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Mahabir Singh Vs. NaraIn Tewari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All490
AppellantMahabir Singh
RespondentNaraIn Tewari and ors.
Excerpt:
- - but his suit failed. a course of rulings of the high court laying down the law one way might well have prevented a party from re-agitating the question of law decided by them, and a privy council decision upsetting those rulings may justify permission to raise the new point of law suggested by the recent pronouncement. of course the power to send down new issues is to be exercised very cautiously and only in exceptional and appropriate cases. 572, which also was a case where a minor had not been properly represented, their lordships of the privy council disapproved of the high court's view that if she had any objection to make to the execution of the decree she ought to have raised objections under section 244, civil p. 32. i am therefore clearly of opinion that where the question.....order1. a simple mortgage had been executed in 1907 by one sheo nath in favour of mahabir singh. sheo nath died and was succeeded by his son chandi. before his death sheo nath had sold a part of the mortgaged property to shri bhagwat.2. in 1915 mahabir singh sued on his mortgage against chandi and shri bhagwat and obtained a preliminary decree for sale on 22nd december 1920 against both.3. shri bhagwat died after the passing of the preliminary decree. then mahabir singh applied for the preparation of the final decree but omitted to implead the legal representatives of shri bhagwat. the court actually declared that the application had abated as far as the property held by sri bhagwat deceased was concerned. a final decree was passed against chandi alone. the name of shri bhagwat was of.....
Judgment:
ORDER

1. A simple mortgage had been executed in 1907 by one Sheo Nath in favour of Mahabir Singh. Sheo Nath died and was succeeded by his son Chandi. Before his death Sheo Nath had sold a part of the mortgaged property to Shri Bhagwat.

2. In 1915 Mahabir Singh sued on his mortgage against Chandi and Shri Bhagwat and obtained a preliminary decree for sale on 22nd December 1920 against both.

3. Shri Bhagwat died after the passing of the preliminary decree. Then Mahabir Singh applied for the preparation of the final decree but omitted to implead the legal representatives of Shri Bhagwat. The Court actually declared that the application had abated as far as the property held by Sri Bhagwat deceased was concerned. A final decree was passed against Chandi alone. The name of Shri Bhagwat was of course not shown as a judgment-debtor in the decree but the whole mortgaged property was included in it.

4. When Mahabir Singh put his decree into execution the sons of Shri Bhagwat filed an objection in the execution department to the sale on the ground that the decree did not bind them. Mahabir Singh took an objection that they had no locus standi to file an objection in the execution department and their remedy lay by a separate suit. This contention was allowed and the objection of the sons of Sri Bhagwat was disallowed. The sons of Shri Bhagwat then brought the present suit for a declaration that their property was not liable to be sold under the decree. Mahabir Singh now changed his position and took the plea that there was no remedy by way of a separate suit and that the claim was barred by Section 47, Civil P. C.

5. Both the Courts below allowed the plea of Mahabir Singh and dismissed the suit as being barred by Section 47, Civil P. C.

6. On appeal to this High Court a learned Judge of this Court came to a contrary conclusion and held that the separate suit did lie.

7. In appeal it is contended that the sons of Shri Bhagwat who at one time was a party to the suit are the legal representatives of the deceased party within the meaning of Section 47, Civil P. C. Reliance is placed on the case of Imdad Ali v. Jagan Lal [1895] 17 All. 478 which to a certain extent supports this view. On the other hand there is the case of Beni Prasad Kunwar v. Mukhtesar Rai [1899] 21 All. 316, which appears to lay down the contrary principle.

8. Three important questions arise in this case. The first is whether it is open to Mahabir Singh, who got the previous application under Section 47, Civil P. C, dismissed, now to turn round and plead the bar of Section 47, Civil P. C.? The second is whether the legal representatives of a defendant who dies during the pendency of the suit are the representatives of a party to the suit within the meaning of Section 47, Civil P. C. so as to bar a separate suit brought by them?

9. The third question, which in view of the recent amendment of Order 22, Rule 12, has lost all its importance so far as this Court is concerned is whether there can ever be an abatement of a suit after the passing of a preliminary decree.

