Skip to content


Bhagirath Bhana Banjara Vs. Balkrishna Ganpat Neema Mahajan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 58 of 1958
Judge
Reported inAIR1960MP198
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(11), 47 and 50 - Order 22, Rule 12; Transfer of Property Act, 1882 - Sections 52
AppellantBhagirath Bhana Banjara
RespondentBalkrishna Ganpat Neema Mahajan and anr.
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateD.P. Vaidya, Adv. for Opponent No. 1 and ;Party in person for Opponent No. 2
DispositionPetition dismissed
Cases ReferredBellamy v. Sabine
Excerpt:
.....conviction of appellant is liable to be set aside. - these observations were made when the matter arose in execution of a decree for partition obtained against one narhi who died before the decree was satisfied and whose son and widow were not found to be in possession of the property in respect of which the decree was obtained. the plaintiffs obtained final decree for foreclosure in 1928 subsequent to this sale against the mortgagor as well as against nurul hassan and ram narain......means of a transaction of exchange. in the petition he called both rukhadoo and bhagirath as his legal representatives. bhagirath appeared on notice to him and contended that he could not be proceeded against as dalpat's legal representative. he however admitted the fact of exchange pendente lite.4. the executing court came to the conclusion that the applicant bhagirath cannot be brought on record as the legal representative of dalpat. it accordingly ordered the name of rakhadoo to be brought on record and rejected the application so far as bhagirath was concerned.5. on appeal by the decree-holder the learned additional district judge held that although bhagirath may not be the legal representative of dalpat to justify his being brought on record under section 50 of the civil procedure.....
Judgment:
ORDER

V.R. Newaskar, J.

1. The facts giving rise to this petition for revision are few and simple.

2. Opponent Balkrishna obtained a mortgage decree against Dalpat. While this suit was pending Dalpat exchanged the mortgaged property with another property belonging to the present applicant Bhagirath. This exchange was ejected after due sanction of the Revenue Authorities and the mutation of names was effected accordingly. Balkrishna after obtaining the mortgage-decree 'sought execution thereof against Dalpat. As the decree-holder sought sale of an agricultural holding the decree was transferred to the Collector. After the transfer of the decree to the Collectorate Dalpat died. Thereupon the Deputy Collector Khargone who was dealing with the execution sent back the decree along with the information regarding Dalpat's death.

3. Thereupon an application was submitted on behalf of the decree-holder for continuing the execution against his minor son Rukhadoo with his mother Gogalibai as his guardian and also against Bhagirath to whom the mortgaged land had been made over by Dalpat by means of a transaction of exchange. In the petition he called both Rukhadoo and Bhagirath as his legal representatives. Bhagirath appeared on notice to him and contended that he could not be proceeded against as Dalpat's legal representative. He however admitted the fact of exchange pendente lite.

4. The executing Court came to the conclusion that the applicant Bhagirath cannot be brought on record as the legal representative of Dalpat. It accordingly ordered the name of Rakhadoo to be brought on record and rejected the application so far as Bhagirath was concerned.

5. On appeal by the decree-holder the learned Additional District Judge held that although Bhagirath may not be the legal representative of Dalpat to justify his being brought on record under Section 50 of the Civil Procedure Code with a view to continue the execution proceedings against him, he could be considered to be an assignee of the interest of the judgment-debtor within the meaning of Order 22 Rule 10 C.P.C. He further held relying upon what he mentioned as the majority view that Order 22 Rule 10 can properly apply to execution proceedings. He therefore directed Bhagirath being brought on record as the transferee of the interest of the mortgagor Dalpat.

6. The present petition is directed against that decision.

7. Mr. Sanghi for the petitioner contended that Bhagirath in no sense can be called the legal representative of Dalpat. He is neither the heir nor can be called a person who intermeddles with the estate of the deceased within the meaning of the term as used in the definition of the word legal representative as given in Section 2(11). The learned counsel relied upon the decisions reported in Ramprasad v. Jamnaprasad, AIR 1952 Madh Bha 153 and Kisanlal Motilal v. Bhika Gangaram AIR 1949 Nag 171, in support of his contention that a person who holds the property on his own account and not as representing the estate of the deceased (wrongly though) cannot be called an intermeddler.

