Vaddi Govinda Rajulu (Died) by LRs. vs Kaspa Venkata Ramanamurthy and others

The petitioner herein is the judgment debtor in EP No.70 of 1995 on the file of the Principal District Munsif, Srikakulam. This Civil Revision Petition is filed against the order of the Principal District Munsif in EA No.445 of 1996, dated 28-3-1997.

In this Civil .Revision Petition the issue that has come up for consideration is the consequences that wilt flow from the purchase of an undivided share of one of the decree holders by the judgment debtor.

The facts of this care are extracted in extenso in Second Appeal No.468 of 1994. In brief, it is suffice to state that the suit filed by the respondents herein for delivery of vacant possession of the site and recovery of arrears of rents \\vas decreed by the trial Court and the same was confirmed by the appellate Court. Though the second appeal preferred by the petitioner herein was admitted but the interim stay granted on 6-10-1994 was vacated on 25-8-1995. In the meantime, the respondents filed EP No.70 of 1995 and the executing Court ordered delivery of vacant possession of the site. At tliat stage, the petitioner filed EA No.445 of 1996 under Order I Rule 10 and Order XXI Rule 16 CPC by contending that he purchased 1/5th undivided share of one of the decree holders under a registered sale-deed dated 25-9-1995 and requested the Court to transpose him as a decree holder by deleting him as judgment debtor. The purport and intentional this purchase can be known from the petition filed in CMP No.2639 of 1997 in Second Appeal No.468 of 1994. In that petition, he stated categorically that the decree has become unexecutable and sought for stay of all further proceedings. But this Court having refused the relief on the ground that the events referred by him have taken place subsequent to the filing of the second appeal, gave him liberty to file petition before the executing Court. Thereafter he filed the present petition before the executing Court. The Court below dismissed the application by observing that this application was filed to delay the execution proceedings. Previously the petitioner filed several petitions against the respondents and after dismissing all the applications the Court ordered delivery of possession to the respondents. At that stage, the petitioner filed the present application. The executing Court has also taken into consideration the conduct of the 6th respondent in this Civil Revision Petition i.e., one of the decree holders who sold liis undivided share to the petitioner stating that he has no objection to permit the petitioner to transpose himself as decree holder and the same supports the contention of the other respondents i.e., respondent Nos. 1 to 5 that the petitioner filed the present application in collusion with respondent No.6 to defeat and drag on the proceedings of execution.

As there is no decided case of this Court on this aspect, I appointed Sri C.V. Nagarjuna Reddy as amicus curiae to help the Court in arriving at a just conclusion. Sri C. V. Nagarjuna Reddy brought to my notice a judgment of the Calcutta High Court in Khelat Chandra v. Peary Lal AIR1949 (36) Cal.155, wherein S.R. Das, J., (as he then was) in simitar circumstances held that the decree extinguishes pro tanto and that a person having a decree for delivery of possession and who is in occupation of the same is not bound by the decree to relinquish such occupancy and in such an event the other decree holders must proceed against the applicant by way of execution and the only mode of execution as against him is only by delivery of symbolic possession. He has also relied upon the judgment of the Himachal Pradesh High Court in Milkhi Ram and Others Vs. Raghunandan and Others, , which is to the same effect. The next judgment relied on by him is Hasimathunnisa Begum Vs. Vithal Rao Gangaji and Another, . In that case, His Lordship Justice Narasinga Rao (as he then was) while considering the validity of an order passed by the executing Court appointing a commissioner to partition the suit property in a suit filed for reconveyance of the property on an agreement of reconveyance against the 1st respondent-predecessor in interest and father of the revision petitioner, held that he is entitled to get half share of the 1st defendant on payment of consideration in a suit filed by him for specific performance of an agreement, Ex.A2. Subsequently, the Court executed the sale-deed on payment of the consideration amount and the decree holder sought possession of the property covered by the sale-deed and filed an''application for appointment of a commissioner to effect partition of the suit property and to put him in possession of the property. Those proceedings were questioned before this Court. His Lordship relied on Order XXI Rule 35(2) CPC and held that the nature of delivery of possession in case of a decree for joint possession is only a symbolic one and not a physical one. In opposition, the respondents relied on ajudgment reported in Mihir Bose v. Jobeda Khatun, 63 Calcutta Weekly Notes 470, wherein His Lordship Renupada Mukherjee interpreted the expression "to the satisfaction of the decree holder" occurring in Order XXI Rule 2(1) CPC and held that "to the satisfaction cf the decree holder" should mean the entire body of the decree holders where a decree is joint and indivisible. Such a decree can be adjusted only by the consent of the entire body of decree holders and not by some of them. His Lordship further held that it cannot be said that adjustment of such a decree with some of the decree holders to the exclusion of the rest is a bona fide adjustment. An adjustment of a joint decree of this nature by some out of the entire body of decree holders is not valid in law. Having taken the said view, His Lordship declared:

"....I am of the opinion that the so called adjustment was not a valid or legal adjustment and it should be ignored, and the lower appellate Court is right in holding that the entire decree for possession is capable of execution at the instance of the decree-holders who were not parties to the adjustment,....."

