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Bijai Saran Sahi and ors. Vs. Deo Kishen Prasad Bahadur Sahi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All734; 97Ind.Cas.102
AppellantBijai Saran Sahi and ors.
RespondentDeo Kishen Prasad Bahadur Sahi and ors.
Excerpt:
.....that the rest of the money due on those bonds had been satisfied by the execution of a certain mortgage by conditional sale by mahant karya bharthi in favour of the other creditor in respect of his half share. jawahir (1908) 27 all 334 an application, which is in substance as well as in form an application to revive a pending execution of a decree which had been suspended for no act or default of the decree-holder, is not an application to initiate a fresh execution, and the effect of such an application, if granted, is that the proceeding is continued from the stage at which it was left and any sale effected in pursuance of the attachment made in the previous proceeding is as effective against the judgment-debtor as if it had been held during the pendency of that proceeding itself...........does not appear from the order-sheet filed whether those orders were passed in the presence of the decree-holder or his counsel. there was no order made requiring the deposit of the sale-fees by the decree-holder in connexion with the sale of the remaining properties. the execution proceeding was struck off in each case without regard to the impending attachments of the other properties and it is noticeable that in one of those orders the court significantly observes that the case was to be struck off from the pending file.8. before the present code was enacted there used to be some controversy as to the exact effect of an order striking off or dismissing an execution proceeding and the question which that controversy raised affected the necessity or otherwise of a fresh attachment of.....
Judgment:

1. Mahant Karya Bharthi was seeking to establish his title to Math Kanchanpur as against another claimant, and for the purpose of the litigation arising out of that claim, he borrowed money from Kamta Prasad Sahi, the predecessor of the plaintiffs and Sant Baksh Sahi, the predecessor of the defendants. On the 12th September 1899, he borrowed Rs. 8,000 by a simple bond for that amount from these two persons, and later on he executed another simple bond on the 27th March 1901, for a similar amount. Mahant Karya Bharthi succeeded in the trial Court in establishing his title to the math property against Raj Bans, the other claimant, but on appeal to this Court he was unsuccessful and his claim was dismissed. He applied for leave to appeal to the Privy Council and during the pendency of that proceeding he executed a mortgage of the disputed property, including the two villages of Kanchanpur and Patkoli now in dispute, by conditional sale for Rs. 20,000 in favour of Sant Baksh Sahi, the contesting defendant-appellant, on the 15th March l904. This mortgage was executed in lieu of the half share of the simple bonds of the 12th September 1899, and the 27th March 1901, which had previously been executed by Mahant Karya Bharthi in favour of Kamta Prasad Sahi and Sant Baksh Sahi for Rs. 6,000, whereof the latter was entitled to a half share. On the 22nd March 1904 Mahant Karya Bharthi executed another simple mortgage in favour of Sant Baksh Sahi for Rs. 6,000, hypothecating the village Kanchanpur as security for the repayment of the same.

2. On the 25th April 1904, there was a compromise between Mahant Karya Bharthi and Raj Bans by virtue of which the two villages now in dispute, namely, the villages of Kanchanpur and Patkoli, along with their malikana rights were awarded to Mahant Karya Bharthi in consideration of his giving up his claim to the rest of the property then in dispute. On the 26th April 1904, Mahant Karya Bharthi executed a third mortgage in favour of Sant Baksh Sahi for Rs. 1,999 and the properties hypothecated therein comprised the malikana rights held by him in the villages of Kanchanpur and Patkoli.

3. In 1907 Kamta Prasad Sahi filed two suits for the recovery of a half share of the bonds of the 12th September 1899, and the 27th March 1901, against Mahant Karya Bharthi, stating that the rest of the money due on those bonds had been satisfied by the execution of a certain mortgage by conditional sale by Mahant Karya Bharthi in favour of the other creditor in respect of his half share. He obtained a simple decree for money in each of these suits on the 30th June 1908, and in execution of one of those decrees he attached the village Kanchanpur with its malikana rights and the crops standing therein which had been cultivated by the judgment-debtor. In the other he attached the other village with its malikana rights end the crops belonging to the judgment-debtor therein. There is no dispute here that the attachments had been properly concluded and that the formalities required by law to complete those attachments had been duly carried out.

