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ishvar Sangappa Gurlingappa Vs. Ramrao Bhagwantrao Inamdar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 661 of 1929
Judge
Reported inAIR1932Bom462; (1932)34BOMLR948
Appellantishvar Sangappa Gurlingappa
RespondentRamrao Bhagwantrao Inamdar
Excerpt:
.....in decree-transferee not liable in execution.; the plaintiffs, who were inamdars, obtained a decree for arrears of assessment, against defendants nos. 1 and 2, who were occupancy tenants. defendants nos. 1 and 2 appealed at during the pendency of the appeal, their interest in the land was purchased by defendant no. 3, who on his own application was made a party to the appeal the appeal ended in the trial court's decree being confirmed defendant no. 3 alone appealed to the high court, but his appeal was dismissed. the plaintiff then applied to execute the decree against defendant no. 3 only :-; dismissing the application, that the decree under execution was only against defendants nos. 1 and 2, and that it could not be executed against defendant no. 3 who was not a party to the..........the subordinate judge at chikodi, passed a decree against them on may 23, 1923. subsequent to this decree the present appellant, whose name is gurlingappa, purchased part of the land at a court sale, and the other at a private sale in 1924 and 1925. at this time an appeal made by the original defendant krishna was pending in the district court at belgaum, and gurlingappa applied to be added as a party, as he was a purchaser of the suit property, and he was so added. the decree of the trial court was confirmed, and the appeal was dismissed with costs by the district judge in 1925, and therefore qurlingappa alone, the purchaser, made a second appeal to the high court, no. 143 of 1926, which was dismissed on october 29, 1926, and thereafter the decree-holders, theinamdare, made an.....
Judgment:

Baker, J.

1. The facts of this appeal are rather unusual, but the point at issue is really a small one. The plaintiffs, who are the inamdars of the village, brought a suit, No. 12 of of 1922, against two persons Krishna Shidda and Mallappa Liugappa to recover from them as tenants assessment of certain land and the local cess, amounting altogether to Rs. 70-1-0. The defendants disputed their liability to pay, but the first Court, the Subordinate Judge at Chikodi, passed a decree against them on May 23, 1923. Subsequent to this decree the present appellant, whose name is Gurlingappa, purchased part of the land at a Court sale, and the other at a private sale in 1924 and 1925. At this time an appeal made by the original defendant Krishna was pending in the District Court at Belgaum, and Gurlingappa applied to be added as a party, as he was a purchaser of the suit property, and he was so added. The decree of the trial Court was confirmed, and the appeal was dismissed with costs by the District Judge in 1925, and therefore Qurlingappa alone, the purchaser, made a second appeal to the High Court, No. 143 of 1926, which was dismissed on October 29, 1926, and thereafter the decree-holders, theinamdare, made an application for execution of the decree against Gurlingappa alone. The Subordinate Judge of Chikodi dismissed the application on the ground that neither the lower Court's decree, nor the appellate Court's decree, nor even the High Court decree shows in any way that defendant No. 3 is made in any way liable, and that the decree of the appellate Court only confirms the decree of the original Court, in which only defendants Nos. 1 and 2 are made liable to pay. Ho, therefore, dismissed the darkhast with costs, adding that process fees also had not been paid. On appeal, the Assistant Judge at Belgaum allowed the appeal and set aside the order of the lower Court, and sent the darkhast down to the lower Court for disposal according to law. The defendant No. 3 Gurlingappa makes this second appeal.

