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Kapoor Chand Vs. Shankar Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal No. 125-D of 1955
Judge
Reported inAIR1959P& H464
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantKapoor Chand
RespondentShankar Lal and ors.
Appellant Advocate D.K. Kapur, Adv.
Respondent Advocate Udai Bhan, Adv.
DispositionAppeal dismissed
Cases ReferredNishi Kanta Shaha Mondal v. Kumar Promotha Nath Roy
Excerpt:
.....powers of superintendence under article 227 of the constitution. - 4. the position adopted by lapur chand was that the machinery bad not been leased by kapur chand to him but to a company known as tbe oriental manufacturing company limited, and he also maintained that the whole of the machinery was present and non-missing when the lessee handed back the machinery to the judgment-debtor as the representative of the court. lapur chand pleaded that he was a director of the company but could not name the other directors and did not produce a single document from the office of the registrar, joint stock companies, to show that the company had ever existed as a registered company or bad been wound up as he now alleged. there appears to be no doubt whatever that he failed to return the..........under section 47, civil procedure code, out of which this appeal has arisen, against tbe appellant lapur chand, who is apparently a natural brother of the judgment-debtor kapur chand, though adopted elsewhere, alleging that for a period between the passing of the decree and the final order for the sale of the machinery the whole of the machinery had been leased by kapur chand to lapur ghana, who was therefore to be called to account for the missing items of the machinery.4. the position adopted by lapur chand was that the machinery bad not been leased by kapur chand to him but to a company known as tbe oriental manufacturing company limited, and he also maintained that the whole of the machinery was present and non-missing when the lessee handed back the machinery to the judgment-debtor.....
Judgment:

D. Falshaw, J.

1. This execution first appeal has arisen in the following circumstances.

2. Shankar Lal respondent decree-holder obtained a decree which was made final on the 24th of April 1952 against Kapur Chand for Rs. 31,000/- odd on the basis of a mortgage of certain machinery. In due course the sale of the mortgaged machinery was ordered and such of the machinery as was available was actually sold and purchased by the decree-holder. It was, however, reported to the Court by the Court-auctioneer that several items of the mortgaged machinery were missing.

3. The decree-holder then filed an application under Section 47, Civil Procedure Code, out of which this appeal has arisen, against tbe appellant Lapur Chand, who is apparently a natural brother of the judgment-debtor Kapur Chand, though adopted elsewhere, alleging that for a period between the passing of the decree and the final order for the sale of the machinery the whole of the machinery had been leased by Kapur Chand to Lapur Ghana, who was therefore to be called to account for the missing items of the machinery.

4. The position adopted by Lapur Chand was that the machinery bad not been leased by Kapur Chand to him but to a company known as tbe Oriental Manufacturing Company Limited, and he also maintained that the whole of the machinery was present and non-missing when the lessee handed back the machinery to the judgment-debtor as the representative of the Court.

5. Tbe only issues framed were whether Lapur Chand was the lessee of the pledged machinery and whether be had returned the whole of the machinery to the judgment-debtor. Tbe lower Court found that the so-called Oriental Manufacturing Company Limited was no more than nom de plume of Lapur Chand himself and that the items of machinery alleged to be missing had not in fact been returned by Lapur Chand when he handed back the machinery.

The learned Subordinate Judge relying to some extent on the valuation fixed by Lapur Chand himself for various items of the missing machinery, and finding that the total value came to Rs. 8,650/- passed an order to the effect that Lapur Chand was liable to pay this amount to the decree-holder.

6. Although dealings had undoubtedly been carried out by Lapur Chand in the name of the so-called Oriental Manufacturing Company Limited and even applications were submitted to Court from time to time in the name of this company, there can be no doubt whatever regarding the correctness of the lower Court's finding that this company is no more than a figment of Lapur Chand's imagination and that the name was only used as a cover for his own personal dealings.

Lapur Chand pleaded that he was a director of the company but could not name the other directors and did not produce a single document from the office of the Registrar, Joint Stock Companies, to show that the company had ever existed as a registered company or bad been wound up as he now alleged. There appears to be no doubt whatever that he failed to return the missing items of the machinery in dispute when he was supposed to have restored the whole machinery to the judgment-debtor for the purpose of being held in execution of the mortgage decree.

7. Indeed, the learned counsel for the appellant has not devoted much of his time and energyto endeavouring to upset the findings of the lower Court on these points, but has argued that the order for the payment of Rs. 8,650/- by Lapur Chand to the decree-holder amounts to granting a decree against a man not even a judgment-debtor and goes beyond the scope of the decree.

It is contended that all that was in the power of the executing Court to do when the proceeds of the machinery available for sale were found to be short of the decretal amount, was to grant the decree-holder a personal decree for the balance against Kapur Chand under Order 34, Rule 6, Civil Procedure Code.

8. It cannot, I think, be denied that the order of the Court is highly unusual one and indeed it is so unusual as to be unique and not covered even remotely by any of the reported cases which either of the parties has been able to trace.

9. It is, however, contended on behalf of the decree-holder that the matter in dispute related to the execution of the decree and that within the meaning of Section 47, Civil P. C., the appellant as the lessee of the machinery from the judgment-debtor was his representative.

