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Tarapada Basu and ors. Vs. Mahendra Nath Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal264
AppellantTarapada Basu and ors.
RespondentMahendra Nath Biswas and ors.
Excerpt:
- .....of enabling us to dispose of this appeal, are as follows. some time in the year 1932 one sarat bose obtained a money decree against trailakya chatterji. in the year 1933 some chatterjees, including trailakya ohatterjee, obtained a rent decree against their tenants, the ghoses, neogis and biswases. this rent decree was a composite one under section 148a, bengal tenancy act, the dues in trailakya chatterjee's share being about rs. 1555 including costs. in execution of the decree which he bad obtained against trailakya chatterjee, sarat bose attached the share of trailakya chatterjee in this composite decree which all the chatterjees had obtained against their tenants. the important stages in the history of the case, so far as our present purposes are concerned commence at this stage......
Judgment:

Khundkar, J.

1. This appeal has been beard at considerable length. The litigation which has led to it has had a long history, and the facts relating to the various stages of that history are somewhat complicated. The arguments addressed to us have been very elaborate, but, in the view, that we are constrained now to take, both the facts of the case and the arguments to which we have listened are capable of considerable simplification. The brief facts, in so far as they are material for the purpose of enabling us to dispose of this appeal, are as follows. Some time in the year 1932 one Sarat Bose obtained a money decree against Trailakya Chatterji. In the year 1933 some Chatterjees, including Trailakya Ohatterjee, obtained a rent decree against their tenants, the Ghoses, Neogis and Biswases. This rent decree was a composite one under Section 148A, Bengal Tenancy Act, the dues in Trailakya Chatterjee's share being about Rs. 1555 including costs. In execution of the decree which he bad obtained against Trailakya Chatterjee, Sarat Bose attached the share of Trailakya Chatterjee in this composite decree which all the Chatterjees had obtained against their tenants. The important stages in the history of the case, so far as our present purposes are concerned commence at this stage. Sarat Bose having attached the decrees to which Trailakya Chatterjee was entitled, proceeded to execute this against the Biswases only. Meanwhile, the Biswases had obtained two rent decrees against their tenant, one Sarala Bala, in a Court at Bagerhat. Sarat Bose sought to attach these rent decrees. This execution case was numbered 89 of 1938, and the Biswases strenuously opposed it by raising objections under Section 47, Civil P. C. At the outset of this execution case Sarat Bose obtained an order of attachment of the Biswases decrees against Sarala by virtue of an order made by the executing Court on 21st April 1938. The Biswases' objection to that attachment was then heard, and on 16th May 1938, the executing Court upheld the objection, dismissed the execution case, and directed that the attachment which Sarat Bose had obtained of the Biswases' decrees against Sarala be removed. Against this order Sarat Bose appealed to the High Court. Meanwhile, the Biswases proceeded to levy execution of the two rent decrees which they had obtained against Sarala, and, on 20th December 1938, and 19th March 1940, some tenures held by Sarala were sold and the Biswases' decrees were satisfied. These two dates are important because they relate to the satisfaction of the two rent decrees which the Biswases had obtained against Sarala. Thereafter, on 8th May 1940, Sarat Bose's appeal to this Court was allowed, and the execution case started by him against the Biswases was remanded for further hearing to the executing Court. That Court thereupon passed an order purporting to revive the attachment of the decrees of the Biswases against Sarala which attachment as already stated, Sarat Bose had succeeded in effecting originally in April 1938. Certain stages of the litigation followed which it is unnecessary to refer to for the purposes of the present appeal. Suffice it to say that the Biswases again raised objections under Section 47, Civil P.C., to the execution of the decree which Sarat Bose was seeking to execute against them, and the executing Court on 17th September 1942, upheld those objections and dismissed the execution case. It is against that, order that the present appeal has been preferred.

