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Sm. Shahedan Bibi Vs. Mir Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal31
AppellantSm. Shahedan Bibi
RespondentMir Ali and anr.
Cases ReferredBandon v. Bechor
Excerpt:
- .....the respondents were making the application for execution on the strength of their purchase of the decree from harihar. the application was registered on the same date and a notice as required by order 21, rule 16 of the code was issued by the court on the appellant and on harihar. the appellant filed two objections, one an objection under order 21, rule 16 and the other under section 47 of the code, but the substance of both the objections is the same. she took up the position that the decree had been adjusted out of court, and so the respondents could not go on with the execution as assignees of the decree. the adjustment of the decree, the terms of which i have recited above, was not certified under order 21, rule 2.3. both the courts below have held that the adjustment not being so.....
Judgment:

R.C. Mitter, J.

1. This is an appeal by the judgment-debtor against an order passed on appeal by the learned Subordinate Judge, Second Court, Hooghli, by which the order passed by the learned Munsiff, Second Court, Serampore, has been affirmed. The said orders have overruled the judgment-debtor's objection and have allowed the execution to proceed against her.

2. On 20th December 1926, one Harihar Banerjee obtained a decree for money against the appellant in the Second Court of the Munsiff at Serampore. That decree was affirmed on appeal on 6th January 1928 and thereafter some lands belonging to the appellant were attached by Harihar. At the time when the lands were under attachment, one Abdul Gaffur purchased the attached lands in benami of his wife from the appellant. Harihar Banerjee had obtained a decree for money against Abdul Gaffur also. When Abdul Gaffur found that the lands purchased by him from the appellant were under attachment he proposed a compromise with Harihar Banerjee. The nature of the arrangement accepted by Harihar was as follows. Harihar gave up a portion of the decretal amount, received Rs. 50 in cash and for the balance of his dues under both the decrees, that is, the one he had obtained against the appellant and the other he had obtained against Abdul Gaffur. Abdul Gaffur executed a mortgage in favour of Harihar on 14th March 1931, by which he agreed to pay in instalments. The appellant admits in her evidence that the aforesaid sum of Rs. 50 was paid by her through Abdul Gaffur, who used to reside with her. On 4th December 1933, Harihar assigned to the respondents by a registered deed his decree against the appellant, and on 19th April 1934, the respondents made an application for execution against the appellant in the second Court of the Munsiff at Serampore, the Court which had passed the decree. In Col. 1 of that application which was in the ordinary tabular form a statement was made that the respondents were making the application for execution on the strength of their purchase of the decree from Harihar. The application was registered on the same date and a notice as required by Order 21, Rule 16 of the Code was issued by the Court on the appellant and on Harihar. The appellant filed two objections, one an objection under Order 21, Rule 16 and the other under Section 47 of the Code, but the substance of both the objections is the same. She took up the position that the decree had been adjusted out of Court, and so the respondents could not go on with the execution as assignees of the decree. The adjustment of the decree, the terms of which I have recited above, was not certified under Order 21, Rule 2.

