Oudh Behari Lal vs Nageshar Lal

Straight, J.—The point raised by this reference, which has been made to the Full Bench by the learned Chief Justice at the instance of my brother Mahmood, arises as to the construction to be placed upon s. 89 of the Transfer of Property Act. The appeal before my brother Mahmood was an execution appeal from an order of the District Judge of Gorakhpur, dated the 10th January 1890, by which he held that the decree before him, execution of which had been sought in the first Court, was a decree which practically complied with the requirements of s. 88 of the Transfer of Property Act, and that the application of the 23rd August 1888, for the execution of that decree was an application within the meaning of s. 89 of the Transfer of Property Act. That application was in the following terms:-- "In my former application of the 6th July 1886, for sale of property, which was transferred to the Collector, the judgment-debtor applied for time and made an agreement to the effect that at the end of October 1887 he would pay, and he made an application for extension of time in Court and my application was dismissed. He has not paid, and therefore this application is made, and it is prayed that the property be attached and sold." It has been contended this is not an application within the meaning of s. 89 of the Transfer of Property Act, for an order absolute for sale, and Mr. Durga Charan, who appears in support of the judgment-debtor, objector, appellant in the appeal, argues that that application is one which should be made to the Court which passed the decree as the Court which passed the decree, and it is not an application in execution. In other words, Mr. Durga Charan contends that before sale can be ordered, the Court which passed the original decree for sale, must make that decree absolute.

I am of opinion that an application for an order absolute for sale under s. 89 of the Transfer of Property Act is a proceeding in execution, and subject to the rules of procedure governing such matters.

In reference to the analogous s. 87 of the same Act, a like view was expressed by my brother Mahmood and myself in the case of Kedar Nath v. Lalji Sahai I.L.R., 12 All., 61, with regard to orders absolute for foreclosure, and I see no grounds for doubting the propriety of that decision. Where a decree has been passed under ss. 86, 87, 88, 89 or 92 directing payment into Court by a specified date of a sum of money and, in the event of its not being paid, declaring that foreclosure or sale shall follow, or a right to redeem shall be barred, it would, in my opinion, be a misnomer, if payment is made, to describe such payment as other than one made in execution of decree. On the other hand, it appears equally clear to me that if such payment is not made, the consequences which follow are also matters concerned with the execution of the decree, flowing as a matter of course out of the decree itself, viz., to give it effect against the judgment-debtor for having failed to satisfy the conditions of the decree. If decrees are properly prepared under ss. 86, 88 and 92, they should fully set out all these conditions and declare the consequences that will follow if they are or are not fulfilled.

Such being the view I take of this matter, the decision of the learned Judge below was a right decision and this appeal must fee and it is dismissed with costs.

Edge, J.

I concur.

Tyrrell, J.

I entirely concur.

Mahmood, J.

I also agree in my brother Straight''s judgment, and also in everything that he has said, but I am anxious to say, as one of the Judges who referred this case to the Full Bench, and with reference to my order of reference of the 1st August 1890, that there are three rulings of this Court, to be considered, and one ruling of the Calcutta Court. Dealing first with the printed case of Ram Lal v. Narain, I.L.R., 12 All., 539 to which reference is made in my order of reference, I cannot help feeling that the judgment delivered by Bay brother Straight to-day conflicts with that decision, and since his judgment in this case has the concurrence of the whole Court, I hold that the earlier decision cannot be any longer treated as authority upon this point. The next is an unreported case which also is before me, viz., Babu Dina Prasad Singh v. Shah Sifat Alam (F.A. No. 16 of 1889) which was disposed of by the learned Chief Justice on the 2nd July 1889. That judgment also was cited, and I must express the opinion that the view expressed by my brother Straight to-day renders that judgment also un-authoritative for any further discussion of the same question in this Court. The third case is that of Musammat Parbati v. Behari Raj (S.A. No. 512 of 1890) on the execution side, which was disposed of by the judgment of the learned Chief Justice and our late colleague Mr. Justice Young dated the 8th May 1890, and that judgment is confirmed by what my brother Straight has said. Then comes the fourth case, namely, the case in which the Calcutta Court in the case of Ramjodu Mojumdar and Another Vs. Poresh Nath Mojumdar, decided the same point, and it was cited by Mr. Durga Charan as an authority in his favour.

There is much in that judgment winch undoubtedly supports the argument which Mr. Durga Charan addressed to us. But it is unnecessary, after the expression of opinion which has been given to the view of this Bench by my brother Straight, that I should say anything more than this that I am not prepared to accept that or all that was said in that case either as to the theory of the decrees nisi in such cases or as to the decrees absolute or their effect upon the procedure of the Court, which is governed by the Civil procedure Code. I therefore give my full concurrence to all that has fallen from my brother Straight.

Knox, J.

I concur with what has been said by the learned Chief Justice and my brother Straight.