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Firm Banwari Lal Ram Bharosey Vs. Firm Mansay Lakhansay and Co. Through N.F. Gupta and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1945All22
AppellantFirm Banwari Lal Ram Bharosey
RespondentFirm Mansay Lakhansay and Co. Through N.F. Gupta and ors.
Excerpt:
.....be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - they filed a security bond duly registered on 13th september 1934. one of the terms of the decree was that the whole sum due should be realized if there was a failure to pay any instalment. there was such a failure and in august 1935 the defendant-appellant put his decree into execution and attached the house. the learned judge on this finding might well have dismissed the suit, but he accepted..........transfer a house in kalpi until the money was paid. they agreed also to file a formal registered security bond within a period of twenty-five days by which this house was to be pledged as security for the payment of the amount due. they filed a security bond duly registered on 13th september 1934. one of the terms of the decree was that the whole sum due should be realized if there was a failure to pay any instalment. there was such a failure and in august 1935 the defendant-appellant put his decree into execution and attached the house.2. in the meanwhile the plaintiff-respondent, mansay lakhansay, who had obtained a decree against lachmi narain, and his brother narain das, the grandfather of om prakash, made an application for the attachment of this house. the house was attached in.....
Judgment:

Allsop, J.

1. The defendant-appellant brought a suit against Lachmi Narain, Ram Kishan and Om Prakash, who was a minor, for the recovery of some money. A decree on the basis of a compromise was passed in his favour on 5th September 1934. The judgment-debtors were to pay a sum of Rs. 10,000 in certain instalments and agreed not to transfer a house in Kalpi until the money was paid. They agreed also to file a formal registered security bond within a period of twenty-five days by which this house was to be pledged as security for the payment of the amount due. They filed a security bond duly registered on 13th September 1934. One of the terms of the decree was that the whole sum due should be realized if there was a failure to pay any instalment. There was such a failure and in August 1935 the defendant-appellant put his decree into execution and attached the house.

2. In the meanwhile the plaintiff-respondent, Mansay Lakhansay, who had obtained a decree against Lachmi Narain, and his brother Narain Das, the grandfather of Om Prakash, made an application for the attachment of this house. The house was attached in execution of their decree on 3rd October 1934. Half the house was sold on 18th April 1935 and the other half on 12th March 1936. 'When the defendant-appellant sought to sell the house in execution of his decree, the plaintiffs raised an objection. This was overruled by the executing Court. An appeal to the High Court purporting to be against a decision under Section 47, Civil P.C. was dismissed. Apparently one of the grounds taken was that the decree in favour of the defendant-appellant was not a binding decree, and consequently the learned Judge of this Court remarked while dismissing the appeal that any attempt to go behind the decree must be made in a separate suit. It must have been in consequence of this remark that the suit was filed which has given rise to this appeal.

3. The pleadings in the plaint suggest that the decree as against Om Prakash, the minor, was not binding for several reasons. It was said that his guardian's pleader was not entitled to enter into a compromise on his behalf and that the security bond had been executed only by Lachmi Narain and not by the guardian of Om Prakash. These objections have been overruled by the learned Judge of the Court below who found that Lachmi Narain and his son, Ram Kishan, and Om Prakash, his grand-nephew, were all members of a joint Hindu family, and that Lachmi Narain could alienate the property in security for the payment of the debt due under the decree. The learned Judge on this finding might well have dismissed the suit, but he accepted another argument put before him, namely that the 'decree in favour of the defendant-appellant and the security bond were two separate matters. He found that the decree in so far as it purported or might be said to create a charge upon property which was not in suit required registration under Section 17, Registration Act, and consequently the decree in so far as it affected the house could not be executed. He came to the conclusion that the defendant-appellant, if he wished to rely upon his security bond, should institute a separate suit and not proceed by way of execution. It seems to us that the learned Judge of the Court below has been led astray because he has gone outside his province.

4. If the plaintiff-respondent was coming into Court as a third party he had nothing to do with the decree. He could bring a suit under the provisions of Order 21, Rule 63 of Schedule 1, Civil P.C. but in that suit he could obtain only a declaration about the interest which he claimed in the property which had been attached in execution of the decree. That rule does not provide in a general way that a regular Court is to sit in some way in appeal over an execution Court and is to give a declaration that certain property is not to be attached in execution of a decree. It is required quite independently to give a declaration about the rights of the parties in property sought to be attached. It is no part of the business of such a Court to decide what the execution Court ought or ought not to do. If the execution Court passes an order which is wrong that is a matter which is to be governed by appeal. It seems to us quite clear that, if the execution Court had before it an objection that the decree-holder could not proceed to attach this house by way of execution but should institute a separate suit and had decided that the decree-holder could proceed by way of execution, nobody could argue that it would be possible for the objector to institute a separate suit in order to obtain a declaration that the decision of the executing Court was wrong.

5. We consider that the decision at which the learned Judge of the Court below arrived was one which was not within his jurisdiction. He had merely to decide what interest the plaintiff-respondent had in the property and he could have held only that that interest was a right to the property subject to the security bond in favour of the defendant-appellant. The plaintiff-respondent's deeds of title, that is the sale certificates, state in plain terms that he is entitled to the property subject to the charge created by the security bond. Such a declaration would not have helped the plaintiff-respondent. On the other hand, if the plaintiff-respondent was setting himself up as the representative-in-interest of the original judgment-debtors because he had purchased their property and stepped into their shoes then any dispute between him and the decree-holder, namely the defendant-appellant, would be decided under the provisions of Section 47, Civil P.C. and the suit which has given rise to this appeal would not lie at all. In our judgment there was no force in the suit instituted by the plaintiff-respondent. We, therefore, allow the appeal, set aside the decree of the learned Judge of the Court below and dismiss the suit of the plaintiff-respondent with costs throughout.


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