Sah Radha Krishna vs Mt. Bechni Debi

Rowland, J.—The appellant objected in the Court of the Subordinate Judge against the execution of a decree against his property. The objection was dismissed; hence he presents this appeal. The facts leading up to this position are that the respondent. Bechni Debi, a Hindu widow, and another lady had brought a pauper suit against the male members of a Hindu joint family and obtained a decree on 27th September 1932, for maintenance at Rs. 100 per month to each of the plaintiffs together with arrears of Rs. 2,090. The decree was made effective as a charge on all the properties of the members of the joint family, including; Maksudpur tauzi No. 7499.

This property was put up for sale in execution of a money decree obtained by the present appellant on 19th August 1930 for Rs. 35,000. He purchased the property on 19th December 1932, for Rs. 47,000 and the sale was con-firmed on 24th August 1933. In the present execution the respondent seeks to realise the money due to her under the maintenance decree, by enforcing it as a charge decree against this property, Maksudpur. The appellant resisted that execution on several grounds, but mainly on the ground that the respondent, to enforce her right of maintenance against him, was bound to bring a separate suit.

In that objection petition no mention was made of the point which the appellant seeks to raise before us, but before its disposal he applied to the Subordinate Judge to permit amendment of the objection petition by adding two more grounds, viz., (a) that the decree of the opposite party stands fully satisfied and she has got a huge amount, at least Rs. 20,000 after satisfying the decree and defraying the legitimate expenses from the income of the property purchased by him in her execution case No. 101 of 1933, Subordinate Judge II, Patna, and as such the decree is unexecutable, and (b) that the decree is collusive and unexecutable against your petitioner (the appellant) and is not binding upon him.

The Subordinate Judge in dealing with the objection held that no separate suit was necessary. As for the additional grounds he said "the objection about satisfaction can not be entertained at this stage" meaning apparently that it came too late, and he declined to treat the amendment petition as a part of the previous objection petition. In appeal to the High Court the question argued apparently was whether the respondent was bound to bring a separate suit, and this point was answered in the negative. Wort J. added: "It is agreed, no other question arises and therefore in my judgment the appeal fails and must be dismissed with costs." It is reported in Sah Badha Krishna Vs. Mt. Bechni Debi, . The record having gone back to the Subordinate Judge for continuing the execution proceedings, the appellant presented a fresh petition of objection taking this ground that the decree-holder could not execute the decree because it must be considered to be fully satisfied in consequence of some proceedings taken by her in 1933.

The Subordinate Judge rejected the objection holding that it was not maintainable, its maintainability being concluded by the decision of the High Court affirming the decision of the Subordinate Judge. What the Subordinate Judge had said was that the objection about satisfaction cannot be entertained, and by not pressing any objection to this observation, when the matter was before the High Court in appeal, the correctness of that decision must be taken to be affirmed by the High Court and no longer capable of being called in question.

I may however explain the nature of the objection a little further, by stating the facts. In execution of her maintenance decree Mt. Bechni Debi put up for sale a certain property Asarhi, which was purchased in execution.

The sale was confirmed and she got delivery of possession on 12th November 1933. She was apparently in possession until the sale was set aside on 30th June 1934. The objection of the appellant is that the decree-holder in the interval between the sale and its setting aside was enjoying the usufruct of the property, and the amount so appropriated by her was more than sufficient to satisfy her entire dues under the decree. Such a plea seems to me to fall within the description in Order 21, Rule 2(3), Civil P.C., of a payment or adjustment, which has not been certified or recorded in the manner provided in the rule, and no such payment or adjustment can be recognized by any Court executing the decree. Whatever the decree-holder may have received from the property in her hands was received by her before the end of June 1934.

The petition of the judgment-debtor asking the Court to take an account from the decree-holder was in June 1936. If an objection similar to the present had been presented by the owners of Asarhi, it is possible that equities might lead to a different consequence. They might be entitled to have the amount ascertained and eventually set off, but it might still be questioned! whether pending ascertainment they could cause execution to be stayed, while the amount to be set off was still uncertain.

Mr. Rai Guru Saran Prasad for the appellant begged the sympathy of the Court on the ground that the lady and her agnates were colluding to throw on him the entire burden of a maintenance decree for which the agnates were primarily responsible. But he expressly said he was not in this objection and appeal claiming any right of marshalling (Section 56, T.P. Act) or of contribution (Section 82) against the other judgment-debtors, but was resisting executing simply on the ground above discussed. He can get no relief on this ground. Both on the principle of res judicata and also because it is correct in law, I would affirm the decision of the Subordinate Judge and dismiss the appeal with costs.

Varma, J.

I agree.