Prakash Chandra Sarkar vs Brindaban Chandra Sarkar

Dawson Miller, C.J.—This is an application for leave to appeal to His Majesty in Council filed on behalf of Prakash Chandra Sarkar from an order of a Division Bench of this Court made in its revisional jurisdiction on the 8th December last. The Petitioner was one of three brothers who obtained a mortgage decree against Pande Baldeo Ram and others which they executed against the mortgaged property which was situated in Gaya.

The decree was executed against the mortgaged property which proved insufficient to satisfy the decree. A decree for the unsatisfied balance was then obtained against the defendants in that suit under S. 90 of the T. P. Act, 1882 (now O. 34, R. 6 of the C. P. C.) from the Sub-Judge of Gaya in the year 1909. The decree was passed in favour of the petitioner and his brothers jointly.

The petitioner subsequently, on the 9th October 1909, applied to the Court at Gaya to transfer the decree to the Subordinate Judge at Ranchi for execution against certain property of the judgment debtors in that district. He stated in his application that the other decree-holders were unwilling or unable to join in the application and asked that the decree should be transferred as regards his third share only of what remained due to the decree-holders. The other decree holders were served with notice of the application. One of them, who, we are told, was a lunatic, offered no objection and did not appear; the other objected only on the ground that one of the judgment-debtors was dead and proceedings ought to be taken against his representatives.

This defect was cured and on the 13th June 1910, it was ordered that the decree be sent to the Court of the Subordinate Judge at Ranchi for execution. In the course of execution proceedings sometime later a certificate of non-satisfaction was sent from the Court at Gaya to that at Ranchi which showed the total amount due which was over Rs 67,000 of which Rs. 22,571, viz., one-third, together with some interest and costs, it was sought to satisfy in the execution. On execution being taken out the judgment-debtors objected that the procedure was irregular and the executing Court ordered that the sum realised in execution should not be paid to the applicant without the consent of the other decree-holders. The petitioner appealed from this order to the High Court. The appeal was heard on the 15th August 1917 by the late Chief Justice and Mr. Justice Sharfuddin who considered that the transfer of one third of the decree was irregular and that the order of transfer could not be held binding upon the respondents, the judgment-debtors, upon whom no notice had been served. They further expressed the opinion that the executing Court was right in treating the transfer as if it was a transfer of the whole decree, and in not allowing the appellant to proceed as if he were the sole decree holder. They thought, however, that the Court below had gone too far and varied the order by directing that no sum should be paid out of Court to the appellant except on his giving security to the satisfaction of the lower Court to refund the same if required. By O. 21, R. 15, where a decree has been passed jointly in favour of more persons than one, any one or more of them may apply for execution of the whole decree for the benefit of them all but in such a case the Court is bound to make such order as it deems necessary for protecting the interests of the persons who have not joined in the application. There is no other provision in the Code for enabling one of several joint decree-holders to apply for execution. In that execution it appears that a sum of Rs. 3,000 was realised, the attached property being sold to the decree-holder who was allowed to set off the purchase price against the decretal amount, and the case was dismissed on part satisfaction.

A fresh execution case was started in November 1918 in which Brindaban Chandra Sarkar, one of the other decree holders and the respondent in the present appeal, applied to be added as a party. The appellant objected but the learned Subordinate Judge made an order that Brindaban Chandra Sarkar be added as an executing decree-holder in the case together with the appellant Prakash Chandra Sarkar. The property under attachment was subsequently sold for Rs. 1,300.

The appellant moved the High Court in revision contending that the order of the learned Subordinate Judge was without jurisdiction. The High Court rejected the application in revision on the ground that the Subordinate Judge had jurisdiction to make the order and further that after the decision of this Court, dated the 15th August 1917, which directed that the transfer should be treated as a transfer of the whole decree and that the interests of the other decree-holders should be protected, there was no substance in the appellant''s application in revision.