2. The argument addressed to us in this Court has centred round three objections which were taken by the Biswases in the Court below. In the first instance they contended that the decree which Sarat Bose was seeking to execute against them could not be executed by attachment of the decrees which they, the Biswases, had obtained against Sarala, as Section 168A, Ben. Ten. Act, stood in the way, the decree which Sarat Bose was seeking to execute against the Biswases being the rent decree which the Chatterjees had obtained against the Biswases. This objection prevailed in the Court below, but it is clear from the memorandum of objections under Section 47, Civil P.C., which was filed in the executing Court by the present respondents, the Biswases, that two other objections were also taken. The second objection was that the application for execution related to a decree for arrears obtained by landlords, namely, the Chatterjees against the Biswases and that therefore, by reason of Section 148 (o), Ben. Ten. Act, the application would not lie, since Sarat Bose, being the assignee of the decree, had not become clothed with a landlord's interest in the land. In the view which we take, it is unnecessary for us to deal with the elaborate arguments which have been advanced in this Court by the advocates on both sides in relation to these two objections. It is the last objection which we propose to consider. On behalf of the respondents here it has been argued, consistently with ground No. 7 of the memorandum of objections taken on their behalf in the executing Court, that execution by attachment of the decrees which the Biswases had obtained against Sarala was impossible since those decrees were no longer in existence, they having been satisfied, as already stated, by the sale of Sarala's properties on 20th December 1938 and 19th January 1940, respectively. If we refer again to the chronology of the relevant dates, what actually happened was this: The attachment which Sarat Bose had effected of the Biswases' decree against Sarala had been removed upon 16th May 1938. Thereafter, the Biawases' decree against Sarala was satisfied by the sale of Sarala's properties upon the two dates just mentioned, namely, 20th December 1938 and 19th March 1940, respectively. Subsequently, however, in consequence of the appeal to this Court the execution case filed by Sarat Bose was revived, as also was the attachment which he had succeeded in effecting of the two decrees obtained by the Biswases against Sarala. It has been strenuously contended by Mr. Chatterjee, appearing for the present appellants, that the revival of the said attachment related back to the date upon which the attachment was originally effected, that is to say, to 21st April 1938, and Mr. Chatterji's argument is that, as in the eye of the law the two decrees in question were really under attachment throughout, the sale of Sarala's properties on 20th December 1938 and 19th March 1940, could not operate to satisfy those decrees in frustration of that attachment. According to Mr. Chatterji those decrees were, and still are, in existence and capable of attachment.

3. The first thing to be noted in connexion with this argument is that the property, the attachment of which is in question in the present case, was not corporeal property but consisted of two decrees. Section 64, Civil P. C., has therefore no application. In passing, it might be noted that if the principle carried out in that section could even by analogy be invoked, it would not be of any avail to bring home the present argument. All that Section 64 says is that private alienations of the property attached shall be void as against all claims enforceable under the attachment. The section does not refer at all to any alienation by process of Court such as an execution sale.

4. Mr. Chatterji has, however, not really taken this line, but has appealed to the doctrine of lis pendens, and he has contended with some plausibility that, as the attachment was an order made in the course of pending litigation, that is to say, of the execution proceedings, any alienation subsequent to the attachment would of necessity be affected thereby subject thereto. In our judgment, this argument loses sight entirely of the provisions of the law relating to the mode in which execution of a decree by attachment of another decree may be carried out, and of the steps which it is the duty of the Court to take in the process of applying this mode. The relevant words of Order 21, Rule 53, Civil P. C., have to be looked at and they are these:. the attachment shall be made,--

(a) ...

(b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other. Court to stay the execution of its decree unless and, until --

(i) ...

(ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.

It is clear that when the holder of an attached decree (judgment-debtor) applies to the Court to execute it, the Court has no option in the matter but must proceed to do so. Sub-rule (2) of this rule provides that in such a case the Court shall on the application of the creditor who has attached the decree or his judgment-debtor proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

5. What had happened in the present case was that the net proceeds of the attached decree had been applied not in satisfaction of the decree sought to be executed, that is to say, of the decree which Sarat Bose was seeking to execute, but in satisfaction of the attached decree, that is to say, of the decree which the Biswases had obtained against Sarala. Whether this fact amounts, in the special circumstances of the present case, to a violation of the provisions of Sub-rule (2) is a question which we need not consider as, in our opinion, it would make no difference to the result. The plain fact has emerged that, rightly or wrongly, the decrees which the Biswases had obtained against Sarala were satisfied, and they therefore ceased to exist. The remedy, of Sarat Bose, in our opinion, does not lie in the right to say that those decrees are still alive and that he may proceed to attach them. His right, if established, would entitle him only to recover the net proceeds which have been paid to somebody else, namely, to the Biswases. In our judgment, the appellants' remedy is against the person who has received the money which really should have been paid to him. To us it appears reasonably clear that the two decrees which the Biswases obtained against Sarala were no longer in existence after 20th December 1938, and 19th March 1940, respectively. As it is these decrees which the appellants are seeking to attach, this execution case must fail. This appeal is accordingly dismissed with costs, hearing fee being assessed at three gold mohurs.

Biswas J.

6. I agree.


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