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K. Anavarsada Khan Pani Sahib Vs. Misiri Khan Pani Sahib - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in(1916)31MLJ44
AppellantK. Anavarsada Khan Pani Sahib
RespondentMisiri Khan Pani Sahib
Cases ReferredCollector of Jaunpur v. Bithal Das I.L.R.
Excerpt:
.....put in the possession of the 7th defendant and his lessee (who according to the 7th defendant paid up to the decree holder the balance of the decree amount) does not seem to me to be an improper order and there seems to be no sufficient ground for our interference with the subordinate judge's order under the exceptional revisional powers granted to this cours by section 115 of the code of civil procedure. the dispute is between the judgment debtors (defendants 4 and 7) inter se as to whom the property is to be restored, now that the decree has been satisfied. devadoss relied merely decides that section 244 of the old civil produre code applies as well to a dispute arising between the parties after a decree had been executed, as it does to a dispute arising between them previous to..........by the 7th defendant alone was invalid. the petition was filed under sections 47 and 151 of the code of civil procedure. the subordinate judge held that prima facie the 7th defendant was the hukdar or trustee of the mosque and he therefore dismissed the 4th defendant's petition for joint possession. the 4th defendant thereupon appealed to the district judge who held that no appeal lay to him as the order under appeal was not one passed under section 47, c.p.c. which (in the learned district judge's opinion) did not apply to disputes between the judgment-debtors inter se. against the district judge's order refusing to entertain the appeal, the present a.a.a. o. no. 74 of 1914 has been filed. the first question therefore before us is the preliminary question whether the order passed by.....
Judgment:

Sadasiva Aiyar, J.

1. The 4th defendant, one of the judgment debtors, is the appellant before us. He was the petitioner in the lower court. The respondent in this appeal is the 7th defendant, another of the judgment-debtors. The respondent (7th defendant) has been styled in the judgment of the Subordinate Judge by mistake as the 5th defendant and 5th res-pondent. The decree had been passed so long ago as in 1896 against the 1st defendant who was then the hukdar of the mosque and his five sons. The first defendant as such hukdar was entitled to the surplus profits of certain lands after meeting the expenses in connection with the upkeep of the mosque charities. The decree directed the realisation of the decree amount from such surplus income. Three sons, namely, defendants 2, 3 and 4 were afterwards, in actual possession of the lands as lessees from their father, the 1st defendant, under a registered leasedeed dated 26th October 1900. The other two sons, (the defendants 5 and 6) had died unmarried and issueless before the date of this lease of 1900. While the defendants 2, 3 and 4 were in possession as lessees, a Receiver was appointed by the Court in order that the decree-holder might obtain the surplus income from the Receiver in gradual satisfaction of the decree amount. Defendants 1, 2 and 3 died after the Receiver took possession of the properties from the lessees, defendants 2, 3 and 4. The 7th de-fendant was brought on the record as the eldest son of the second defendant who was himself the eldest son of the 1st defendant. It appears from an order (in a claim petition M.P. No. 1418 of 1906) passed in February 1907 by the then Subordinate Judge that the eldest son of the 1st defendant (namely the 2nd defendant) became the hukdar on his father's death. After the larger portion of the decree amount had been paid up to the decree holder through the Receiver, the 7th defendant paid up the balance of the decree amount into court and prayed for the discharge of the Receiver and for the handing back of the lands to himself as the hukdar of the mosque, or rather, to a lessee to whom he had leased the lands : The 4th defendant the only surviving son of the 1st defendant, thereupon, filed a petition of his own (M.P. No. 1271 of 1913) in the Subordinate Judge's Court praying that the lands might be put back into the joint possession of himself, the 7th defendant, the 7th defendant's younger brothers and the 3rd defendant's sons and not delivered to the 7th defendant's lessee, because he (the 4th defendant) and his nephews other than the 7th defendant were the joint owners of the land along with the seventh defendant and the lease by the 7th defendant alone was invalid. The petition was filed under Sections 47 and 151 of the Code of Civil Procedure. The Subordinate Judge held that prima facie the 7th defendant was the hukdar or trustee of the mosque and he therefore dismissed the 4th defendant's petition for joint possession. The 4th defendant thereupon appealed to the District Judge who held that no appeal lay to him as the order under appeal was not one passed under Section 47, C.P.C. which (in the learned District Judge's opinion) did not apply to disputes between the judgment-debtors inter se. Against the District Judge's order refusing to entertain the appeal, the present A.A.A. O. No. 74 of 1914 has been filed. The first question therefore before us is the preliminary question whether the order passed by the Subordinate Judge was one under Section 47 and whether an appeal and a second appeal lay from such an order. In Mahabir Prasad v. Partab Chand I.L.R. (1900) A. 450 it was held that where the question which has to be decided was one in which the judgment debtor or his representative was no longer interested, it was not a question arising between the parties to the suit and Section 244 of the old Civil Procedure Code corres-ponding to Section 47 of the present Civil Procedure Code had no application. So, in Lingam Krishna Bhupati Devagaru v. Jogani Venkataswami (1916) 3 L.W. 105 this Bench held that a question relating to poundage fees between the Court-auction purchaser and the judgment debtor which did not affect the rights and liabilities of the decree-holder and the judgment-debtor inter se was not a question between the parties to the suit relating to the execution, discharge or satisfaction of the decree and the order deciding that question was not appealable. In Bam Saran Pande v. Janki Pande (1895) I.L.R. 18 A. 106 Section 244 of the old Civil Procedure Code was held not to apply so as to bar a separate suit brought by one of two joint judgment debtors for contribution towards the moneys paid in satisfaction of the decree debt, as the decree had passed beyond the stage of execution. In Maganlal V. Doshi Mulji I.L.R. (1901) B. 631 it was held that Section 244 of the old Civil Procedure Code did not apply to a question between a party and a person who claimed to be that party's representative in interest. The well-known Privy Council case in Prosunno Kumar Sanyal v. Kali Das Sanyal I.L.R. (1892) C. 683 relied on by Mr. Devadoss merely held that where there was a question to be considered after decree between the opposing parties in the suit and relating to the execution, discharge or satisfaction of the decree, the fact that a third person was also interested in that question did not preclude Section 244 (now Section 47) from applying. I am therefore of opinion that in this case in which the question in dispute relates to the rights inter se between the judgment debtors and in the decision of which the decree holder has absolutely no interest, in whichever way it might be decided, no question under Section 47 of the present Civil Procedure Code is involved and hence the District Judge's decision that no appeal lay to him was correct. The decree had been satisfied and there is no further question remaining to be disposed of which relates to the decree of its execution, discharge or satisfaction. It follows that no second appeal also lies and I would therefore dismiss this C.M.S.A. No. 74 of 1914 with costs.

