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Bahori Lal Vs. Gauri Sahai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All626
AppellantBahori Lal
RespondentGauri Sahai
Excerpt:
civil procedure code, sections 244(c), 278-283 - question for court executing decree--separate suit--'representative' of judgment-debtor. - .....|______________________________| kalian singh, married (1) bbagirathi, married musammat janki. (2) bijai kuar. | bahori lal (appellant).2. on the 2nd january 1875, kalian singh executed a bond in favour of gauri sahai, respondent, hypothecating his zamindari rights and interests in mauza deva kanohan. he was at that time recorded in the kheuiat as proprietor of a 5 biswas share in that mauza, and musammats bhagirathi and bijai kuar, the widows of his deceased uncle, kashi ram, were respectively described therein as owners each of a 5 biswas share. on the 28th september 1883, gauri sahai obtained a decree for enforcement of lien against the entire zamindari rights of kalian singh in mauza deva, hypothecated in the bond of the 2nd january. 1875, but his claim against the person and other.....
Judgment:

Straight, Offg. C.J.

1. In order to make the questions that have been raised in this appeal intelligible, it is necessary to state the following facts, and the accompanying table may facilitate the doing so:

Jawahir. Kashi Ram.

|______________________________|

Kalian Singh, married (1) Bbagirathi,

married Musammat Janki. (2) Bijai Kuar.

|

Bahori Lal (appellant).

2. On the 2nd January 1875, Kalian Singh executed a bond in favour of Gauri Sahai, respondent, hypothecating his zamindari rights and interests in mauza Deva Kanohan. He was at that time recorded in the kheuiat as proprietor of a 5 biswas share in that mauza, and Musammats Bhagirathi and Bijai Kuar, the widows of his deceased uncle, Kashi Ram, were respectively described therein as owners each of a 5 biswas share. On the 28th September 1883, Gauri Sahai obtained a decree for enforcement of lien against the entire zamindari rights of Kalian Singh in mauza Deva, hypothecated in the bond of the 2nd January. 1875, but his claim against the person and other property of the obligor was dismissed. Owing to some antecedent litigation that had taken place between Bijai Kuar on the one side, and Kalian Singh and Musammat Janki on the other, in reference to the 5 biswas share recorded in Janki's name, a compromise was arrived at between them, by which it was agreed ' that mutation of names in respect of the property in dispute should be effected in favour of Musammat Bijai Kuar, and that she should remain as heretofore in possession of the said property and other properties situate in mauza Deva and mauza Ghasita, and that the said property shall be responsible for any debts due from us Kalian Singh and Musammat Janki.' On her side Bijai Kuar said: 'I shall have no right to transfer any property, nor shall the said property be liable for any debt due from me. I shall have a life-interest in all the estate left, by my deceased husband. 'This arrangement was given effect to by the removal of Janki's name from the khewat as to the 5 biswas share, and the substitution of Bijai Kuar's, who thus stood entered in respect of two shares of 5 biswas each.

4. On the 14th April 1884, Gauri Sahai made his first application for execution by attachment and sale of the hypothecated rights and interests of his obligor, which he described as '5 biswas entered in the name of Kalian Singh, judgment-debtor, and 5 biswas in the name of Janki and 5 biswas in that of Bijai Kuar, in mauza Deva, of which Kalian Singh is the owner.' As I have already stated, Janki's name had been expunged and no share 'stood in her name at all. On the 23rd April 1884, the Court Issued an attachment against the whole 15 biswas, and on the 11th of May following they were attached. On the 8th June 1884, Kalian Singh, the judgment-debtor, died, and Janki, his widow, and Bahori Lal, his son, were substituted as his representatives on the 18th of the same month.