10. This question has been answered in the affirmative in the cases of Anmol Singh v. Hari Shankar Lal : AIR1930All779 and Bahadur Singh v. Nanak and Anr. [1930] 130 I.C. 289

11. If the Full Bench thinks it necessary to reconsider this point it may do so. We accordingly direct that this case may be laid before the Chief Justice for the constitution of a higher Bench.

Sulaiman, Ag. C.J.

12. This case has been referred to a Full Bench because of. the important questions of law involved in it.

13. In 1907 Sheonath executed a simple mortgage in favour of Mahabir Singh and then later in 1915 sold a part of the mortgaged property to Shri Bhagwat. The mortgagee brought a suit in 1920 after the death of Sheo Nath and impleaded the mortgagor's son Chandi and also Shri Bhagwat. On 22nd December 1920 a. preliminary decree for sale was passed against Sri Bhagwat and Chandi. It should be mentioned in this connexion that Shri Bhagwat attempted to get it declared by a separate suit that the property sold to him was not covered by the mortgage; but his suit failed.

14. Shri Bhagwat died. No application to bring his three sons on the record as his legal representatives was made within the time allowed by law. The Court declared that the suit abated against the deceased. The mortgagee then applied for the preparation of a final decree against Chandi alone. This was done, but the entire mortgaged property was included in the decree which was passed in 1924.

15. When an application for execution of the final decree by sale of the entire mortgaged property was made, it was resisted by the three sons of Shri- Bhagwat on the ground that no decree had been passed against their father and their property was not liable to be sold. Mahabir replied that they had no locus standi to intervene in the execution department under Section 47, Civil P. C. An application made by them for converting their application into a plaint was dismissed by the Court. It also dismissed their objection dated 28th June 1926, holding that Section 47 did not apply and their remedy was by a separate suit. The three sons of Sri Bhagwat accordingly instituted the present suit on 16th July 1926. Mahabir now resiled from his former position and pleaded that a separate suit did not lie and Section 47, Civil P.C. was a bar to the claim. Both the Courts below accepted this plea and dismissed the suit. A learned Judge of this Court has come to a contrary conclusion. In his view the suit is maintainable 'as the result of declaring that a certain suit has abated against a particular party is putting that party as against whom the suit abates in the same position as if he had never been made a party to the suit.'

16. He accordingly allowed the appeal and remanded the suit for disposal according to law; he granted permission to file an appeal under the Letters Patent. The Bench hearing the appeal has referred it to a larger Bench.

17. The first question suggested in the order of reference is whether the defendant Mahabir is estopped from pleading that a separate suit does not lie. The learned advocate for the defendant-appellant urges that this is a new point of law which was not raised in the Courts below and cannot therefore be raised in this appeal. He relies strongly on the Full Bench case of Ram Kinkar Rai v. Tufani Ahir : AIR1931All35 . He further contends that the question of estoppel was not urged before the learned Judge of this Court and is therefore not to be allowed to be raised in the Letters Patent appeal. He refers to the established practice of this Court as pointed out in Balkaran Singh v. Dulari Bai A.I.R. 1927 All. 281. Speaking personally for myself, I doubt very much if the Pull Bench in Ram Kinkar Rai v. Tufani Ahir : AIR1931All35 intended to lay down, or could have laid down, an exhaustive list of all possible cases in which alone a new point can be allowed to be raised in first or second appeal. The Full Bench case is certainly a binding authority on the question which directly arose in that case, but it would be doubtful whether any general expression of opinion that in no other case, not expressly considered and specified a new point could be raised, would not be an obiter dictum and therefore not possessing the same binding authority. To quote the words of the Lord Chancellor the Earl of Halsbury in Quinn v. Leathern [1901] A.C. 495 at p. 506:

Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since a generality of the expression which may be found there are not intended to be an exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found, and that the ease is only an authority....for what it actually decides.

