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Abdul Aziz Vs. Shah Abdul Rahim and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All291
AppellantAbdul Aziz
RespondentShah Abdul Rahim and ors.
Excerpt:
- - any question arising between the decree-holder and his representative or between the judgment-debtor and his representative is clearly not a question within the purview of section 244. this has been held so repeatedly that i deem it unnecessary to cite authorities......14th january 1927. the decree-holder applied to the munsif of gorakhpur for the execution of the decree and abdul aziz applied that the house purchased by him on 14th june 1918 be sold last in execution of the final decree. on 15th july 1927 the munsif acceded to this prayer and passed an order to that effect behind the back of abdul rahim. shortly after the making of the said order, abdul rahim appeared in court and presented an application protesting against the orders of the learned munsif directing that the house property purchased by abdul aziz be sold last. on 27th august 1927, the munsif reviewed the order dated 15th july 1927 and directed that the said order could be availed of by abdul aziz on this condition that he paid a sum of rs. 601 to the decree-holder in satisfaction of.....
Judgment:

Sen, J.

1. This is an appeal by a judgment-debtor and it arises out of the following facts: One Abdul Rahim executed a simple mortgage in favour of the Kayashta Trading and Banking Corporation for Rs. 600 which was payable in two years. The property hypothecated consisted of three houses and the rate of interest agreed upon was one rupee per cent per mensem at six-monthly rests. The mortgagee assigned the mortgage to one Shamsuddin on 19th March 1915. Abdul Rahim sold one of the mortgaged houses to Abdul Aziz, the appellant, on 14th June 1918. for a sum of Rs. 1,100 out of which Rs. 601 were left with the vendee for payment of the mortgage-debt in part. This payment was not made. Shamsuddin having died, his heirs, namely, Mt. Shahidan Bibi and others brought a suit on the mortgage dated 13th April 1912, against Abdul Rahim, Abdul Aziz and others. A preliminary decree was passed on 13th July 1926. The final decree followed on 14th January 1927. The decree-holder applied to the Munsif of Gorakhpur for the execution of the decree and Abdul Aziz applied that the house purchased by him on 14th June 1918 be sold last in execution of the final decree. On 15th July 1927 the Munsif acceded to this prayer and passed an order to that effect behind the back of Abdul Rahim. Shortly after the making of the said order, Abdul Rahim appeared in Court and presented an application protesting against the orders of the learned Munsif directing that the house property purchased by Abdul Aziz be sold last. On 27th August 1927, the Munsif reviewed the order dated 15th July 1927 and directed that the said order could be availed of by Abdul Aziz on this condition that he paid a sum of Rs. 601 to the decree-holder in satisfaction of the mortgage together with interest on the said amount at one rupee per cent per mensem compoundable every six months from 14th June 1918, the date of his purchase right up to the date of his payment.

2. Aggrieved by the aforesaid order, Abdul Aziz lodged an appeal in the Court of the learned District Judge which was heard by the Second Additional Subordinate Judge of Gorakhpur. A preliminary objection was raised by the respondent as regards the competency of the appeal, The learned Judge accepted the preliminary objection and dismissed the appeal upon the ground that no appeal lay to him. The ratio of the decision was that the order dated 27th August 1927, was passed in the course of an execution proceeding in which Abdul Rahim and Abdul Aziz, the rival judgment-debtors were ranged on opposite sides and there was no question between the parties to the suit in which the decree was made within the meaning of Section 47, Civil P.C. Abdul Aziz appeals to this Court and urges that the matter between the parties was one under Section 47, Civil P.C. and that an appeal lay to the lower appellate Court.

3. Section 47, Civil P.C. provides:

All questions arising between the parties to the suit, in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

4. The conflict of interest in the execution department was between two sets of judgment-debtors and there was no question between the decree-holder on the one side and one or other of the judgment-debtors on the other side relating to the execution, discharge or satisfaction of the decree. It would be straining the language of Section 47, Civil P.C. to hold that a dispute of this description between two sets of contending judgment-debtors would fall within the purview of Section 47. This question directly arose in re Raynor v. Mussoorie Bank Ltd. [1885] 7 All. 681. After discussing the facts of the case Brodhurst and Tyrrell, JJ observed at p. 686:

this application purported to be made under Section 244, Civil P.C. But apart from other considerations showing that Section 244 is not applicable to a proceeding of this character, it is sufficient here to observe that an application cognizable under that section must be an application between the parties, that is to say, between the parties arrayed against each other as decree-holder of the one part and judgment-debtors or their representatives of the other. But this is not such a question. It is a controversy of two judgment-debtors inter se, and the provision of Section 244 do not apply to the determination of such questions.

