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Balkrishna Eknath Vs. Shantilal Hemchand - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 416 of 1955
Judge
Reported inAIR1961Bom56; 1961BomCR(Cri)56; (1960)62BOMLR410; ILR1960Bom554
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 and 273 - Order 21, Rule 53, 53(1), 53(2), 53(3) and 53(4) - Order 22, Rule 10 - Order 34, Rule 5(3); Old Procedure Code, 1882
AppellantBalkrishna Eknath
RespondentShantilal Hemchand
Appellant AdvocateV.B. Rege, Adv.
Respondent AdvocateR.B. Kotwal, Adv.
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 53 - preliminary mortgage decree for sale obtained by judgment-debtor, attached by his creditor decree-holder--whether attaching decree-holder can obtain final decree and execute it.;under order xxi, rule 53, of the civil procedure code, 1908, a decree-holder can attach a preliminary mortgage decree for sale obtained by his judgment-debtor and obtain a final decree and thereafter execute the same as provided for in sub-rules (2) and (3) of rule 53 of order xxi of the code. ;krishnabai v. parbatibai [1944] nag. 885, agreed with. ;(firm) ram kumar v. prem sukh das [1936] a.i.r. all. 857, sidlingappa v. shankarappa (1903) i.l.r. 27 bom. 556 and khimji poonja and co. v. ratanshi hirji bhojraj (1940) i.l.r. 19 pat. 935, referred to. -..........the dismissal of his suit by the civil judge, senior division, nasik, for a declaration that the final decree obtained by one kesharbai in special civil suit no. 253 of 1933 is without jurisdiction and as such is nullity.2. the plaintiff had borrowed from one hemchand bhaichand gujarathi a sum of rs. 8,820 on a simple mortgage. hemraj instituted special civil suit no. 253 of 1933 on the mortgage and on the 29th september 1933 obtained a preliminary decree. for some time nothing was done on that preliminary decree but in the meantime a creditor of hemraj by name vrajlal nyahalchand obtained a money decree in small cause suit no. 21808 of 1934 against him and ia execution of that decree in regular darkhast no. 419 of 1935 he attached the preliminary decree obtained by hemchand against.....
Judgment:

Patel, J.

1. This appeal is by the plaintiff against the dismissal of his suit by the Civil Judge, Senior Division, Nasik, for a declaration that the final decree obtained by one Kesharbai in Special Civil Suit No. 253 of 1933 is without jurisdiction and as such is nullity.

2. The plaintiff had borrowed from one Hemchand Bhaichand Gujarathi a sum of Rs. 8,820 on a simple mortgage. Hemraj instituted Special Civil Suit No. 253 of 1933 on the mortgage and on the 29th September 1933 obtained a preliminary decree. For some time nothing was done on that preliminary decree but in the meantime a creditor of Hemraj by name Vrajlal Nyahalchand obtained a money decree in Small Cause Suit No. 21808 of 1934 against him and ia execution of that decree in Regular Darkhast No. 419 of 1935 he attached the preliminary decree obtained by Hemchand against the plaintiff. The attachment was levied on the 10th of August 1935. In pursuance to that attachment Vrajlal made an application for final decree on the 25th March 1936 and obtained a final decree on the 13th September 1936 against the plaintiff. When the attachment of the preliminary decree was imminent Hemraj assigned his rights in the preliminary decree to his wife. Kesharbai, on the 6th of March 1935 or the document may have been antedated. Even though apparently she had obtained assignment on the 6th of March 1935 she did nothing, right till the 17th October 1933 -- four months after the final decree was already passed by the Court in favour of Vrajlal. She made an application for a final decree against the plaintiff in the same Court. The Court on that application in fact made a final decree on the 13th January 1937 and it appears that both the decree-holders attempted! to execute the decree against the judgment-debtor. We are not in position to know what has happened to the Darkhast filed by Vrajlal, but Kesharbai's Darkhast No. 3 of 1947 is still pending. Because the plaintiff contended that he was a debtor the Darkhast was transferred to the Debt Adjustment! Court but thereafter was returned to the executing Court for execution. When the sale of the plaintiff's property became imminent the plaintiff instituted the present suit on the 7th July 1954 for a declaration of nullity of the decree in favour of Kesharbai and consequential relief.

3. The defendant is the heir and successor of Kesharbai who had orginally obtained the decree and it appears that in the Darkhast filed by Kesharbai, which is Darkhast No. 3 of 1947, the defendant is seeking to continue execution. In his written statement he raised several contentions. The main and substantial contention being that the preliminary decree obtained by Hemchand was assigned by him to his wife on the 6th of March 1935 and, therefore, Vrajlal could not obtain a final decree on his attachment which was levied on 10th August 1935; and She became the owner of the preliminary decree and she got a final decree passed in her favour on the 13th January 1937 and, therefore, she became entitled to execute the same. He contended that thet attachment made by the creditor of Hemchand on that decree was illegal. He contended that this is a suit for postponing the sale of the property. He then contended that it is false to say that the power of the Court to pass a final decree in favour of Kesharbai had come to an end. He denied that Kesharbai had obtained the final decree fraudulently, and stated that the plaintiff was aware of all the orders and the proceedings in regard to the Special Civil Suit No. 253 of 1933, with the result that he is estopped from challenging the validity of these orders:

4. The learned trial Judge held that the suit as framed was tenable; that the suit was not barred by res judicata or estoppel; that Vrajlal had got the decree made final before Kesharbai's application and that it was validly obtained. He, however, held that the suit which was instituted after a lapse of so many years was beyond time. In the result though he found in favour of the plaintiff on the other issues, he dismissed his suit.