18. It is however clear from the judgment itself that the Full Bench did not intend to prepare any complete list, for the cases under the first head are stated to be by way of illustration ('e.g.'). It is also clear that the possibility of other cases outside the two categories indicated was recognized and the question whether a plea of limitation could be raised for the first time was left open. One can conceive of other categories of oases in which a new point may in the discretion of the appellate Court be possibly allowed to be raised. A course of rulings of the High Court laying down the law one way might well have prevented a party from re-agitating the question of law decided by them, and a Privy Council decision upsetting those rulings may justify permission to raise the new point of law suggested by the recent pronouncement. There have been cases where a section of a local Act has been wrongly applied to a scheduled District or a suit decided in ignorance of an amending Act or a village not treated as a town area in ignorance of a Government notification. I have known a case where a claim on an unregistered mortgage for less than Rs. 100 subsequent to 1904 was decreed by the Court below in ignorance of the Act of that year. Again, in numerous cases it has been found that the Courts below entertained a wrong conception of the legal position of the parties and omitted to frame a crucial issue which ought to be decided in order to do complete justice between them. The appellate Court has felt that it is essential to have a finding on such an indispensable issue before disposing of the case. I am far from expressing any final opinion that in any of the above cases the appellate Court would allow the new point to be raised. It would be obiter dictum if I did so. I am only suggesting that there are precedents for any such cases and the point will have to be reconsidered when any such cases arise. Order 41, Rule 25, Civil P. C., contemplates the remitting of a new issue which the Court below has omitted to frame or to determine. Of course the power to send down new issues is to be exercised very cautiously and only in exceptional and appropriate cases. But in first appeals in which an appellate Court has to form its own opinion on the facts, very often a new point arises which is not considered by the trial Court but which is absolutely necessary for the decision of the case.

19. I am therefore not sure whether the Full Bench meant to confine their remarks to second appeals or to extend them to first appeals also. There is however nothing in that judgment to suggest that although a party cannot claim permission to raise a new point of law, the Court itself is precluded from deciding the case on such a new point. There being no prohibition in law the power of course exists, though as a matter of practice it may not be exercised. Of course, where the new question involves an enquiry into fresh facts or the necessity of fresh evidence, the Court would 'ordinarily decline to go into it.

20. The same remarks apply more or less to the raising of new points in a Letters Patent appeal. As a matter of practice new points are not allowed to be raised. Such as undoubtedly been the practice of the Court. But practice does not mean any absolute prohibition of law. One can conceive of cases of a gross abuse of the process of Court or of an utter absence of jurisdiction, which may even for the first time be permitted to be raised. Estoppel against a party cannot confer jurisdiction on a Court when it had none and an appellate Court may feel it to be its duty to intervene if the absence of jurisdiction is patent on the record or a new glaring fact, e. g., the death of a party which nullifies all proceedings against him, may for the first time be brought to the notice of the appellate Court which it cannot ignore.

21. If there were a real estoppel against the defendant Mahabir, which would prevent him from now pleading that the plaintiff should have gone to the execution department, when 'he himself got him sent to the regular side, I would allow the point to be raised because it would not only be an abuse of the process of the Court but scandalous to permit the plaintiff being sent from pillar to post. I would not however say that personal estoppel is necessarily a question of policy. But I am of opinion that there can be no estoppel against the statute. If a question of estoppel were dependent on the determination of some facts, a party may certainly be estopped from pleading it. But if it is patent and apparent on the record, then, even if there were estoppel against a party, a Court would not be estopped from considering the point. Indeed, if it involves a question of jurisdiction, it would be the duty of the Court to take it into account. The principle of estoppel cannot be allowed to defeat the provisions of a statutory enactment which affects the jurisdiction of a Court, as a party cannot by its admission or previous conduct confer jurisdiction on a Court where none exists. I may refer to the case of Bhagwan Singh v. Tasadduq Husain : AIR1929All549 .

22. The position would of course be different if the previous order were to operate as res judicata. But in the case before us the execution Court had held that Section 47, Civil P. C., did not apply. Its order was not under Section 47 and it cannot have the effect of res judicata.

23. The main question for consideration is whether when the heirs of a deceased defendant, who died before the suit terminated and whose heirs were never brought on the record within the prescribed period, challenge the decree on the ground that it was never passed against their ancestor and is null and void as against them, they are to be deemed to be the representatives of a party to the suit and to be raising questions relating to the execution, discharge, or satisfaction of the decree within the meaning of Section 47, Civil P. C, so as to bar a separate suit.