5. This statement of law was cited with approval in Anandi Kunwar v. Ajudhia Nath [1908] 30 All. 379 at p. 383 and it was observed that the controversy was between a judgment-debtor and his representative and that it would be straining the language of Section 244 to hold that such a dispute fell within the scope of that section. In Bhagwati v. Banwari Lal [1909] 31 All. 82 the majority of the Judges constituting the Full Bench expressed themselves in support of the above view. Banerji, J. is reported to have said (see p. 98) that

as regards the first condition it is manifest that the parties must be arrayed as decree-holder or his representative on the one side and the judgment-debtor and his representative on the other. Any question arising between the decree-holder and his representative or between the judgment-debtor and his representative is clearly not a question within the purview of Section 244. This has been held so repeatedly that I deem it unnecessary to cite authorities.

6. The learned Counsel for the appellant relies upon the case of Thoppai Vedaviasa Aiyar v. Madura Hindu Sabha Nidhi Co. Ltd., (A.I.R. 1924 Madras 365). Their Lordships ruled in that case that Section 47, Civil P.C. ought to admit of a liberal interpretation and should not be confined to cases where the question in controversy was between the decree-holder and the judgment-debtor. It is submitted with all respect that the above view is not supported by the language of Section 47, Civil P.C. and is opposed to the cursus curiae of this Court which I am bound to follow. The order not being one under Section 47, Civil P.C. no appeal lay to the lower appellate Court. It is not contended that the order was appealable independent of Section 47 and it is also not contended that Order 43, Civil P.C. applies. The result is that the appeal fails and should be dismissed with costs.

Niamatullah, J.

7. I entirely agree with my learned brother in the conclusion he has arrived at and would dismiss the appeal. I, however, rest my decision on a different aspect of the case. I am of opinion, that the question arising between the parties to this appeal, namely, whether the Court of first instance was justified in imposing certain conditions on the property, in which the appellant is interested, being sold last is not one relating to 'the execution, discharge or satisfaction of the decree' and for that reason the order impugned in this appeal is not one which can be regarded as an order passed under Section 47, Civil P.C. I hesitate in accepting the view that Section 47, Civil P.C. can, under no circumstances, apply to an order passed by a Court executing the decree as between two judgment-debtors inter se. The relevant part of Section 47 is this:

All questions arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

8. As I read the section, all that is necessary to be made out for its application is that the parties between whom a question relating to the execution, discharge or satisfaction of the decree arises should have been parties to the suit whether arrayed on the same side or on the opposite side. The word 'between' does not, in my opinion, imply that such parties should have been arrayed as plaintiff and defendant. The word 'between the same parties' occur in Section 11 Civil P.C. and it has been repeatedly held in relation to questions of res judicata that parties arrayed on the same side may have a conflict of interest and a decision arrived at on questions between them in a suit in which they are arrayed on the same side operates as res judicata in a subsequent suit in which they are arrayed on the opposite side. Some of the reasons for the view taken by the learned Judges of the Madras High Court in the case referred to by my learned brother merit consideration. In a suit for partition, for rendition of accounts or in an administration suit, after a decree has been passed questions may arise between the parties arrayed on the same side in the course of execution proceeding and if the scope of Section 47, Civil P.C. is narrowed down only to cases in which questions relating to execution, discharge or satisfaction of the decree arise between the decree-holder and the judgment-debtor, the very object underlying that section may be frustrated. While I am not prepared to dissent from the authorities which my learned brother has quoted in support of his view, I venture to express my hesitation in accepting that view as absolutely correct and of general application. As I agree in dismissing the appeal on another ground I need not examine the view in all its aspects and content myself by merely reserving my opinion on the question.


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