Tribeni Prasad Singh vs Ramasray Prasad Chaudhuri

Mohammad Noor, J.—This is an appeal against the decree of the additional Subordinate Judge of Monghyr decreeing the plaintiff-respondent''s suit for possession of certain properties with mesne profits subsequent to the institution of the suit.

The facts leading to the present appeal are these: Jagdip Narain Singh and Sant Prasad Singh who were members of a joint Hindu family mortgaged to Babu Gopi Lal 4 annas pucca share of village Mighaul, Tauzi No. 1079, and 2 annas 10 gandas pucca share equivalent to 10 annas kucha share in a 4 annas partitioned patti of village Matihani Gopal, Tauzi No. 1097, for Rs. 4,350, bearing compound interest at 12 per cent per annum with four-monthly rests under a registered mortgage deed, dated 19th September 1890, corresponding to 20th Bhado II, 1297 Fs. The mortgage money was not paid and on 15th September 1903, Babu Gopi Lal instituted a mortgage Suit No. 407 of 1903, in the Court of the Subordinate Judge of Monghyr. In that suit the original mortgagors, Babu Jagdip Narain Singh and Babu Sant Prasad, were defendants first party, their sons and grandsons were defendants second party and one Babu Sakhichaud and members of his family who had acquired a subsequent mortgage in one of the properties, namely, Mighaul, were defendants third party. The suit was decreed on 7th June 1904, and the decree was confirmed on appeal by the Calcutta High Court on 7th July 1905.

The final decree for sale was subsequently passed and Babu Gopi Lal, the decree-holder, took out execution; and the mortgaged properties were sold on 30th May 1914, for Rs. 40,966 and were purchased by the decree-holder. On that very day the decree-holder filed a petition before the Court stating that if the judgment-debtor does not file objection of any kind and does not put in any petition for setting aside the sale he would return the purchased properties on taking Rs. 20,000 only. This was however not to be. The judgment-debtors filed an application for the setting aside of the sale which was rejected on 22nd May 1915, and the sale was confirmed.

There was an appeal to this Court which was dismissed on 3rd August 1917. The decree-holder auction-purchaser subsequently died and it is said that some quarrel arose in the family. Whatever may be the reason, nothing seems to have been done after the confirmation of the sale by this Court. The sale certificate was not taken out, the delivery of possession under Order 21, Rule 95, was not applied for and a period of about 12 years expired since the date of the sale. On 22nd May 1926, the heirs and successors of Babu Gopi Lal, the original decree-holder auction purchaser, conveyed to the plaintiff, Babu Ramasray Prasad Chaudhury, the entire share in the two aforesaid villages purchased by their ancestor at the execution sale above referred to. The conveyance was by three deeds of sale, Exs. 2, 2a and 2b. One deed was by one of the heirs for 6 annas share, a second deed for another 6 annas share by some other heirs, and the third deed for the remaining 4 annas share by the rest of the heirs treating the property sold as 16 annas. On the basis of these conveyances the plaintiff instituted the present suit on 29th May 1926, seeking to recover the property and mesne profits since the suit, basing his title on the sale held on 30th May 1914. The sons and grandsons of the original mortgagors, Babu Jagdip Narain Singh and Sant Prasad, are the defendants first party; the representatives of Babu Sakhichand, who had acquired a subsequent mortgage in Mighaul, are the defendants second party, and'' the heirs and successors of Babu Gopi Lal, who are the vendors of the plaintiff, are the defendants third party. Various defences were taken before the lower Court. I shall later on deal with so much of the defence of the defendants first party as is relevant for this appeal when I come to the appeal itself. Suffice it to say that the learned Subordinate Judge has decreed the suit and the defendants first party have appealed.

At this stage I propose to dispose of the defence of the defendants second party, the heirs of Sakhichand, who had acquired a subsequent mortgage in one of the properties named Mighaul. I have already said that Babu Sikhichand himself, and members of his family, were defendants third party in the original mortgage suit in which the property was sold. The decree was passed in their presence. Since then they sued on their mortgage and obtained a decree. What happened of this decree is not known, Their defence in the present suit was that their mortgage, dated 11th September 1903, though subsequent to the mortgage of Gopi Lal, should have a priority over the latter, on the ground that their money was advanced for the satisfaction of another mortgage of Mighaul prior to the mortgage of Gopi Lal. An issue was raised on this point, and the learned Subordinate Judge after going into the facts has decided it against them. They have not appealed. It is therefore not necessary to deal with this part of the case any further.

