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Mir Hassan Ali Mir Abdul Alli Vs. Sanli Begum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 152 of 1929
Judge
Reported in(1931)33BOMLR1139
AppellantMir Hassan Ali Mir Abdul Alli
RespondentSanli Begum
DispositionAppeal dismissed
Excerpt:
.....ram kirpal shukul v. mussumat rup kuari (1888) l.r. 11 i.a. 37, followed.;under section 20 of the dekkhan agriculturists' belief act, 1879, the crucial date is the date of the decree. a person who is not an agriculturist at the date when the deoree is passed is not entitled to installments under the section.;balchand v. chunlal (1913) 15 bom. l.r. 387 and mulji v. goverdhandas (1922) 24 bom. l.r. 1291, followed. - - the decree against the defendant having been passed by the high court, which has no jurisdiction under the dekkhan agriculturists' relief act, it follows that the defendant was not an agriculturist, or at any rate failed to plead that he was so, at the date of that decree. this case is precisely on all fours with the present case. the view, therefore, taken by the learned..........he held that as the decree of the high court was not against an agriculturist, section 20 of the dekkhan agriculturists' belief act had no application. defendant no. 2 makes this appeal.2. the first question is whether the learned subordinate judge was right in refusing to go into the contentions regarding the property being held as property of bannu begum, the grandmother of the original plaintiff, until the payment of her dower or whether that contention was barred by res judicata. it has been contended by the learned advocate for the appellant that no question of res judicata arises inasmuch as in these execution proceedings the matter has never been heard and finally decided. in my opinion this contention is not correct. a reference to the appeal paper book in the case of first.....
Judgment:

Baker, J.

1. This is an appeal against an order in execution proceedings made by the First Class Subordinate Judge of Nasik ordering the property in dispute to be attached. The facts of this case are a little complicated. The original plaintiff who is now dead and represented by his grandmother and his uncle obtained a decree in the High Court in suit No. 250 of 1906 against his uncles and his aunt with respect to the property of his grandfather Mir Abdul Ali who died in 1905. The original plaintiff Afsarali was the son of Sarfrazali who was the eldest son of Abdul Ali. The decree declared that the defendants as heirs and legal representatives of the said Mir Abdul Ali were liable for certain amounts. The plaintiff sought to execute this decree against the estate of his grandfather in the hands of the present defendant No. 2 Mir Hasanali Abdul Ali by darkhast No. 188 of 1917 which was presented in the Ahmednagar Court against certain property in the possession of the defendant in the Ahmednagar district, and on April 4,1918, a warrant for attachment was ordered to issue. There was an appeal against that order made by the present appellant, defendant No. 2, but on appeal the order was confirmed by the High Court. In execution the plaintiff recovered a certain amount, over Rs. 19,000, and in the present darkhast he applies for the recovery of Rs. 17,000 odd due trader the decree by attachment and sale of the property in the hands of defendant No. 2 in the Nasik district. It may be mentioned that the plaintiff is now dead and is represented by his grandmother and by another assignee. Many objections were taken in the lower Court by defendant No. 2. The first was that he was an agriculturist and he demanded installments. The principal objection was that he was in possession of the property not as the property of his father but on behalf of his mother Bannu Begum who had obtained a decree in the High Court for Rs. 12,00,000 in 1906 on account of her dower and the decree directed that she should remain in possession of the property until her dower was paid. He contended, therefore, that the property was in his possession as the property of his mother and not of his father, that it was held on account of the charge created by the decree of the High Court and therefore it was not liable to attachment. The First Class Subordinate Judge of Nasik disposed of all these contentions very briefly. So far as regards all the contentions except those connected with the status of an agriculturist he said they were all barred by res judicata and as regards the defendant being an agriculturist he held that as the decree of the High Court was not against an agriculturist, Section 20 of the Dekkhan Agriculturists' Belief Act had no application. Defendant No. 2 makes this appeal.

2. The first question is whether the learned Subordinate Judge was right in refusing to go into the contentions regarding the property being held as property of Bannu Begum, the grandmother of the original plaintiff, until the payment of her dower or whether that contention was barred by res judicata. It has been contended by the learned advocate for the appellant that no question of res judicata arises inasmuch as in these execution proceedings the matter has never been heard and finally decided. IN my opinion this contention is not correct. A reference to the appeal paper book in the case of First Appeal No. 167 of 1918 will show that these contentions regarding Bannu Begum's right to the property were raised in that darkhast and were disposed of by the Subordinate Judge on April 4, 1918. Against that order an appeal was made to this Court-First Appeal No. 167 of 1918. In the memorandum of appeal paragraphs 4 and 5 dealt directly with the question of the possession of Bannu Begum and paragraphs 11, 12 and 15 deal with the same point. Whether these points were argued or were abandoned in the appeal there is no means of knowing as there is no judgment, but the High Court recorded the following order:-' The Court confirms the order of the lower Court and dismisses the appeal with costs'. So that we must take it that the contentions as regards the rights of Bannu Begum (who died in 1912) in the property were decided against the present appellant, and that being so, it is not open to him in subsequent execution proceedings arising out of the same decree to re-agitate these points. They are barred by rea judicata. As a matter of fact in the view of the findings which were recorded on them by the Subordinate Judge although no definite issues were framed, they must be taken to be barred by Section 11 of the Code of Civil Procedure. But even if Section 11 does not apply, it has been repeatedly laid down by the Privy Council that the question of res judicata is not confined within the limits of Section 11 of the Civil Procedure Code, but has a wider extension than that. There are numerous cases on this point. The most recent case is Kalipada De v. Dwijapada Das (1929) L.R. 67 IndAp 24 32 Bom. L.R. 505 in which it was held that Section 11 of the Civil Procedure Code is not exhaustive of the circumstances in which an issue is rea jvdicata, and the plea of rea judicata still remains apart from the limited provisions of the Code; and application of the rule of res judicata by the Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law. Similar cases are those of Ramachandra Rao v. Ramachandra Rao and Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37 which are cases in execution proceedings So far, therefore, as the contentions of the appellant are concerned with regard to the rights of Bannu Begum in the property and the contention that the decree is not executable, the view taken by the lower Court is correct.

