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Ramchandra and anr. Vs. Ram Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1940All500
AppellantRamchandra and anr.
RespondentRam Lal and anr.
Excerpt:
- - , calling upon them to appear before the court and show cause why they should not pay the debt due from them to gulzari lal and gendan lal in court so that the amount may be paid to ram lal and nathu lal and thus their decree against gulzari lal and gendan lal may be satisfied......there is no debt due from his clients to gulzari lal and gendan lal and that even if there was any debt, the debt was barred by time. he further contends that the debt arose out of certain void proceedings, namely the sale of 29th april 1929, and this sale was incompetent because of the provisions of para. 11 of sch. 3 inasmuch as the collector could exercise in respect of the judgment-debtors' immovable property the powers conferred on him by paras. 1 to 10 of sch. 3. finally, it was contended that if a debt came into existence the debt was secured by a charge and garnishee proceedings could not be taken.5. we have no doubt whatsoever that when under the sale deed ram chandra covenanted to pay rs. 4400 odd out of the entire sale consideration to the decree-holders of the vendors, a debt.....
Judgment:

Bajpai, J.

1. This appeal is connected in a sense with First Appeal No. 164 of 1938. First Appeal No. 38 of 1937 was filed in this Court against the decision of the Civil Judge of Fatehgarh dated 17th November 1936. Appeal No. 164 of 1938 was filed in the Court of the District Judge of Farrukhabad against the same decision of the Civil Judge. Presumably, the appellants were in doubt as to whether the appeal lay to this Court or to the Court of the District Judge and that is why they filed two appeals, but later they moved this Court that the appeal pending in the Court of the District Judge be transferred to this Court and be connected with the first appeal pending in this Court. This prayer was granted and that is why we have two first appeals before us, but both of them, as we said before, are against the same decision. One judgment therefore will govern both the first appeals; as a matter of fact, there is necessity of delivering only one judgment in the appeal pending in this Court, the other appeal will require under the circumstances of the case no order whatsoever. The appeal before us is by two persons Ram Chandra and Ramesh Chandra who are described as garnishees and the respondents are Ram Lal and Nathu Lal who are described as decree-holders. On 31st January 1927 Rohan Lal and his son Ram Lal obtained a simple money decree against Gulzari Lal and Gendan Lal. This decree was put into execution on 5th March 1927 against the judgment-debtors, and on 11th February 1928 execution was transferred to the Collector under Section 68, Civil P.C., because the proceedings were aimed against the ancestral property of the judgment-debtors. The zamindari property was attached.

2. On 29th April 1929 Gulzari Lal and Gendan Lal sold the attached zamindari property to Ram Chandra and Ramesh Chandra for a sum of Rs. 8600 and, out of this sum, Rs. 4400 odd were left in the hands of Ram Chandra and Ramesh Chandra vendees for payment to the decree-holders of Gulzari Lal and Gendan Lal, namely Rohan Lal and Ram Lal. This sale deed was attested by Ram Lal and we shall not be far wrong in assuming that Ram Lal the decree-holder was a consenting party to the sale because he thought that the vendees would satisfy the decretal amount. The execution case before the Collector was struck off on 27th June 1929. There was another infructuous application of 19th March 1932 and after that there was another application of 15th May 1933 where proceedings were aimed against Ram Chandra and Ramesh Chandra, the purchasers of the zamindari property belonging to Gulzari Lal and Gendan Lal. The prayer of the decree-holders was that the decretal amount should be realized by the arrest of Ram Chandra. Nothing was said about Ramesh Chandra because he was a minor. On 17th May 1933 Ram Chandra was brought before Court under arrest and then he made several objections to the application of Rohan Lal and Ram Lal, the decree-holders. These objections were upheld by the Civil Judge on 22nd September 1933. There was an appeal by the decree-holder and the learned District Judge agreed with the Court below on the validity of the objections raised by Ram Chandra, but he was of the opinion that the proper proceedings that ought to have been taken by the decree-holders were garnishee proceedings as contemplated by Order 21, Rule 131 and subsequent Rules of the Civil Procedure Code and not by means of a direct attempt to arrest Ram Chandra. He, therefore, remanded the case to the trial Court with the direction 'that garnishee proceedings may be started against Ram Chandra.'