Before I take up the question raised in the appeal itself I would like to dispose of a small matter which has been urged on behalf of the appellants. It appears that the plaintiff after obtaining the decree in this suit executed it and obtained formal delivery of possession. When he applied to the revenue authorities for the mutation of his name it was found that in the meantime a third party had got his name recorded in the registers of the Land Registration Department on the basis of some transfer from the defendants first party. The revenue authorities re fused to mutate the plaintiff respondent''s name and ha has brought a separate suit against the defendants first party and their transferee whose name is entered in the records of the Land Registration Department. On 2nd November 1928, the respondent put in an application in this Court bringing all these facts to the notice of the Court and requesting that as the appellant had no subsisting interest in the property in suit the appeal had become infructuous and should be dealt with as such.

At the hearing of the appeal the learned advocate for the respondent (plaintiff) has not pressed this application, but the appellant tried to take advantage of it and urged that as according to the admission of the respondent himself the defendants-appellants had no subsisting interest the suit itself was infructuous and ought to be dismissed on this ground, the conveyance by the defendants being before the Court. I am unable to accede to this contention. The plaintiff''s case in the plaint was that he was resisted in taking possession of the property by the defendants first party. In this view the plaintiff has a good cause of action against them (appellants) and we must determine the matter between the parties as they are before us.

Whether the decree which may be passed in this suit will be binding upon any other person who may have acquired any interest in the property from the appellant is a matter which does net concern us. In their written statement the defendants first party never asserted that they are not connected with the property in dispute. They allowed the case to proceed before the lower Court and have filed an appeal before this Court. The question should therefore be determined and we overrule the contention of the appellants.

I now come to the defence raised by the defendants first party, the representatives of the original mortgagors. I will only deal with such of them as have been pressed before us in the appeal. The learned advocate for the appellants Mr. Abani Bhushan Mukharji has raised the following points: (1) that the plaintiff purehasad merely the right to sue and not an existing right in immovable property, and therefore the sale to him by the heirs of Gopi Lal is invalid; (2) that no sale certificate having been obtained, there is no evidence of title to the properties sold; and the other evidence which is available is not admissible in evidence. The sale can only be proved by the sale certificate itself and no decree for possession can be passed in its absence; (3) that the sale is not binding upon defendants 7 and 8 of the first party, namely, Babu Jbarkhandi Prasad Singh and Babu Jadunandan Prasad Singh, who were not parties to the original mortgage Suit No. 407 of 1903; (4) that the suit is barred by limitation governed by Article 178, Limitation Act; (5) that the suit is barred by Section 47, Civil P. C.

As to the first point there is no force in the contention. Section 65, Civil P. C, is explicit and says that when a sale of an immovable property has become absolute the title of the auction-purchaser shall commence from the date of the sale, In this case the sale became absolute and the order of the Court making the sale absolute was confirmed by this Court. By the sale a right in the property sold was acquired by Babu Gopi Lal, the decree-holder auction-purchaser, and the plain-tiff as the representative-in-interest of Gopi Lal, acquired a subsisting right in the property. A plea was taken before the lower Court that under the terms of the sale deeds (Exs. 2, 2a and 2b) the plaintiffs had not acquired any right as they had not paid the consideration money to their vendors, the heirs of Babu Gopi Lal. This is however a matter between the plaintiff and the defendants third party. In their written statements the defendants third party explicitly stated that title had passed to the plaintiff. The question of payment and nonpayment of the consideration money is a matter between them inter se, and in my opinion it cannot be raised by the defendants first party.