4. While these attachments were subsisting, Mahant Karya Bharthi sold his equity of redemption in the villages in question including the malikana rights to Sant Baksh for Rs. 58,220, the whole of which was credited in full satisfaction of the moneys due on the prior mortgage by conditional sale of the 15th March 1904, and the simple mortgages of the 22nd March 1904, and the 25th April 1904. The validity of this sale is questioned by the plaintiffs who have since purchased the said villages with the malikana rights attaching to them in execution of the decrees aforesaid on the 20th August 1909. The sale-deed was executed on the 19th November 1908. No attempt was made at any time prior to the auction sale by the purchaser or his successors, the present defendant-appellants, to protect the properties comprised in the sale, or for the notification of their liens under the prior mortgages of 1904. The plaintiffs obtained formal possession over the properties purchased by them, but as they were unable to get actual possession the present suit was filed by them for the recovery of possession of the said properties with mesne profits.

5. The defence, so far as it is material for the purpose of this appeal, was that the attachments were inoperative against the sale-deed of the 19th November 1908, because they had been removed by a subsequent order passed by the Court which made those attachments, striking off the execution proceeding on the 9th February 1909, and that the defendants-appellants were in any case entitled to set up their mortgages of 1904 as shields against the claim of the plaintiffs for the possession of the mortgaged properties.

6. Both these contentions were repelled by the Court below and we do not consider that it is possible to take a different view on either of those matters. It appears that the attachments of the villages in question and of the malikana rights appertaining to the same were made on the 14th September 1908. As certain standing crops had also been attached along with those properties which were described as ancestral, the Court proceeded at first with the sale of the standing crops, and on receiving a report that they had been sold and the sale-proceeds had been realized, it struck off the execution proceeding in each case on the 9th February 1909, without taking any steps to proceed with the sale of the remaining properties which had been attached in the same proceeding

7. It does not appear from the order-sheet filed whether those orders were passed in the presence of the decree-holder or his counsel. There was no order made requiring the deposit of the sale-fees by the decree-holder in connexion with the sale of the remaining properties. The execution proceeding was struck off in each case without regard to the impending attachments of the other properties and it is noticeable that in one of those orders the Court significantly observes that the case was to be struck off from the pending file.

8. Before the present Code was enacted there used to be some controversy as to the exact effect of an order striking off or dismissing an execution proceeding and the question which that controversy raised affected the necessity or otherwise of a fresh attachment of the same property in a subsequent proceeding. That controversy was set at rest when Order 21, Rule 57 of the present Code was enacted, which lays down that where any property has been attached in execution of a decree but by reason of the default of the decree-holder the Court is unable to proceed further with the application for execution, it shall either dismiss the application, or for any sufficient reason adjourn the proceeding to a future date, and upon the dismissal of such application the attachment shall cease. The rule incorporated in the Code practically embodied the results of the decisions which had been arrived at by different Courts as regards the effect of an order striking off an execution proceeding on an attachment made in that proceeding, and in substance what it lays down is that if the decree-holder has been in default in not taking the necessary steps to proceed further with the application for execution, and the Court has to dismiss the proceeding; the legal result of such dismissal shall be that the attachment shall cease. That rule does not however apply to a case where a Court strikes off an execution proceeding or consigns the record to the record room to suit its own convenience, or to reduce its pending file without any default having been committed by the decree holder, or without his having been asked to take any further steps necessary for proceeding with it. In the present case there was no default by the attaching decree holder. He had done all he could to get the attachments made to enable him to proceed with the sale of the properties in question. The Court proceeded with the sale of the standing crops because the sale of the other properties, which were ancestral, could not have been effected except through the Collector, to whom the amount due under each of the decrees would have to be certified and no such certificate could have been granted until the amount actually realized from the sale of the standing crops attached was ascertained. After the standing crops were sold, it was the duty of the Court to ask the decree holder to take further steps to proceed with the execution of the decree against the remaining properties which were then under attachment before striking off the execution proceeding. It did not do so nor did it declare, while passing the order striking off the proceeding, whether the attachment was to be maintained or raised. As there was no default it cannot be said that the order aforesaid was an order dismissing the application under Order 21, Rule 57 of the Civil P.C.

