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Dulla and anr. Vs. Shib Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1917All460; (1917)ILR39All47
AppellantDulla and anr.
RespondentShib Lal
Excerpt:
.....1908, sections 47 and 52 - execution of decree--parties impleaded as representatives of a deceased debtor--sale in execution--objection by representatives to sale--procedure. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9..........their own personal property for any other purpose. it would be necessary under section 52 of the present code for the court to decide such a question if ever it was raised in the case. the matter is governed by the view of the full bench, and the objection ought therefore to have been raised in the proceedings under section 47 of the code (which corresponds to section 244 of the old code). this has been the practice of this court since a long time, and following that practice i think that the order made by my brother mr. justice walsh is fully sustained by the rulings of this court. the other point raised by munshi narayan prasad is equally supported by the other full bench ruling, namely, basti ram v. fattu (1886) i.l.r. 8 all. 146. in that case the judgement-debtor's occupancy.....
Judgment:

Walsh, J.

1. In this case one Ram Lal and his mother executed a promissory note. In 1904 a simple money decree was obtained by the creditor against the mother and against the estate of Ram Lal, then deceased or rather against his two brothers Dulla and Dhani Ram, the present plaintiffs, who were sued as representatives of the estate of Ram Lal. After various assignments, which it is not necessary to specify, the present defendant purchased the property in question under the decree in execution proceedings. It is not disputed that, at any rate, in this suit at the time of the sale which took place in execution proceedings, the property which the present defendant bought! was the property of the present plaintiffs, the two minor brothers of Ram Lal, and was not part of the estate of Ram Lal, deceased, that is to say, it was property which the decree-holders could not attach, could not sell, and in respect of which the purchaser obtained no title. In the year 1914 the two plaintiffs, one of them having attained his majority, brought this suit for possession of the property. The first court held that they were entitled to it. The second court held that they were not, because it had been purchased by the defendant for good consideration without notice. From that latter judgement this appeal was brought and came before me. Prima facie it seemed to me that the decision of the lower appellate court could not stand. In the ordinary case if A sells B's property and 0 purchases it, it is no answer when B claims his property for 0 to say that he bought it in good faith and without notice. It is quite clear that the reasons given in the judgement of the lower appellate court are not sufficient to support the decree. The point is taken on behalf of the respondent that the sale having taken place by the order of the court under Section 47, which was formerly Section 244, and the present plaintiffs being parties to the suit in which those execution proceedings took place, they could not sue but were bound to object to the sale at the time under Section 47. It seemed to me that the answer to that was that they were only on the record in the suit as legal representatives of another person, and could not be said to be parties to the suit in which they had not a shadow of interest and in which no order could be made either against them or their property. It was urged, however, for the respondent that the matter was covered by authority and eventually, with the consent of the vakils appearing both for the appellants and the respondent, I invited my brother Mr. Justice Sundae Lal, to assist ma. The result was that certain authorities were cited to which I will refer in a moment. But before I do so I want to make it clear that as a result of conferring with my brother Justice Sundar Lal I have made an order formally referring the appeal to a Bench of two Judges and the acting Chief Justice refers it to this Beach. I should like to say that I myself was content to act upon the consent given at the Bar. It is necessary to refer to Basti Ram v. Fattu (1886) I.L.R. 8 All. 146, Seth Chand Mal v. Darga Dei (1886) I.L.R. 12 All. 311, Punchanun Bandophadhya v. Rabia Bibi (1890) I.L.R. 17 Calc. 711. The turning point of those cases is this, that a person who comes on the record as a representative of the judgement debtor is a party within the meaning of the words used in Section 47. Once that difficulty is got over, the rest follows. The moment he is a party the consequences of his being a party follow upon that conclusion, and the result is that what appears to be the last decision on the points, namely, Punchanun Bandophadhya v. Rabia Bibi (1890) I.L.R. 17 Calc. 711 is decisive on this matter. In that case it was laid down, following the principles already established by the earlier decisions of this Court, that an objection taken by a person who has become the representative of the judgement-debtor in the course of the execution of a decree to the effect that the property attached in satisfaction thereof is his own property and not held by him as such representative, is a matter cognizable only under Section 244 of the Code of Civil Procedure and not the subject-matter of a separate suit. The result is, therefore, that the judgement of the lower appellate court is right. It seems to me that there might have been some reason to question whether in this particular instance the mother, being a party herself to the original liability and personally liable under the decree, was a suitable guardian of the minor. I do not think it is open to us to deal with the point in this suit. Nothing we decide will prevent the minors from taking such steps as they may be advised to set aside the sale under the decree. The appeal is dismissed with costs.

Sundar Lal, J.

2. I just want to add only a few words in this case, The decree against the present plaintiffs was as legal representatives of Ram Lal. They themselves were not personally liable under the decree, for a decree like this is passed in the case under Section 52 of the Code of Civil Procedure. If the representatives are unable to account for the assets received by them of the estate of the deceased, they are held personally liable, so that in a case like this, although the defendant is made a party to it as a legal representative, he may under certain circumstances be made personally liable for the decretal amount. In the case of Seth Chand Mal v. Durga Dei (1889) I.L.R. 12 All. 311 the question was whether an objection by the legal representative against whom a decree had been passed as asset-holder to the effect that the property was not liable to sale because it was his own personal property, was a question which must be determined under Section 244 of the Code of Civil Procedure of 1882. The Full Bench of this Court held that the matter was one which was fully covered by Section 244 of the Code. If for one purpose as against the representatives on the record the court can inquire whether the property was part of the assets or was the property of the objector, the court could adjudicate in the case whether the property was part of the estate of the deceased or their own personal property for any other purpose. It would be necessary under Section 52 of the present Code for the court to decide such a question if ever it was raised in the case. The matter is governed by the view of the Full Bench, and the objection ought therefore to have been raised in the proceedings under Section 47 of the Code (which corresponds to Section 244 of the old Code). This has been the practice of this Court since a long time, and following that practice I think that the order made by my brother Mr. Justice Walsh is fully sustained by the rulings of this Court. The other point raised by Munshi Narayan Prasad is equally supported by the other Full Bench ruling, namely, Basti Ram v. Fattu (1886) I.L.R. 8 All. 146. In that case the judgement-debtor's occupancy holding was sold in execution of a decree and purchased by a purchaser. The judgement-debtor brought a suit for the recovery of the holding from the purchaser on the ground that the sale was illegal under the Agra Tenancy Act. It was held in that case that the question involved was one of the nature referred to in Section 244 and is determinable only by order of the court executing the decree. The purchaser was entitled to the benefit of the adjudication between the decree-holder and the judgement-debtor. Following the decision in that case, had the judgement-debtors raised the objection now urged by them and failed, the decision arrived at in that case would have been available for the benefit of the purchaser. The fact that he did. not raise any objection places the judgement-debtor in no better position. I think, therefore, that their contention is not maintainable. I agree with the order of my learned brother.

3. By The Court.-The order of the Court is that the appeal is dismissed with costs.


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