3. Both the Courts below have held that the adjustment not being so certified cannot be taken into account, and have accordingly allowed the execution to proceed. The question in this appeal is whether that view is correct. The matter has been placed by the learned advocate for the appellant from two points of view. He first of all contends that Order 21, Rule 2, prevents only the execution. Court from recognizing an uncertified payment or adjustment, the adjustment therefore can be pleaded and proved in an objection taken by the judgment-debtor in pursuance of a notice issued on her under Order 21, Rule 16, for the purpose of showing that the decree being satisfied before the transfer of the decree, the transferee got nothing by the assignment, there being then nothing to assign. His second contention is that there being no relation of judgment-creditor and judgment-debtor between Harihar and Abdul Gaffur at the time when Abdul Gaffur executed the aforesaid mortgage bond in favour of Harihar, Order 21, Rule 2 does not apply. On both these points there is divergence of opinion in the other High Courts, but so far as I am aware there is no direct decision of this Court. There are no doubt two decisions of this Court, which approach very nearly the points I have to decide, namely Mon. Mohan Karmakar v. Dwarka Nath Karmakar (1910) 7 I C 55 and Brajabashi Modak v. Manik Chandra Modak : AIR1927Cal694 but in my judgment these cases are distinguishable. In support of his first contention Mr. Bose placed before me the following cases: Raghu Nath Gobind v. Gangaram Yesu AIR 1923 Bom 404, Ganpeya v. Krishnappa AIR 1924 Bom 394, Ponnusami Nadar v. Letchmanan Chettiar (1912) 35 Mad 659, Ramayya v. Krishna Murthi AIR 1917 Mad 590 and Brajabashi Modak v. Manik Chandra Modak : AIR1927Cal694 . In the last mentioned case, however, the question was raised but not decided. There the respondent who claimed to be the transferee of a decree for money obtained by one Khali Mohammad against the appellant made an application for execution in the year 1923. When that was done no objection was taken by the appellant when he was served with notice under Order 21, Rule 16. In course of the execution some of the appellant's properties were sold but the sale proceeds were not sufficient to wipe off the decree. The respondent applied for execution, the second time in the year 1924, and it is at this execution, the judgment-debtor took the plea that the decree had been satisfied by an adjustment before the assignment to the respondent. Mukherjee, J. held that the notice under Order 21, Rule 16 has to be issued only once, that is when the assignee of the decree for the first time wants to execute the decree and the objection in pursuance of a notice under that rule can be filed then; that the law does not contemplate that every time an assignee of the decree applies for execution that a notice under Order 21, Rule 16 is to be issued; and that the appellant, not having challenged the validity of the assignment when the respondent had first applied for execution in the year 1923, was precluded from raising any such objection. In Raghu Nath Gobind v. Gangaram Yesu AIR 1923 Bom 404, Macleod, C.J. and Crump, J. held that an uncertified payment or adjustment which had discharged the decree in full before its assignment could be pleaded by the judgment-debtor and considered by the Court in a proceeding started on the notice issued under Order 21, Rule 16 but I consider the said decision to be erroneous for the reasons which I will indicate hereafter. The question again arose in the Bombay High Court about a year after the decision of Raghunath Gobind's Case Raghu Nath Gobind v. Gangaram Yesu AIR 1923 Bom 404 That case came before Macleod, C.J. and Shah, J.: Ganpeya v. Krishnappa AIR 1924 Bom 394. Shah, J. doubted the correctness of the decision in Raghunath Gobind's case Raghu Nath Gobind v. Gangaram Yesu AIR 1923 Bom 404 and followed it very reluctantly on the ground that it was a binding precedent.

4. Turning to the precedents of the Madras High Court, there was a sharp difference of opinion on the point between the two learned Judges who decided Ponnusami Nadar v. Letchmanan Chettiar (1912) 35 Mad 659, Abdur Rahim, J. being of opinion that an uncertified payment or adjustment must be disregarded, while Sundara Ayyar, J. took the opposite view. In Ramayya v. Krishna Murthi AIR 1917 Mad 590 Sadasiva Ayyar and Moore JJ. followed the judgment of Sundara Ayyar, J. The matter was ultimately referred to a Full Bench of that Court Subramanyam v. Ramaswami AIR 1932 372) and in my judgment Beasley C.J. has formulated the correct principle in that case. For the purpose of considering the question it is necessary to examine the provision of the Code a little in detail. A suit terminates with the final judgment and the decree. After the judgment has been delivered and signed it cannot be altered or added to except under Section 152 or on review: Order 20, Rule 3. The decree must agree with judgment and therefore cannot be added to or altered except under Section 152 or when the judgment itself is modified in the manner indicated in Order 20, Rule 3. Leaving out of consideration proceedings for review and proceedings for correction of slips and accidental errors and omissions which do not occur in every case, in the normal and ordinary course the proceedings for enforcement of the decree then commence. In Section 37 the phrase, 'the Court which passed the decree' is defined in relation to execution of decrees and Section 38 specifies the Courts which can execute decrees. Even when the relief prayed for by the decree-holder can only be obtained in a Court other than the Court which passed the decree, the motive centre is the Court, which passed the decree.