They also relied on ajudgment of the Supreme Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, . In that case their Lordships of the Supreme Court considered whether the minor sons of a judgment-debtor are liable to discharge the pre-partition debts of the father. In that case also the judgment-debtor purchased the undivided share of the property of one Bhubncshwar and his three minor sons and thereafter filed the suit in question claiming specific allotment of four anna share in the suit properties. The 1st defendant-owner contended that the plaintiff instituted the suit against him alone and his three sons were not made parties either in the suit or in the execution proceedings; his undivided interest in the joint family properties and not that of his sons passed by the sale and as such the creditor/the purchaser in the execution acquired only one anna four paise share in the suit properties and the plaintiff could legitimately lay a claim. The trial Court rejected his contention and decreed the suit. The defendant then carried the matter in appeal and the High Court held that'' ''the decision of the trial Court would have been unassailable if the defendant No.l was the head ofthe joint family consisting of himself and his sons, hi such a case he could have represented the interests of his sons and the entire interest could have been sold in execution sale. But as in this case the plaintiff himself was a junior member of the family he had neither any right of disposition over the property of his sons nor could he represent them in any suit or proceeding. What the purchaser acquired by the execution sale was not any interest in a specific portion of the joint family but the right of the judgment debtor to have his share defined and allotted by partition and in this claim for general partition the question of pious obligation of the sons to pay their father''s debts would not at all arise..." Their Lordships of the Supreme Court, while considering the validity of the judgment of the High Court, further held:

"It is true that under the Mitakshara law, as it is administered in the State of Bihar, no coparcener can alienate, even for valuable consideration, his undivided interest in the joint property without the consent of his coparceners; but although a coparcener is incompetent to alienate voluntarily his undivided coparcenery interest, it is open to the creditor who has obtained a decree against him . personally, to attach and put up to sale his undivided interest, and after purchase to have the interest separated by a suit for partition."

In other words, the right of purchaser of an undivided interest without the consent of the other coparceners has to be worked out by filing a separate suit for partition. Their Lordships of the Supreme Court went to the extent of holding tliat a coparcener governed by Mitakshara Law has no right of alienation of his coparcenery interest voluntarily.

In the case on hand, it is evident that the petitioner having lost or having exhausted all his remedies available under law, purchased 1/5th share of one of the decree holders only with a view to squat over the property, as contended by him in CMPNo.2639 of 1997 in Second Appeal No.468 of 1994 and this is nothing but a collusive transaction. Further, u/s 44 of the Transfer of Property Act the transferee of the share of one of the co-owners having right to joint possession, has to enforce a partition of the property and seek allotment of his share or interest so transferred to him subject to the conditions and liabilities affecting such share or interest at the date of the transfer. It is also to be seen that under the provisions of the Partition Act, the other coparceners are having a right of pre-emption, that is to say, a right is conferred on them under the statute to purchase the undivided interest of a coparcener in case one of the coparceners wishes to sell away his undivided interest in the property which is in their joint possession to the exclusion of the others. In fact, the other coparceners in the present case filed OS No.271 of 1996 on the file of the Principal District Munsif, Srikakulam questioning the alienation of his undivided interest by the respondent No.6. Hence, I am inclined to follow the later view of the Calcutta High Court in the light of the judgment of the Supreme Court in Sidheshwar v. Bhubneshwar (supra), in furtherance of the cause of justice than following the principle laid down in Khelat Chandra v. Peary Lal (supra) to prevent the unscrupulous judgment-debtor from trying to frustrate the law. Further, His Lordship Justice S.R. Das, having taken the above view, did not express any opinion on the submission made by Sri Banerjee Das, the Counsel for the plaintiffs, that the Court should appoint a Commissioner to partition the property and thereafter deliver possession of the divided and separated half share to the applicants u/s 47 CPC. Likewise, Justice Narasinga Rao (as he then was) did not answer the question whether the decree holder is entitled for separation possession of the half share in the suit house when the decree provides only joint possession, by observing that the question should be answered before considering whether the right of the first defendant to resist the prosecution is considered. Hence, these two judgments do not provide a complete answer to the issue that came up for consideration and they simply interpreted Order XXI Rule 35(2) CPC in its literal sense than in furtherance of the cause of justice.

The Counsel for the respondents has also contended that this application has been filed under Order I Rule 10 CPC which is available only in case of a suit but not in execution. A Division Bench of this Court in Chaganti Lakshmi Rajyan and Others Vs. Kolla Rama Rao, , held, following an earlier judgment of this Court in Sardar All Khan v. S. Deputy Collector 1993 (2) ALT 155, that the application to implead as parties in execution petition is not maintainable after the disposal of the suit. In other words, their Lordships of this Court held "that no petition under Order I Rule 10 CPC is maintainable in execution proceedings. The Counsel for the respondents has also brought to my notice that this application was filed under Order XXI Rule 16 CPC which envisages transfer of the interests of a decree holder in the decree to third party assignees whereas in this case one of the several decree holders transferred his undivided share to the judgment debtor to frustrate the decree obtained by the decree holders to take delivery of the vacant possession of the site and recovery of arrears of rent. I fully agree with the Counsel for the respondents and hold that the application as filed is not maintainable.

By this judgment I should not be understood that the transferee of an undivided interest in a property which is in joint possession of the decree holders has no remedy at all. As contemplated u/s 44 of the Transfer of Property Act, it is open to him to seek partition of the property by filing a separate suit but he cannot circumvent the decree obtained by the decree holders in a surreptitious manner by trying to transpose himself as a decree holder and contend that he would continue to be in possession of the property and that the other decree holders can execute the decree by obtaining symbolic possession and then file a separate suit for partition.

For the above reasons, I do not find any merits in this Civil Revision Petition and the same is accordingly dismissed with exemplary costs. Advocate''s fee Rs.2,000/-.