Raghunandan Prasad Singh and Another vs Kumar Ghanand Singh

Jwala Prasad, J.—This is an application against the order of the Additional Subordinate Judge of Bhagalpur delivering possession in execution of a decree passed by that Court in favour of the opposite party, the decree-holder. The applicants had obtained mortgage decrees in suits Nos. 464 and 465 in 1917-18, from the Court of the Subordinate Judge of Monghyr and purchased the mortgaged property in execution of that decree in 1924-25. In 1923 the decree-holder in the present case instituted a suit in the Court of the Subordinate Judge of Bhagalpur for a declaration that his interest in the mortgaged property was not affected by the mortgage decrees, inasmuch as he was not made party to the suit, although he was jointly interested therein along with his father and uncle, the executants of the mortgage. He asked for an injunction to stay the execution of the decree, sale of the property and delivery of possession of the same to the decree-holder after the sale. The Subordinate Judge of Bhagalpur granted him the injunction sought for and the matter came to this Court and the injunction was set aside upon the applicants furnishing security to the Subordinate Judge for restitution of the interest of the opposite party in case the suit then pending was finally decided in his favour. It is not necessary to go into all the terms agreed upon between the parties and set forth in the security bond executed by the applicants and filed before the Subordinate Judge. The term of the agreement with which we are concerned in this case is to the effect that in case the decree-holder purchases the property himself in execution of his decree he will restore the share of the opposite party therein or the value thereof, the opposite party being the plaintiff in that suit. The applicants deposited in accordance with the agreement Government promissory notes to the face value of four lakhs and twenty-five thousand rupees. He claimed one-eighth interest in the property, though the exact share had to be determined upon partition among the family members. The suit of the opposite party was disposed of on 15th September 1927 by the Subordinate Judge of Bhagalpur giving a decree in his favour and declaring that his interest in the property was not at all affected by the mortgage-decree obtained by the applicants, and that the applicants do restore the same to the opposite party in accordance with the agreement executed by them as per order of this Court.

Against that decree an appeal was filed by the applicants on 3rd November 1927. On 4th February 1928 the opposite party applied for execution of that decree by delivery of possession to him. The writ of delivery of possession was issued fixing the 25th February for its return. On 10th February 1928 the applicants coming to know of the execution applied to the Court below to stop delivery of possession. As the writ had already gone out, the Subordinate Judge passed a conditional order stopping delivery of possession if it was not already delivered and gave time to the applicants to move the High Court for staying delivery of possession. Accordingly the applicants moved this Court on 15th February 1928.

Now the suit of the opposite party was disposed of on 15th September 1927 by the Subordinate Judge of Bhagalpur giving a decree in his favour and declaring that he

is not bound by the preliminary and final decrees passed in the mortgage suits 464 and 466 of 1914 of the Court of the Subordinate Judge of Monghyr and the said decrees are inoperative against him and his interest in the mortgaged properties.

Continuing the decree says:

In view of the order of the Hon''ble High Court dealt with above regarding relief No. 2 it is ordered that the defendants do restore the plaintiff''s interest in the mortgaged properties sold in the said execution cases and purchased by them for which they have given an undertaking by executing security bonds.

Relief No. 2 in the plaint referred to above runs as follows:

That the defendant be restrained from executing the said decrees (of the Monghyr Court) against the interest of the plaintiff.

Dealing with this relief, the learned Subordinate Judge in his judgment says:

It is clear that in this case the plaintiff does not want the Court to adjudicate about the plaintiff''s actual share in the Srinagar Raj. He only wants a declaration from the Court that the decrees in suits 464 and 465 of 1914 are not binding on him or his interests in the mortgaged properties. * * * * So far as relief No. 2 is concerned, as has been stated above, there was an ad interim injunction issued by this Court on the defendants restraining them from getting the property in suit sold in execution of the decrees in suits 464 and 465 of 1914. That order was appealed from before the Hon''ble High Court (Appeal No. 69 of 1923), and from the copy of the judgment of the Hon''ble High Court which is on the record it will appear that the prayer for injunction has now taken the shape of a security bond given by the defendants for restoring the property itself if they purchased it or for restoring the value of the property if it is purchased by a stranger. The sale has than taken place conditionally and the defendants have purchased the property and filed security bonds undertaking to restore the property in suit in case the suit succeeds. In place of relief No. 2 thus the plaintiff will be entitled to be restored to the possession of his interest in the mortgaged properties sold and purchased by the defendants. The plaintiff has given a rough idea of his interest in the property on the date this plaint was filed and that is one-eighth in the mortgaged property and that gives us a fair idea of his interest in the property as the exact share of the plaintiff cannot be determined in the present suit in the absence of the other co-parcenary members of the family.

The suit was a declaratory one and the plaintiff asked for a declaration that he is not bound by the mortgage decrees obtained by the petitioners in the Court of the Subordinate Judge of Monghyr. The execution of these decrees was then pending; but the properties were not sold and the plaintiff wanted in relief No. 2 an injunction to restrain the petitioners from executing their decrees against the interest of the plaintiff. The execution, however, under the orders of this Court proceeded and the sale, as observed by the learned Subordinate Judge, took place conditionally on the petitioners undertaking to restore the properties in suit in case the plaintiff succeeded in the suit in the Court of the Subordinate Judge of Bhagalpur. This altered circumstance came into existence after the suit brought by the opposite party and the sale of the property and the delivery of possession thereof to the petitioners. Accordingly the Court in place of relief No. 2 in which the plaintiff in that suit asked for an injunction to restrain the defendants from executing their decrees and selling the properties, directed that the defendants do restore the plaintiff''s interest in the mortgaged properties sold by the Subordinate Judge of Monghyr in execution of the mortgage decrees and possession delivered to the petitioners.

To my mind the changed circumstance referred to above did not convert the suit into a suit for recovery of possession and continued to be a declaratory suit. The direction given by the Court below clears the position of the plaintiff opposite party and it gives effect to the undertaking embodied by the petitioners in the security bond referred to above. This was with a view to facilitate the obtaining by the plaintiff of his interest in the property which was sold by the Subordinate Judge of Monghyr and possession whereof was delivered to the petitioners, so that with the decree in his hand the plaintiff opposite party might go to the Subordinate Judge of Monghyr and ask him to enforce the terms of the security bond and restore to him the property in question. The possession of the property was delivered by the Subordinate Judge of Monghyr in execution of the aforesaid mortgage decrees. The sale and delivery of possession were conditional and the application for restoration must be dealt with by the Subordinate Judge of Monghyr who sold the property and delivered possession subject to the condition that in the event of the suit brought by the opposite party in the Court of the Subordinate Judge of Bhagalpur being finally decided in his favour the plaintiff''s share would be restored to him. The question of restoration cannot be dealt with by the Subordinate Judge of Bhagalpur who did not sell or deliver possession of the property to the petitioners. The petitioners obtained possession of the property in execution of their mortgage decrees and only the the Court which executed those decrees has jurisdiction to restore the property to the judgment-debtor opposite party and no other Court has such jurisdiction. The position in this case is analogous to that where a property is sold in execution of a decree and possession is delivered to the purchaser and the sale is subsequently set aside. The remedy of the judgment-debtor is to be restored to the possession of the property by applying to the Court which sold the property and no separate suit would lie. This principle is to be gathered from Yiraraghava v. Venkata. [1893] 16 Mad. 287 and Daulat Singh v. Jugal Kishore [1899] 22 All. 108. The reason is obvious; the sale and the delivery of possession took place in the Court executing the mortgage decrees and it is that Court alone which can set aside the sale and cancel the delivery of possession and restore the parties to status quo ante. In the suit of the opposite party in the Court of the Subordinate Judge of Bhagalpur there was no such prayer nor could there be any such prayer. The judgment and decree in that case referred to above have declared the rights of the plaintiff and cleared his position so far as the restoration of the property sold in execution of the mortgage decrees and delivery of possession to the petitioners are concerned. The question really relates to restitution of property wrongfully sold, or sold conditionally, as in this case. This comes well within the purview of Section 47, Civil P.C., read with Section 144 of the Code and the inherent jurisdiction of the Court. Therefore to my mind the Subordinate Judge of Bhagalpur had no jurisdiction to restore the property to the plaintiff opposite party. The execution in that Court was therefore taken without jurisdiction.