8. On the 29th of November 1884, the Subordinate Judge transferred the execution-proceedings to the Collector of the district, and on the 20th June 1885, the Collector put up and sold only the 5 biswas share which had stood recorded in the name of the deceased judgment-debtor, and which was in the possession of Janki and Bahori Lal as his representatives. Subsequently, Gauri Sahai applied for sale of the 5 biswas which he described as entered in the name of Janki and the 5 biswas in the name of Bijai Kuar. On the 19th September 1885, Bijai Kuar filed objections, stating that Janki had no interest in the property, that she (Bijai Kuar) was the owner, and that any interests derived by Janki from her deceased husband had already been sold by the decree-holder. The 14th November 1885, was fixed for the hearing of these Objections, but before that date Bijai Kuar died, and on the 11th November Bahori Lai, under the guardianship of his mother, applied to have his name brought on the record in her place with the object of supporting her objections. This was done subject to anything that might hereafter be urged by the decree-holder. On the 5th December 1885, he in his turn put in objections to the effect that any interest Bijai Kuar might have had in the property died with her, and that she left no rights that could pass to Bahori Lal as her heir; on the contrary, that anything she had was in reality the property of Kalian Singh, that it was hypothecated in the bond of the 2nd January 1875, and that by the terms of the compromise between Bijai Kuar and Kalian Singh and Janki, the first-named had agreed that the property should be liable for the debts of Kalian Singh. These objections were heard and disposed of by the Subordinate Judge on the 7th December 1885; and he held that 'no specified share of Kalian Singh has been charged under the decree sought to be executed and under the bond dated the 2nd January 1875, the basis of the decree; on the contrary, a charge was created on the whole right and interest in mauza Deva Kanchan; therefore the share of Kalian Singh in the property, standing in the name of Bijai Kuar, should also be considered hypothecated. The objection that the property of Bijai Kuar had been exempted should not have been allowed. She might have perhaps continued m possession during her life, but she died while the suit was pending. The son of Kalian Singh, the heir of the judgment-debtor, wishes to become the representative of Bijai Kuar, but the Court thinks none can become her representative, her interest having been merely life interest ordered that the claim be disallowed with costs.'

9. It is obvious therefore, from the terms of the order of the Subordinate Judge, that the proceeding before him had reference to the objections which had been filed by Bijai Kuar, and supported by Bahori Lal, through his guardian, pursuant to the order granted on the application of the 11th November 1885. The decision of the Subordinate Judge was appealed from by Bahori Lal to the Judge, and among the pleas was the fourth to the following effect: 'As applicant is the representative of Kalian Singh, judgment-debtor, and the execution is taken out against him, all the objections raised by him should have been set at rest under Section 244 of the Civil Procedure Code, and he should not be made to prefer a claim.' The Judge disposed of the case upon a preliminary point of jurisdiction, holding that as 'the decree, in the execution of which the objection is taken, is over Rs. 5,000 in amount,' this Court, and not his Court, was the proper appellate tribunal. He accordingly returned the memorandum of appeal for presentation here, and this is the mode in which the matter comes before us. When the case came on for hearing, Pandit Bishambar Nath, for the respondent, took a preliminary objection to the effect that the proceeding Before the Subordinate Judge having taken place in reference to the claim of Bahori Lal, as the heir of Bijai Kuar, to have the 10 biswas share released from attachment, his order must be regarded as passed under Section 281 of the Civil Procedure Code, and such being the case, and it toeing conclusive, subject to Bahori Lal's bringing a suit to establish his Tight, no appeal lay to this Court. In reply for the appellant, it was urged that the proceeding before the Subordinate Judge must be regarded as held under Section 244, Bahori Lal being the representative of Kalian Singh, and in support of this contention a ruling of the Privy Council--Wahed Ali v. Jumaee 11 B.L.R. 149 and one of this Court--Ram Ghulam v. Hazaru Kuar I.L.R. 7 All. 547 were referred to.

