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Venubai Guracharya Savadatti Vs. Damodar Vyasrao Sondur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 10 of 1932
Judge
Reported inAIR1933Bom396; (1933)35BOMLR609
AppellantVenubai Guracharya Savadatti
RespondentDamodar Vyasrao Sondur
DispositionAppeal allowed
Excerpt:
.....section 47(3), order xxii, rule 5, order xliii, rule, 1-death of party-dispute between legal representatives-order-'appeal.;sub-section (3) of section 47 of the civil procedure code, 1908, is ancillary to sub-section (l), and only comes into operation when there is a question arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree. it does not apply to a case in which the dispute is between rival representatives of one party, the other party having throughout disclaimed any interest in the question. the words 'for the purposes of this section' in sub-section (3) introduce the limitations contained in sub-section (l). sub-section [3) is not an independent provision. before sub-section (3) comes into..........died in 1924, and the present appellant is his widow, and claims to be his legal personal representative. she paid the amount due under the mortgage by the due date and filed darkhast proceedings claiming to recover the two survey numbers from the mortgagee or his representatives. the respondent on the present appeal also claimed to be the legal personal representative of the mortgagor, and on august 24, 1927, he made an application in the darkhast proceedings asking that the question regarding the rights of the legal representative should be decided if possible by taking legal evidence or the' then present darkhast should be kept pending without awarding possession to the mortgagor's widow until the final disposal of the suit which the present respondent had filed. i may.....
Judgment:

Beaumont, C.J.