3. We now come to the application of 29th September 1936-the application which has given rise to the present appeal. By this time Rohan Lal had died and his second son Nathu Lal was brought on the record as a decree-holder. Ram Lal and Nathu Lal respondents before us moved the Court of the Civil Judge to issue a notice to Ram Chandra and Ramesh Chandra under Order 21, Rule 131, Civil P.C., calling upon them to appear before the Court and show cause why they should not pay the debt due from them to Gulzari Lal and Gendan Lal in Court so that the amount may be paid to Ram Lal and Nathu Lal and thus their decree against Gulzari Lal and Gendan Lal may be satisfied. When the Court below issued such a notice and when Ram Chandra and Ramesh Chandra appeared in Court to show cause, they said that no debt was due by them to Gulzari Lal and Gendan Lal, and if there was a debt it was secured by a charge and was outside the scope of Order 21, Rule 131. They further said that they were not personally liable and the debt, if any, due to Gulzari Lal and Gendan Lal was barred by time. The minor Ramesh Chandra raised a further plea that he was a minor at the time of the sale deed of 29th April 1929 and therefore no liability under the contract of sale could be enforced against him in any shape or form.

4. The Court below did not decide the objections of Ramesh Chandra at all because it appears that the garnishee proceedings in the Court below were confined to Ram Chandra alone and we have, therefore, not got to decide the objections of Ramesh Chandra. The order that has been passed by the Court below is that the objection of Ram Chandra be dismissed and a garnishee order be prepared as prayed and a garnishee order seems to have been prepared against Ram Chandra alone. Both Ram Chandra and Ramesh Chandra have appealed and learned Counsel on their behalf has taken four points before us. He once again says that there is no debt due from his clients to Gulzari Lal and Gendan Lal and that even if there was any debt, the debt was barred by time. He further contends that the debt arose out of certain void proceedings, namely the sale of 29th April 1929, and this sale was incompetent because of the provisions of para. 11 of Sch. 3 inasmuch as the Collector could exercise in respect of the judgment-debtors' immovable property the powers conferred on him by paras. 1 to 10 of Sch. 3. Finally, it was contended that if a debt came into existence the debt was secured by a charge and garnishee proceedings could not be taken.

5. We have no doubt whatsoever that when under the sale deed Ram Chandra covenanted to pay Rs. 4400 odd out of the entire sale consideration to the decree-holders of the vendors, a debt in the shape of unpaid purchase money was created. This was the view of the lower Appellate Court on 28th July 1936 when that Court remanded the case to the trial Court for starting garnishee proceedings. If authority were needed for this proposition, it is to be found in Madho Das v. Ramji Patak (94) 16 All 286, where it was held that where money was due by a vendee to his vendor the vendor's claim against the vendee may be attached and sold in execution of a decree against the vendor as a debt under the Civil Procedure Code. It was then said by the appellants that, if this debt was a simple money debt, it was barred by time. The submission is that it came into existence on 29th April 1929 and could be recovered within six years of that date (the debt was evidenced by a registered document and therefore the period of limitation applicable is six years). The present application was filed on 29th September 1936, more than six years after the creation of the debt and, as such, was not recoverable. The Court below did frame an issue on this point. The issue was:

Whether the right of the judgment-debtor to proceed against the objector Ram Chandra personally is barred by time?

6. When however that Court proceeded to determine the issue it decided a different matter altogether. It said that the original garnishee application was filed in time and without discussing the point as to whether the debt due from the garnishees was barred by time or not decided the question in favour of the decree-holders by saying that the garnishee application was in time. Mr. Awasthi on behalf of the appellants has a grievance against the manner in which the plea of limitation was decided by the Court below. It is however contended by Mr. Pathak on behalf of the respondents that the point was never argued before the Court below in the way in which it has been argued here, because, if it had been so argued, there is no reason why the learned Civil Judge should not have given a finding on the point. Even here Mr. Awasthi at one stage said that the application of the decree-holders was barred by time which implied that the garnishee application was not filed in time. It is pointed out by learned Counsel for the respondents that is the only way in which the matter was put before the Court below. Mr. Pathak then contends that there is abundant material on the record from which it could be shown that Ram Chandra acknowledged the liability and that the acknowledgments were made within time. Our attention is drawn to an application of Ram Chandra printed at p. 3 of our record. In this application Ram Chandra says that Gulzari Lal and Gendan Lal sold certain property to Ram Chandra and out of the sale consideration, a sum of Rs. 4400 was left in deposit with him. This application was made on 17th May 1933 within six years of 29th April 1929 and the present application is within six years from 17th May 1933. We have come to the conclusion that under the circumstances of the case it would not be fair to the respondents to hold that the debt due from Ram Chandra had become time-barred on 29th September 1936 when the present application for garnishee proceedings was made. There might be several such acknowledgments and there might be some oral evidence on the point to connect the acknowledgment with the liability under the debt and as the point does not seem to have been argued on this footing in the Court below, we are not prepared to accede to the contention advanced on behalf of the appellants that the debt against them had become irrecoverable by lapse of time.

