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Abdul Jabbar and anr. Vs. Sita Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All379; 95Ind.Cas.1033
AppellantAbdul Jabbar and anr.
RespondentSita Ram and ors.
Excerpt:
.....good reason to the contrary it attracts to itself the attributes and liabilities of a decree in all matters relating to execution,..........ram. on appeal the order of remand was confirmed by this court by a decision which is reported in sita ram v. janki ram air 1922 all 200. this court held that the order of remand was justified and that it would be for the munsif of rasra finally and completely to determine, as between the parties, all the points raised by the application of janki ram and the objections preferred thereto on the part of sita ram. this order was passed on the 3rd january 1922.3. what happened after this order was passed is not; quite clear. all that appears is that while the matter was still under enquiry in the court of the munsif of rasra, an order of attachment was obtained by nur muhammad on the 9th september 1922 in execution of his decree against janki ram from the court of the subordinate judge of.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of an execution proceeding instituted by an attaching creditor to enforce the liability of an action-purchaser under Order 21, Rule 71 of the Code of Civil Procedure. It appears that Gopi Ram and others obtained a decree from the Court of Small Causes at Calcutta against Janki Ram and others, which was transferred for execution to the Court of the Munsif of Rasra. In execution of that decree a house was attached as the property of the judgment-debtors and put up to sale on the 17th June 1917. The highest bidder was Sita Ram whose bid amounted to Rs. 5.060, but as he failed to deposit 25% of the sale price the sale officer proceeded to re-sell the property. As the time had advanced he held the resale next day. The property was then purchased by one Gauri Shankar for Rs. 2,850, leaving a deficiency of Rupees 2,210 to be recovered from the previous auction-purchaser. The amin reported that deficiency, as required by Order 21, Rule 71 of the Code of Civil Procedure, to the Court by whose direction the sale was held.

2. Subsequently an application was made by Janki Ram, one of the judgment-debtors, for the recovery of the deficiency from Sita Ram, the defaulting purchaser. To that application several objections were taken by Sita Ram, one of which, was that the re-sale was not held forthwith and he could not therefore be made liable for the deficiency arising from the re-sale. The Munsif of Rasra upheld that objection; but on appeal his order was set aside and the case was remanded for the determination of the other objections raised by Sita Ram. On appeal the order of remand was confirmed by this Court by a decision which is reported in Sita Ram v. Janki Ram AIR 1922 All 200. This Court held that the order of remand was justified and that it would be for the Munsif of Rasra finally and completely to determine, as between the parties, all the points raised by the application of Janki Ram and the objections preferred thereto on the part of Sita Ram. This order was passed on the 3rd January 1922.

3. What happened after this order was passed is not; quite clear. All that appears is that while the matter was still under enquiry in the Court of the Munsif of Rasra, an order of attachment was obtained by Nur Muhammad on the 9th September 1922 in execution of his decree against Janki Ram from the Court of the Subordinate Judge of Ghazipur in respect of the deficiency which Janki Ram was seeking to recover from Sita Ram. A prohibitory order was served on Janki Ram forbidding him to receive and on Sita Ram forbidding him to pay the said money, and a copy of that order was also sent to the Munsif of Rasra for information and necessary action.

4. Meanwhile an application was made by Janki Ram and Sita Ram in their own case, asking for time to enter into a compromise about the liability which the former was seeking to enforce, and on the 14th November 1922 a certificate was actually filed by Janki Ram, stating that he had received the entire money due to him. An objection was filed by Sita Ram at or about the same time in the Court of the Subordinate Judge of Ghazipur to the attachment of the said money, and the order passed on it was that although the liability of Sita Ram was till then unascertained, the attachment would operate to the extent of the liability which may be finally determined by the Munsif of Rasra in the proceeding before him at the time of the attachment.

5. Nur Muhammad then applied in the Court of the Munsif of Rasra for the recovery of the attached money by the arrest of Sita Ram to which several objections were taken by the latter. In effect he questioned the right of Nur Muhammad to attach an unascertained liability, and he also pleaded that no attachment had lawfully taken place, and that if it had taken place, it was invalid and ineffectual as against him. He also pleaded that the application of Nur Muhammad was barred by limitation. The Munsif of Rasra held that the application for execution was not barred by limitation. He further held that, though no order of attachment was affixed on the Court-house of the Subordinate Judge of Ghazipur, as required by Order 21, Rule 49 of the Code of Civil Procedure, a prohibitory order in fact had been served on Sita Ram, but it was inoperative because there was no ascertained debt then existing, which could have lawfully been attached. That order was upheld by the lower appellate Court.

6. The first question for consideration is whether the attachment obtained by Nur Muhammad was an attachment of a decree or order within the meaning of Order 21, Rule 53 of the Coda of Civil Procedure read with S, 47 and Order 21, Rule 71, or attachment of a debt within the meaning of Order 21, Rule 46 of the Code A subsidiary question further arises whether, if it was an attachment of a debt, a proceeding in execution like the present instituted by an attaching creditor for the recovery of the money by the arrest of Sita Ram was maintainable.