5. It is urged for the appellant that the learned trial Judge was in error in answering the point of limitation against him. It is said that the Darkhast was pending and that in that Darkhast he was entitled to take the contention of invalidity of the respondent's decree and that in that Darkhast it would be impossible to hold that the contention is barred by limitation. We are of the view that the learned Counsel is perfectly right in the contention that he has made. If he was entitled to raise that point in the Darkhast it is impossible to contend that this suit is barred by limitation. As a matter of fact this suit itself could have been treated as an application in execution proceedings under Section 47 and in that view of the matter the ground that the suit was barred by limitation could net be sustained.

6. The learned Counsel for the respondent, however, has argued that since the assignment of the decree to Kesharbai was before the attachment of the decree by the creditor of Hemchand the Court had no jurisdiction to make a final decree at the request of Hemchand. Now, it is true that if the respondent had approached the Court when Vrajlal made an application for a final decree or if Hemchand had raised the contention that he had already validly or properly assigned his decree to a third party and that attachment was subsequent to it, then the Court would have been required to adjudicate as to whether or not Vrajlal had acquired any right to get the decree made final by his attachment. When the Court proceeded to make the decree final it was in every probability on the basis of the absence of any contention either by Hemchand or his wife Kesharbai and the making of the final decree involved the determination that Vrajlal had got effective rights under the attachment.

7. Mr. Kotwal has invited our attention to the case of Alauddin v. Biran : AIR1949Pat259 , and argues that where wrong persons obtain a decree the proceedings do not bind the real heirs or the estate. He relies upon this case and the statement in the case to the effect that -- where wrong persons are substituted as legal representatives the proceedings do not bind the estate or the real heirs. In this case after the preliminary decree in a mortgage suit was made, the mortgagor died. The decree-holder substituted some persons as the heirs of the mortgagor and obtained a final decree and levied execution thereafter. A question arose as to whether the heirs of the mortgagor or the estate-were bound by that decree. The Court held to that case that they were not so bound. He argues that in this case we are concerned with a converse proposition. He says that if a wrong person obtains a decree the real persons are not hound by that decree. Now, there are two answers to this proposition. The case referred to does not consider the well known case decided by the Privy Council as long ago as the year 1900 and which is being cited very often. It is the case of Malkarjun v. Narhari ILR 25 Bom 337. In that case a judgment-debtor died after the decree and wrong persons were brought on record by the decree-holder as legal representatives of the judgment debtor and property came to be sold. Their Lordships there said that the judicial sale was not a nullity and could not be treated as invalid, notwithstanding this irregularity, even though a material one, for the Jurisdiction of the Court to execute had been complete throughout. It had not been lost by reason of the above error and had empowered the Court to decide wrongly as well as rightly. And at page 347 in repelling the contention of the party it was said :

'In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed'.

In this case as we have said, no contention was raised by the husband that he was no longer the owner of the decree and, therefore, the attaching creditor obtained no right when that decree was attached. That decree has not been set aside nor declared invalid by reason of Kesharbai having taken any steps allowed to her by law. In this view of the matter it is too late for her to say that the decree obtained by Vrajlal was one which the Court could not have been persuaded to pass. The other difficulty in her raising this contention in this suit, is that Vrajlal is not a party to the suit and any decision given by this Court cannot possibly be binding on Vrajlal. We arc, therefore, of the view that the decree obtained by Vrajlal must be taken to be valid decree for the purpose of this suit, it he could obtain a decree.

8. It is however contended that Vrajlal merely by his attachment could not obtain a decree and in that sense the Court had no jurisdiction to make that decree. This contention concerns the consideration of Order XXI, Rule 53 of the Code of Civil procedure. Now this rule provides for attachment of decrees. The first part of the rule refers to a decree either for the payment of money or for sale in enforcement of a mortgage or charge and then proceeds with the method of levying attachment. Sub-rule (2) provides that after making the order of attachment in such a decree if the attaching-creditor makes an application for execution of the decree, then the Court shall proceed to execute the same and apply the net proceeds in satisfaction of the decree sought to be executed.

Sub-rule (3) is a necessary provision for this purpose and it provides that such a person seeking to execute the attached decree shall he deemed to be the representative of the holder of the attached-decree and be entitled to execute such attached decree in any manner lawful for the holder thereof. Sub-rule (4) relates to the attachment of a decree other than a decree mentioned in Sub-rule (1) and the method of realisation for such a decree is differently provided and that is by the sale of the decree.

9. The learned counsel for the respondent argues that the preliminary decree for sale falls in the category of the decrees mentioned in Sub-rule (4) and not in that mentioned in Sub-rule (1), while thelearned counsel for the appellant argues to the contrary.