5. The first step for the furtherance of execution must be taken in that Court. The application for transfer of the decree must be made in that Court, and it is only in keeping with the scheme that that Court should determine where persons, whose names do not occur in the decree, either apply for execution or where execution is applied for against persons whose names do not occur in the decree, that the Court which passed the decree should determine the question as to whether the persons applying for execution are proper persons who should be allowed to execute or execution should be permitted to proceed against persons whose names do not find a place in the decree. Section 50, Civil P.C., is only a counterpart of C. 21, Rule 16. Both of them appear in part of the Code which deals with enforcement of decrees and in both of them the phrase 'the Court which passed the decree' or a phrase of the same import is used. That phrase must be taken to have the meaning assigned to in Section 37 of the Code which has in view proceedings for execution. When an application is accordingly made 'to a Court which passed that decree' by the transferee of the decree under the provisions of Order 21, Rule 16, the application is made to that Court in its character as an executing Court. The fact that a Court cannot ultimately itself give what the decree-holder wants, by reason of the object against which execution is to be directed being outside its jurisdiction is only a fortuitous circumstance and cannot deprive that Court of that character.

6. I agree fully with Beasley, C.J. where he says that an application under Order 21, Rule 16 is not merely an application for recognition of a transfer and has no relation to execution. If that is the correct view a proceeding under Section 50 of the Code could as well be said to be a proceeding for merely determining who is the representative of the judgment-debtor and having no relation to execution, or to the executing Court, a view which is inconsistent with the express provisions of Section 47 of the Code. In this view of the matter the terms of Order 21, Rule 2 ordinarily prevent the Court from going into uncertified payments and adjustments when considering an objection under Order 21, Rule 16. In my judgment the scope of the enquiry under that rule is limited only to the validity of the assignments with a view to see if the applicant can proceed further in the proceedings for execution assuming the decree to be unsatisfied. It is only after the said question is determined in favour of the applicant, that the next stage in the enforcement of the decree begins and at that stage the question of satisfaction or adjustment arises. The question whether the assignment of the decree was really in favour of the benamidar of one of several judgment-debtors can be gone into in proceedings under Order 21, Rule 16 by reason of the provisions of the second proviso, and on general principles, the question as to whether the assignee is the benamidar of the sole judgment-debtor or all the judgment debtors can also be gone into in such proceedings, and for that purpose the question whether the judgment-debtor's money was employed for obtaining the assignment can be gone into, though that payment is uncertified under Order 21, Rule 2. For this limited purpose only an uncertified payment or adjustment can, in my judgment, be pleaded, in a proceeding under Order 21, Rule 16. In this view of the matter, it seems to me that the result of the adjudication in Ramayya v. Krishna Murthi AIR 1917 Mad 590 and the result at which Sundara Ayyar arrived at in Ponnusami Nadar v. Letchmanan Chettiar (1912) 35 Mad 659 is correct, but it would be against the provisions of the Code to apply the general observations made in those cases and to hold that the uncertified adjustment or payment pleaded in the case before me can be recognised by the Court in a proceeding under Order 21, Rule 16. The plea is not that the respondents are the benamidars of the appellant in the matter of the transfer of the decree. I accordingly overrule the first contention of Mr. Bose. Regarding Mr. Bose's second point, there is no substance with regard to the payment of Rs. 50 towards the decretal amount. The appellant in her deposition admitted that the money was hers and it was through Abdul Gaffur that the same was paid to Harihar Banerjee.

7. The question, how far the adjustment of the balance of the decree by the execution of the mortgage by Abdul Gaffur in favour of Harihar [can be pleaded] however presents some difficulty. The cases which lay down that Order 21, Rule 2 is no bar proceed upon the observations of Subramania Ayyar, J.,. made in Rama Ayyar v. Sreenivasa Pattar (1896) 19 Mad 230 to the effect that certification of an adjustment or payment is required under Order 21, Rule 2 only when at the time of adjustment or payment, the relations between the person subsequently applying for execution and the person against whom execution was applied for was that of decree-holder and judgment-debtor. In that case as also in the cases which have followed that case including the case of 31 Brajabashi Modak v. Manik Chandra Modak : AIR1927Cal694 the facts were of the following type.