24. So far as I am concerned I would be inclined to hold that the use of the present participle 'arising' indicates that the person should be either a party to the suit or a representative of the party to the suit at the time when the question is raised. I would then have no hesitation in holding that if a suit had been withdrawn as against one defendant, who accordingly disappeared from the suit altogether, or where he had been exempted by the plaintiff and his name had been struck off from the record, before the decree came to be passed, he is on the same footing as a stranger to the litigation. I would similarly have no hesitation in holding that if a defendant dies during the pendency of a suit and his heirs are not brought on the record and the decree is passed behind his back, his heirs are not bound to intervene in the execution department because their ancestor ceased to be a party to the suit. The mere fact that he was a party at one time would not affect the matter, when he admittedly ceased to be a party before the decree came to be passed. Although under Order 22, Rule 9, a second suit on the same cause of action will be barred, the position as regards the suit which has abated is almost the same as if the deceased had not been impleaded. I can find some support for this view in the observation of Ayyangar, J., in Nallaperumal Filial v. Sakul Hamed Maracayar A.I.R. 1928 Mad. 276 at p. 408 (of 108 I. C.), where the learned Judge, though he did not decide the point, observed:

The expression 'arising between the parties to the suit' undoubtedly contemplates their having continued to be parties to the suit, at any rate, up to the stage at which the question arises. The present participle arising is the word used and the expression arising between the parties to the suit would be inappropriate if it should be referable to the question arising between one who is a party to the suit and another who has ceased to be a party to it by an order of the Court.

25. It was undoubtedly the view of this High Court before the new Civil Procedure Code came into force that for Section 47 to be applicable the decree must be one capable of execution against the person concerned. This Court went to the length of holding that the defendant against whom a suit is dismissed ceases to be a party. The legislature has added an explanation to the new Section 47, Civil P. C., which brings a defendant, against whom a suit has been dismissed, within the purview of the section. But that explanation does not take us further so as to include the case of a defendant who was exempted from the suit and whose name was struck off from the record or who died and whose heirs were never substituted. The cases of Data Din v. Nanku [1918] 47 I.C. 864 and Sachitanand Tewari v. Radhapal Pathak : AIR1928All234 where the defendant had been exempted by the decree, stand on a different footing, because the exemption by the decree is tantamount to a dismissal of the suit as against him. They were not cases where before the decree was passed the suit had either been withdrawn as against the defendant or the defendant had been exempted and his name struck off from the record.

26. The case of Imdad Ali v. Jagan Lal is undoubtedly in favour of the view that the heirs of a deceased defendant although they had not been brought on the record of the suit ought to object to the execution under the old Section 244, Civil P. C. In that case Hamid Unnissa had died before the decree was passad and her heir Imdad Ali was not made a party. When in execution his property was sold he applied under Section 332, Civil P. C., (corresponding to Order 21, Rule 100) for restoration of possession. The Bench held that his application could be treated as one under Section 244 and that he could object under that section. The learned Judges further held that the proceedings ware null and void because the decree having been passed against the dead person was incapable of execution. They in fact entertained an execution appeal on behalf of Imdad Ali and decreed it. The position has been clarified since then and in view of the observations of their Lordships of the Privy Council in several cases. It cannot now be held that this case lays down the correct law,

27. I may point out that in a later case of this Court in Beni Prasad v. Mukhtasar Rai, another Bench held that the heirs of a deceased defendant who had died and whose heirs had not been substituted were entitled to bring a separate suit, and their suit was not barred by the provisions of Section 244. They relied in particular on the case of Radha Prasad Singh v. Lal Saheb Rai [1891] 13 All. 53. In this case a decree for possession and for the ascertainment of mesne profits was passed; but the defendant died before mesne profits could be ascertained and a final decree passed. His heirs were not brought on the record. These proceedings took place before 1882, when Section 244, Act 10 of 1877, was in force but its phraseology was similar. A separate suit was brought by the heirs in March 1882. Their Lordships of the Privy Council remarked at p. 65:

An operative decree, obtained after the death of a defendant by which the extent and quality of his liability already declared in general terms are for the first time ascertained cannot bind a representative of the deceased, unless they were made parties to the suit in which it was pronounced.

28. Their Lordships held that a separate suit was maintainable. In Khiarajmal v. Daim [1905] 32 Cal. 296, where a minor had not been properly represented on the record their Lordships of the Privy Council remarked at p. 312:

The Court had no jurisdiction to sell the property of persons who were no parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and may be disregarded without any proceeding to set them aside.

