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Sansar Chand Mela Ram Vs. Sham Lal Dhanpat Rai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 412 of 1956
Judge
Reported inAIR1957P& H307
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 144 and 151 - Order 6, Rule 2
AppellantSansar Chand Mela Ram
RespondentSham Lal Dhanpat Rai and anr.
Appellant Advocate K.C. Nayar, Adv.
Respondent Advocate H.L. Sibal, Adv.
DispositionAppeal dismissed
Cases Referred and Bur Singh v. Anjuman Dehi Sohal
Excerpt:
.....court which executed the decree. i fail to understand why the position should have worsened by the executing court having wrongly placed the decree-holder in possession. section 47 civil procedure code, applies as well to a dispute arising between the parties contemplated by that section in relation to the execution of a decree after it has been executed, as it would be to a dispute between such parties relating to the execution of the decree before it had been executed. as the order itself clearly indicates, the executing court did proceed to decide the application treating it as one under section 47, civil procedure code......the same side and between whom there was no conflict in the suit. where any dispute arises between codecree-holders, without in any way affecting the rights and liabilities of the judgment-debtor, the dispute is not hit by section 47 and cannot, therefore, be adjudicated upon by the court executing the decree.the same principle would apply to a dispute which arise between one of the joint decree-holders and the representative of the other. similar-ly, the section can have no application to a dispute which is confined as between the co-judgment-debtors and in which the decree-holder is, by no means, interested. however, i do not agree with the learned counsel that the present is a case of this nature.here, the transferee from one of the decree-holders and thus his.....
Judgment:

Chopra, J.

1. The only point involved in this second execution appeal is with respect to the application of Section 47 Civil Procedure Code.

2. In a partition suit, Sansar Chand appellant and Jawahar Lal obtained a joint decree for possession against Sham Lal respondent. According to the terms of the decree, they jointly were to get possession of a room on the ground-floor and another on the first-floor of the building in question. Sansar Chand on his own behalf and for the benefit of his co-decree-holder, Jawahar Lal, took out execution of the decree on 30th August, 1954. The usual warrant was issued, Sansar Chand was placed in possession of the property on 10th October, 1954.

3. Only a few days before the execution application was presented, viz, on 20th August 1954, Jawahar Lal had transferred by gift his share of the decretal house in favour of Sham Lal, the judgment-debtor. The very day the execution was taken out, Sham Lal objected to the execution of the decree by Sansar Chand, on the basis of the gift in his favour. It was submitted that Sansar Chand was not entitled to separate possession, but only to joint possession with the judgment-debtor. No action was taken on his objection, except that a notice for 20th November 1954 was issued. In the meantime, Sansar Chand got exclusive possession of the house on 10th October, 1954. On 14th October, 1954, Sham Lal submitted another application on the same allegations praying that the possession delivered to Sansar Chand be restored back to him.

4. The executing Court held in favour of the judgment-debtor with respect to the factum and validity of the gift, but refused his prayer on the finding that the dispute was one arising between joint decree-holders and not between decree-holder on the one side and judgment-debtor on the other. Though not stated in so many words, what the executing Court meant to say was that for the said reason Section 47 Civil P. C. did not apply and therefore Sham Lal was not entitled to approach the executing Court for recovery of possession, his remedy being by way of a separate suit. Both the applications of Sham Lal were consequently dismissed.

5. In appeal by Sham Lal, District Judge, Jullundur upset the finding of the executing Court, held that Section 47 Civil Procedure Code was applicable and directed that 'the property in question should be delivered back to the judgment-debtor Sham Lal.' Sansar Chand has now come in appeal against this order.

6. Shri K.C. Nayar, learned counsel for the appellant, contends that Section 47, Civil Procedure Code is not applicable for two reasons, (i) that the dispute is not one arising between the parties to the suit, and (ii) that the dispute does not relate to the execution, discharge or satisfaction of the decree, On the first point, his contention is that Sham Lal by obtaining the gift in his favour.became the representative-in-interest of Jawahar Lal and was thus relegated to the position of a decree-holder. Any dispute relating to or on the basis of that gift between him and Sansar Chand would be a dispute arising between the two joint decree-holders.

One of the essential ingredients of Section 47 Civil Procedure Code is that the question for decision of the executing Court must have arisen 'between the parties to the suit,' which means that the one should have been arrayed against the other in the suit. Mr. Nayar, therefore, concludes that a dispute between two joint decree-holders or between one of the decree-holders and the representative of the other would not fall within the requirements of Section 47. In support of his argument the learned counsel relies upon a number. of authorities, Annamalai Mudali v. Ramaswami-mudali AIR 1941 Mad 161 (FB) (A), Bagyalaksh-mi Ammal v. Bappu Aiyar, AIR 1946 Mad 90 (B); Munshi Rai v. Rup Narain, 103 Ind Cas 724 (2): (AIR 1927 Pat 288) (C); and Siva Parva Tham-ma v. Krushna Chandra, AIR 1956 Orissa 53 (D).