7. There can be no question that where a person is declared to be the purchaser of a property put to auction, he has to deposit 25% of the purchase money forthwith, and if he is unable to do so, it is open to the Court. Officer to proceed with the sale forthwith, and if there is a deficiency, to certify that deficiency to the Court by whose direction the sale is held. Order 21, Rule 71 provides that such deficiency and all expenses attending the re-sale, when so certified, shall at the instance of either the decree-holder or the judgment-debtor, be recovered from the defaulting creditor under the provisions relating to the execution of a decree for the payment of money. There is no question in this case as to the amount of that liability. The amount of the deficiency was known and certified by the sale officer. There was some dispute as to the interest which the attaching creditor was claiming on that amount and as to the right of Janki Ram alone to apply for the realization of the deficiency. But so far as the principal money was concerned, the extent or amount thereof could hardly have been disputed.

8. An order arising out of an execution proceeding and relating to the execution, Satisfaction or discharge of a decree is a decree under Section 47 read with Section 2, Clause (2) of the Code. The liability which Janki Ram was seeking to enforce and the determination of which was directed by this Court was liability which the then decree-holder could have himself enforced and when enforced, would have gone towards the discharge and satisfaction of the decree. An order directing the determination of that liability was a decree within the meaning of Section 47 read with Order 21, Rule 53 of the Code and was capable of attachment, though the full amount which Janki Ram was entitled to recover had not till then been determined. It was capable of execution on such determination against the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money, and the procedure for its attachment would be the same as the procedure for the attachment of any other liability imposed by a decree. There was no final adjudication of the various objections raised by Sita Ram to the enforcement of that liability in the execution proceeding instituted by Janki Ram against him, because after an order of attachment was obtained by Nur Muhammad, a certificate was filed by Janki Ram that he had received the amount out of Court from Sita Ram. But as the trial Court has found, and found rightly, the certificate was filed after the attachment was made and had been communicated both to Janki Ram and Sita Ram, and it was obviously a bogus certificate, or at all events, a collusive payment, which did not release Sita Ram from his liability to the attaching creditor. It is argued, however, that the attachment was invalid because there was no decree for the payment of money and no existing or ascertained debt, of which an attachment could have been made under Order 21, Rule 46 of the Code. But it was at all events an order imposing a liability enforceable in the same manner as a liability imposed by a decree, and Section 36 of the Code of Civil Procedure makes the proceedings relating to the execution of a decree applicable to the execution of such an order. In other words, the order could be executed in the same manner as a decree; and it could therefore be attached in the same manner too. The order of attachment was duly communicated to the Munsif of Rasra. It makes no difference whether he communicated it to Janki Ram or Sita Ram or not. The order was communicated by the Subordinate Judge of Ghazipur by the service of a prohibitory order, requiring the former not to realize, and the latter not to pay the amount attached, and a further intimation of that order was given to Sita Ram when he filed his objection to the attachment of the same, and his objection was partly allowed and partly repelled. In fact his signature was obtained on the order which was passed by the Subordinate Judge of Ghazipur at the time on the 25th November. 1922. It is not open to Sita Ram to say that the attachment was not properly carried out. The procedure adopted by the attaching Court was that Said down in order 21, Rule 53, Clause (4) of the Code of Civil Procedure and the attachment cannot therefore be regarded as invalid. It is unnecessary in these circumstances to go into the other questions as to how far the amount sought to be recovered was a debt within the meaning of Order 21, Rule 46 of the Code.

9. We allow the appeal accordingly and setting aside the decision of the Court, below remand the case to the Court of first instance with a direction to reinstate the execution proceeding and to proceed with it after finally and completely determining, as between the parties to the proceeding, any points raised by the application of Sita Ram which may have been left undetermined. The appellant will get his costs here and hitherto from Sita Ram who shall bear his own costs throughout.

Boys, J.

10. I agree in the order proposed by my learned brother. The main question is whether a certificate under Order 21, Rule 71 is attachable as a decree for the payment of money under the provisions of Order 21, Rule 53 or as a debt under the provisions of Order 21, R, 46 or not attachable at all.

11. The relevant sections, as appears to me are Order 21, Rule 71, Order 21, Rule 53, Section 2(2), Section 2(3). I fully appreciate the possibility of argument that these sections do not, meticulously examined, justify holding that beyond all doubt the certificate is wholly and literally within the definition of decree in Section 2(2). But such a finding is not a necessary condition to this appeal being allowed; it is sufficient if we find that it must for the present purpose be treated as a decree and to that finding I agree that the appellant is entitled. The certificate being declared by Order 21, Rule 71, to be in effect a decree for the payment of money for the purpose of the method of its recovery it is logical and reasonable to hold that in the absence of any good reason to the contrary it attracts to itself the attributes and liabilities of a decree in all matters relating to execution, e.g., in its liability to attachment and the method of its attachment as a decree for the payment of money.


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