Thankamma vs Mamachan

Khalid, J.—This revision is directed against the order rejecting the objections raised by the additional 9th Respondent against execution. The revision arises from a suit, O.S. No. 160 of 1123. The bare facts necessary to understand the history of the litigation are as follows.

One David Moses owned 44 cents of land on which stood a building. He had executed a mortgage on 9th Meenam 1101 in favour of Luther Annam, the 1st Defendant. David Moses assigned the equity of redemption to one Thomas on 30th Thulam 1121 who in turn assigned it to the Plaintiff on 19th Medam 1121. It was on the strength of this assignment that the Plaintiff filed the suit for redemption of the mortgage. In the suit the defence put forward by the 1st Defendant and the 2nd Defendant by a joint written statement was that Moses had agreed to sell the property by an agreement, dated 5th Medam 1108 for Rs. 1,920 agreeing to execute the sale deed within six months, failing which the agreement would be construed as a sale deed. It appears, that the Defendants had put forward several documents including a will to defeat the interest of the Plaintiff. Pending suit the 1st Defendant died. Defendants 2, 3, 4 and 5 were impleaded as her legal representatives. The suit was decreed which was ultimately confirmed by this Court in S.A. No. 149 of 1954, on 28th March 1956. The decree-holder died. His widow was originally impleaded on whose death, her grand-son the donee from the grand-father was impleaded as additional decree-holder. E.P. 63 of 1958 was filed on 5th February 1958. Objections were filed regarding impleading the 5th Plaintiff which ultimately was settled by the judgment of this Court in S.A. 715/1960. The execution petition went back to the execution court. It was proceeded with against Defendants 2 to 5. Several objections were filed by the 2nd Defendant on 15th December 1964 who alone contested. The objections inter alia contained a plea of kudikidappu right and claim for value of improvements. On 15th July 1970 he filed an additional objection claiming the benefit of Section 4A of Act 1 of 1964 as amended by Act 35 of 1969, stating that the building on the property was put up by him and that the other building had been destroyed. The execution court upheld the claim made u/s 4A. The additional decree-holder filed an appeal, A.S. 65 of 1974, in the Additional District Court, Parur. Pending appeal second Defendant died. His legal representatives were brought on record, as Respondents 2 to 7. The appeal was allowed and the plea u/s 4A therefore was rejected. The 3rd Respondent filed C.R.P. No. 85 of 1978 against this order which was dismissed on 10th July 1979. The matter went back again to the execution court at which stage the present Petitioner who is the 9th Defendant in the suit raised the following objections to execution. She is residing in the property having 22 cents in extent which is orally gifted to her by her mother, the 1st Defendant, 32 years back. Balance 22 cents was with the 2nd Defendant. Her son had purchased 11 cents of property from the 2nd Defendant. On these pleas it was contended that the decree-holder could not get recovery of the property on the strength of the decree for redemption.

The question that falls for decision in this petition is whether the Petitioner who is admittedly a legal representative, can put forward independent right in her to deny execution and whether that plea will come within Section 47, CPC The court below repelled the contentions. Hence this revision.

The Petitioner''s counsel invited me to various decisions that had taken the view that Section 47 would be attracted in such a case and further contended that the said section after the 1976 amendment should be liberally construed.

An apparent conflict between Kunjan''s case 1963 KLT 500 by Raman Nayar, J. and Joshua''s case 1962 K.L.J. 672, by Madhavan Nair, J. emboldened him to make a request to me to refer the question involved to a Division Bench. I have resisted the temptation to do so in view of the wealth of authorities against him. The Petitioner''s counsel submits that all questions between the decree holder and the judgment-debtor including his legal representatives even when they set up independent rights opposed to the decree have to be decided in execution u/s 47 CPC The only plea that can fall outside the scope of Section 47 now is a plea of jus tertii. He submits that the explanation to Section 47 by the 1976 amendment has widened the scope of the section. Order 21 Rule 58 and Order 21 Rule 97 have been amended denying the right of suit which existed till the amendment. In support of the plea that Section 47, has to be liberally construed, he invited me to, Prosunno kumar Sanyal v. Kali Das Sanyal ILR Cal. 683, and, Veyindramuthu Pillai v. Maya Madan and Ors. AIR 1920 Mad 324 (F.B.). He also referred me to, Ramanna v. Mallapparaju AIR 1961 S.C. 87, B.V. Patankar and Others Vs. C.G. Sastry, , M.P. Shreevastava Vs. Mrs. Veena, , and Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and Others, . In support of his submission that except the plea of jus tertii all other questions have to be decided in execution, he relied upon Ram Ghulam v. Hazaru Kumar ILR VII Allahabad 547, Sethchand Mal v. Durga Dei ILR XII Allahabad 313, Rajrup Singh v. Ramgolam Roy ILR Cal. 1, Punchanun Bundopadhya v. Rabia Bibi I.L.R.Cal. 711, and Murigeya v. Hayat Saheb ILR Bom 237. He invited ray attention to Mt. Aisha v. Jowahir Mal AIR 1920 Lah 762 to submit that there is no difference between money decree and mortgage decree in the application of Section 47. He relied upon, Kuriyali v. Mayan 3 I.L.R.Mad. 255, Moppen Vava Srank Usmal v. Masiyalwale 3 T.L.J. 164, Govindarajalu v. Chinnathambi AIR 1928 Mad 1270, and Chinnathayee v. Lakshmi Achi AIR 1936 Mad 675, in reinforcement of his submission that Section 47 applied in cases of mortgage decrees also.

