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Sant Ram Vs. Atma Singh - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Reported inAIR1948P& H8
AppellantSant Ram
RespondentAtma Singh
Cases ReferredLahore v. Mt. Rehmat Bibi A.I.R.
Excerpt:
.....if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in those oases it was clearly laid down that where a judgment-debtor dies after the passing of the decree, and his legal representatives are brought on the record in execution proceedings to represent him in respect of the decree, the questions which they raise as to property which they say does not belong to the assets of the judgment-debtor in their hands and as such is not capable of being taken in execution are questions which are governed by section 47 and therefore a separate suit does not lie. 8. the..........section 47, civil p.c., and that the suit for redemption was barred. the facts relating to the decree, in execution of which the house was attached and sold are not denied and they are as follows:2. one dharma sued bala father of sant. ram for a specific sum of money. rala died during the pendency of the suit on which sant ram was brought on the record as his legal re presentative. a decree was passed in dharma's-favour against sant ram but recoverable out of rala's estate on 27-1 1988. later on, dharma assigned the decree in favour of atma singh who sued out execution and attached the house, which is the subject-matter of the dispute in the present case, as rala's property. in the auction sale that ensued atma singh himself bought the house on 7-7-1941.3. the trial sub-judge.....
Judgment:

Teja Singh, J.

1. This second appeal arises out of a suit for redemption based on a mortgage of 21-2-1936 made by Sant Ram son of Rala in favour of Atma Singh. Sant Ram, who was the plaintiff in the case, contended that though the mortgage was for Rs. 90 he was entitled to redeem the house on payment of Rs. 10 only, because the defendant had removed the malba of the house which was worth Rs. 8o. Atma Singh defendant admitted the factum of the mortgage but denied the plaintiff's right to redeem. The position taken up by him was that the house had been sold at a court-auction in execution of & money decree against Rala, to whom it originally belonged and since the sale had been knocked down in his (Atma Singh's) favour the equity of. redemption no longer remained vested in. Bant-Ram. He also raised a technical objection that. Sant Ram being a party to the suit in which the decree in question was passed his proper remedy was to object under Section 47, Civil P.C., and that the suit for redemption was barred. The facts relating to the decree, in execution of which the house was attached and sold are not denied and they are as follows:

2. One Dharma sued Bala father of Sant. Ram for a specific sum of money. Rala died during the pendency Of the suit on which Sant Ram was brought on the record as his legal re presentative. A decree was passed in Dharma's-favour against Sant Ram but recoverable out of Rala's estate on 27-1 1988. Later on, Dharma assigned the decree in favour of Atma Singh who sued out execution and attached the house, which is the subject-matter of the dispute in the present case, as Rala's property. In the auction sale that ensued Atma Singh himself bought the house on 7-7-1941.

3. The trial Sub-Judge overruled the technical objection raised by Atma Singh defendant and granted Sant Ram a decree for redemption of the house on payment of Rs. 90. The Senior Subordinate Judge on appeal affirmed the finding of the lower Court that the charge on the mortgaged property amounted to Rs. 90, but he dismissed the suit holding that it was barred by virtue of Section 47, Civil P.C.

4. It is argued on behalf of the appellant that in spite of the fact that he was impleaded as a defendant in the suit brought against his father by Dharma he was not bound to raise an objection in the execution proceedings against the attachment and liability to the sale of the house, because his father had no right, title or interest in the house. In support of his contention the learned Counsel referred me to a Division Bench decision of the Patna High Court reported in Lachhmi Lal v. Firm Shriniwas Ram Kumar A.I.R.1939 Pat.354. It was held in that case that where a person who has two capacities, one as representative of the judgment-debtor and another as his personal capacity comes forward and objects in his personal capacity that the property is his own personal property there is no reason why he should be limited to the objection under Section 47. A different view was, however, taken by a Division Bench of the Lahore High Court in Bhagat Ram v. Nizam Din A.I.R.1921 Lah.173. There a money decree was passed against one Imam Din and a house that was alleged to belong to him was attached in execution proceedings. The heirs of Imam Din who had been brought on record as his legal representatives objected to the sale on the ground that the property in question belonged to them and Imam Din had no right, title or interest in it. Their objection was disallowed and on this they brought a suit for a declaration that the house belonged to them and it had been wrongly sold in execution of the decree. It was held that the suit was not competent. After referring to a number of cases this is what the learned Judges said:

In those oases it was clearly laid down that where a judgment-debtor dies after the passing of the decree, and his legal representatives are brought on the record in execution proceedings to represent him in respect of the decree, the questions which they raise as to property which they say does not belong to the assets of the judgment-debtor in their hands and as such is not capable of being taken in execution are questions which are governed by Section 47 and therefore a separate suit does not lie. It matters little whether the proceedings in execution had come to an end a d the property had been sold. To hold that Section 47 should apply only to a case where the execution proceedings are pending would be reading something into the section which is not there and stultifying its provisions.It is correct that in the present case Sant Ram's father died before the decree and Sant Ram was impleaded as a defendant during the pendency of the suit, but this should not make any difference so far as the application of Section 47 is concerned. On the other hand, I am inclined to think that it attracts the provisions of the section with greater force, because it was against Sant Ram that the decree was passed though the amount was held recoverable out of his father's assets, and as such he was a party to the suit in the real sense of the word.

5. This question came up for discussion before the High Court of Lahore, in two later cases. The first is Lloyds Bank Ltd, Lahore v. Mt Rehmat Bibi A.I.R.1939 Lah.51 decided by Dalip Singh, J. The case related to the execution of mortgage decree and the question was whether an objection by a legal representative of the mortgagor, who had been made a party to the proceedings in that capacity, that the property against which the decree had been passed belonged to the legal representative, and not the mortgagor, and Was therefore not liable to sale in execution of the decree, came within the purview of Section 47. The learned Judge while answering the question in the affirmative made the following observations:

It is true that the decree has directed the sale property in mortgage decree but this decree is final only between the parties to suit and the legal representative who wishes to raise an objection to the Bale in her own right does not appear to me to be bound by the decree in the same way as a party is. The question, therefore, in purely one of procedure. It is conceded on all hands that in the case of a money decree when the legal representative raises an objection to the sale of property based on her own right such objection can be dealt with and is properly dealt with only under Section 47 and a separate suit is barred. I am unable to see why the same procedure should not be followed in the case of a mortgage decree.Then the learned Judge Went on to say that by applying Section 47 to a case of the kind no inconvenience resulted and no real difficulty arose, but we are not concerned with all that in the present case.

6. The next case is Lloyds Bank Ltd., Lahore v. Mt. Rehmat Bibi A.I.R.1939 Lah.178 decided by a Bench consisting of Addison and Abdul Rashid JJ. As regards the application of Section 47 to an objection by the legal representative of a mortgagor in execution of a mortgage decree the learned Judges took a view different from that of Dalip Singh, J. in the case mentioned above. But so far as a money decree is concerned, their opinion was the same as his. The following passage appearing in their judgment may be quoted with advantage:

It appears to us that there is a clear distinction between a money decree and a mortgage decree, even in case where the legal representative of the judgment-debtor raises an objection which was not open to the judgment-debtor but which is based on an independent title of the legal representative. In the case of money decree it is for the executing Court to determine how the decretal amount is to be recovered from the judgment-debtor and which property, if any, has to be sold in execution of the decree.7. The appellant's counsel also drew my attention to Dareppa Alagonda v. Mallappa Shivalingappa : AIR1947Bom307 . That was also a case relating to a mortgage decree and as was held in Lloyds Bank Ltd., Lahore v. Mt. Rehmat Bibi A.I.R.1939 Lah.178, the principles governing the execution of such a decree do not apply to that of a money decree. No doubt the Patna case is in favour of the appellant, but with all deference I prefer to follow the view taken by the Lahore High Court.

8. The result is that the appeal must fail and is dismissed. In view of the difficult nature of the question involved it is directed that the parties shall bear their own costs throughout.


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