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Mt. Asia Bibi Vs. Malik Azir Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1932All704; 137Ind.Cas.50
AppellantMt. Asia Bibi
RespondentMalik Azir Ahmad and ors.
Cases ReferredSubramanian Chetty v. Kasi Chetty
Excerpt:
- - no doubt the applicant could not as of right claim an amendment of the application for execution by the addition of fresh properties, but it cannot be doubted that her right to apply for execution was alive in 1929 when she filed the application, she might have got this application dismissed and filed a fresh application including the additional properties as well. if the decree was primarily one for payment of money against the four defendants, the judgment was perfectly correct. 10. we are clearly of opinion that the proviso cannot apply to a case where the decree-holder by inheritance acquires an interest in the estate of one of the judgment-debtors......and we shall discuss it later. this decree was transferred in 1925 to mt. asia bibi, the wife of abdul rauf, one of the heirs of faqir bux. it is not now disputed that asia bibi was not a benamidar for her husband, but had purchased this decree in her own right. she put the decree in execution against the heirs of faqir bux, including her husband abdul rauf. during the pendency of the execution proceedings abdul rauf died in 1929, and she became one of his six heirs. the respondent judgment-debdors then objected that owing to a merger, her right to execute the decree had become extinguished. it may also be mentioned that mt. asia bibi applied for an amendment of her previous application for execution by the addition of some more properties after the death of abdul rauf. she had however.....
Judgment:

1. This is a decree-holder's appeal arising out of an execution proceeding. In 1901 Bhawani Prasad and other obtained a decree for sale on the basis of a mortgage-deed against one Faqir Bux. The mortgaged properties were put up for sale from time to time but they proved insufficient to pay the whole decretal amount. Faqir Bux died during the pendency of these proceedings. In 1918 the decree-holders obtained a decree for money for the balance of the amount under Order 34, Rule 6, against the heirs of Faqir Bux. The form of this decree was slightly defective and we shall discuss it later. This decree was transferred in 1925 to Mt. Asia Bibi, the wife of Abdul Rauf, one of the heirs of Faqir Bux. It is not now disputed that Asia Bibi was not a benamidar for her husband, but had purchased this decree in her own right. She put the decree in execution against the heirs of Faqir Bux, including her husband Abdul Rauf. During the pendency of the execution proceedings Abdul Rauf died in 1929, and she became one of his six heirs. The respondent judgment-debdors then objected that owing to a merger, her right to execute the decree had become extinguished. It may also be mentioned that Mt. Asia Bibi applied for an amendment of her previous application for execution by the addition of some more properties after the death of Abdul Rauf. She had however made all the heirs of Faqir Bux parties to her application except one Hasina Bibi, who was alleged by her to have been the mistress of Faqir Bux and not his legally wedded wife. She however did not implead the other heirs of Abdul Rauf, but offered to reduce the amount of her decree to the extent of the share of Abdul Rauf in the assets of Faqir Bux.

2. The learned Subordinate Judge has dismissed her application for amendment on the ground that the matter was des-cretionary with the Court and it was not proper that the amendment should be allowed at such a late stage. He further held that under Order 21, Rule 16, the right of the decree-holder to execute the decree against the other judgment-debtors had become extinguished and her remedy was only by way of a separate suit for contribution. He also thought that such a suit would be the proper proceeding for the determination of the question whether Mt. Hasina Bibi was or was not one of the heirs of Faqir Bux. No doubt the applicant could not as of right claim an amendment of the application for execution by the addition of fresh properties, but it cannot be doubted that her right to apply for execution was alive in 1929 when she filed the application, She might have got this application dismissed and filed a fresh application including the additional properties as well. In these circumstances we think that the discretion would have been exercised more properly by allowing the amendment, subject to any orders as to costs which the Court thought fit to make. There was no necessity to compel her to file a fresh application. In this connexion it may be pointed out that the learned Subordinate Judge was under a misapprehension in thinking that two of the heirs of Faqir Bux, namely, Mt. Saidunnissa and Wajidunnissa, had not been impleaded previously and were sought to be brought on the record by means of this application for amendment. As a matter of fact their names had been on the record all along and they were only mentioned because the additional properties were in their posssssion. There was therefore no question of adding new parties to the execution proceedings against whom the execution might have become time-barred.