1. This is an appeal under the Letters Patent from a judgment in second appeal given by Mr. Justice Barlee, and the case raises a question of procedure. The material facts are that in 1906 there was an award decree between a mortgagor and a mortgagee under which two survey numbers had to be handed back to the mortgagor on payment of a sum of Rs. 3,700 before April 1927. The mortgagor died in 1924, and the present appellant is his widow, and claims to be his legal personal representative. She paid the amount due under the mortgage by the due date and filed darkhast proceedings claiming to recover the two survey numbers from the mortgagee or his representatives. The respondent on the present appeal also claimed to be the legal personal representative of the mortgagor, and on August 24, 1927, he made an application in the darkhast proceedings asking that the question regarding the rights of the legal representative should be decided if possible by taking legal evidence or the' then present darkhast should be kept pending without awarding possession to the mortgagor's widow until the final disposal of the suit which the present respondent had filed. I may mention in passing that that suit filed by the present respondent to establish his right as legal representative of the mortgagor has so far failed. The learned Subordinate Judge of Bijapur, in dealing with the respondent's application in the darkhast proceedings, observed that the question whether the present respondent or appellant is the legal personal representative of the deceased mortgagor was one which ought really to be decided either in an independent suit or in proceedings for probate. But he considered that he was bound to deal with the matter in the darkhast proceedings under Order XXII, Rule 5. He, therefore, took evidence on the question and rejected the application. There was then an appeal to the District Judge of Bijapur, and a preliminary objection was taken that no appeal lay. That preliminary objection was upheld by the learned District Judge. From that decision there was a second appeal to Mr. Justice Barlee, who allowed the appeal and held that an appeal against the Subordinate Judge's order lay. As I have said the learned Subordinate Judge dealt with the matter under Order XXII, Rule 5, and it is contended by the respondent that that rule has no application to execution proceedings. His contention is that Order XXII, Rule 3, provides that on the death of a plaintiff his legal representative may be brought on the record, and that Rule 4 provides that on the death of a defendant his legal representative may be brought on the record, and then Rule 5 provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant such question shall be determined by the Court, then Rule 12 provides that rules 3 and 4 are not to apply to execution proceedings. The contention of the learned advocate for the respondent is that Rule 5 is merely ancillary to rules 3 and 4 and provides for any dispute arising on the matters dealt with under rules 3 and 4 being determined by the Court in the suit, and that inasmuch as rules 3 and 4 do not apply to execution proceedings, Rule 5 also should be held not to apply. I am disposed to think that there is a good deal of force in that contention, and I doubt whether the learned Subordinate Judge had jurisdiction to deal with this matter under Order XXII, Rule 5. But it is not necessary to determine that point, because if the order was made properly under Order XXII, Rule 5, it is admitted that no appeal would lie, the order not being one appealable under Order XLIII, Rule 1. The contention, however, of the present respondent in the lower appellate Courts and in this Court has been that the order was made, not under Order XXII, Rule 5, but under Section 47(3) of the Civil Procedure Code. The learned District Judge took the view that that section did not apply, and that even if it did, the order was not a decree. Mr. Justice Barlee took the view that the order was a decree and was made under Section 47 (3) and that that sub-section should be read independently of Sub-section (1). Now Sub-section (1) of Section 47 provides that all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Sub-section (3) provides that where a question arises as to whether any person is or is not the representative of a party such question shall 'for the purposes of this section' be determined by the Court. In my opinion, Sub-section (3) must be read as ancillary to Sub-section (1) and only comes into operation where there is a question arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree, and it does not apply to a case of this sort in which the question is between rival representatives of one party, the other party having throughout disclaimed any interest in the question. The words 'for the purposes of this section 'in Sub-section (3) seem clearly to introduce the limitations contained in Sub-section (i), and it is, I think, clear that it is impossible to read Sub-section (3) as an entirely independent provision. The legislature cannot have intended that where any question arises as to who is the representative of a deceased person who happened to be party to a pending suit that question can be determined in that suit. Before Sub-section (3) comes into operation there must be a dispute between the parties and it must relate to the execution, discharge or satisfaction of the decree. That view of the matter is in accordance with the reasoning of this Court in Maganlal v. Doshi Mulji I.L.R. (1901) Bom. 631 3, Bom. L.R. 255 where it was held that Section 244 of the old Code did not apply to a question arising between a party to the suit and his representative. That position is very much the same as the position in this case where the dispute is between two rival representatives of one party. Mr. Justice Barlee thought that that case was distinguishable because it was decided under Section 244 of the old Code, which section, he says, in his judgment did not contain anything to correspond with Sub-section (3) of Section 47 of the present Code. But therein he is wrong, because the last paragraph of Section 244 of the old Code is substantially in the same language as Sub-section (3) of Section 47 of the present Code, the only difference being that under the old Code the Court had an option whether to decide the question or to stay the proceedings. Mr. Justice Barlee has referred in support of his judgment to the case of Abdul Sattar v. Chi Doe Rhi I.L.R. (1926) RAn. 418 But that case is distinguishable, because there the dispute arose between persons who were parties to the suit although they were on the same side of the record, and all that the Court held there was that a dispute between persons all of whom were plaintiffs or all of whom were defendants came within Section 47 (3) and that it was not necessary that the dispute should be between parties on different sides of the record. Mr. Justice Barlee also referred to the case of Khem, Singh v. Raghubir Singh I.L.R. (1924) All. 365 but in that case the contest was between the representatives of the decree-holder and persons claiming to be representatives of the judgment-debtor, so that the question there was between representatives of the parties. On the other hand, the case of Md. Abdul Matin v. Mi. Bibi Hamidan : AIR1932Pat329 to which Mr. Rao for the appellant has referred us, supports the view of Section 47 (8) which I am taking. In my opinion, therefore, this case whether rightly decided under Order XXII, Rule 5, or not, at any rate, was not decided and could not be decided under Section 47 (3). In that view of the case it is not necessary to consider whether the order dismissing the present respondent's application, even if made under Section 47 (3), was a decree, and, therefore, appealable. In my opinion, the judgment appealed from was wrong, and we must hold that no appeal was competent from the learned Subordinate Judge's order. The appeal must, therefore, be allowed with costs.

Murphy, J.

2. I agree and have nothing to add.


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