10. I think that the preliminary objection urged for the respondent is a valid one and must prevail. It is clear that the objections filed by Bijai Kuar on the 19th September 1885, were put in under Section 278 of the Code, and that, whether rightly or wrongly, she claimed to be entitled to the two shares of 5 biswas each, and on that ground to have the decree-holder's attachment released. Had she survived, those objections would have had to be considered and disposed of in the manner provided in Sections 280 and 281, and had the decision been adverse to her, her remedy, and her only remedy, would have been a suit, of the kind mentioned in Section 283. All that Bahori Lal sought to be allowed to do was to come in as the representative of Bijai Kuar for the purpose of supporting those objections, and it was his claim to do this that was rejected by the Subordinate Judge, and nothing more. It was in right of a third person, whose interest he asserted to have passed to him, that he prayed admission to 'the proceedings, and this character was wholly distinct and apart from that he filled as the legal representative of his deceased father, in which capacity he had been cited after the passing of Gauri Sahai's decree. No application had been put in by the decree-holder, which would have made the second paragraph of Section 234 applicable, and in my opinion it is impossible to hold that the question decided by the Subordinate Judge, which is sought to be impeached on appeal here, was one that fell within the purview of Clause (c), Section 244; on the contrary, if any section covers the Subordinate Judge's order, it must be Section 281. I do not think that because Bahori Lal happens, for the purpose of the execution-proceedings under Gauri Sahai's decree, to be the legal representative of his father Kalian Singh, and to be liable to satisfy it to the extent of any assets which may have come to his hands, that any rights claimed by him through a third person must be dealt with, and can only be dealt with, between him and the decree-holder in the execution-proceedings, in which, be it observed, only for the property of the deceased which has come to his hands, and has not been duly disposed of, can any personal responsibility attach to him. I do not understand the Privy Council ruling, or the judgment of this Court referred to by the appellant's learned pleader, to lay down the proposition that the legal representative of the judgment-debtor, brought in after decree, is constrained to have his title, possibly to a large property, determined by the summary method adopted in execution-proceedings, and that because he is another man's legal representative, he is placed in a worse position than other people, and has no remedy by suit. Both the cases had reference to persons who had been cited in the suit as representatives of a deceased person before decree, and so far as the ruling of their Lordships of the Privy Council was concerned, its direct object was to determine that such persons were parties to the suit for the purpose of Section 11 of Act XXIII of 1861, and their remarks referred to by my brother Oldfield in Ram Ghulam v. Hazaru Kuar I.L.R. 7 All. 547 are directed to that point and that point only. I allowed the preliminary objection, that the order here was not passedjuoder Section 244 of the Code, and dismiss the appeal with costs.

Mahmood, J.