It is from this order that the appellant now seeks to appeal to His Majesty in Council. In my opinion the application should be rejected. The order now sought to be appealed from is not, in my opinion, final order determining the rights of the parties in any matter in controversy in the suit. The rights of the parties, in so far as their claim to share in the benefit of the decree was concerned, were settled by the decree itself which was in their favour jointly. If there should be any doubt about that, these rights were further declared by the decision of the Chief Justice and Mr. Justice Sharfuddin on the 15th August 1917, and the present order is one which relates to procedure only.

I may add that the decision of the 15th August 1917, is not now under appeal and cannot therefore be questioned. The order now sought to be appealed from is merely a natural corollary of the previous judgment and directs the manner in which the rights of the parties shall be given effect to. Moreover, it appears that it is more than 12 years since the decree was passed and any further application to execute it is time-barred.

We are not informed definitely whether the execution case has terminated but as the property has been sold it would appear that this is probably the case. If it is so, it would follow that as the total amount in dispute under the present proceedings is only Rs. 1,300 which is below the statutory limit necessary to enable the appellant to appeal, no further execution proceedings can be taken and it is difficult to see how the present appeal can involve any claim or question to or respecting property of Rs. 10,000 or upwards even though the unsatisfied balance of the decree should exceed that sum. Whether the execution has terminated, it is not necessary to determine as on the other points the application should in my opinion fail. In any case the only appeal permissible from the present decision which is an order in revision would be confined to the question whether or not the Subordinate Court had jurisdiction in the matter. That it had jurisdiction in such a case to protect the interests of the joint decree-holders other than those actually making the application for execution can hardly be doubted in face of the clear provisions of O. 21, R. 15 and there is not in my opinion, any substantial question of law to be determined. As the appeal which it is sought to prefer to His Majesty in Council is from a decision of affirmance it seems to me that the application must fail also on this ground. I would therefore dismiss the application with costs to the respondent. Hearing fee, 5 gold mohurs.

Mullick, J.:-

This application arises out of a joint mortgage decree obtained in 1891 by the petitioner Prakash Chandra Sarkar and two others.

The decree-holders first of all brought the mortgaged properties to sale in the District of Gaya; next they took out execution against the properties other than the mortgaged properties and in 1915 Prakash obtained an order from the District Judge of Gaya transferring one-third of the decree to the Judicial Commissioner of Chota Nagpur for execution. The proceedings finally came before the Subordinate Judge of Palamau and on the 9th December 1916, that learned Judge passed an order that Prakash Chandra Sarkar might proceed with the execution of the decree but would not be permitted to take out any of the proceeds unless the other decree holders joined with him in applying for payment.

It was Prakash Chandra Sarkar''s contention before the Subordinate Judge that the District Judge of Gaya had transferred only his separate one third share in the decree amounting to Rs. 30,516-14-7 and that he alone was competent to prosecute the execution proceedings. He denied that the other two decree-holders were entitled to any share in the proceeds of the execution. Against that order an appeal was preferred to the High Court at Patna and on the 15th August 1917 a Division Bench held that the objection of the judgment debtors would be sufficiently met if the Subordinate Judge''s order were modified and if it were directed that no sum should be paid out to the appellant except on his giving security to the satisfaction of the Court below for the refund of the sum if required.

Meanwhile the execution before the Subordinate Judge of Palamau was proceeding and on the 17th February, 1917, certain properties belonging to the judgment-debtors worth Rs. 3,000 were purchased with the permission of the Court by the decree-holder, Prakash Chandra Sarkar, he being allowed to set off the purchase money against the decretal amount. On the 7th March, 1918, the execution case was finally dismissed on part satisfaction.

The next application for execution was made by Prakash Chandra Sarkar on the 28th November, 1918, and in the proceedings that followed certain properties belonging to the judgment-debtors were attached; but the sale could not be held because on the 18th November, 1919 Brindaban Chandra Sarkar, one of the co-sharer decree-holders, filed a petition claiming that he was entitled to share in the execution to the extent of his one third share in the decree.