Again the decree does not direct restoration of 2-as share in the property to the plaintiff opposite party and simply says:

that the defendants to restore the plaintiff''s interest in the mortgaged properties sold in the execution cases and purchased by them for which they have given an undertaking by executing security bonds.

In the judgment the learned Subordinate Judge has clearly stated that the specific share of the plaintiff could not be ascertained without a partition suit to which the other members of the family were necessary parties; but 2-as in the security bond is the probable share of the plaintiff if partition had taken place at that time among the members of the joint family. Therefore the learned Subordinate Judge had no right to give possession to the opposite party of a specific 2-as. share as the writ of delivery of possession shows. I therefore hold that the Subordinate Judge of Bhagalpur had no jurisdiction to deliver possession of the property in question to the plaintiff opposite party under Order 21, Rule 35 of the Code.

The writ read with the peon''s report shows that he delivered possession under Order 21, Rule 35, Clause (2), Civil P.C., by ousting the judgment-debtors from their specific 2-as. share of the property. This is contrary to that rule under which actual possession is not delivered, but the writ is executed only by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place the substance of the decree.

The remedy of the opposite party if any lay in the Court of the Subordinate Judge of Monghyr where the execution of the mortgage decrees had taken place and the possession of the property was delivered to the petitioners. If the petitioners had applied to that Court the matter might have been fully investigated and security given by the petitioners could have been considered. The decree of the Subordinate Judge of Bhagalpur was passed on 15th September 1927 and an appeal against that decree was filed on 3rd November 1927. The application for execution of the decree was made on 4th February 1928. The decree passed by the Subordinate Judge in execution of which he has delivered the property in question to the opposite party was pending in appeal in this Court. These facts could all have been considered if an application was made in the proper Court. That Court was bound to give notice to the petitioners under the law on account of lapse of time if an application was made before it for restoration of the property in terms of the agreement bond. In the present case the order for delivery of possession was made without notice to the petitioners immediately after the application for execution was filed on 4th February 1928 fixing 25th February for return. The decree-holders on coming to know of it applied on 10th February 1928 and complained against the action taken by the learned Subordinate Judge who then realized the situation and passed an order stopping delivery of possession in respect of the villages in which the delivery of possession was not actually given. This was, however, too late. The petitioners came to this Court on 15th February and the only order then possible was passed admitting the application and staying delivery of possession in respect of the properties in which the writ was not already executed. In a case of such magnitude and complications. I would have expected the learned Subordinate Judge to have passed the order for delivery of possession in the presence of both the parties although the notice may not strictly be required under the Code. He knew the importance of the case; he knew that large properties extending over 200 villages were concerned; he knew that the previous litigation from 1918 up to the present moment has been keen and complicated between the parties; and he knew that security for four lacs was given by the petitioners. All these circumstances required that an order for delivery of possession should have been passed after notice to the parties. The peons so quickly and in such a short time managed to deliver possession, and as I understand to serve the process and delivery of possession in respect of the aforesaid 200 villages. There was to my mind a sort of unjustifiable haste.

Now in case an application be made before the Subordinate Judge of Monghyr by the opposite party, the matter will by fully gone into after giving notice to the parties concerned. The present proceeding for restoration was taken in the Bhagalpur Court to avoid notice being given to the petitioners, whereas if it were taken in the Monghyr Court, notice was bound to be given to the petitioners.

The delivery of possession is, therefore, set aside and the petitioners will be restored to status quo ante as if the possession was not delivered to the opposite party.

The application is allowed; hearing fee three gold mohurs.