The learned lower Court has relied upon Nilmadhab Parhi v. Hara Prashad Parhi 20 Ind.Cas. 325.and Jagdip Sahay v. Sonu Lal 52 Ind.Cas. 363 for the authority that the execution of a sale deed passes title to the vendee unless there is a contract to the contrary between the parties. I agree with the findings cf the learned lower Court and hold this point against the appellants. These sale deeds are not of a nature which can be held to be invalid on the ground of public policy as speculative transfers by way of gambling in litigation. No doubt a part of the consideration is dependant upon the result of the suit but this does not to my mind make the transaction bad as opposed to public policy. This was the view taken by the Judicial Committee of the Privy Council in Bhagwat Dayal Singh v. Debi Dayal Sahu [1908] 35 Cal. 420. The property has been sold for its full value and the consideration dependent upon the result of the suit is only about a third of it. The transaction is not a gamble and not invalid. The right sold was the vendor''s interest in the property acquired by the sale in execution and not a mere right to sue.

As to the second point raised by the learned advocate it is again enough to refer to the provisions of Section 65, Civil P.C. It says that whore immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. It is clear that the title of the auction-purchaser is derived from the sale and not from the sale certificate. It accrues on the sale becoming absolute but takes effect from the date of sale itself. The sale certificate is merely evidence of title of the auction-purchaser and not the title-deed in the sense that the title is conveyed or created by it. The word "sale-certificate" itself denotes that it is only a certificate by the Court that the auction-purchaser has purchased the property.

No provision of law has been placed before us to show that the title of the auction purchaser is derived from the sale-certificate. The learned advocate has relied upon Vishnu Shankar Joshi Vs. Yusuff Nurmahamad, . The case does not appear to be in point. There the dispute was as regards two sales held by two different Courts. One of them was not confirmed at all. The main question to be decided was which of these two sales was to prevail and the learned Judges, if I may say so, rightly held that one of the sales not having been confirmed could not prevail. No doubt they did refer to the sale certificate also,, but, the sale not having been confirmed the question of sale-certificate was immaterial. On the other hand the learned advocate for the respondent has referred us to the case of Tantadhari Singh v. Sundar Lal Missir [1907] 7 C.L.J. 384 where Mookerjee, J., observed as follows:

It is settled law that when a person has purchased immovable property at an execution sale, he can establish his title by evidence independent of the sale certificate...We agree in this view of the law, and hold that the Subordinate Judge ought not to have decided against the plaintiffs upon the question of title, merely because they had failed to produce their sale certificate.

Mockerjee, J., in dealing with the effect of nonproduction of the sale-certificate, referred to the observation of Chandravarkar, J., in Narayan Bhagwan Gandhi v. Shamrao Laxuman [1903] 27 Bom. 379 and a decision of a Full Bench of the Allahabad High Court in Jagan Nath v. Daldeo [1883] 5 All. 305 and also to the earlier decisions of the Calcutta High Court in Doorga Na-rain Sen v. Beney Madhab Mazoomdar [1881] 7 Cal. 199 and Tara Prasad Maytee v. Nund Kishore Giri [1883] 9 Cal. 842 and that of the Madras High Court in Velan v. Kumarasami [1887] 11 Mad. 296. It is enough if I consider the Full Bench decision of the Allahabad High Court above referred to. In that case it was held that it was not incumbent on a purchaser at an execution sale, which had been duly confirmed, to produce his sale certificate, but it was competent for him to prove his purchase aliunde. The confirmation of the sale in his favour was prima facie evidence of his title to the property, and was sufficient to pass such title to him, of which a certificate if afterwards obtained by him would merely be evidence that the property had so passed. The question was again considered by the Caloutta High Court in the case of Braja Nath Pal v. Joggeswar Bagchi 1 Ind.Cas. 62, where Mookerjee, J., referring to the case of Tantadhari Singh v. Sundar Lal Missir [1907] Cri.L.J. 384, observed that the purchaser of immovable property at an auction sale can establish his title by evidence independent of the sale-certificate, as a sale-certificate does not create title, but is merely evidence of title. The law on this point is so settled that I do not propose to discuss it at great length. The learned advocate for the appellant referred us to Section 91, Evidence Act, and contended that as Order 21, Rule 94, Civil P. C, makes it incumbent upon the Court to grant a sale certificate to the auction-purchaser, no other evidence to prove the sale and the property sold is admissible. I am unable to agree with this. Section 91, Evidence Act, prescribes that

...in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof...of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.