10. It is somewhat surprising to find that the objection that the dispute was not covered by Section 47, and that the decree-holder's remedy against Lapur Chand lay only by a separate suit, was not raised in the lower Court, or even, in so many words, before me, the only cases cited by the learned counsel for the appellant being some old decisions 'of the Privy Council in support of the general principle, that Court cannot go behind or add to the provisions of a decree.

In none of these cases was there any reference to the question whether a particular kind of order could be passed under Section 47, Civil P. C.

11. The questions which clearly arise in the appeal, even if they have not been properly approached or thrashed out before, are whether within the meaning of Section 47 the dispute related to the execution, discharge or satisfaction of the decree and whether Lapur Chand is the representative of the judgment-debtor, If both these conditions exist, T fail to see either how the lower Court was not competent, and even bound, to decide the matters in dispute or how, on its findings of fact, the Court could have passed any other order, even if in a sense it was tantamount to passing a decree against a person who was not a judgment-debtor.

12. On the first of these points it seems to me that it would be difficult to maintain and indeed it has not been maintained, that the dispute does not relate to the execution, discharge or satisfaction of the decree obtained by Shankar Lal against Kapur Chand, which was to be discharged In the first instance by the sale of certain mortgaged machinery of which quite a considerable portion has been found to be missing at the time of the sale.

The question of what has become of the missing portion is clearly one which Shankar Lal was entitled to have adjudicated under Section 47, at any rate between himself and the judgment-debtor-mort-gagor.

13. The crux of the matter is, therefore, whether Lapur Chand is the representative of the judgment-debtor within the meaning of the section. The position is summed up thus by Chitaley in his notes on Section 47 at page 555 of Volume I (1951 edition).

'The word 'representative' in the section has a much wider meaning than the words 'legal representative' used in Section 50, inasmuch as it includes not only a legal representative but any representative in interest, i.e., any transferee of the interest of a party whether by assignment, succession or otherwise, who, so far as such interest is concerned, is bound by the decree. In Ajudhia Ray v. Hardwar Roy, 1 Ind Gas 213 (Cal) their Lordships of the Calcutta High Court observed as follows : -- 'To determine, therefore, whether a particular person is a representative of a party to the suit, the two tests to be applied are, first, whether any portion of the interest of the decree-holder or of the judgment-debtor, which was originally vested in one of the parties to the suit, has by act of parties or by operation of law, vested in the person who is sought to be treated as representative, and, secondly, if there has been any devolution of interest, whether so far as such interest is concerned, that person is bound by the decree.' '

14. Unfortunately, a scrutiny of the further notes on the subject, together with the cases cited and briefly summarised, does not throw any further light on the position of Lapur Chand in this case, since, as far as I have been able to understand, all the cases refer not only to immovable as distinct from movable property, but also to transfers which were still operative at the time when the dispute arose under Section 47.

The only case actually cited by the learned counsel for the respondent, Nishi Kanta Shaha Mondal v. Kumar Promotha Nath Roy, AIR 1934 Cal 145, was of this nature, it being held therein that a lessee inducted on the land by the judgment-debtor pending litigation is a representative of his judgment-debtor within the meaning of Section 47 and is bound by the decree passed against the judgment-debtor.

15. It does not, however, appear to me that any straining of legal principles is involved if these tests are also held to he applicable to mortgaged or hypothecated movable property of the kind involved in this case. The decree-holder was clearly entitled to realise his amount by the sale of the whole of the pledged machinery, and if, during the pendency of the proceedings, the judgment-debtor placed his brother in possession of the machinery, with the result that part of it is no longer available for sale in execution of the final decree owing to it's being misappropriated or converted to his own use by the said brother, it would seem to be unjust and unfair to drive the decree-holder to separate proceedings to pursue the missing pledged property.

If the matter had been taken up promptly on the termination of the lease, and before any Court auction took place, as it would undoubtedly have been if there had not been some sort of collusion between the judgment-debtor and his brother, I should have had no hesitation at all in holding that the latter was the representative of the judgment-debtor within the meaning of the section: and thus liable to be called to account for the missing property.

As matters stand I do not consider that the fact that the misappropriations only came to light when the sale of the property was held can make any difference to the appellant's liability to account for the missing property as the representative of judgment-debtor.

16. Once it is held that the Court could go into the dispute under Section 47, it is difficult to see what other order could have been passed than that under appeal. Lapur Chand adopted the position that he was not the lessee of the machinery and that in any case the whole of it had been returned.

The findings are that he was the lessee and that he failed to return quite a considerable portion of the machinery.

The only logical order would thus appear to he one for restitution of the value of the missing portion so far as it could be ascertained. The fact that this amounts in a sense to passing a decree against Lapur Chand cannot invalidate the order if he is a representative of the judgment-debtor under Section 47, since obviously most orders passed under this section against representatives of the judgment-debtor as transferees of the latter's rights amount to extensions of the decree against such representatives.

17. In the circumstances I dismiss the appeal with costs. Counsel's fee Rs. 50/-.


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