The Respondent''s contention is that there is a clear distinction between mortgage decrees and money decrees when such a plea falls to be considered in execution. He says that the well-known principle that the executing court cannot go behind the decree has always to be respected. According to him, Kuriyali v. Mayan I.L.R Mad. 255, Chinnathqyee v. Lakshmi Achi AIR 1936 Mad 675, and Govindarajulu v. Chinnathambi AIR 1928 Mad 1270, are not correctly decided. Kumaretta Servaigaran v. Sabapathy Chettiar ILR Mad 26 Zamindar of Karvatnagar v. Trustee of Tirumalai, Tirupati Devastanams ILR Mad 429 Nadvil Edom Kelu Achan v. Parasu Pattar 5 Law weekly 158, and Lakshmadu v. Rumudu AIR 1939 Mad. 867, have taken a contrary view. The Full Bench of the Madras High Court in Hamidgani Ammal (one of the L.Rs. of the deceased first respondent) Vs. Ammasahib Ammal (died) and Others, , has endorsed the view that an executing court cannot, in a mortgage decree, go behind it. He also relied upon Devasia Philipose v. Venkitta Subba AIR 1954 T.C. 118, for this purpose.

Can a legal representative assert his independent right against a mortgage decree in execution and seek adjudication of that right. The orthodox view is in the negative. An adjudication in execution of the right in the property mortaged at the instance of the legal representatives will amount to avoiding the decree, and will be going behind the decree. When a mortage decree is passed there is an adjudication by court that passes the decree that the property belongs to the mortgagor. When his legal representative sets up a right in himself, what he seeks is an adjudication of his rights in the property independent of the right of his predecessor in interest and thus indirectly trying to avoid the decree passed. This, in effect, is to go behind the decree. Do the amended provisions of the CPC contain provisions contrary to the conventional view that the executing court cannot go behind the decree. In my view to allow a legal representative to seek adjudication of his independent right in a property covered by the mortgage decree, would be to destroy the effectiveness of the decree and to allow the decree to be challenged in execution. The decree passed embodies an adjudication of the right that the judgment-debtor had in the property and by allowing a further adjudication of the independent right of the legal representatives in execution would be to negative the right flowing from the decree. The same cannot be said of a money decree. In execution of a money decree, any property belonging to the deceased judgment-debtor can be attached and sold. A legal representative will be at liberty to set up his independent right in such a property on the ground that it did not belong to the judgment-debtor. There, there is no adjudication of the rights in any property which had already been adjudicated upon by the decree. What is sought is an independent adjudication de hors the decree passed. Section 47 will not be a bar to such an adjudication, for it would come within execution, discharge and satisfaction of the decree. This is the distinction that has to be borne in mind while considering the question involved in this revision. I cannot with respect, subscribe to the view widely put in AIR 1929 762 (Lahore) that there is no distinction between a mortgage decree and a money decree though the said observation was not in the context in which the question is being considered in this revision.