In this case there is no matter which is required by law to be reduced in the form of a document. The sale is held under the order of the Court and there are records of these orders in the order sheet which has been produced. On these grounds I hold this point against the appellants.

The third point refers to the effect of the decree and the sale against defendants 7 and 8, Babu Jharkhandi Prasad Singh and Babu Jadunandan Prasad Singh. They are the sons of one of the original mortgagors, Babu Sant Prasad Singh. The plaint and the decree in the mortgage suit shows that one of the minor sons of Babu Sant Prasad Singh was named therein as Panchu Singh. The plaintiff''s contention is that Panchu was another name of defendant 7, Jharkhandi Prasad Singh. This is supported by the judgment and the decree of the High Court of Calcutta in the mortgage suit (Exs. 11 and 15). The learned lower Court has held it as a fact that Panchu was another name of Jharkhandi Prasad who was party to the suit and described therein as son of Babu Sant Prasad. It has not been shown that Babu Sant Prasad had another son named Panchu. I therefore agree with the finding of the learned lower Courb that Jharkhandi Singh is an alias of Panchu Singh who was a party to the original mortgage suit. There is no doubt that Babu Jadunandan Prasad Singh was not a party to the mortgage suit. The case of the plaintiff in this respect is that he was not born at the time of the institution of the suit. I do not think so. appears that one Ambica Prasad Singh, brother of Babu Jadunan-dan Prasad Singh, was a party to the suit and it is asserted on behalf of the appellant and is not strenuously disputed by the plaintiffs that Ambica who was a party to the original mortgage suit was a younger brother of Babu Jadunandan Prasad Singh. If ho was born at the time of the institution of the suit Babu Jadunandan Prasad Singh, who was older, must have been born before the institution of the suit.

There is no doubt that ho was left out from the original suit, but this will not in any way help the appellant. The omission to sue a minor member of a joint family, if the interest of the family was properly looked after in the suit, will not in any way affect the sale held in execution of the decree passed in the suit: vide Nanomi Babuasin v. Modhun Mohun [1885] 13 Cal. 21 and Jagdish Narayan Prashad Singh v. Manmatha Nath Dey 45 Ind.Cas. 76, relied upon by the learned lower Court: see also Sheo Shanker Bam v Jaddo Kunwar AIR 1914 P.C. 136 and Raghunandan Prasad Singh and Another Vs. Ghananand Singh, . The plaint in the mortgage suit shows that Babu Jagdip Narayan Singh and Babu Sant Prasad Singh, the mortgagors, were sued as kartas and managers of the joint Hindu family and there are large number of cases of this Court showing that when a suit is brought against a karta of a joint Hindu family in his representative capacity, the suit will not fail for nonjoinder of other members of the family. The defendant does not impugn the debt or the mortgage and the utmost that he can claim is that he has still the equity of redemption (subsisting in him. The amount that he will now have to pay in order be redeem will far exceed the value of the properties, and his learned advocate did not express his readiness to avail himself of this right when it was pointed out to him that this was all he could get. On these grounds I would decide this point also against the appellants.

Before I come to the question of limitation and the applicability of Section 47, Civil P.C., I would like to dispose of, in passing, one other defence of the appellants raised before the lower Court which, though referred to by the learned advocate, has not been seriously pressed. In para. 8 of the written statement of defendant 1 it is stated that, according to the terms of the petition filed by Babu Gopi Lal on 30th May 1914, the sum of Rs. 20,000 was paid to him and he gave up his right under the sale and did not, therefore take out the sale certificate or delivery of possession. I have referred to this petition of 30th May 1914. It was to the effect that if the judgment-debtors did not put in petition for setting aside the sale, and did not raise any objection to it, the decree-holder auction-purchaser would return the property to them on payment of Rs. 20,000, only. The learned lower Court has disbelieved the payment of Rs. 20,000. by the defendant first party, and I have no hesitation in accepting this finding.