7. So far as the position of law is concerned, there seems to be no dispute. Section 47 Civil Procedure Code can have no application where the question for decision is one which arises exclusively between the parties arrayed on the same side and between whom there was no conflict in the suit. Where any dispute arises between codecree-holders, without in any way affecting the rights and liabilities of the judgment-debtor, the dispute is not hit by Section 47 and cannot, therefore, be adjudicated upon by the Court executing the decree.

The same principle would apply to a dispute which arise between one of the joint decree-holders and the representative of the other. Similar-ly, the section can have no application to a dispute which is confined as between the co-judgment-debtors and in which the decree-holder is, by no means, interested. However, I do not agree with the learned counsel that the present is a case of this nature.

Here, the transferee from one of the decree-holders and thus his representative-in-interest is the judgment-debtor himself. The dispute, tho-ugh in respect of the interest so acquired by him, is one which arises between the decree-holder on the one side and the judgment-debtor on the other. In a way, the judgment-debtor has improved upon his position by acquiring the interest of one of the decree-holders. He is objecting to the execution on the basis of that acquisition. The objections are put forth in bis position of a judgment-debtor, the position which he still holds so far as the other decree-holder is concerned.

In other words, he does not divest himself of his character as a judgment-debtor by reason of the gift on behalf of one of the decree-holders in his favour, but retains the character of a party opposite to the other decree-holder. In any case, it cannot be. said that the judgment-debtor is not interested in or is not to be affected by the question that falls for decision. Liberal construction has always to be placed on the language of Section 47, Civil Procedure Code, so as to allow all execu-tion matters to be disposed of as cheaply and speedily as possible. Prosunno Coomar Sanyal v. Kasi Das Sanyal (19 Ind App 166 (PC) (E) ). In my judgment, the question is one which arises 'between the parties to the suit.'

8. On the second, ground, it is submitted that the decree had been completely satisfied, and therefore the question of restoration of possess-ion did not relate to execution, discharge or satisfaction of the decree. I do not see force in this contention either. In the first place, it shall be remembered that objections to the execution were raised by the judgment-debtor the very day the execution was taken out.

It was submitted that Jawahar Lal, one of the decree-holders, had parted with his interest in the decree and transferred it in favour of the judgment-debtor, consequently Sansar Chand,the other decree-holder, could claim nothingmore than joint possession with the judgment-debtor.

In spite of the objection, the execution was allowed to proceed and exclusive possession was delivered to Sansar Chand. The judgment-debtor then prayed for rectification of the error and for the restoration of possession, to which he was entitled. This could not be successfully met with the plea that since the decree had already been satisfied no relief to the judgment-debtor could be granted by the Court which executed the decree. So long as the possession was not delivered, it cannot be disputed, the executing Court was to deal with the objection of the judgment-debtor.

I fail to understand why the position should have worsened by the executing Court having wrongly placed the decree-holder in possession. The judgment-debtor was entitled to approach the Court to restore him to the possession of which he had been wrongly deprived, for the question still related to the execution, discharge or satisfaction of the decree. Section 47 Civil Procedure Code, applies as well to a dispute arising between the parties contemplated by that section in relation to the execution of a decree after it has been executed, as it would be to a dispute between such parties relating to the execution of the decree before it had been executed. Imad v. Jagan Lal, ILR 17 All. 478 (F); Collector 08 Jaunpur v. Bithal Das, ILR 24 All. 291 (G); and Bur Singh v. Anjuman Dehi Sohal, AIR 1936 Lah. 725 (H).

9. Admittedly, Section 144, Civil Procedure Code, has no application to the present case. The fact that the judgment-debtor described application as one under Section 151, Civil Procedure Code, did not preclude the Court from proceeding under Section 47, if that section was in fact applicable. A litigant is only to state the facts and the relief he seeks in his pleadings, but not tbe law or particular section of the statute under which he comes.

That is a matter which is for the Court to decide. Mr. Nayar wants me to hold that since the judgment-debtor's application was headed as1 one under Section 151, Civil Procedure Code, the order of the executing Court ought to be regarded as one made under that section, and therefore no appeal against that order lay to the District Judge. To see whether an application comes under Section 47, Civil Procedure Code, substance of the application has to be examined and not the head-ing or description given to it by the party.

The question is whether Section 47, Civil Procedure Code, docs or does not apply to the facts of the case. If it does, the order of the executing Court would be regarded as one made under that section and the appeal to the District Judge would be competent. As the order itself clearly indicates, the executing Court did proceed to decide the application treating it as one under Section 47, Civil Procedure Code. In the view that I hold, the contention has to be rejected.

10. The learned District Judge, in accepting the appeal, has directed that the property bedelivered back to the judgment-debtor. In that Case, the decree-holder shall have to start fresh proceedings for the purpose of obtaining joint possession with the judgment-debtor. The course shall result in unnecessarily prolonging the litigation. According to his own showing, Sham Lal, the judgment-debtor, is entitled only to joint possession with. Sansar Chand. I would therefore modify the order made by the District Judge to the extent that Sham Lal shall be put in joint possession with Sansar Chand, the decree-holder.

11. With the said modification, the appeal is dismissed. In view of the facts of the case, no order is made as to costs.


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