I will first consider the two decisions of this Court referred above, reported in Kunjan''s case 1963 KLT 500, and Joshua''s case 1962 K.L. J. 672 : 1963 KLT 500 (Kunjan''s case) was rendered on 8th February 1963 in a Civil Revision Petition and 1962 K.L. J. 672 (Joshua''s case) was rendered on 25th October 1961 in a Second Appeal. The earlier decision was not brought to the notice of Raman Nayar, J. I will first consider the facts of Kunjan''s case 1963 KLT 500. At the outset it has to be noted that the case did not relate to a matter in execution. In that case, the legal representative of a deceased Defendant wanted to assert his independent right to the property in the suit. The revision Petitioners before the court who were Defendants 2 and 4 were the sons of the Defendant. After they were impleaded in the suit, they filed written statements setting up independent title in them. Issues were struck in respect of the independent title. At a later stage, the Plaintiffs asked the court to strike out the issues joined in respect of the Defendants'' independent title. This was allowed. It was against that order that the revision was filed. The order striking out the names of the legal representatives of the original Defendant was set aside and the lower court was directed to make a record of the fact that they were on the party array not merely as the legal representatives of the deceased Defendant but also in their personal capacity. It was while considering this revision that the learned Judge made the following observations:

The legal representative is undoubtedly a party to the suit although impleaded only in his character as a legal representative, and, if the Plaintiff obtains a decree and seeks to get possession of the property in execution, the plea that the property did not belong to the deceased Defendant but belonged to the legal representative in his own independent right would, I think, raise a question between the parties to the suit in which the decree was passed, relating to the execution, discharge or satisfaction of the decree. And I do not think that as |was assumed in the decisions to which I have referred, in adjudicating on such a plea the executing court would be going behind the decree or inquiring into its validity. It would only be construing the decree and determining what the property is that is to be delivered thereunder. For, the decree is really against the legal representative in his capacity as such and is, in terms executable only against property which he holds in that capacity. To invite the executing court to hold that the legal representative does not hold the property under the deceased Defendant but holds it in his own right so that the decree does not bind him to deliver the property h not, I think, to invite it to go behind the decree or to hold that a decree is not valid. It is only inviting the court to hold that the decree, properly construed, does not cover the property in so far as it is held by the legal representative in his own independent title and not under the deceased Defendant. (p. 501).

In Joshua''s case 1962 K.L.J. 672, Madhavan Nair, J. was considering the question that arose in execution. In an earlier suit on a hypothecation a decree was passed. The legal representatives were impleaded on the death of the judgment-debtor. They contended that their 3/5th share in the suit properties were not bound by the hypothecation or the decree based thereon. This contention was not upheld and the execution was allowed to proceed. Thereupon, the Plaintiffs filed a suit for declaration of their right to 3/5th share in the suit properties. The defence in the suit was that the question raised in the suit was concluded by prior decisions binding on the Plaintiffs and that the suit was barred by Section 47 CPC The contention raised was that the Plaintiffs having been impleaded as legal representatives of the judgment-debtor in execution, ought to have agitated their rights in the properties in execution itself and not in a fresh suit. This was repelled by the learned Judge who held that when the legal representatives of the judgment-debtor were brought on record in execution, it is not open to them to challenge the terms of the decree itself. They can only represent the deceased judgment-debtor and no contention which was not open to him can be urged by the legal representatives. Reference to Merla Ramanna Vs. Nallaparaju and Others, did not find favour with the learned Judge, because according to him, the Supreme Court in that case was dealing with an objection to the execution being excessive or unwarranted by the terms of the decree. The learned Judge held that regarding the independent rights put forward they were not the legal representatives of the judgment-debtor but were independent persons and that such independent rights could be agitated by a fresh suit.

It cannot be said that certain observations in Kunjan''s case 1963 KLT 500, run counter to what is contained in Joshua''s case 1962 K.L.J. 672. Since Kunjan''s case 1963 KLT 500 concerned itself with a pre-decree situation and not a situation in execution, the observations made therein cannot be considered as binding or settling the law and have to be viewed as obiter. Here we are dealing with a situation on execution. I follow the view in Joshua''s case 1962 K.L.J. 672, with respect and I proceed to support it with reference to the other authorities which were brought to my notice.

In Devasia Philipose v. Venkitta Subba AIR 1954 T.C. 118, a Division Bench of the Travancore-Cochin High Court considered the question of paramount title set up by legal representative of a judgment-debtor in execution of a mortgage decree. After referring to various authorities, Kozhi, J. observed as follows:

The point that where a decree for sale of mortgage property is passed against a mortgagor and on his death, his legal representative is brought on record, an objection that the property belonged to the legal representative (and not to the mortgagor) cannot be enquired into by the execution Court was raised in this case for the first time when the second appeal was heard. Even the memorandum of cross-objections did not refer to this point. However, as it is a pure question of law we allowed that to be raised and heard arguments from both sides with reference to it.