2. I now come to the connected C.R.P. No. 635 of 14 filed by the same 4th defendant (out of abundant caution) under Section 115, C.P. C against the order of the Subordinate Judge. I have already stated that in 1907 itself the 7th defendant's father the 2nd defendant, the eldest son of the 1st defendant was recognised as the sole hukdar after his (2nd defendant's father's) death. The Subordinate Judge's order therafore directing the property after the decree has been entirely satisfied to be put in the possession of the 7th defendant and his lessee (who according to the 7th defendant paid up to the decree holder the balance of the decree amount) does not seem to me to be an improper order and there seems to be no sufficient ground for our interference with the Subordinate Judge's order under the exceptional revisional powers granted to this cours by Section 115 of the Code of Civil Procedure. I would therefore dismiss this Civil Revision petition also, which has come on for admission and on which no notice has gone to. the respondent.

Moore, J.

3. I entirely agree. The dispute is between the judgment debtors (defendants 4 and 7) inter se as to whom the property is to be restored, now that the decree has been satisfied.

4. The prayer in 4th defendant's petition as that an order should be issued to the receiver directing him to deliver possession of the attached properties jointly to defendants 4 and 7 after declaring that a lease for 7 years granted by 7th defendant is invalid. 4th defendant's case further is that 7th defendant is not entitled to the exclusive management of the mosque and its properties. It is clear that the question whether 4th defendant and 7th defendant are entitled to joint possession and to joint management of the properties is not one arising between the parties to the suit or their representatives i.e., the decree holder or his representatives on the one hand and the judgment debtor or his representatives on the other, within the meaning of Section 47 of the Civil Procedure Code and cannot be determined in execution proceedings, but only by separate suit. The balance of the decree amount having been paid by 7th defendant's lessee, the decree holder had no longer any interest in the matter and it is immaterial to him which party is put in possession.

5. The case Collector of Jaunpur v. Bithal Das I.L.R. (1902) A. 291 on which Mr. Devadoss relied merely decides that Section 244 of the old Civil Produre Code applies as well to a dispute arising between the parties after a decree had been executed, as it does to a dispute arising between them previous to execution and is inapplicable to the facts of the present case.

6. The District Judge was right in holding that no appeal lay from the Subordinate Judge's order which did not decide any question arising under Section 47 of the present Civil Procedure Code,

7. The Subordinate Judge's order directing that when the receiver was discharged 7th defendant would be put in possession does not, I think, call for any interference.

8. I agree that the appeal and the Civil Revision Petition should be dismissed.


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