Prakash Chandra Sarkar repeated the objections which he had urged in his appeal in the High Court but on the 8th January, 1920, the Subordinate Judge decided against him and directed that Brindaban Chandra Sarkar should be added as an executing decree-holder and that afresh sale proclamation should be issued for the sale of the attached properties by inserting his name along with that of Prakash Chandra Sarkar. On the 15th March, 1920, the sale was held realising a sum of Rs. 1,300.

In the meantime, on the 5th February, 1920, Prakash Chandra Sarkar preferred an appeal to the High Court against the Subordinate Judge''s order of the 8th January; he also filed an application for revision by way of greater precaution in regard to the same matter. The application for revision but not the appeal was pressed and on the 8th December, 1921, Jwala Prasad and Ross, JJ., affirmed the order of the Subordinate judge and held that Prakash Chandra Sarkar would only execute the decree on behalf of all the decree-holders and that Brindaban Chandra Sarkar was properly added as a party to the execution proceedings.

Leave is now sought to appeal to His Majesty in Council against this order made by the Division Bench.

The substantial questions of law involved are put as follows :-

(1) Although the original mortgage decree was a joint decree, the share of Prakash Chandra Sarkar being a defined and ascertained share and admitted to be one-third, there is no bar in law to his prosecuting an application exclusively in respect of his share.

(2) Before the transfer order of the 17th August, 1914, was made by the District Judge of Gaya a notice was issued upon the other two decree-holders at the instance of Prakash Chandra Sarkar asking whether they had any objection to his taking out execution in respect of his one third share. No objection was made and it is contended that the District Judge having ordered execution to proceed only in respect of the amount due to Prakash Chandra Sarkar, Brindaban Chandra Sarkar is now estopped from objecting to the execution of that order

(3) The order of the District Judge of Gaya transferring the decree is final as regards the right of Prakash Chandra Sarkar to prosecute the proceedings for his own benefit and to the exclusion of his co-sharers and that the execution Court in Palamau has no jurisdiction to go behind the District Judge''s order by adding Brindaban Chandra Sarkar and by giving him an interest in the proceeds of the execution.

Now, whatever may be their merits, it appears to me that in the present circumstances these contentions are no longer material. The judgment of the Division Bench of this Court passed on the 15th August, 1917, which was not challenged by proceedings in the Privy Council has become final and by it the learned Judges affirmed the order of the Subordinate Judge made on the 9th December 1916, holding that the order of the Dt. Judge of Gaya was irregular and that the execution proceedings could only be prosecuted by Prakash Chandra Sarkar for the benefit of his co-decree-holders.

The learned Judges of the High Court expressed this opinion in clear terms but instead of affirming the Subordinate Judge''s order which required all the decree-holders to join in an application for withdrawing the sale proceeds they thought it would be sufficient for the protection of the co-sharers if Prakash were allowed to withdraw the money realised after giving security for the satisfaction of the claims of his co-sharers should they subsequently come forward with a claim. That being so it was no longer open to Prakash Chandra Sarkar to contend that the execution proceedings in Palamau must be conducted for his sole benefit and there was no defect of jurisdiction or material irregularity in the exercise of jurisdiction on the part of the Subordinate Judge, when on 8-1-1920, he ordered Brindaban Chandra Sarkar to be added as an executing decree-holder, I presume that in conformity with the orders of 15-8-1917, the Subordinate Judge before paying out the money to Prakash and Brindaban took or will take security for protecting the interest of the remaining decree-holder. But that matter is not before us at the present moment.

A point was made on behalf of the Opposite Party that the original decree being more than 12 years old is now barred and that no fresh application for execution can be entertained in consequence of the provisions of S. 48 of the C.P.C. In the absence of any information as to whether the execution case which was started by the application of 21-11-1918, namely, case No. 61 of 1918, has been finally disposed of or is still pending, it is impossible for us to give a decision on this point.

But apart from this point there is sufficient material before us for holding that no leave should be given in this case.