29. Again at p. 313, it was remarked:

In fact his interest in the property seems to have been ignored altogether. He is not mentioned as a debtor in the award and there is no decree against him. The Court therefore had no jurisdiction to sell his share.

30. Similarly in Rashiunnissa v. Muhammad Ismail Khan [1909] 31 All. 572, which also was a case where a minor had not been properly represented, their Lordships of the Privy Council disapproved of the High Court's view that if she had any objection to make to the execution of the decree she ought to have raised objections under Section 244, Civil P. C, and not by a separate suit. Their Lordships held that the appellant was never a party to the previous suit in the proper sense of the term, and a separate suit by her was maintainable. In the case of Gopi Narain Khanna v. Bansidhar [1905] 27 All. 325 their Lordships of the Privy Council pointed out that Section 244 would not apply where the questions between the parties were not such as could have been determined by the Court in execution of the decree, but a new decree would be required for the purpose.

31. It has been held in numerous cases that where the decree is sought to be challenged on the ground of its invalidity, the proper remedy is by a separate suit. A large number of these cases are quoted in the judgment of Mukerji and Cuming JJ., in Kalipado Sirkar v. Sarimohan Dalai [1917] 44 Cal. 627, and many more are to be found in the commentaries on the Civil Procedure Code. I may only mention the recent case of this Court, Rajaram v. Chhaddammi Lal : AIR1926All475 , where it was held:

The question now raised is however not a question relating to the execution, satisfaction or discharge of a decree. It is a question which goes to the root of the decree itself and challenges its validity, and that question cannot be determined except by a separate suit.

32. I am therefore clearly of opinion that where the question is either that a decree was passed against a dead person or was not passed against him at all, and therefore it is a nullity pure and simple, the dispute does not relate to the execution of the decree but aims at its utter destruction. The dispute as to the execution of a decree contemplates the existence of a valid decree. Where a decree is without jurisdiction or is otherwise utterly null and void, and can therefore be ignored by a person his protest is not merely as to its execution but he impeaches the decree itself. Such a dispute in my opinion is not within the purview of Section 47 at all.

33. Of course it does not follow that when a person, against whom no decree exists, finds that his property has been seized he cannot go to the Court and put his complaint before it. Nor does it follow that if the attention of the Court is drawn to the fact that the decree is a nullity it must blindly proceed to execute it regardless of the utter absence of its jurisdiction. The Court would certainly have power to refuse to execute a decree of this kind when it is a nullity or has been passed without jurisdiction. But the complaint of the aggrieved party would not be an objection within the meaning of Section 47, Civil P. C, so as to bar a separate suit by him, but would rather be in the nature of a petition to the Court by an aggrieved party or at the worst an objection under Order 21, Rule 58, Civil P. C., which can be filed by a stranger to the litigation. In such cases no further appeal would lie because the order passed in favour of or against the aggrieved person would not be a decree within the meaning of Section 2, Civil P. C.

34. The last point suggested in the order of reference is as to the question whether there could be an abatement of a suit between the passing of a preliminary decree and the preparation of the final decree. The rulings in India were all one way and laid down that under the new Civil Procedure Code the suit continues till the final decree is passed and it can abate before that contingency happens. A dissentient note was struck by a Full Bench of the Madras High Court in Perumal Pillay v. Perumal Chetty A.I.R. 1928 Mad. 914 after the pronouncement of their Lordships of the Privy Council in Lachmi Narain Marwari v. Balmukund Marwari A.I.R. 1924 P.C. 198. The same view appears to have been followed in Calcutta and Oudh. In Anmol Singh v. Hari Shankar Lal in concurrence with King, J., I held that the decision of their Lordships of the Privy Council did not upset the previous rulings of the Indian High Courts, and explaining the ratio decidendi of the case pointed out how that case was distinguishable. Another Bench of this Court in Bahadur Singh v. Nanak agreed with that view and came to the same conclusion.

35. I may further point out that in the case of Radha Prashad Singh v. Lal Saheb Rai their Lordships of the Privy Council held that the death of a defendant after the decree for possession and ascertainment of mesne profits but before the, final decree for mesne profits was passed made the decree ineffective as against him and his estate was not at all liable. As the reasons have been fully set forth in the above cases it is not necessary to repeat them again. 1 adhere to the view expressed therein.

36. I would accordingly uphold the order passed by the learned Judge of this Court and dismiss this appeal.

Boys, J.

37. The facts are as follows:

(1) Mahabir Singh, the present appellant, who was the defendant in the suit, obtained a preliminary decree for sale on a mortgage against Chandi, son of the deceased mortgagor and Shri Bhagwat transferee of a part of the property.

(2) Shri Bhagwat died and his heirs were not brought on the record, the suit therefore abating against Sri Bhagwat.

(3) Mahabir Singh then applied for a final decree against Chandi alone, and a final decree was prepared which included the whole of the property mortgaged, that is to say, included the property transferred to Shri Bhagwat.

(4) This was followed by an application for execution by sale of the property. The sons of Sri Bhagwat objected but Mahabir Singh successfully contended that under Section 47, Civil P. C., they had no locus standi.

(5) Shri Bhagwat's sons thereupon brought the present suit. Mahabir now raised a diametrically opposite contention, and before both the lower Courts successfully contended that Section 47, Civil P. C., barred the suit. The plaintiffs came up in appeal to this Court when a single Judge held that Section 47, Civil P. C., was no impediment to the suit and remanded the case for disposal according to law. Mahabir Singh thereupon filed a Letters Patent appeal, and it is that Letters Patent appeal that has been referred to the present Full Bench.

38. Before this Court the plaintiffs-respondents seek to raise a new point, contending that Mahabir Singh was estopped from relying upon Section 47 to defeat the plaintiffs' claim because he had previously relied upon it to defeat their objections in execution. The appellant has urged that a new point of this description cannot be raised in appeal. and has relied upon the decision in Ram Kinkar v. Tufani and the appellant further relied on the practice of this Court as evidenced by the decision in Balkaran v. Dulari that a new point is not allowed to be taken in a Letters Patent appeal. To the decision in Ram Kinkar v. Tufani I was a party. I have had the advantage of seeing the judgment of the Hon'ble the Acting Chief Justice. Ha has pointed out that that judgment cannot be binding authority on any other question than that which called for immediate decision. That is manifestly so, but I apprehend that it is on occasions a useful course to adopt to set out other propositions than the one which the Court may have immediately to decide, in order to bring the answer to the actual question calling for decision into its proper relation, as the Judges considering that question view the matter, with other cognate questions. To this extent and no more I think the practice of setting out the scheme into which the particular answer fits may be of advantage and it is one not uncommonly followed by the higher Courts in England. In Ram Kinkar v. Tufani it is suggested that a new point may be taken where it is a matter of public policy. The present I consider to be such a case and to come within that suggested rule. I would therefore have allowed the point to be taken, but the plaintiffs-respondents are met by another difficulty, that stated by the Hon'ble the Ag. Chief Justice, that there can be no estoppel against the statute.

39. On the main question I agree with the learned Judge of this Court from whose decision this appeal has been filed, and with the Hon'ble the Ag. Chief Justice, that Section 47 is not an impediment in the way of the plaintiffs' suit.

40. I would therefore dismiss the appeal.

Banerji, J.

41. Three questions have referred in this case to this Bench. They are as follows: (1) Whether it is open to Mahabir Singh, who got the previous application under Section 47, Civil P. C, dismissed, now to turn round and plead the bar of Section 47, Civil P. C. (2) Whether the legal representatives of a defendant who dies during the pendency of the suit are the representatives of a party to the suit within the meaning of Section 47, Civil P. C., so as to bar a separate suit brought by them. (3) Whether there can ever be an abatement of a suit after the passing of a preliminary decree.