First of all the offer was conditional to the judgment-debtors not raising any objection to the sale. In fact objections were raised, application for setting aside the sale was filed and it was fought up to this Court. It is unbelievable that after fighting to the bitter end the decree-holder auction-purchaser would have given up the pro-party so easily on receipt of Rs. 20,000, only. Then it is further unreasonable to believe that the judgment-debtor actually paid Rs. 20,000, to the decree-holder auction-purchaser and took no document from him or did not insist on the filing of some sort of petition before the Court. This point, though urged by Mr. Abani Bhushan Mukharji, has not, as I said, been strenuously pressed by him, and I see no force in it, and therefore decide this point also against the appellants.

I now come to the most important point in the case, namely, the question of limitation and the applicability of Section 47, Civil P.C. The importance of the applicability of Section 47, Civil P.C., is only in so far as it effects the question of limitation. Under the present Code the question whether a particular relief can ba obtained by an application u/s 47, Civil P. C, or by a separate suit is, unless the question of limitation comes in, of academic interest only. Now the Courts are empowered to treat a petition u/s 47, Civil P. C, as a plaint and vice versa. Therefore had this suit been brought within three years of the date of purchase, the question would have been of no practical importance. But it has been instituted long after the expiry of three years and just before the expiry of 12 years. The question is, whether the decree-holder auction-purchaser can bring a suit for recovery of possession of the property purchased at an auction sale within 12 years of the sale as provided in Article 133, Lira. Act, or his only remedy is by an application for delivery of possession to the executing Court for which the period of limitation prescribed is three years only? There was divergence of judicial pronouncements on this question.

We were referred to the Full Bench decision of this Court in the case of Abdul Gani v. Raja Bam [1916] 1 Pat. L.J. 232 . There it was held that an application for delivery of possession under Order 21, Rule 95, Civil P. C, does not relate to the execution, discharge or satisfaction of the decree and therefore an order under that section was not appealable. It practically held that Section 47, Civil P. C, does not apply to an application for delivery of possession. That decision was based on the cursus curiae of the Calcutta High Court. Since then the Calcutta High Court in the case of Kailash Chandra Tarafdar Vs. Gopal Chandra Poddar, has held that the decree-holder auction-purchaser applying for possession under Order 21, Rule 95, comes within the provision of Section 47, Civil P. C, as it was a question between the parties to the suit and was a proceeding relating to the execution, discharge or satisfaction of the decree. It is obvious that if the delivery of possession to the decree-holder auction purchaser comes within the purview of Section 47, Civil P.C., a separate suit will be barred and the only remedy of the decree-holder will be by way of an application for which as I have said the period of limitation is three years. We felt some doubt as to the correctness of the decision of the Full Bench of this Court in Haji Abdul Gani v. Raja Ram [1916] 1 Pat. L.J. 232 and with the consent of the Hon''ble the Chief Justice by our order, dated 5th December 1930, we referred under Rules 1 and 6, Ch. 5 of the Rules of this Court the following question of law for decision by a specially constituted Bench:

Whether a suit instituted by the decree-holder auction-purchaser or his representative in-interest for recovery of possession of the property purchased in execution of the decree is barred by the provisions of Section 47, Civil P.C., or, in other words, whether a decree-holder who becomes a purchaser of the property sold in execution of his own decree ceases as such to be the party to the suit, and whether the question relating to delivery of possession of the property purchased by the decree-holder auction-purchaser is a question relating to the execution, discharge or satisfaction" of the decree.

The reference was heard by a Bench of this Court consisting of Sir Courtney-Terrell, C. J., Sir Jwala Prasad, Ross, Wort and Kulwant Sahay, JJ. Their judgment was delivered on 21st April 1931, and the question of law referred by us was answered in the negative. It has been held that the suit instituted by decree-holder auction-purchaser or his representative-in-interest for recovery of possession of the property purchased in execution of the decree is not barred by the provisions of Section 47, Civil P.C. It follows that the suit is maintainable and the period of limitation is 12 years under Article 138, Lim. Act. The suit is therefore not barred either by the provisions of Section 47, Civil P.C., or by Article 138, Lim. Act.

The result is that the appeal is dismissed with costs.

Kulwant Sahay, J.

I agree.