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Prabhu Dayal Vs. Ram Nik Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 83 of 1967
Judge
Reported inAIR1979All193
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 60
AppellantPrabhu Dayal
RespondentRam Nik Lal and anr.
Advocates:N. Lal, Adv.
DispositionAppeal dismissed
Excerpt:
.....well settled that an auction-purchaser is a representative of the judgment-debtor and not of the decree-holder. in the former case so long as the decree-holder does not obtain possession of the entire property, his decree has not been fully executed and certainly not satisfied. on the other hand, in the latter case where the decree is for payment of money only and the money is paid to the decree-holder, his decree is satisfied, although the auction-purchaser may have some difficulty either in acquiring title or in acquiring possession. he is henceforward litigating purely in his capacity as a representative of the judgment-debtor and not as a representative of the decree-holder, as the decree stood satisfied as soon as he withdrew his entire purchase money deposited by the two..........not be traced out and eventually his name was deleted by my order dated 28-7-1978. he was the decree-holder and also auction-purchaser of a part of the property in dispute. in the circumstances the appeal abates against respondent no. 1, ram nik lal but it survives against respondent no. 2 jadunath singh. i have heard the counsel for the appellant. none has appeared for respondent no. 2. 2. in this case three points were urged before me on behalf of the appellant. the first question raised was the plea of lack of jurisdiction of the court which passed the decree. the decree-holder ram nik lal had filed a suit in the court at kanpur against the appellant prabhu dayal and had obtained an ex parte decree in execution of which the houses and land of the objector appellant were got.....
Judgment:

M.N. Shukla, J.

1. This is a judgment debtor's execution first appeal. Originally two persons namely, Ram Nik Lal and Jadunath Singh were arrayed as respondents. Later respondent No. 1 died and the whereabouts of his heirs, if any, could not be traced out and eventually his name was deleted by my order dated 28-7-1978. He was the decree-holder and also auction-purchaser of a part of the property in dispute. In the circumstances the appeal abates against respondent No. 1, Ram Nik Lal but it survives against respondent No. 2 Jadunath Singh. I have heard the counsel for the appellant. None has appeared for respondent No. 2.

2. In this case three points were urged before me on behalf of the appellant. The first question raised was the plea of lack of jurisdiction of the court which passed the decree. The decree-holder Ram Nik Lal had filed a suit in the court at Kanpur against the appellant Prabhu Dayal and had obtained an ex parte decree in execution of which the houses and land of the objector appellant were got auctioned. It has now been argued that the Kanpur court had no jurisdiction to entertain the suit and hence the decree under execution was a nullity. On facts it has been found by the court below that the objector had not succeeded in establishing that the suit which was filed before the Civil Judge, Kanpur could not have been filed in that court. It was Suit No. 14 of 1962 and the transaction giving rise to that suit must have related to an earlier period. Prabhu Dayal objector, no doubt, stated that it was settled between him and Ram Nik Lal at Chandwak that the payment would be made in instalments as price of cloth supplied and that Ram Nik Lal would come to Chandwak and realise the money. This statement was rightly disbelieved by the learned Civil Judge and I am also unable to give credence to the assertion that the creditor-purchaser would submit to the position that he should approach the debtor at, his residence to recover the money from him and the debtor should not himself care to send the money to the cerditor. There is another circumstance which belies this assertion. It was elicited in the cross-examination of Prabhu Dayal that such agreement about the mode of payment was made only four or five years back. Prabhu Dayal was cross-examined on 8-10-1966 and if this version be accepted, the agreement should be taken to have taken place on a date when the suit itself was instituted as a pauper suit on 27-5-1961 in the Court of 1st Civil Judge, Kanpur. For this reason in the present case it is not possible to come to the conclusion that no part of cause of action arises within the jurisdiction of the Kanpur Court. Besides, I am of the opinion that subject to a few rare exceptions, the general rule is that an executing court cannot go behind the decree and particularly when the objection relates to purely territorial jurisdiction, it cannot be entertained by the executing court. Learned counsel for the appellant referred me to the following dictum of Sulaiman, C.J. in the Full Bench decision of this Court in Cantonment Board v. Kishan Lal : AIR1934All609 :--

'But it is not possible to lay down broadly that an execution court can in no circumstances go behind the decree and must of a necessity shut its eyes |to circumstances under which the decree came to be passed.'