7. The third point that the transfer of 29th April 1929 was invalid because it was made during the time that the property was under the control of the Collector, who could perform the powers conferred on him by paras. 1 to 10 of Sch. 3, Civil P.C., was not taken in the Court below or in the grounds of appeal before us. We refused permission to Mr. Awasthi to argue this point because we are convinced that it would have seriously prejudiced the other side inasmuch as they were prevented from giving evidence on this point owing to the attitude adopted by the appellants. It is now too late in the day to take this point and say that this involves only a pure question of law not dependent on facts. The question is a mixed question of fact and law and ought to have been taken up in the Court below. We now come to the last and perhaps the most important question in the case. The contention of the appellants is that if a debt was created by the sale deed of 29th April 1929, a debt by which Ram Chandra became a debtor and Gulzari Lal and Gendan Lal became creditors, then the debt was secured by a charge. The learned Judge of the Court below repelled this contention on the ground that

the word 'charge' mentioned in Rule 131 relates to charges secured by instruments, that is charges arising out of a contract simultaneously with the debt in question. It cannot relate to charges which arise subsequently under certain circumstances by subsequent conduct of the parties, according to law.

8. He is of the view that a charge created by operation of law is not within the purview of Rule 131 and that Rule covers only such charges which are the result of the act of parties. Now 'charge' is defined by Section 100, T.P. Act, and it is said there that where immovable property of one person is by act of parties or operation of law made security for the payment of money and the transaction does not amount to a mortgage, the latter person is said to have charge on the property etc. There does not seem to be any warrant for restricting the word 'charge' in Rule 131 to a charge created by act of parties only. One of the elementary rules of construction of statutes is that nothing is to be added to or to be taken from a statute unless there are adequate grounds to justify the inference that a Legislature intended something which it omitted to express. In Kamalaranjan Roy v. Secy. of State , their Lordships observed:

The Court cannot put into an Act words which are not expressed and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction and outside the province of the Court.

9. We can see nothing in the words of Rule 131 or anything in the principle underlying the garnishee orders which would justify us in holding that the word 'charge' occurring in that Rule is limited to a charge created by act of parties. Reliance is placed by the appellants on Section 55(4)(b), T.P. Act, and it is argued that, where the ownership of the transferred property has passed to the buyer before payment of the whole of the purchase money, the seller is entitled to a charge upon the property in the hands of the buyer for the amount of the purchase money or any part thereof remaining unpaid, and the submission is that there was a charge on the property, a charge which was available to Gulzari Lal and Gendan Lal against the purchasers Ram Chandra and Ramesh Chandra to the extent of the purchase money that was left in the hands of the buyers for the payment of the decree and that charge could be enforced against the property in the hands of the buyers. Learned counsel for the respondents then said that it was open to the decree-holders Ram Lal and Nathu Lal to ignore the transfer made by Gulzari Lal and Gendan Lal under the provisions of Section 64, Civil P.C. This undoubtedly is true, but if the transfer is ignored the debt is also cancelled. It is, however, contended that all that Section 64 Civil P.C., enjoins is that the private transfer contrary to the attachment is void as against all claims enforceable under the attachment and is not void absolutely. It is, therefore, permissible to the attaching creditor to take advantage of the covenants contained in the private transfer and to say that if those covenants are fulfilled, the private transfer will not be challenged by the attaching creditor.

10. We cannot agree with this contention because that would imply that the attaching creditor can accept the transfer for certain purposes and can ignore it for other purposes. The argument amounts to this that as the transfer is illegal there was, therefore, no charge so far as unpaid purchase money was concerned, and yet because the transferee undertook to pay some money to the transferor that money was available in garnishes proceedings to the decree-holder. All that Section 64, Civil P.C., provides is that claims enforceable under the attachment will remain unaffected by the private transfer and the attaching creditor can proceed to enforce his claim under the attachment irrespective of the transfer. It is not open to the attaching creditor to say that a private transfer does not bring about all the consequences which it does ordinarily bring about and at the same time certain covenants in the sale deed are binding and can be taken advantage of by the attaching creditor. The result of what we have said is that a charge, such as is contemplated by Order 21, Rule 131, Civil P.C., did arise in connexion with the debt and therefore garnishee proceedings were not applicable. We, therefore, allow this appeal and set aside the order of the Court below directing that a garnishee order be prepared. The application of Ram Lall and Nathu Lal is dismissed with costs throughout.


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