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Hira Lal Sahu Vs. Parmeshar Rai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All356
AppellantHira Lal Sahu
RespondentParmeshar Rai
Excerpt:
execution of decree - decree for sale on mortgage--powers of court executing decree--hindu law--joint hindu family--objection by son that his interest in the property mortgaged is not saleable in execution of a decree obtained against his father. - - sant chandar weakly notes, 1899, p......his decree, that decree could not affect his interests, and those interests were not liable to sale in execution of that decree. both the courts below have allowed the objection and exempted a one-third share of the mortgaged property, which they have declared to be the share of the respondents, from liability under the decree. the decree-holder mortgagee has preferred this appeal, and the question which we have to determine is whether the courts below were competent to consider the objection raised by the respondent, the decree being one for sale under a mortgage, and directing that the whole of the mortgaged property should be sold. it is urged, and with reference to the rulings of this court, rightly, that an application under section 89 of the transfer of property act is an.....
Judgment:

Banerji, J.

1. The appellant obtained a decree for sale under Section 88 of the Transfer of Property Act, 1882, against the father of the respondent. The decree directed the sale of the property comprised in the mortgage. This appeal arises out of an application made by the decree-holder for an order absolute for sale under Section 89 of the Act. That application was made against the respondent by reason of the mortgagor having in the meantime died. The respondent objected to the order under Section 89 being passed in respect of the whole property, on the ground that it was ancestral property, and that as he, the respondent, was not joined as a party to the suit in which the mortgagee decree-holder had obtained his decree, that decree could not affect his interests, and those interests were not liable to sale in execution of that decree. Both the Courts below have allowed the objection and exempted a one-third share of the mortgaged property, which they have declared to be the share of the respondents, from liability under the decree. The decree-holder mortgagee has preferred this appeal, and the question which we have to determine is whether the Courts below were competent to consider the objection raised by the respondent, the decree being one for sale under a mortgage, and directing that the whole of the mortgaged property should be sold. It is urged, and with reference to the rulings of this Court, rightly, that an application under Section 89 of the Transfer of Property Act is an application in execution of the decree for sale. The Court which dealt with that application was therefore dealing with a matter which must be taken to have arisen in connection with the execution of a decree. There can be no doubt that a Court executing a decree is bound to give effect to the decree as it finds it, and is not competent to vary or alter it in any way. The decree in this case directs, as stated above, the sale of the whole of the mortgaged property. That being so, could the Court executing the decree consider the question whether any portion of that property was exempt from liability under the decree? No doubt according to the ruling of the Full Bench in Bhawani Prasad v. Kallu (1895) I.L.R. 17 All. 537, the son of a Hindu mortgagor who had not been joined as a party to the mortgagee's suit for sale, is competent to sue for the exemption of his interests in the mortgaged property from sale on the single ground that he was not a party to the suit in which the decree was passed; but that is not a question which, it seems to me, can be raised in execution proceedings by the son of the mortgagor, if he happens to be made a party to those proceedings in his character of legal representative of his father. The determination of such a question would lead to a determination of the question of the validity of the decree passed against the father. Such a question is beyond the scope of the powers of a Court executing a decree. This was the principle of the ruling in the case of Sanwal Das v. Bismillah Begam (1897) I.L.R. 19 All. 480, and the same view was apparently taken in the case of Liladhar v. Chatarbhuj (1899) I.L.R. 21 All. 277. No doubt in the case of Lochan Singh v. Sant Chandar Weakly Notes, 1899, p. 24, sitting with my brother Aikman, I held that it was open to a son who had been made a party to the execution proceedings as the legal representative of his father to raise an objection on the ground that the decree against the father was not binding on him in his personal capacity by reason of his not having been made a party to the suit in which the decree (sic) but on reconsideration that view seems to me to be erroneous. I (sic) observe that in a later case a doubt was expressed by my brother Aikman, and myself as to the correctness of the view taken in the case of Lochan Singh v. Sant Chandar. A Court executing a decree, as I have said, is bound to give effect to the decree as it stands. If the decree orders the whole of the property mortgaged by the father to be sold, the Court executing the decree cannot consider the question whether the decree was validly made against the interests of the son. If a son, although a party to the execution proceedings, in his capacity as legal representative of his father, could be allowed to raise the question of the binding effect of the decree on his interests, and if the Court executing the decree be permitted to give effect to such objection, the result would be that such Court might be in a position to vary the decree. This certainly a Court, in the exercise of its powers relating to the execution of decrees, is not competent to do. Upon reconsideration, I think that the view which was taken in the case of Sanwal Das v. Bismillah Begam was the right view. I would allow the appeal, and, setting aside the orders of both the Courts below, remand the case to the Court of First Instance, with directions to make an order under Section 89 of the Transfer of Property Act in respect of the whole of the property comprised in the decree under Section 88, and then to proceed with the application for execution. I would allow the appellant his costs here and in the Courts below.

Arthur Strachey, C.J.

2. I am of the same opinion.


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