2. Although various cases have been quoted, and various arguments raised in this appeal, the real point at issue is very simple. The Assistant Judge held that defendant No. 3, the present appellant, was liable for the arrears of assessment and the costs of the first Court, for three reasons. The first is that though he was not a party to the suit in the first Court, the step taken by him in appeal placed him exactly in the position of a co-defendant in the suit, and be thereby took upon himself all the liabilities of his co-defendants from the very commencement, and the effect of the confirmation of the decree all through was that there was a decree against all the respondents (defendants) for payment of the arrears and costs. The second ground taken by the learned Assistant Judge is that as the present appellant was a purchaser pending litigation, he took the property subject to all its liabilities, and therefore took upon himself the risk of payment of the arrears of assessment, and he was bound by the decree just as if he was a party to the suit and the provisions of Section 52 of the Transfer Property Act applied to his case. Lastly, he held that as an occupancy holder of an occupancy on which arrears of assessment were due, he was liable to the inamdar who stands in the shoes of the Government under certain provisions of the Land Revenue Code. Now all this may be correct in theory, but in practice we have an application for execution of a decree, and as it is a fundamental principle that the executing Court cannot go behind the decree, and can only execute the decree as it stands, the only question in this case is what is the decree of which execution is sought. The decree of which execution is sought is the decree against defendants Nos. 1 and 2 only, i.e., against Krishna and Mallappa. At the time when the decree was passed defendant No. 3 was not a party to the suit. It is quite true he subsequently intervened, no doubt because it was to his interest to contest the liability of the land to pay assessment. He intervened in the lower appellate Court, The lower appellate Court dismissed the appeal, and confirmed the decree of the trial Court. On second appeal the same result followed. It is necessary to see exactly what the decree of the High Court is. The decree of the High Court is, 'For the reasons stated in the accompanying judgment, the Court confirms the decree of the lower appellate Court, and dismisses the appeal with costs.' The decree of the lower appellate Court, as I have already said, merely confirmed the decree of the first Court. Therefore, the decree of the first Court stands as it did originally, and that decree is against defendants Nos. 1 and 2 alone so far as regards the payment of arrears of assessment. We have nothin' to do with costs, which were provided for in the decrees of the two appellate Courts, the High Court and the lower appellate Court, and the present appellant is ordered to pay costs. It would have been a different matter if either the lower appellate Court or this Court varied the decree of the first Court by directing that there should be a decree for the arrears of assessment against the present appellant also, but they did not do so. Therefore the executing Court can only execute the decree as it stands. There is no decree ordering the payment of any arrears of assessment by defendant No. 3, the present appellant, and therefore no such order can be passed against him. The reasons given by the learned District Judge may be very briefly disposed of. The first reason that the present appellant by intervening has taken on himself the liability of his co-defendants from the verycommencement and the effect of the confirmation of the decree all through is that there was a decree against all the defendants for the arrears of assessment and costs, is directly contradicted by the decree itself. There is no alteration in the decree, and there is no direction in the decree that the present appellant should pay any arrears of assessment. As to the present appellant being a purchaser and taking the property subject to its liabilities and the risk of payment of arrears of assessment whether under the Transfer of Property Act or under the provisions of the Land Revenue Code, that is an argument which might be used in a suit against the present respondent by the inamdars to recover the arrears of assessment from him or in proceedings taken by them under the Land Revenue Code. There is nothing of that kind. Their claim for arrears of assessment on this land has now been crystallised into a decree which declares that those arrears should be paid by Krishna and Mallappa. There is no decree against the present appellant. The learned advocate for the respondents has referred to Varajlal v. Bhaiji (1904) 6 Bom. L.R. 1103 and Timmana v. Putabhata (1899) 2 Bom. L.R. 90 as showing that a person cannot both approbate and reprobate, and inasmuch as the present appellant has taken upon himself to intervene in this case and make an appeal against a decree, he thereby admits the decree as binding upon him, and a person can be precluded from objecting to an irregularity in procedure which he himself invites. But all these general principles have no application to a case of this kind where there is an actual decree in existence. It might have been contended in the appeal in the lower appellate Court or in this Court in the original suit that the decree should be varied by making the present appellant Gurlingappa responsible for the payment of the arrears, but that does not appear to have been done, and the decree was not varied in any way. The result is that the decree of the lower appellate Court directing the darkhast against the present appellant to be proceeded with is entirely wrong, and must be set aside. This, of course, only refers to the claim so far as it refers to the arrears of assessment. Costs payable under the decrees of the High Court and lower appellate Court are due from the present appellant. Any amount paid in excess of those costs should be refunded to the appellant, who will get his costs of the present execution application throughout.


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