Tribeni Prasad and Others vs Thakur Prasad Singh and Others

Chatterji, J.—These appeals and civil revisions arise out of proceedings for execution of a money decree in which the judgment-debtors'' property had already been sold and possession delivered.

The original suit was brought on the basis of a handnote against nineteen defendants who were members of a joint Mitakshara family. Eleven of them, namely defendants 8, 9, 10, 11, 12, 13, 15, 16, 17, 18 and 19 were minors. The fathers of defendants 11, 12, 13, 15, 16, 17, 18 and 19 were among the adult defendants. The father and grandfather of defendants 8 to 10 were dead It appears that, shortly after the institution of the suit, the adult defendants deposited the amount of the claim in Court. So, when the suit came up for disposal, the question of costs only remained for consideration. The Court ordered that the plaintiff should get a decree regarding costs against the major defendants only and the decree was passed in these terms: "That the claim be dismissed as satisfied: that the plaintiff to get a decree for costs against the major defendants as held above." As regards the minor defendants, it was said: "No decree is passed as against minor defendants as proper guardian has not been appointed for them." Obviously this shows that the minor defendants were not represented by any properly appointed guardian.

The decree-holders put to execution the decree for costs and in execution put up to sale some joint family property and purchased the same on 22nd April 1937. They took delivery of possession on 9th December 1939.

It appears that some time after the decree was passed the members of the family executed a sale deed in respect of the property in question in favour of Tuka Singh and Lalji Singh. These two persons filed a claim under Order 21, Rule 58, Civil P.C., on the basis of the sale deed, but their claim was dismissed. Then they brought a title suit under Order 21, Rule 63, Civil P.C., but that was also dismissed.

Within a month after the decree-holders had, obtained delivery of possession of the purchased property, defendants 8 to 10 and 11, 12, 13, 15, 16, 17, 18 and 19, who had in the meantime attained majority, filed two applications, one u/s 47 and the other under Order 21, Rule 100, Civil P.C. Their case was that they, not being parties to the decree, were not bound by it and therefore their interest in the joint family property could not be sold in execution of that decree.

The learned Subordinate Judge allowed the applications, so far as defendants 8 to 10 were concerned, and rejected them with respect to the other defendants. The difference made by him with regard to these different sets of defendants is that defendants 8 to 10 were not the sons or grandsons of persons against whom the decree had been passed. In this view he has held that the interest of these three defendants did not pass by the execution sale. With regard to the other defendants he has held that the decree being passed against their fathers their interest was liable to be sold in execution. Prom this decision defendants 11, 12, 13, 15, 16, 17, 18 and 19 have preferred Miscellaneous Appeal No. 229 and Civil Revision No. 489 of 1940 while the plaintiffs have filed Miscellaneous Appeal No. 265 and Civil Revision No. 618 of 1940. The appeals are directed against the order passed u/s 47. Civil P.C., while the civil revisions are directed against the order passed under Order 21, Rule 100, Civil P.C.

Mr. Ganesh Sharma on behalf of defendants 11, 12, 13, 15, 16, 17, 18 and 19 contends that these defendants having been impleaded in the suit but the suit having been dismissed against them, their interest was not liable to be seized in execution of the decree that was obtained against their fathers. He relies on the decision of the Privy Council in AIR 1938 7 (Privy Council) and the decision of this Court in Prahlad Das Vs. Dasarathi Satpathi and Others, The effect of these decisions is that where the sons along with their father belonging to a joint Hindu family are impleaded in a suit for recovery of a debt due by the father and the suit is decreed against the father but dismissed against the sons, the decree-holder in execution of that decree cannot attach and sell the son''s interest in the joint family property merely by reason of the pious obligation of the sons to discharge the father''s debt. The reason for the decisions is that the sons having been impleaded in the suit and the suit being dismissed against them, the decree is not capable of execution as against them. These decisions however have no application to the facts of the present case. Here, it appears that the minors were not at all represented by any guardian in the suit. The effect of this is that they were not in the eye of law parties to the suit at all. The position therefore is that the minor defendants were no parties to the suit. So it cannot be said that the suit was dismissed against them, as was the case before the Privy Council as well as this Court in the decisions cited above. That being so, the decree which was obtained against the fathers could be executed against the joint family property including the interest of the sons. The sons cannot therefore object to the sale. Their objections u/s 47, Civil P.C., must therefore fail.

The application under Order 21, Rule 100, Civil P.C. so far as defendants 11, 12, 13, 15, 16, 17, 18 and 19 are concerned, must'' also necessarily fail.

As regards Appeal No. 265 which is directed against the order u/s 47, Civil P.C., so far as defendants 8 to 10 are concerned, it must be allowed. For reasons already given they were not parties to the suit and therefore they could not raise any objection u/s 47.

With regard to their application under Order 21, Rule 100, the learned Subordinate Judge has not dealt with it according to law. He has simply said:

The sale of their share would therefore be set aside and they would be restored to possession, if not under Order 21, Rule 100, then at any rate u/s 151, Civil P.C.

These defendants were not parties to the suit and were not judgment-debtors. Their father and grand-father were already dead and were not among the judgment-debtors. So their interest in the joint family property was not liable to be sold in execution of the decree. If therefore they were in possession of the property on their own account and were dispossessed, then certainly they were entitled to apply under Order 21, Rule 100. But whether the requirements of Order 21, Rules 100 and 101 have been satisfied has not at all been investigated by the Court below. Mr. Ganesh Sharma on their behalf contends that there can be no doubt that they were in possession and were dispossessed. These are however questions of fact which must be determined before any order can be passed on the application under Order 21, Rule 100.

It is contended by Mr. B.N. Rai on behalf of the plaintiffs-petitioners that the decision in the suit under Order 21, Rule 63, Civil P.C., brought by Tuba i Singh and Lalji Singh in which defendants 8 to 10 were parties operates as res judicata. It is pointed out that in that suit there was an alternative claim for a declaration that at any rate the shares of defendants 8 to 10 did not pass by the auction sale as they were not parties to the decree or execution proceeding. The suit was dismissed on this finding that the kobala on which the plaintiffs based their title was a farzi transaction. It is, therefore, argued that those plaintiffs being the farzidar of defendants 8 to 10, the decision in that suit is binding on defendants 8 to 10 and precludes them from asserting their right in the disputed property. This argument is manifestly untenable. The plaintiffs in that suit claimed the property in their own right on the basis of the kobala executed by defendants 8 to 10 and other members of their family, but that kobala was held to be a farzi transaction. How could then the question whether the plaintiffs were entitled to the alternative relief claimed arise or be decided? The effect of the decision, on the other hand, was to leave the rights, if any, of defendants 8 to 10 quite unaffected.

I would accordingly dismiss Appeal No. 229 of 1940 and Civil Revision No. 489 of 1940 with costs, one set of hearing fee. I would allow Appeal No. 265 of 1940 and Civil Revision No. 616 of 1940 and would send back the application of defendants 8 to 10 under Order 21, Rule 100, Civil P.C., to the Court below for disposal according to law. Costs in Civil Revision No. 618 of 1940 will abide the result; there will be no order as to coats in Appeal No. 265 of 1940.

Shearer, J.

I agree.