Prasadi Mahton vs Ghulam Mnrtaza

Jamuar, J.—The miscellaneous appeal and the civil" revision application have been heard together, as they arise out of the same order.

I shall deal with the miscellaneous appeal first. The appeal arises out of an application filed in the Court below under S. 47, Civil P. C. objecting to the sale of certain lots mentioned in the talika in the execution case by one Prasadi Mahto who was added in column No. 9 of the application for execution at the instance of the decree-holder. The facta necessary for the decision of this appeal are these; The decree-holder had obtained a decree on 18-2-1940, from the Court of the Munsif of Bihar against one Mt. Chamni on the basis of a hand note. This decree was transferred to the Court of the Munsif of Barh on 10-8-1948. for execution. On 7-9-l948, the decree-holder applied to the executing Court in the prescribed manner for the execution of the decree against Mt. Phulia and one Ram Charitar Mahto, as Mt. Chamni had died. Subsequently, the Lame of the appellant, Prasadi Mahto, was added as a judgment-debtor by an order dated 15-12-1948, on an application of the decree-holder, on the ground that, on the death of Mt. Chamni it was necessary to mention the name of Prasadi Mahton in column 9 of the execution petition, Thereafter, on 27-1-1949 Prasadi Mahto, having received notice, filed an objection under s. 47, Civil P. C. to the execution of the decree against him on certain grounds mentioned therein, one of the grounds being that the execution case itself was not maintainable. The learned Mansif of Barh observed that the most important and the foremost question for the purpose of determining the maintainability of the execution case was as to who was the legal heir who represented the estate after the death of Mt. Chamni, and who was in possession of the properties including the properties under talika. The learned Munsif stated that the decision called for the determination of the question of legal heir, and that he, being an executing Court, could not legally decide the point, as such matters were within the province of the Court which had transferred the decree to him. As the decree holder had not obtained any decision from that Court on this point, the learned Munsif held that the execution case was not maintainable.

As against that decision, the decree-holder appealed to the Court of the District Judge, and the appeal was heard by an Additional District Judge He reversed the decision of the learned Munsif, and held that the application for execution was maintainable. But he remanded the case to the learned Muneif for the determination of the question whether the debt in respect whereof the decree in execution was passed had been incurred for legal necessity and whether as such the decree was binding on the estate of Punal Mahto who was the husband of Mt. Chamni.

On appeal be this Court, it was argued that the order passed by the learned Additional District Judge was erroneous, as the original order of the learned Munsif of Barh dismissing the execution case as not maintainable was correct for the reason, that the decree-holder should have applied to the Court which had passed the decree for the substitution of the legal hens of Mt. Chamni.

Sub-s. (1) of s. 50, Civil P. C. provides as follows:

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representatives of the deceased.

I have no doubt that this was the objection which was taken by Prasadi Mahto before the Munsif at Barb, as will-appear from the order of the learned Munsif who heard the matter. On behalf of the respondent, it was contended that such an objection was not mentioned in specific terms in the petition of objection filed under s. 47, Civil P. C., by Prasadi Mahto, though an objection had been taken in respect of the maintainability of the execution. It is true that the objection in such specific terms is not to be found in the petition; but this was the matter which was undoubtedly argued before the learned Munsif since the learned Munsif has dealt with it as follows:

The decision of this question necessarily calls for the determination of the question of the legal heir. This Court being only an executing Court cannot legally decide them.

They are properly within the province of the Court which has transferred the decree to this Court. The decree-holder has not produced the decision of that Court on these questions and it appears that he has in fact not obtained any decision of that Court on these points It is clear, however, that the decree-holder cannot maintain the execution case against all the three persons mentioned by him in column 9 of the execution petition unless he obtains a decision of the transferring Court on the points stated above. I, therefore, on a consideration of all the facts, circumstances and the evidence set forth above, hold that the execution case is not maintainable.

This was the point before the learned Munsif of Barh, and this was also the point argued in the lower appellate Court. In my opinion, therefore, the mere omission to state the point in such specific terms in the petition of objection was no bar to the appellant raising the point in the Courts below.

On behalf of the respondent, reliance was placed upon the decision in the cases of Jang Bahadur v. Bank of Upper India, Ltd., 55 I. A. 227 and Debendra Nath v. G. A. Aratoon, 19 Pat. 838, for the argument that the appellant, Prasadi Mahton, should not have been allowed to raise this point of non-maintainability of the execution at all.

Both the cases relied upon by the respondent, however, are, in my opinion, distinguishable. In the case of Jang Bahadur v. Bank of Upper India, Ltd., 55 I. A. 227, it appears that the Court to which the decree had been transferred for execution had passed an order for substitution of a certain person in place of a deceased judgment-debtor, and then sent the papers to the Court of the sale officer for holding the sale. Their Lord, ships then proceed to say as follows:

During the sale proceedings the appellant made various objections from time to time both in the Court of the Subordinate Judge and of the sale officer (the Collector of the District). Amongst others, on 21-2-1921, he obtained a postponement of the sale for two months on the allegation that he wanted to effect a private sale of the property, and promised through his pleader not to put forth any objections relating to the proclamation or any other objections on the next date. The sale was postponed as the decree-holder''s pleader accepted the terms offered.

A postponement on similar terms was also obtained on 20-1-1923.

Their Lordships then proceed as follows.

After the proceedings had been pending for three and a half years the appellant for the first time put in a petition before the sale officer on 10-4-1924, that the sale proceedings were illegal and without jurisdiction, inasmuch as the decree-holder did not get the name of the appellant entered in the decree of the Court executing the same, in accordance with the provisions of S. 50, Civil P. C. The sale officer referred the matter to the Civil Court-i. e., the Subordinate Judge of the Court of Hardoi-where the same petition was repeated.

On 22-4-1924, the Subordinate Judge rejected the application for further postponement of the sale and to discontinue the execution proceedings.

Their Lordships upheld this order. It was argued on behalf of the respondent that in this case also it was the Court to which the decree had been transferred for execution that had passed the order for substitution, and that such an order had been upheld. In my opinion, the reason for upholding that order was that there had been a waiver by the appellant appearing at the sale proceedings, and far from taking an objection regarding the non-maintainability of the execution, he bad taken time for effecting a private sale of the property, and had also made a promise through his pleader not to put forth any objections in this connection. The appellant had submitted to the jurisdiction of the Court to which the decree had been transferred and he could not, therefore, be heard to object to the exercise of that jurisdiction later, as if would then be to permit a gross abuse of procedure.

In the present case before us, however, the appellant had not submitted to the jurisdiction of the Court to which the decree had been transferred for execution. There is no case of waiver. As soon as the appellant had received notice of the substitution, he appeared before the Court and at once took his objection regarding the non-maintainability of the execution case.

The case of Debendra Nath Haldar v. G.A. Aratoon, 19 Pat. 838 is also distinguishable. That case followed the Privy Council case just referred to, and it was observed therein that an appellate Court ought not to interfere with an order under S. 50, Civil P. C., made by a Court to which a decree had been transferred for execution where the merits of the case are not affected by the irregularity. In the present case with which I am dealing, however, the objection taken by the appellant at his very first appearance was a substantial one affecting the merit of his case, and, in my opinion, it was rightly given effect to by the learned Munsif.

For these reasons, I would allow the appeal with costs, and dismiss the execution case filed against the appellant.

In this view of the matter, the civil revision application becomes anfractuous, and it becomes unnecessary to deal with it.

C.P. Sinha, J.

I agree.