3. We also see no defect in the other heirs of Abdul Rauf not being brought on the, record, when the decree-holder was prepared to give credit for the entire liability of Abdul Rauf. The principal question for consideration is whether the right to execute the decree has become extinguished by virtue of the provisions of Order 21, Rule 16. The question whether the remedy of a decree-holder who acquires a part of the property of a judgment-debtor is by execution under Section 47, Civil P.C., or by a separate suit for contribution is really a matter of procedure and not of any substantive law. Nor do we think that any question of equality apart from mere convenience, is involved. Where the rights of a decree-holder and the liability of a judgment-debtor become united in one and the same person there would obviously be merger. But the doctrine of complete merger involves the essential condition of the co-extensiveness of such rights and liabilities. The proviso to Order 21, Rule 16 is in the following words:

Provided also that where a decree for the payment of money against two or more persons has been transferred to one of them it shall not be executed against the others.

4. The proviso applies to the case where a decree for the payment of money which is passed against two or more persons who are jointly and severally liable to pay the amount is transferred to one of them. In such a case it is obvious that the person who acquires a decree becomes entitled to execute the whole decree and is also liable to pay the whole decree jointly with his co-judgment debtors. In such an event the execution cannot proceed against the latter. The proviso does not apply to the converse ca3e where the joint and personal liability of one or two or more judgment debtors is not fastened on the decree, holder but the latter acquires either by private treaty or operation of law, a share in the estate of one of the judgment-debtors. In such an event there is no co-extensiveness of rights and liabilities and there can be no merger.

5. The Court below has relied in support of its judgment on certain observations contained in the judgment in the case of Banarsi Das v. Maharani Kuer [1882] 5 All. 27. The passages quoted, if taken in their widest scope, might be considered to support this contention. But this question did not at all arise in that case and the observations could at the most be treated as obiter dicta. In that case one of several joint judgment-debtors had acquired only a partial interest in the decree and it was accordingly held that there had been no extinguishment of the right to execute it. Thus it was a case where the decree had been transferred to one of the judgment-debtors and also where the whole decree had not been transferred. The present case is just the converse. Mt. Asia Bibi was the decree-holder entitled to recover the whole amount against the estate of Faqir Bux in the hands of his heirs, including her husband Abdul Rauf. Where the decree was transferred to her she had no concern in the eyes of the law with any of the judgment-debtors. The subsequent death of Abdul Rauf only, made her inherit a part of the share which Abdul Rauf had got in the assets o Faqir Bux. This inheritance did not make her jointly arid personally liable for the payment of the whole decree which he held. We are accordingly of opinion that her right to execute the decree was not extinguished simply because she become an heir to one of the heirs of the original judgment-debtor. Bat inasmuch as part of the assets of the original judgment-debtor became vested in her by operation of law she was bound to give credit for a proportionate amount of the decree and accordingly the amount had to be reduced I pro tanto.

6. There is another aspect of the case which also might strengthen the position of the appellant. The d3crea under Order 34, Rule 6, was passed not against Faqir Bux, the original mortgagor but against his heirs. In the application for the preparation of the decree the prayer was for a decree against the assets of the deceased Faqir Bux in the hands of his heirs which were specified. The Court ordered that the application be allowed with costs and a personal decree be passed as prayed. The decree was however drawn up on a printed form which is generally applicable to original mortgagors who are alive, and did not in the operative portion of it expressly state that the amount was to be realized out of the assets in their hands. It may further be mentioned that later on, on 6th September 1929, the execution Court directed that the decree should be executed by the sale of the entire assets of Faqir Bax, and not of scares in the Viands of his individual heirs.

7. If the decree were to be treated as a decree against the assets of Paqir Bux in the hands of his heirs, then it would be obvious that these heirs were not jointly and personally liable to pay the amount. Their liability would be limited to the xtent of the assets, if any, which they received. The case would then be analogous to a mortgage decree for sale of mortgaged property in which no personal liability was involved. The substitution of the expression 'for the payment of money, for the words for money' in the proviso in the new Code was intended to emphasize that the proviso was confined to cases of personal decrees. This proviso would therefore not apply to the facts of this case. We however do not consider it necessary to decide whether the form in which the decree was actually prepared, even though wrong, was one of a personal decree against the heirs of Faqir Bux.