8. The decree-holder no doubt has sought to implead Bhagirath as the legal representative of Dalpat and the first question to be considered is whether Bhagirath can be called Dalpat's legal representative even in the sense that he intermeddled with the estate of the deceased. There is considerable authority for the proposition that inorder to constitute a person an intermeddler, it isessential, that there should be intention on his partto act as a legal representative and to represent the estate of the deceased, and that where a per-son does not purport to represent the estate of the deceased out claims it as a trespasser or on his own title he does not become an intermeddler within the definition of the term as given in Section 2(11) C.P.C., vide AIR 1949 Nag 171, Natesa v. Alamelu, AIR 1950 Mad 541 (543-44), AIR 1952 Madh Bha 153. But contrary authority is also not wanting. In Baliram v. Mukinda, AIR 1951 Nag 145 (148), however Hidayatulla J., expressed the opinion that the word intermeddler has been used in its ordinary meaning of a person who meddles with the property of another without any right thereto and at least in executions where a decree has been legally obtained against the property the intermeddler must be treated as a legal representative for the purposes of continuance of execution under Section 50 C. P. C. These observations were made when the matter arose in execution of a decree for partition obtained against one Narhi who died before the decree was satisfied and whose son and widow were not found to be in possession of the property in respect of which the decree was obtained. It was discovered that his brother's sons were in possession.

The question was whether latter could be proceeded against as legal representatives of Narhi. It is not clear whether the transfer of possession was during pendency of partition suit. If it was, then under Section 52 of the Transfer of Property Act and on the authority of the decision in Lilidhar Uttamchand v. Shiwaji Ganesh, AIR 1938 Nag 125, the decree could be executed against the transferee. If on the other hand the possession had been with them from before the institution of the partition suit it is difficult to see how they become legal representatives of Narhi.

9. But the crucial question which arises in a matter as the present is not whether a person in possession of the property which at one time was the property of the deceased should or should not be called a 'legal representative' of the deceased within the meaning of the term as used in the Civil Procedure Code but it is whether the decree in fact can be executed against the property in his hand. It is this latter question which is material for the purpose of the present case. Because if the execution can proceed against the property then by what name he is called and in what character he is impleaded and given opportunity to have his say, is immaterial. This question has been answered by their Lordships of the Privy Council in Parmeshari Din v. Ram Charan, AIR 1937 PC 260. The facts were as follows :

Plaintiffs who were the mortgagees of certain properties filed a suit for foreclosure in the year 1923 against the mortgagor, Nurul Hassan and Ram Narain. In 1924 Nurul Hassan created a usufructuary mortgage of that property in favour of one Parmeshari Din and later in 1928 he sold the equity of redemption to the same person. Actual possession of the property was with Parmeshari Din. The plaintiffs obtained final decree for foreclosure in 1928 subsequent to this sale against the mortgagor as well as against Nurul Hassan and Ram Narain. The plaintiffs sought execution against the property in the hand of Parmeshari Din. This was objected to by the latter. Their Lordships considering his objection observed: 'It is then said that the appellant was not a party to the decree which is sought to be executed against him. But he took the property from the defendant pendente lite and must be treated as his representative-in-interest. He is bound by the result of the decree. If he had not obtained possession of the property from the defendant, the latter would have been required to deliver it to the plaintiffs. And the mere circumstance that he got possession from the defendant in pursuance of a transfer, which was invalid as against the plaintiffs, cannot detract from their rights under the decree. As observed by Cranworth, L.C. in Bellamy v. Sabine, (1857) 1 De G and J 566, 'pendente lite neither party to the litigation can alienate property in dispute so as to affect his opponent'' the decree-holders are, therefore, entitled to execute the decree against the appellant, who is the representative of their judgment-debtor.'

10. The aforesaid observations apply fully to the circumstances of the present case and following them it is clear that Bhagirath ought to be held to be representative-in-interest who is bound by the decree and the execution can properly proceed against him. The decision of the lower court directing him to be impleaded ought to stand.

11. The petition therefore ought to be dismissed with costs


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //