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Harekrushna Harichandan Mohapatra Vs. Dolgovinda Sahu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 3 of 1961
Judge
Reported inAIR1964Ori182
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48 - Order 21, Rule 11 - Order 41, Rule 1
AppellantHarekrushna Harichandan Mohapatra
RespondentDolgovinda Sahu
Appellant AdvocateL.K. Dasgupta and ;G.N. Sengupta, Advs.
Respondent AdvocateB.K. Pal and ;S.C. Mohapatra, Advs.
DispositionAppeal allowed
Cases ReferredUjagar Singh v. Kahan Singh
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' (esibai krok samae jaha nisana debu tana). 2. it is unnecessary, for the purpose of this appeal to narrate in great detail the various unsuccessful efforts made by the decree-holder first to attach the khandayet jagir, then again to attach the moveables, and eventually to appoint a receiver. objections were taken sometimes even upto the high court stage, but the decree-holder was uniformly unsuccessful. dasgupta, it is now well settled, following the observations of the supreme court in state of west bengal v......money filed on 8-9-1959 must, in the eye of law, be deemed to be a mere continuation of the original execution petition, dated 24-5-1941 and that consequently section 48 of civil procedure code will not operate as a bar. he invited my special attention to the fact that in the earlier execution petition of 1941 apart from specifying certain moveables of the decree-holder expressly referred to the fact that there were other moveable properties which could be identified at the time of attachment. according to mr. pal this residual clause in that application should be so construed as to include all moveable properties which may in future come into the possession of the judgment-debtor and that the decree-holder would be entitled to apply for attachment of such moveables at any time.....
Judgment:

Narasimham, C.J.

1. This is a second appeal by the judgment-debtor against the appellate judgment of the subordinate Judge of Puri, maintaining the judgment of the Munsif, Puri and dismissing the judgment-debtor's objection to the attachment of the compensation money payable to him by the State of Orissa under the provisions of the Orissa Estates Abolition Act, consequent on the abolition of his jagir known as Khandayat Jagir. The decree was obtained on 28-7-1929 for a sum of Rs. 851-15-6, including costs, and it is urged that notwithstanding repeated executions nothing has been realised till now. The previous execution petition was filed on 24-541 in which there was also a prayer for attachment of the moveable properties ofthe judgment-debtor. A list of such moveable properties was given in that petition and it was further stated; 'Besides these articles also other articles which would be identified at the time of attachment.' '(Esibai Krok Samae Jaha Nisana Debu Tana).

2. It is unnecessary, for the purpose of this appeal to narrate in great detail the various Unsuccessful efforts made by the decree-holder first to attach the Khandayet Jagir, then again to attach the moveables, and eventually to appoint a receiver. Objections were taken sometimes even upto the High Court stage, but the decree-holder was uniformly unsuccessful. It was held by the High Court that Khandayet Jagir was inalienable and hence not attachable being a jagir granted by Government for the performance of certain public functions even though in fact such performance might have fallen into disuse. The decree-holder was not however without resource. As soon as the Jagir was abolished under the provisions of the Estatas Abolition Act and the compensation Was estimated by the Compensation Officer as payable to the Jagirdar, viz. the judgment-debtor, the decree-holder filed a petition before the Executing Court on 8-9-59, praying for attachment of the compensation money in satisfaction of the decree. The judgment-debtor immediately objected, but his objection was overruled on the ground that the protection from non-attachability (?) of the jagir will not be transferable to the compensation money and that there was no reason why it should not be attached. This is the sole point for decision in this appeal.

3. Mr. Dasgupta for the appellant (judgment-debtor) raised the fallowing two contentions:

(i) The compensation money is nothing else but the original jagir transformed into money and hence the special incidents of the jagir such as non-attachability will also be transferred to the compensation money.

(ii) In any case the application will be barred under Section 48 of the Civil Procedure Code, because the compensation money is a new item of property, and any prayer for its attachment must be considered to be a fresh application for the purpose of that section. These two arguments are somewhat mutually destructive but I think the second contention must prevail.

4. So far as the 1st contention is concerned, Mr. Dasgupta relies very much on Ravu Janardhana Krishna Ranga Rao v. State of Madras, AIR 1953 Mad 185 where it was held, following some English decisions, that if the original estate was inoperative the compensation money payable for the abolition of the estate will also be impartible because compensation money is nothing else) but a piece of land represented by a sum of money, and that the principle of conversion would not alter the quality or nature of the estate (see paragraph 12). But this principle cannot be extended to Jagirs which are held to be not attachable on grounds of public policy because certain public duties were expected to be performed by the jagirdars. The impartiality of an item of property is mainly based on family custom and the persons directly affected are the various heirs of the deceased. In the case of jagir lands however where public duties are attached to the same (even though these duties might not have been strictly enforced for several years) the non-attachability is based on grounds of public policy; see Antarjyami Naik v. B.B. Rath, AIR 1941 Pat 216. Compensation money payable to a jagirdar consequent on the abolition of a jagir cannot obviously be preserved intact from generation to generation, and it is difficult to conceive how' it could be impressed with the same incidents which were attached to the original tenure. In the absence of clear authority, I am not inclined to stretch the principle for impartible property to jagirs held for performance of public duties also.

5. Turning now to the second contention of Mr. Dasgupta, it is now well settled, following the observations of the Supreme Court in State of West Bengal v. Mrs. Bela Banerji, AIR 1954 SC 170, that the expression 'compensation' means 'the just equivalent of what the owner has been deprived of'. It must necessarily be a distinct and separate item of property though it may be a just equivalent Hence, an application for attachment of the compensation money must be treated to be a fresh application and as that application was filed after the lapse of about 10(?) years from the date of the decree, it would be hopelessly time barred.

6. There are innumerable erosions of almost all the High Courts in India to the effect that an application for execution in respect of a new item of property of a judgment-debtor is a fresh application for the purpose of Section 48, C.P.C. see Ram Ranbijaya Prasad Singh v. Kesho Prasad Singh, AIR 1941 Pat 635, Gujanand Sha v. Dayanamd Thakur, AIR 1943 Pat 127; Dineshwar Prasad v. Deoniti Prasad, AIR 1959 Pat 199; Marulusiddapa v. Lakshmipati, AIR 1950 Mys 64; Noor Mohammad Khan v. Rameshwar Prasad Singh, AIR 1945 Oudh 84 and Kaibala Padhan v. Sanyasi Sasamala, AIR 1957 Orissa 5.

7. Mr. Pal for the respondent urged that this application for attachment of the compensation money filed on 8-9-1959 must, in the eye of law, be deemed to be a mere continuation of the original execution petition, dated 24-5-1941 and that consequently Section 48 of Civil Procedure Code will not operate as a bar. He invited my special attention to the fact that in the earlier execution petition of 1941 apart from specifying certain moveables of the decree-holder expressly referred to the fact that there were other moveable properties which could be identified at the time of attachment. According to Mr. Pal this residual clause in that application should be so construed as to include all moveable properties which may in future come into the possession of the judgment-debtor and that the decree-holder would be entitled to apply for attachment of such moveables at any time thereafter.

8. This argument appears to be farfetched. No doubt there are decisions to the effect that where there is a defect in the original application for execution which was filed within time, that defect could be cured by, filing an amendment petition subsequently event though such an amendment petition may be beyond the period of 12 years from the date of the decree. Thus in Hanamappa v. Ningappa, AIR 1948 Bom 116 it was held that the court had discretion to allow an amendment to the original execution, petition for the attachment and sale of a house even though in the original petition the prayer was for attachment and sale of certain landed properties. The principle of that decision appears to be that the original execution petition was still kept pending as no order for costs had been passed, and the court had discretion to allow the amendment under Order 21, Rule 17 C.P.C.