42. The facts necessary for the determination of the questions raised in the case may be shortly stated as follows:

43. The appellants are the heirs or legal representatives of one Mahabir Singh, who held a simple mortgage executed by Sheo Nath in 1907. A suit for sale was instituted on the mortgage impleading the heirs and transferee from Sheo Nath. On 22nd December 1920 a preliminary decree for sale was passed against the defendants. Before the mortgagee applied for the preparation 'of a final decree the transferee from the original mortgagor died. An application for bringing on the record the heirs of the deceased was dismissed and it was declared that the suit had abated as against the deceased. The mortgagee applied for and obtained a final decree against the heir of the. mortgagor but included the whole of the property mortgaged in his application. The mortgagee applied for execution of the final decree when objections to the sale of the property in the hands of the heirs of the transferee were made by them. The decree-holder then contested the application on the ground that under Section 47, Civil P. C., the applicants could not object to the sale of the property. The Court executing the decree held that the applicants had no locus standi to object under Section 47, Civil P. C., and directed them to institute a regular suit.

44. The applicants, the heirs of the transferee then instituted the suit out of which the present appeal has arisen. They are respondents before us. The suit was contested by the decree-holders, who are the appellants before us, on the ground that by reason of Section 47, Civil P. C., the plaintiffs, the respondents here, were precluded from instituting a regular suit. The trial Court and the lower appellate Court accepted this contention and dismissed the suit. An appeal was preferred to this Court and Mukerji, J., holding that the suit was maintainable, remanded the case for trial. He has held that the result of declaring that a certain suit has abated against a particular party is putting that party as against whom the suit abates in the same position 'as if ha had never bean made a party to the suit and that an order declaring abatement is. neither an order decreeing a suit nor dismissing it.

45. The first question referred to in the order of reference, namely, whether the defendant is estopped from pleading that a separate suit does not lie must be answered in the negative. My reason is that no estoppel can be pleaded against any provision of an enactment. If the law lays down, as it is claimed it does,, that the Court executing a decree must decide questions relating to execution and no regular suit can be instituted it. cannot be said that by a wrong order of a Court which was subject to appeal or revision a jurisdiction could be claimed to vest in a Court which really has no jurisdiction. Mr. Pandey on behalf of the appellants, has relied on the case of Ram Kinkar Rai v. Tufani Ahir and contends that as the question of estoppel was not raised before Mukerji, J., Mr. Sinha should not be permitted to raise it here. It is unnecessary for the purpose of this case to refer to that ruling. I however wish to say that the ruling is a binding authority on the question which directly arose in the case. A case is only an authority for what it actually decides and cannot be treated as an exposition of the whole law on the subject. Moreover a party may be precluded from raising a new point of law but I am of opinion that the Court hearing an appeal cannot be prevented from deciding the case on a new point raised before it which ordinarily does not require fresh evidence to be taken.

46. The next question is whether the present suit is barred by reason of the provisions of Section 47, Civil P. C.

47. The language of Section 47 seems to me to make it clear that the legislature intended that all questions relating to execution should be decided between the parties or their representatives by the Court executing the decree. The use of the word ''arising' seems to me to indicate that the legislature intended that the person raising any question must be a party to the suit on the date when the question arises. The learned advocate has referred to the case of Imdad Ali v. Jagan Lal in support of his contention that no suit is maintainable. That case decided two points. One was that proceedings in execution taken against the heirs of a deceased who had died before the decree was passed were null and void, and the second was that an application under Section 332, Civil P. C., corresponding to Order 21, Rule 100 could be treated as one under Section 244.

48. The position in my opinion, by reason of the observations of their Lordships of the Privy Council, is that the first point is now accepted, but as regards the second point it must be held that questions between persons who are representatives of a dead party who died before the passing of the decree cannot be raised under Section 47, Civil P. C. In Khiarajmal v. Daim their Lordships of the Privy Council have held that the Court has no jurisdiction to sell the property of persons who were no parties to the proceedings or property represented on the record. In Gopi Narain Khanna v. Bansidhar it was held that Section 244 (now Section 47) Civil P. C., would not apply where the questions between the parties were not such as could have been determined by the Court in execution of the decree. In the present case the question is as to whether the decree declaring that the property of the respondent was liable to sale was a nullity or not. This is not a question in my opinion relating to the execution or satisfaction of the decree. The question relates to the very root of the decree and this is a matter which an executing Court cannot decide. My answer therefore to the second question is in the negative, that is that the dispute involved in the present suit is not within the scope of Section 47, Civil P. C.

49. The third question is really of no material importance now that this Court has amended Order 21, Rule 12, Civil P. C. I have read the two judgments referred to in the order of reference and agree in answering the question in the affirmative.


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