There is almost unanimity of opinion among the various High Courts in India that to permit such an objection to be entertained by the execution Court will be to permit that Court to question the validity of the decree itself and that such a question does not pertain to execution, discharge or satisfaction of the decree as envisaged by Section 47, Civil Procedure Code. It is well settled law that the Court executing a decree could not go behind the decree nor question its correctness. There is also the rule that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Decisions bearing on the point virtually effect a reconciliation of these two view points.

In Hamidgani v. Ammasahib AIR 1941 Mad 898, a Full Bench of the Madras High Court considered the identical question and after referring to the various decisions of the Madras High Court upheld the view that in execution of mortgage decree legal representatives cannot set up their independent title. Leach, G.J. posed the question to be decided as follows:

The question which arises in this appeal is whether a person who has been brought into court in execution proceedings merely as the legal representative of the judgment-debtor is compelled to have his own claims to the property in suit decided in the execution proceedings or whether he can establish his rights by a separate suit.

The learned Judge approved Lakshmadu v. Ramudu and Ors. AIR 1939 Mad. 867, and dissented from Kuriyali v. Mayan I.L.R.Mad. 867, and other Madras decisions which had taken a different view. The following paragraph sets out the principle decided succinctly:

Section 47, Code of Civil Procedure, only requires to be decided in execution proceedings those questions which arise between parties to the suit in which the decree has been passed or their representatives and which relate to the execution, discharge or satisfaction of the decree. Where a stranger to the suit claim as his, immovable property which has been the subject-matter of a decree, that claim cannot in law be regarded as being a question relating to the execution, discharge or satisfaction of the decree. There are decisions of this Court to the effect that in execution proceedings arising out of money decrees questions relating to the property attached must be decided in execution proceedings and not by a separate suit, but this is an entirely different matter because the correctness of the decree is not called into question. Therefore, the correctness of such decisions does not arise. We are here dealing with a case where it is said that a person who is not a party to the suit, but is brought into court in execution proceedings as the legal representative of a deceased party, can in those proceedings be allowed to challenge the decree and if he fails to do so he has for ever lost the right claimed by him in the suit property. Obviously the answer must be that he cannot in execution say the decree is wrong, and he has his remedy by suit....

The Petitioner''s counsel placed strong reliance on the decision reported in Kuriyali v. Mayan I.L.R.Mad. 255, Moppen Vava Srank Usmal v. Nariyalwala 3 T.L.J. 164, Govindarajulu Naidu Vs. Chinnathambi Padayachi and Others, , and Chinnathayee Vs. Lakshmi Achi and Others, , to contend that Section 47 applied even to mortgage decrees when in execution a new right was set up by the legal representatives of the deceased judgment debtor. According to him, when a legal representative sets up a case in execution that the property covered by the mortgage decree is not held by him in such capacity but is in his independent capacity, then the court should go into that plea also. The legal representative is liable only to the extent of property held by him in such capacity. His independent right has necessarily to be pleaded by him in execution as this relates to execution, discharge or satisfaction of decree. As is laid down in Kunjan''s case 1963 KLT 500, such a plea involves only an interpretation of the decree and not any challenge to its validity. According to him, the decisions which have taken a contrary view cannot be relied upon to decide this plea in the context of the wide-ranging amendments brought into force to the Code ofCivil Procedure.

After considering the authorities brought to my notice by the counsel on both sides; I feel it safe to fall in line with the orthodox view that in execution of a martgage decree a plea of an independent right set up by the legal representatives cannot be entertained because that would be going behind the decree and that such a plea would not arise in execution, discharge and satisfaction of the decree. To permit such a plea to be raised would render the decree ineffective since the legal representatives can protract the proceedings and deny the decree-holder of the fruits of the decree by setting up at each stage independent rights in them. The well-accepted principle that the executing court cannot go behind the decree should be respected when such a plea is put forward. As already indicated above, in execution, a clear distinction between a mortgage decree and a money decree has, to be borne in mind. In a mortgage decree, there is a final adjudication about the rights of the judgment-debtor. Acceptance of a plea of independent right in the legal representatives is an attack on the decree and a request to review the adjudication once made. In view of this conclusion I find that the order passed by the court below is correct and it does not suffer from any error either of law or of jurisdiction. The C.R.P. has therefore to fail and is dismissed with no costs.