Similarly, in Nambutiiripad v. Brahmadathan Nambudiripad, AIR 1945 Mad 241, it was held that where defective application was admitted by the Court the prayer for amendment under Order 21, Rule 17 C.P.C. by the inclusion of some important properties may be lodged even after the lapse of 12 years from the date of the decree. The principle of this decision was that the court having accepted a defective execution petition was partly responsible for the delay and Court's negligence should not prejudice any party. In Subhas Chandra Deb v. Subhashini Debi, AIR 1959 Assam 25 also the same principle was followed.

9. This principle, however, has no application here. There was no defect in the original application for execution of the year 1941. Moreover in the subsequent application of the year 1959 for attachment of the compensation money the decree-holder did not ask for amendment of the original execution petition of 1941 by the addition of a new item of moveable property namely the compensation money. On the contrary, there is no reference whatsoever in that petition to the execution petition of 1941. Mr. Pal, however, contended that under Order 21, Rule 12, C.P.C. an inventory was required to be given only of the moveable properties of the judgment-debtor, not in his possession, and that as regards moveable properties of the judgment-debtor in his possession no list or inventory is required to be given by Rule 11 of that Order. Consequently it was always open to the decree-holder to add new items of moveable property whenever he is made aware of the existence of such property. But I think it is implicit in Rule 11 of Order 21 C.P.C. that the moveable properties of the judgment-debtor whose attachment is sought for, must have been in the possession of the judgment-debtor on the date of application for execution itself, even though the decree-holder might have become aware of this fact on a subsequent date This point is made clear in Gulab Chand Ram Lal v. Onkar Bhola, AIR 1960 Madh-Pra 187 which was cited by Mr. Pal himself. There their Lordships merely observed that as regards moveable properties in the possession of a judgment-debtor no list is necessary under Order 21, Rule 11 C.P.C. But to stretch this principle further and to say that any moveable property which may come intt. the possession of judgment-debtor at any future time may, be included in the original execution petition by way of an amendment seems quite unreasonable. Mr. Pal could not give any authority in support of such extreme contention.

10. On the other hand there are some observations in Ujagar Singh v. Kahan Singh, AIR 1955 Punj 247 against such view. There in the original execution petition field within time, though the prayer was made for attachment and sale of moveable and immoveable properties, a list of moveable properties alone was given. Subsequently: the judgment-debtor inherited some immoveable properties and there an application was made for including those properties in the original petition by way of amendment. The learned Judges rejected this application holding that such an application would be a fresh application and hence hit by Section 48 C.P.C. They observed :-

'It cannot be said that the present property whichis sought to be proceeded against was within even thecontemplation of the decree-holder because the propertywas not in possession of the judgment-debtor and hadnot therefore come into existence qua the judgment-debtor.'

These observations would apply with full force here also even though we are concerned with compensation money which is, moveable property whereas in the aforesaid Punjab case the observations were made in respect of immoveable property subsequently inherited by the judgment debtor. In 1941 nobody could have even contemplated that jagirs would be abolished in due course and that Government would give compensation money to the jagir dars. The compensation money was therefore not even within the contemplation of the jagirdar or the other party in 1941. It came into existence only near about 1950 when the Jagir was abolished. The amendment of the list of properties referred to in Order 21, Rule 17 must obviously refer to the properties of the judgment-debtor moveable or immoveable that were actually in his possession on the date of the original application, though the decree-holder's knowledge of the existence of those properties might have been obtained later on.

Mr. Pal could not cite even a single decision where property that was not in existence at the time of the original execution petition but which came into existence later on was included by way of an amendment to the original execution petition. In the aforesaid three decisions of Madras, Bombay and Assam High Courts the properties actually belonged to the judgment-debtor on the date of the execution petition itself though they were sought to be included later on.

11. For these reasons I would allow this appeal, set aside the judgment and decree of both the courts and dismiss the application of the decree-holder dated 8-9-1959 on the ground that it is a fresh application barred by Section 48 of the Civil Procedure Code. There will be no order for costs of this Court.

Das, J.

12. I agree.


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