3. It must be pointed out that the above observation merely emphasises a possible exception to the general rule and does not annul the rule itself. This is made clear by the following passage at the same page;--

'There may accordingly be cases where the decree is incapable of execution, or is void and a nullity, in such a way as to make it impossible for the executing Court to execute it; or there may be cases where there are certain statutory provisions which prevent the executing Court from proceeding to sell certain property, for instance, where the sale of certain lands is prohibited and not necessarily their attachment and order for sale. In such cases it may be possible for the Court in one sense to go behind the decree and not execute it; but in reality the Court is merely staying its own hands and not inquiring into the jurisdiction of the Court which passed the decree.'

4. It is significant that the Full Bench case related not to territorial jurisdiction but to an alleged lack of inherent jurisdiction and although the lower appellate court had allowed the objection on the view that the suit was not cognizable by the Munsif and had dismissed the application for execution, the High Court on appeal allowed it and ordered that the application for execution should be proceeded with. The ratio decidendi of the Full Bench decision is explicitly stated in the following passage:--

'But to hold that an executing Court must always inquire into the question of the jurisdiction of the Court which passed the decree would be to reopen matters which might have been the subject of the controversy in the original suit and which might well have been decided on a consideration of the oral and documentary evidence. Such questions may be mixed questions of law and fact, for example, as to the place where the cause of action arose, the place where the contract was broken, the sub-division in which the property in dispute was situated, the nature and character of land as to whether it is saleable or not and the validity of certain transfers. All such questions are properly speaking questions which arise for consideration in the suit itself and which have to be determined on an examination of the evidence on the record. It would be too much to lay down that the executing court can go behind these findings and reopen the question and determine afresh that the Civil Court decided this question wrongly and therefore improperly usurped jurisdiction.'

5. Hence, I am of the opinion that the plea with regard to lack of territorial jurisdiction could not be entertained by the executing court in the present case.

6. The second contention was that the objector was an agriculturist and the attached houses were used for agricultural purposes, and consequently were not liable to be attached in view of Section 60, C.P.C. I am inclined to hold that the two fundamental tests which may be applied for determining as to whether the objector is an 'agriculturist' are-- (1) what is the preponderating source of his income and livelihood? and (2) does he devote the major part of his time, labour, attention and skill to the cultivation of land? See Chandrawati Tewari v. U.P. Government : AIR1961All183 . Applying these tests to the present case it cannot be said that the objector was an agriculturist. It has come in his own statement that he carried on business in Darjeeling where he had been living for 10 or 12 years. In the very objection the appellant expressly asserted that he had been living at Darjeeling in connection with his business for the last 12 years. Obviously, therefore, he could not claim that he personally carried on business in his village Chandwak District Jaun-pur. The entire Lagan paid by him is Rs. 20/- only and such a small holding would hardly be sufficient to maintain himself, his family and his two brothers. His own witness Triveni stated that while the cloth business used to take place all the other brothers of Prabhu Dayal did cloth business in Chandwak Bazar and also kept some Parchoon goods. On the basis of such evidence it was rightly inferred that the cultivation was not the profession of the objector and his real profession was business. It was certainly possible to ascribe to him a profession other than agriculture. He is, therefore, not an agriculturist and the houses attached were not held by him as such and were not exempt from attachment and sale under Section 60(c) of the Civil P.C.

7. The third plea raised on behalf of the appellant was that part of the attached property was sirdari and was, therefore, not saleable. The objector had asserted that two of the plots sold i.e. plots Nos. 1131/5 and 1131/6 were sirdari plots as is evident from the extract of Khatauni and hence were not saleable. It is true that the sale of these two sirdari plots was illegal. It will be proper to mention here that the decree-holder Ram Nik Lal was himself the auction-purchaser of part of the property attached and sold and respondent No. 2 Jadunath Singh was the auction-purchaser of the remaining property, it must be held that even though the sale might have been initially illegal, yet it had been confirmed and so it was not open to the judgment-debtor to have it set aside in execution proceedings and his proper remedy after the confirmation of sale was only by means of a suit against the auction-purchaser. This is the conclusion which must be deduced from several rulings, including the Full Bench decision : AIR1934All609 (supra), which has been delivered by this Court on this point My main reason for coming to this conclusion may be stated as follows. It is a proposition which does not admit of any doubt that in order to attract Section 47, C.P.C., two conditions must be simultaneously fulfilled:--

(1) All questions must arise between the parties to the suit in which the decree was passed or their representative and (2) must relate to the execution, discharge or satisfaction of the decree. Learned counsel for the appellant referred me to the amendments made in Section 47, C.P.C. by the Civil P.C. (Amendment) Act, 1956 (Act No. 66 of 1956). For the original Explanation which was entirely different, the following Explanation was substituted :

'Explanation-- For the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.'

8. On the strength of the above amendment is wag argued that the purchaser at a sale in execution of a decree was a party to the suit and consequently the dispute between him and the judgment-debtor was a question which arose between the parties to the suit in which the decree was passed and hence the first condition for applying Section 47, C.P.C. was fulfilled. This argument is fallacious arid cannot stand scrutiny. On proper analysis the first condition, as stated above, which must be fulfilled as condition precedent to Section 47, C.P.C. is that all questions must arise between the parties to the suit or their representatives and not between a party and his own representative. To express it symbolically, if the parties are A and B, the dispute must arise between their representatives but not between A and his own representative, or between B and his own representative. In other words, the 'inter se' dispute between a party and his own representative is out-side the domain of Section 47. It follows that a question that arises between the judgment-debtor and his representative cannot be said to arise between the parties to the suit. The test is whether the controversy has arisen between the parties arrayed against each other or between one of such party and his own representative. The two must be pitted against each other in hostile camps. The effect of the amendment is only to treat the purchaser at a sale in execution of the decree as a party to the suit but its effect is not to place him in a position antagonistic to the very party of whom he is a representative. A controversy between a party and his own representative does not fall within the ambit of Section 47, C.P.C. The interpretation which I am inclined to place on Section 47, C. P. C, finds full support from the following observations in the Full Bench case of Kedar Nath v. Arun Chandra Sinha, : AIR1937All742 :--

'But it is not sufficient to hold that the auction-purchaser is a representative either of the judgment-debtor or of the decree-holder for the purpose of applying Section 47, C.P.C. It is further necessary to see that the dispute is one arising between the parties or ' their representatives. The mere fact that the two persons who are litigating are either parties or representatives of the parties would not in itself be sufficient; for example, a judgment-debtor might have transferred his interest by a voluntary sale to third party and then there may be a dispute between the judgment-debtor and this third party as to the extent of the property which has passed under it. The judgment-debtor is of course a party to the suit and the transferee is a representative of that party; but the dispute between them cannot be said to be a dispute arising between the parties to the suit because it is a dispute between one party and his own representative.'

9. It is well settled that an auction-purchaser is a representative of the judgment-debtor and not of the decree-holder. It is not necessary to refer to a catena of cases on this point. Suffice it to refer to the statement of law summed up in Kedar Nath Sinha v. Arun Chandra (supra) at p. 897 (of All LJ): (at p. 746 of AIR) :--

