a case decided by the Sind Court, Vishnibai v. Bulchand Tihamdas reported in A.I.R.1985 Sind 21.

Mr. B.C. De relied upon the case of Babui Girija Kuer v. Seey. of State A.I.R.1919 Pat. 99 but the decision in that case is of no assistance, and does not take the view contrary to that which I have expressed above.

Attention may be drawn to the Privy Council case of Kumar Ragho Prosad v. Mewa Lal 34 All. 223, where a pauper suit instituted by a wife for the amount of dower debt was decreed against the husband, but was dismissed against the co-defendants who were the mortgagees in so far as it claimed a charge on the mortgaged estate in priority to the mortgage. The Collector in execution of the order for payment of the court-fees u/s 411, Civil P.C. of the Act of 1882, which corresponds to Order 33, Rule 10, sold the property. It was held, firstly, that the order preserved the priority of the incumbrances of the mortgagees, and secondly, that the decree of the Subordinate Judge did not create or purport to create any charge on the mortgaged property in favour of the Government, and therefore, the Government had no right to attach the property or sell it in execution under that decree, though, of course, much interest, if any, as remained in the mortgagor from whom the court-fees were declared to be recoverable might have been reached by a pro-per proceeding. Further it was held by their Lordships that the order for the sale was without jurisdiction, and the sale passed no property to the person declared as the purchaser. In the present case also, the Subordinate Judge did not declare the amount of court-fee to be a first charge on the subject-matter of that suit, but merely directed that the court-fee will be recovered from defendants 2 to 6. The statutory provisions in Order 33, Rule 10, merely declare the law that the amount shall be first charge, but the Court must declare by the decree that the amount of the decree is a first charge. It is quite conceivable that if the Subordinate Judge in that suit had passed such an order, the plaintiff could have appealed and got that order set aside by a superior Court. The truth of the matter is that the Subordinate Judge refrained from declaring the amount of court-fee as a first charge. The parties, namely, the plaintiff and the Government so understood, and this is clear from the fact that the execution taken by the Government was not taken as a proceeding to enforce a charge. In my opinion, therefore, the Subordinate Judge was wrong in reversing the decision of the learned Munsif on this question.

It was then argued that the decision under Order 21, Rule 58, Civil P.C. of the year 1937, was a bar in the way of the plaintiff''s success. There are two answers to this contention; firstly, Order 21, Rule 68, Civil P.C. has no application to a proceeding to sell the properties subject to a charge as the properties do not require any attachment. The order of the Subordinate Judge, therefore, allowing the claim must be treated as without jurisdiction in so far as it is sought to be used to support the plea of res judicata. That order merely decided that the plaintiff cannot attach the properties in execution proceedings, but the plaintiff does not want to attach the properties and did not attach when he proceeded to sell them in 1941. It will be recalled that in that year the objection of defendant 1, under Order 21, Rule 58, Civil P.C. was not entertained on the ground that Order 21, Rule 58, Civil P.C. has no application to proceedings to execute a charge decree. Compare Muthiah Chetti v. Palaniappa Chetti AIR 1928 P.C. 139, where their Lordships held that Order 21, Rule 63, Civil P.C. has no application to a suit for possession where an order under Order 21, Rule 58, Civil P.C. had been passed when the property was found, both in fact and in law, not to have been attached at all. The same reasoning by analogy can be applied to the present case where the property cannot be attached in law. The fact, therefore, that the plaintiff filed a suit under Order 21, Rule 63, Civil P.C. and then withdrew it is of no help to the respondents.

The second answer to the contention is that if the first order in 1937 is held to be a good order, then the defendants themselves are hit by the second order of December 1941 where their claim under Order 21, Rule 58, Civil P.C. against the sale of the property was disallowed, and they have not filed any suit to set aside that order of 23rd December 1911. Mr. B.C. De in this connection contended that when the Court did not pass any order and refused to consider the application on the ground that it was not maintainable this argument of the plaintiff should not be allowed to succeed. But in my opinion, the order of the Court itself directed defendant 1, to file a suit or to resist the claim to possession of the plaintiff so that the matter may be investigated in a proceeding under Order 21, Rule 100, Civil P.C. That order has not been revised by the High Court, and the parties are bound by that order. The plaintiff having been resisted and the defendant having succeeded, the plaintiff is entitled to bring a suit to have the order under Rule 100, set aside in the present suit.

I would, therefore, overrule the second contention of Mr. De also.

The result is that the appeal must be allowed, the decision of the learned Subordinate Judge set aside and the decision of the learned Munsif will be restored. The plaintiff is entitled to her costs in all the Courts.

Mahabir Prasad J.

I agree.