8. There was a second death, namely, that of Abdul Rauf, and even if there had been a personal decree against Abdul Rauf, that personal liability has not devolved on his wife, Mt. Asia Bibi. Therefore Mt. Asia Bibi can execute her decree in spite of the fact that she has become an heir to the estate of Abdul Rauf, and will take her legal share in it, subject to any liability which had previously existed. On the question whether the proviso can at all apply to a decree against an estate as distinct from decree against the persons of the judgment-debtors there has been a conflict of opinion between the Bombay and the Madras High Courts. In the case of Panachand Pomaji Marwadi v. Sundrabai [1907] 31 Bom. 308, the Bombay High Court, in a Case which arose under the corresponding Section 232 of the old Code, held that the proviso applied only where in the decree there was a distinct order upon the defendants personally to pay the money. In the case of Sadagopal Aiyangar v. Sellammal A.I.R. 1922 Mad. 510, the Madras High Court appears to have doubted the Bombay ruling. Bat according to the facts as stated in the reported judgment, the decree in that case was one for the payment of money against defendant 1 and three others, and defendant 1 was directed by the decree to pay the amount out of his family property. It was thought that this direction did not make tine decree any the less a decree for the payment of the money against him. If the decree was primarily one for payment of money against the four defendants, the judgment was perfectly correct. The Case of Abdul Kadir Sahib v. Abdul Kadir Marakayar A.I.R. 1926 Mad. 1141, is a single Judge's decision, which certainly supports the respondents. In that case the decree had been assigned in 1919, and later on the assignee of the decree became one of the heirs of defendant 1.

9. The objection of the other defendants that the decree had ceased to be executable was allowed, and the observations made in Banarsi Das's case [1882] 5 All. 27 were relied upon. Bat this case appears to have been distinguished by a Division Bench of the same High Court in the case of Subramanian Chetty v. Kasi Chetty : AIR1927Mad937 . The judgment does not make it quite clear on what basis the single Judge's decision, was really distinguished. We have already pointed out that there too the assignee of the decree-holder had become an heir to the estate of one of the defendants long after the assignment in his favour. The fact however, remains that a Division Bench of the same High Court came to the conclusion that where the plaintiff had obtained a money decree against his father, who had also a grandson, and the father died during the attachment of his property, the plaintiff becoming one of his heirs, he was nevertheless entitled to execute the decree against the half share of the house in the occupation of the grandson. The fact that the decree-holder had become entitled to a half share in the property of the judgment-debtor which had been attached did not, in the opinion of the learned Judges, make the proviso appli7 cable to that case.

10. We are clearly of opinion that the proviso cannot apply to a case where the decree-holder by inheritance acquires an interest in the estate of one of the judgment-debtors. In such a case at no time the decree can be said to have been transferred to a person who is one of two or more persons against whom a decree for the payment of money exists. The omission of Hasina Bibi, in this case, assumling that she was one of the heirs of Faqir Bux would not be fatal to the application. The utmost that could happen would be that her interest in the estate would have to be excluded and the decree-holder would have to submit to a further reduction in the amount of the decree on the basis of Hasina Bibi also being one of the heirs. The question whether she was one of the heirs can be raised by one of the objectors, if they want to get the amount of the decree reduced. The original judgment-debtor was a Mahomedan, and the devolution of shares would admittedly be according to the Mahomedan law.

11. We accordingly allow this appeal, direct that the application for execution be amended as asked for and the objections of the judgment-debtors disallowed to that extent, and send the case back to the Court below for disposal in the, light of the observations made by us. The order dated 6th September 1929 is not hereby cancelled. If the objectors wish to raise any objections as regards the saleability of the new items of property they will be at liberty to do so. As the Court below considered that the amendment of the application for execution by the addition of some new property was sought at a late stage, we think that the parties should bear their own costs of the proceedings in the Court below subsequent to 18th November 1929. The appellant will have the costs of this appeal from the respondents.


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