'There has been a considerable conflict of opinion in almost all the High Courts as regards the question whether an auction-purchaser is a representative of the decree-holder or of the judgment-debtor or of both or of neither, and unfortunately all such opinions have been expressed in one case or another. The view which has been taken in this court has been that the auction-purchaser is really a representative of the judgment-debtor and not of the decree-holder. The references to the Full Bench of this Court have already been given. Obviously when a decree-holder puts up a certain property for sale in order to realise his money he is putting up the right, title and interest of his judgment-debtor to sale and is not trying to put up to sale his own interest in the property. It would follow that the purchaser acquires what was put up for sale and not what was not so put up. He is therefore a purchaser of the right, title and interest of the judgment-debtor and must become a representative of the judgment-debtor succeeding to his estate. Ordinarily, therefore, the auction-purchaser would not be a representative of the decree-holder but in cases of mortgages or attachment there are certain rights of priority possessed by the mortgagee or the attaching creditor which would certainly pass to the auction-purchaser on the principle of subrogation, and not on the ground that such rights had actually been put up for sale and purchased by the auction-purchaser.'

10. Thus, the first condition precedent to the applicability of Section 47, C.P.C. is absent in the instant case.

11. Even the second condition for applying Section 47, C.P.C., is not fulfilled in the present case, inasmuch as the plea raised by the judgment-debtor does not relate to the 'execution, discharge or satisfaction of the decree.' The criterion for determining the existence of the second condition is the precise nature of the dispute which is raised. In other words, it is only after having regard to the character of such dispute that the question can be answered whether it relates to the 'execution, discharge of satisfaction of the decree.' The decree-holder-purchaser occupies two distinct capacities and what has to be carefully examined is as to whether in the controversy raised in the execution he is litigating in his capacity as the decree-holder in which case the dispute shall be deemed to be between the decree-holder on the one hand and the judgment-debtor on the other. If, however, he is litigating in his capacity as a purchaser, then he is litigating as a representative of the judgment-debtor and not as a representative of the decree-holder. This position can be satisfactorily demonstrated by referring to another important principle of law. A clear distinction has always been drawn between two classes of suits one, suit for recovery of possession of immovable property and the other, suit for recovery of money by sale of immovable property. In the former case the decree is for delivery of possession while in the latter the decree is only for money realisable by sale of immovable property. The exact point of satisfaction of the decree is different in these two categories. In the former case so long as the decree-holder does not obtain possession of the entire property, his decree has not been fully executed and certainly not satisfied. On the other hand, in the latter case where the decree is for payment of money only and the money is paid to the decree-holder, his decree is satisfied, although the auction-purchaser may have some difficulty either in acquiring title or in acquiring possession. In the instant case both the decree-holder-auction-purchaser and the stranger-auction-purchaser (respondents Nos. 1 and 2) deposited the price money and after confirmation of the sale the decree-holder i.e. respondent No. 1 withdrew the entire purchase money, hence the decree-holder-purchaser lost the status of a decree-holder and became an auction-purchaser and an auction-purchaser, as already observed above, is a representative of the judgment-debtor himself and not of the decree-holder. He is henceforward litigating purely in his capacity as a representative of the judgment-debtor and not as a representative of the decree-holder, as the decree stood satisfied as soon as he withdrew his entire purchase money deposited by the two respondents. The same conclusion is reinforced by applying the provisions of Section 65, C.P.C. which lays down that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. It is, therefore, clear that as soon as the sale was confirmed and, therefore, it became absolute, the title vested in the auction-purchaser and he could not be divested by any subsequent act. He became fully entitled to the property which vested in him and his title could not be destroyed in such summary proceedings. Therefore, on a proper analysis the conclusion becomes irresistible that in the instant case the dispute was really between the same parties i.e. the judgment-debtor-objector and his own representative, namely, the decree-holder in his capacity as auction-purchaser. Hence, it was not a dispute relating to the execution, discharge or satisfaction of the decree and even if the sale of the 'sirdari' plots was illegal, no relief on this score could be granted by the Court in the execution proceedings.

12. I, therefore, find no force in this appeal which is accordingly dismissed. The objection of the judgment-debtor filed under Section 47, C.P.C. must be rejected. In the circumstances of the case, however, I make no order as to costs.


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