9. Even if that were not so the subsequent proceeding taken by the decree-holder on the 23rd February 1909, to revive or continue the present execution proceeding from the stage at which it was left is sufficient to make the attachment made in the previous execution proceeding operative against the sale which was effected by the judgment-debtor in favour of Sant Baksh Sahi during the pendency of that attachment. As pointed out by their Lordships of the Privy Council in Kamar-ud-din Ahmad v. Jawahir (1908) 27 All 334 an application, which is in substance as well as in form an application to revive a pending execution of a decree which had been suspended for no act or default of the decree-holder, is not an application to initiate a fresh execution, and the effect of such an application, if granted, is that the proceeding is continued from the stage at which it was left and any sale effected in pursuance of the attachment made in the previous proceeding is as effective against the judgment-debtor as if it had been held during the pendency of that proceeding itself.

10. In Aziz Bux v. Kaniz Fatima Bibi (1912) 34 All 490 where by a mistake of the Court an application for execution against property which was under attachment was dismissed but no order was made removing the attachment and the decree-holder subsequently obtained a review of that order and the executing Court was directed to proceed, it was held on an application made by the decree-holder to sell the attached property that the attachment still subsisted, and was valid as against a sale made by the judgment-debtor previous to the review.

11. The learned Counsel for the defendants-appellants has referred to the decision in Dildar Husain v. Sheo Narain AIR 1919 All 194. But in that case the application was dismissed at the request of the decree-holder who for some reason or another did not want to proceed with it and that case has therefore no bearing on the present case. As pointed out in Gopal Prasad v. Kashinath AIR 1920 All 356 an order restoring an attachment relates back to the date when the attachment was first made and its effect is to invalidate the sale made during the subsistence of that attachment. The effect of the order granting the application of the decree-holder of the 23rd February 1909, was that the execution proceeding was continued from the stage at which it had been suspended for no act or default of the decree-holder and the sale of the 9th February 1909, through which the defendants-appellants claimed to derive their title cannot be deemed to be enforceable as against the claim arising from the attachment of the 14th September 1908, in pursuance of which the property in dispute was sold and purchased by the plaintiffs-respondents.

12. The defendants-appellants claim the protection of their mortgagee rights under the mortgages of 1904 as against the plaintiffs-respondents, but as those mortgages were not usufructuary mortgages and the plaintiffs have purchased the equity of redemption, it is not open to them to resist the claim of the plaintiffs to possession. The right to possession goes with the purchase of the equity of redemption. The defendants-appellants were not entitled to possession by virtue of their mortgages of 1904. They got possession by virtue of the sale of the 19th November 1909, which is unenforceable as against the claims arising out of the attachment under Section 61 of the Civil P.C. It the sale is invalid, they must surrender possession of the same, because their mortgages did not give any right to possession. They may have a right to sue on their mortgages but the decree for possession cannot be made conditional on the payment of the moneys due on those mortgages, because the right of the plaintiffs to claim possession arises out of the auction sale of the equity of redemption and is independent of the right of the defendants-appellants to enforce their mortgages which gave them no right to the possession of the disputed properties. The other pleas taken in the memorandum of appeal have not been pressed.

13. A cross-objection was filed on behalf of the plaintiffs-respondents but it has also not been pressed. Both the appeal and the cross-objection fail and are dismissed with costs including fees in this Court on the higher scale.


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