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Bhagwan Singh and anr. Vs. Kulwinder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 429 of 1971
Judge
Reported inAIR1974P& H5
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rules 85 and 86
AppellantBhagwan Singh and anr.
RespondentKulwinder Singh and ors.
Cases ReferredIn Swaran Singh v. Ramditta
Excerpt:
.....of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind..........of the original mortgage the same was barred by time.3. during the pendency of the regular second appeal filed by these 13 persons. four of them died and their legal representatives were not brought on the record within the time by the surviving appellants. the learned single judge held that the appeal abated as a whole. this conclusion was not affirmed by the letters patent bench. various decisions on the point were discussed and it was felt that inasmuch as each of the 13 plaintiffs had an independent right to get the redemption of his own share in the property claimed, they could have brought 13 different suits and the decision in one suit could have no bearing on the decision in the other and, therefore, by not bringing on the record the legal representatives of the four plaintiffs,.....
Judgment:

1. This appeal under Clause 10 of the Letters Patent arises out of an execution first appeal decided by the learned Single Judge. In execution of a decree obtained by Bhagwant Singh, who is since dead and is represented by his legal representatives, for the recovery of money amounting to Rs. 2,208-89 the property in dispute was put to auction. The highest bidder deposited one fourth of the amount at the spot and later he deposited the remaining 75% amount also. The sale was subsequently confirmed on 31st August, 1964. There were eight persons who were entitled to the property which was the subject-matter of the sale. Four out of them, namely, Bhagwan Singh Gurdial Singh, Surjan Singh and Arjan Singh, hereinafter referred to as the plaintiffs judgment-debtors, filed an application under Section 47. Civil Procedure Code, impleading the other four as respondents, alleging that the sale was void inasmuch as 75% of the balance was not deposited within the time prescribed under Order 21, Rule 85. Civil Procedure Code (hereinafter referred to as the Code). The Executing Court did not find in favor of the objectors and dismissed the application.

An execution first appeal (E. F. A. 458 of 1965) was filed by all these four judgment-debtor-objectors. During the pendency of the appeal two of them, namely, Gurdial Singh and Surjan Singh died and their legal representatives were not brought on the record within the prescribed time. The learned Single Judge felt that the appeal abated as a whole and dismissed the same. Being aggrieved against this, Bhagwan Singh and Arjan Singh the two surviving appellants, filed the present appeal.

The main argument of the learned counsel for the appellants was that each one of the judgment-debtors, including the four who had filed the application under Section 47 of the Code, had an independent right to question the sale as a whole on the ground that the provisions of Order 21. Rule 85 of the Code had not been complied with. Order 21, Rule 85 of the Code provides as follows:-

'The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:..............'

Rule 86 of the said Order 21 is to the following effect:--

'In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.'

In view of the independent right of every one of the judgment-debtors to challenge the validity of the entire sale, it was urged that the mere fact that two of the appellants are not on the record inasmuch as their legal representatives have not been brought on the record, would not make any difference to the maintainability of the appeal by the remaining two.

2. Reliance was placed by the learned counsel inter alia on a Bench decision of this Court, to which one of us was a party, in Parbhati v. Lalji Mal, L. P. A. 721 of 1970, decided on 2-3-1972(Punj). In that case the equity of redemption had come to be inherited by two branches of the mortgagor. One branch got the mortgage redeemed by paying the entire amount. A suit was brought by 13 members of the second branch claiming redemption of one-half by payment of the proportionate amount to the other branch. The suit was dismissed by the lower appellate Court on the plea that the suit having been brought more than 60 years after the date of the original mortgage the same was barred by time.

3. During the pendency of the regular second appeal filed by these 13 persons. Four of them died and their legal representatives were not brought on the record within the time by the surviving appellants. The learned single Judge held that the appeal abated as a whole. This conclusion was not affirmed by the Letters Patent Bench. Various decisions on the point were discussed and it was felt that inasmuch as each of the 13 plaintiffs had an independent right to get the redemption of his own share in the property claimed, they could have brought 13 different suits and the decision in one suit could have no bearing on the decision in the other and, therefore, by not bringing on the record the legal representatives of the four plaintiffs, the right of those plaintiffs only to get their share was lost but that did not affect the right of the remaining plaintiffs. However, the Bench did not finally decide this point, because on the question of limitation it was felt that the suit having been brought more than 60 years from the date of the original mortgage, was liable to be dismissed and so was their appeal, and thus no firm finding was given on the question of abatement. This case, therefore, can hardly be of any assistance to the appellants.

4. Apart from that, the facts of the present case can be clearly distinguished from those in Parbhati's case, L. P. A. No. 721 of 1970, D/- 2-3-1972(Punj). Here there was only one indivisible right which vested in the judgment debtors, namely, to have the sale set aside. No doubt objection could be raised even by one of them and if the objection found favour with the trial Court, the entire sale and not the sale only qua the share of the objector would have been set aside. Here only four of the judgment-debtors filed the application and the remaining four were impleaded as respondents. The matter whether the sale was void or otherwise under the provisions of Order 21. Rules 85 and 86 of the Code, was gone into by the Court concerned and a finding adverse to the objectors had been given. This decision of the trial Court, which was adverse to the objectors, became final as between the deceased objectors on the one hand and the decree-holder and the auction purchaser on the other. Although the surviving objector-appellants may have an independent right to challenge that very sale, yet if the appeal is proceeded with, there is a likelihood of a finding being given in the appeal which will be contradictory to the decision which has become final against the deceased objectors with regard to the same matter, namely, the validity or otherwise of the sale. In other words, according to the decree as against the deceased objectors the sale has to be treated as valid where as with regard to the other objectors the sale may ultimately be found to be invalid. As already indicated, the sale can be valid or invalid as a whole. It is not possible to declare the sale qua the share of the deceased objectors as valid and qua those who have survived as invalid.

5. There is another way of looking at the thing. Supposing only two deceased objectors had filed an application and that had been dismissed. Could the remaining two bring another application thereafter, challenging the same sale on the same grounds? The obvious answer is that they could not and they cannot achieve the same result by joining the remaining two and later on saying that it is not necessary to bring the legal representatives on the record after the death of those two. The observations of their Lordships of the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 SC 89 at p. 91, which were quoted in Parbhati's case, L.P.A. No 721 of 1970(Punj), may usefully be reproduced here:--

'The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatment of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. We do not consider this view correct.

... ... ... ... ... ...'

6. In Swaran Singh v. Ramditta, ILR (1968) 2 Punj and Har 660 = (AIR 1969 Punj 216) a Division Bench of this Court thoroughly discussed this matter of abatement. That was a case where one of the respondents had died. It was held that the Court will not proceed with an appeal where the success of the appeal may lead to the Court's coming to a decision which may be in conflict with the decision between the appellants and the deceased respondent and would, therefore, lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellants and the deceased respondent.

7. This principle will apply to the present case, because, as we have discussed above, if the present appeal with two of the surviving objectors is proceeded with, it is likely to lead, in case of success of the appeal, to a decree contradictory to another decree relating to the same sale which has become final between the deceased objectors on the one hand and the auction-purchaser and the decree-holder on the other.

8. For the reasons given above, we find that there is no force in this appeal and dismiss the same with no order as to costs.

9. Appeal dismissed.


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