3. The other point raised by the learned advocate for the appellant is this, that although he was not an agriculturist at the date of the decree of the High Court he is admittedly one now and therefore under Section 20 of the Dekkhan Agriculturists' Relief Act he is entitled to instalments and further under Section 22 of the same Act his property cannot be attached and sold. The contention regarding Section 22 of the Act may be very briefly disposed of as Section 22 of the Act has not been extended to Nasik district in which the property is situated. With regard to Section 20 of the Act, the question is a little more difficult. The learned advocate for the appellant has argued that it has been held by this Court that the question of status of an agriculturist may be raised in execution proceedings and he relies on the case of Bai Diwali v. Patel Girdhar I.L.R. (1908) Bom. 391 10 Bom. L.R. 577 in which it was held that Section 20 of the Dekkhan Agriculturists' Relief Act contemplates that even when a decree has been passed which does not allow instalments the Court should have power to allow instalments in execution. The decree against the defendant having been passed by the High Court, which has no jurisdiction under the Dekkhan Agriculturists' Relief Act, it follows that the defendant was not an agriculturist, or at any rate failed to plead that he was so, at the date of that decree. This being so, the question is whether Section 20 of the Dekkhan Agriculturists' Relief Act has any application. That section says:-

The Court may at any time direct that the amount of any decree passed, whether before or after this Act comes into force, against an agriculturist, or the portion of the same which it directs under Section 19 to be paid, shall be paid by instalments with or without interest.

4. This question has been before this Court several times and is covered by authority. The case of Mulji v. Goverdhandas : AIR1923Bom36 is exactly on all fours with the present case and it has been pointed out in the recent case of Maneklal v. Mahipatram : AIR1927Bom492 that it is not inconsistent with Bai Diwali v. Patel Girdhar quoted above. The facts in Mulji v. Goverdhandas were exactly similar to those in the present case. There was a decree on the Original Side of the High Court against the defendant. In execution proceedings he made an application under Section 20 of the Dekkhan Agriculturists' Relief Act contending that he was an agriculturist. It was held, firstly, that the point whether the defendant was or was not an agriculturist was involved in the suit, as in virtue of Section 11 and Section 3, Clause (w), of the Dekkhan Agriculturists' Relief Act the High Court would not have jurisdiction to entertain the suit if the defendant was an agriculturist, and it must, therefore, be taken to have been decided that the defendant was not an agriculturist at the date of the decree. Secondly, that as the defendant was not an agriculturist at the date of the decree he could not in execution proceedings raise the question that he was an agriculturist at the date of the decree. This case is precisely on all fours with the present case. It has never been overruled and there fore governs the present case. A reference has been made to the case of Maneklal v. Mahipatram which, however, is a case turning on arrest under Section 21 of the Dekkhan Agriculturists' Relief Act. That is a full bench case and in the judgment of Mr. Justice Crump at page 1117 reference is made to Mulji v. Goverdhandas, and it was held that the crucial date in a case under Section 20 of the Dekkhan Agriculturists' Relief Act is the date of the decree only. That exactly applies to the present case. At page 1121 Mr. Justice Patkar refers to the case of Mulji v Goverdhandas, and another case to the same effect, Balchand v. Chunilal : (1913)15BOMLR387 , and referring to the apparent conflict between these decisions and the view taken in Bai Diwali v. Paid Girdhar points out the reasons regarding the extension of certain notifications to the whole presidency, but there is no conflict between these decisions. The fact, therefore, remains that the cases of Balchand v. Chunilal and Mulji v. Goverdhandas have not been overruled and are still binding on us. The. latter case is exactly on all fours with the present case. It says that the crucial date in a case under Section 20 of the Dekkhan Agriculturists' Relief Act is the date of the decree, and at the date of the decree in the present case the present appellant defendant No. 2 was not an agriculturist. The view, therefore, taken by the learned Subordinate Judge is perfectly correct. The appeal fails and must be dismissed with costs, Application for stay is also dismissed with coats,

Beaumont, C.J.

5. I agree.


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