11. I confess that I have had considerable doubts upon the question of law raised in this case, and the difficulty is considerably enhanced by the fact that there exists a long conflict of decisions in the published reports as-to how far the representative of a judgment-debtor can be dealt with as a party to the suit for purposes of execution-proceedings relating to the questions under Section 244 of the Civil Procedure Code. The most important case upon the subject is Waked Ali v. Jumaee 11 B.L.R. 149 where the Lords of the Privy Council held that a party sued in a representative character, against whom a decree is obtained, is a party to the suit for purposes of execution of such decree. The same is the effect of Oseem-un-nissa Khatoon v. Ameer-un-nissa Khatoon 20 W.R. 162. The rule appears to have been carried further by a Division Bench of the Calcutta High Court in Ameer-un-nissa Khatoon v. Meer Mozuffer Hossein Chowdhry 12 B.L.R. 65 where the same rule was applied to the case of a person who was not a party to the decree, but had been brought upon the record as representative of the deceased judgment-debtor in the execution-proceedings. The view is in accord with a much older ruling of the Madras High. Court in Buddu Ramaiya v. C. Venkaiya 3 Mad. H.C. Rep. 263 where it was held that questions arising between the parties to the suit cannot be limited to questions arising between those who were parties to the suit at the date of the decree; but after decree the representative of a decree-holder, or the representative of a defendant against whom an execution is sought, become parties to the suit for the purposes of execution. The same is the effect of a later ruling of the same Court in Ruriyali v. Mayan I.L.R. 7 Mad. 255. On the other hand, the rulings of this Court in two cases--Abdul Rahman v. Muhammad Yar I.L.R. 4 All. 190 and Awadh Kuan v. Raktu Tiwari I.L.R. 6 All. 109 seem to proceed upon a ratio decidendi which appears to be inconsistent with the rulings above referred to. Indeed, in Nimba Harishet v. Sita Ram Paraji I.L.R. 9 Bom. 458 Sargent, C.J., referring to the former of these cases, declined to follow it, regarding it to be inconsistent with the Privy Council ruling, and he adopted the ruling of the Madras Court in Arundadhi Ammyar v. Natesha Ayyar I.L.R. 5 Mad. 391. Again, the rulings of this Court in Ram Ghulam v. Hazaru Kuar I.L.R. 7 All. 547 and Sita Ram v. Bhagwan Das I.L.R. 7 All. 733 in both of which I concurred with my brother Oldfield, laid down the rule that the representative of the judgment-debtor who had objected that the property attached had been acquired by himself, and not inherited from the judgment-debtor, and was therefore not liable in execution must be treated as a party to the suit within the meaning of Section 244 of the Civil Procedure Code, and the objection must be dealt with in execution of the decree. I must also here point out that whilst in the latter of these cases the representative of the judgment-debtor was brought upon the record in the execution-proceedings, subsequent to the decree, in the former case the representatives were themselves, impleaded in the original suit in that capacity, and the decree had been obtained against them. In delivering my judgment in the case, whilst concurring with my brother Oldfield, I expressed the view that the turning point upon which the application of the rule contained in Section 244 of the Civil Procedure Code, barring adjudication in a regular suit, depends, is, whether the judgment-debtor, in raising objections to execution of decree against any property, pleads, what may analogically be called a jus tertii, or a right which, although he represents it, belongs to a title totally separate from that which he personally holds in such property. And I also held that this view was consistent with the ratio decidendi which had been adopted by my brother Oldfield in Shankar Dial v. Amir Haidar I.L.R. 2 All. 752 and which I followed in Nath Mal Das v. Tajammul Husain I.L.R. 7 All. 36 and at the same time I expressed my dissent from the ruling of a Division Bench of the Calcutta Court in Kanai Lall Khan v. Sashi Bhuson Biswas I.L.R. 6 Gal. 777 which goes the length of holding that even where a person, upon the death of a Hindu widow, is made? a party to the suit as reversionary heir to the estate, and a decree is passed against him, he may in a subsequent suit claim to establish that the decree covered only the life-interest of the widow. The ratio decidendi adopted in the ruling seems to be that, although the plaintiff was impleaded in the decree as the representative of the widow, the nature of his claim was such as to exclude it from the operation of Section 244 of the Code--a view which I could not reconoile with the ruling of the Lords of the Privy Council in Wahed Ali v. Jumaee 11 B.L.R. 149. These are not the only reported cases which complicate the question; and in this state of the case-law, I felt inclined to ask the learned Chief Justice to refer this case to the Full Bench. But I am not prepared to dissent from him in the distinction which be has drawn between this case and the rulings Co which I have referred. The present appellant was no party to the original decree of the 28th September 1883, and he was impleaded in execution-proceedings as the representative of the original judgment-debtor, Kalian Singh, and in that capacity he might, according to the rulings to which I have already referred, be treated as a party to the suit for purpose of Section 244 of the Code. But the case, as it has come before us, does not, as the learned Chief Justice has shown, relate to such capacity. In the execution-proceedings a third party, Musammat Bijai Kuar, who could under no conditions be regarded as the representative of the judgment-debtor, Kalian Singh, raised objections on the 19th September 1885, to the attachment of the property, and her objections were undoubtedly such as are contemplated by Sections 278-281 of the Civil Procedure Code. The 14th November 1885, was fixed for the hearing of the objections; but the objector died in the meantime, and the present appellant had his name substituted as the representative of the objector, and the objections were disposed of on the 7th December 1885, and this is the order from which this appeal has been preferred.

12. Upon this state of things, I am not prepared to dissent from the learned Chief Justice in the view that the case is not on all fours with the Privy Council ruling in Wahed Ali's cane 11 B.L.R. 149, and that it is distinguishable from the other rulings to which reference has been made. Nor am I prepared to dissent from him in the view that the mere circumstance of the representative of a deceased judgment-debtor becoming the representative also of a deceased third party, was objector in the execution-proceedings, will not preclude him from prosecuting those objections, and that the adjudication upon such objections falls beyond the scope of Section 244 of the Code. Indeed, as the learned Chief Justice has pointed out, the matter was dealt with in the Court below as objections by a third party, and there can belittle doubt that the order of the 7th December 1885 now under appeal, was passed under Section 281 of the Code, as it disallowed the objections upon the ground that the appellant had inherited nothing from the original objector, Musammat Bijai Kuar. And this being so, I am not willing to disagree with the learned Chief Justice in holding that, under the circumstances of this case, the proper remedy for the appellant would be a suit such as is contemplated by Section 283 of the Code.

16. For these reasons I concur in the order which the learned Chief Justice has made.


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