10. Mr. Kotwal, relies on the case of Ram Kumar Rameshwar Lal v. Prem Sukh Das : AIR1936All857 for the contrary proposition. It was observed therein that -

'A preliminary decree does not come under this clause. A preliminary decree which has been attached cannot be regarded as one for the payment of money or for enforcement of a mortgage or charge, nor it is capable of execution. So a person attaching a preliminary mortgage decree has no locus standi to apply for final decree nor does the mere attachment of decree amount to an assignment, creation or devolution of any such interest as is mentioned in Clause (1), Rule 10, Order 22, Civil Procedure Code.'

'There does not appear to be any discussion on the point. A reference, however, to the form of the preliminary decree as given in Civil Procedure Code is pertinent. The form is stated to be for preliminary 'for sale' and:

Paragraph (4) provides for a direction to the defendant to pay the plaintiff on or before a particular date or such date such sum as the Court would find due, the sum specified therein and then paragraph (5) provides for a further order and decree that in default of payment as aforesaid, as stated in paragraph (4), the plaintiff may apply to the Court for final decree for sale of the mortgage property amongst other things.

Now, if a decree provides or directs the defendant to pay a certain sum mentioned therein it is difficult to see why it cannot be regarded as a decree for payment of money. Moreover a decree for sale would also include a pre-decree for sale. If that is so, it is liable to the process of Order XXI, Rule 53(1) and (2). Then Sub-rule (3) provides that the attaching creditor is the representative of the holder of the attached decree, with the necessary consequence that the attaching creditor would be entitled to a final decree on the basis of that preliminary decree.

11. For the appellant Mr. Rege relies first on the case of this Court in Sidlingappa v. Shankarappa ILR 27 Bom 556--a case under the old Procedure Code Act XIV of 1882. In that case it was a preliminary decree in a partnership proceedings and the decree-holder of the firm had attached that preliminary decree. That decree was attempted to be sold on the assumption that the case fell within the provisions corresponding to Sub-rule (4) of Order XXI, Rule 53. The Court observed in that matter as follows :

'We think, having regard to the principle laid down by Mr. Justice Farran in the case of J. Khan v. Alli Mahomed Haji Umar ILR 16 Bom 577, followed in the case of Mahomed Zohuruddeen v. Mahommed Noorooddeen ILR 21 Cal 85, it is very doubtful whether such an execution can be allowed ........ But it is admitted before us that the decree in the suit for dissolution of partnership can be so far regarded as a money-decree, and that therefore it can be attached but cannot be sold. This being so, it is clear that the applicants' remedy is not by a sale of the decree, but by the proceeding under the provisions of Section 273 of the Civil Procedure Code,'

and they referred to the case of Gopal v. Joharimal ILR 16 Bom 522.

It is no doubt true that that was a case of a preliminary decree in a partnership suit. However, in essence no difference can be made between a preliminary decree in a partnership suit and the preliminary decree in a sale of mortgaged property, latter being on a stronger footing. Further reliance is placed also on the case of Khimji Poonja and Co. v. Ratanshi Hirji Bhojraj : AIR1941Pat43 , wherein it' was held that:

'A decree for accounts passed in a suit for dissolution of partnership and for partnership accounts, though attachable, is not saleable at the instance of a creditor who has attached it in execution of his decree'.

Some difficulties in regard to the sale of a preliminary decree in such actions was pointed out and ft was also said that:

'The result of such a purchase will be that a speculative buyer will obtain a valuable right for a very small sum at the cost of the judgment-debtor whose interest it is the duty of the Court to guard. Therefore, on grounds of general policy, it seems undesirable that the Courts should sanction such a state of affairs.'

The other learned Judge then pointed out the remedy open to an attaching creditor in such a case. According to him since Order XXI, Rule 53 (3) provides that the attaching creditor is the representative of the holder of the attached decree, with the leave of the Court the attaching creditor would be entitled to obtain final decree. The last case relied upon by Mr. Rege is Krishnabai v. Parbatibai . This case is a case similar to the one in hand, and it is an authority for the proposition that an attaching creditor of a preliminary mortgage decree for sale is entitled to apply under Order XXXIV, Rule 5 (3) of the Code of Civil Procedure to get a final decree. We agree with the reasoning of the case and are of the view that the provisions of Order XXI, Rule 53 would enable a decree-holder to attach a preliminary decree for sale and obtain a final decree and thereafter execute the same as provided for in Sub-rules (2) and (3). That being so, it must be held that Vrajlal's decree is properly obtained.

12. Once we come to the conclusion that the decree obtained by Vrajlal was properly obtained, the suit ended and the Court passing the decree lost jurisdiction in the matter. Once that stage is reached, there can be no further application for any decree or order in that suit. The Court, therefore, had no jurisdiction whatever to proceed with the application which was made by Kesharbai on the 17th October 1936, much less to make a final decree in that suit.

13. It must, therefore, be held that the plaintiff is entitled to the declaration asked for which we accordingly decree.

14. Under the circumstances of the case we direct that the parties should bear their own cost throughout.

15. Appeal allowed.


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