8. A had obtained a decree against B. C at the request of B either pays up the decree or otherwise satisfies it. C then obtains an assignment of the decree from A and executes it against B. In Brajabashi's case Brajabashi Modak v. Manik Chandra Modak : AIR1927Cal694 the further fact was that the agreement between B and C was that C would obtain the assignment from A of the decree and execute it only against some specified properties of B, namely 8 pakhis of land, which he was to take in full satisfaction of the decree. C obtained the assignment of the decree from A, sold in execution the said 8. pakhis of land, and herself purchased it, and then for the balance of the decree applied again for execution against B's homestead. Mukherjee, J. pointed that the aforesaid arrangement between B and C had been entered into from its very nature some time before the assignment of the decree by A to C, however short the interval may be. Following the principle laid down by Subramania Ayyar, J. in Rama Ayyar's case Rama Ayyar v. Sreenivasa Pattar (1896) 19 Mad 230 that B could not have made an application for certifying the adjustment at the time it was made under the provisions of Order 21, Rule 2 (2) as against C, for C had not then come on the record as assignee of the decree, it was held that Order 21, R.2 did not debar B from proving the arrangement. The facts of the case before me are different; if the contract was between Abdul Gaffur only and Harihar for the satisfaction of the decree, I do not see how the appellant standing aloof can take the benefit of that contract, she being not a party thereto. She can only take the benefit of that adjustment by taking upon the position that although she was not a party to the mortgage, and she is not a necessary party to that deed as the properties of Abdul Gaffur only were mortgaged, she was a party to the arrangement with the decree-holder, Harihar, in pursuance of which the said mortgage was executed by Abdul Gaffur. In that case there was nothing to prevent her from making an application against Harihar at the time of the adjustment or within the time allowed by law under Order 21, Rule 2(2) of the Code, Harihar not having assigned the decree at that time.

9. In Manmohan Karmakar v. Dwarka Nath Karmakar (1910) 12 C L J 312 one Judhistir Karmakar had obtained a mortgage decree against Shib Chandra Karmakar. This decree he assigned to Dwarka Nath Karmakar on 19th March 1907. On an application by Dwarka Nath the Court ordered his substitution in the place of the original decree-holder on 6th July 1907 after notice to the judgment-debtor and without any objection from him. Dwarka Nath did not however ultimately proceed with the execution case in which he got himself substituted. Monmohan Karmakar who had a money decree against Shib Chandra executed his decree and purchased one of the properties included in Judhistir's mortgage decree. This sale was held on 19th September 1907 and confirmed on 21st November 1907. In January 1908 Dwarka Nath presented his second application for execution. Monmohan intervened and raised two objections, namely (i) Shib Chandra had paid up the money due under the aforesaid decree in 1906 and consequently the assignee Dwarka Nath acquired nothing and (ii) that the assignment was a fraudulent device by Shib Chandra to defeat the claims of his other creditors, that he obtained the assignment of the mortgage decree for his own benefit, and in furtherance of that fraudulent scheme had deliberately omitted to make an application for certifying the payment of the amount of the mortgage decree. These objections were dismissed for default, and an application by Monmohan for review proved infructuous as the application for execution was subsequently allowed to be dismissed. The third application for execution was then presented by Dwarka in December 1908, and Monmohan again preferred the selfsame objections. Mr. Mookerjee, J. observed that as there were those allegations of fraud, the want of certification would be no bar to the determination of the objections of Monmohan. Then he observed that the consideration of the exact scope of Order 21, Rule 2 was immaterial because a suit on the allegations of fraud as made would lie and lie in the same Court which was executing the decree. The allegations of Monmohan were also in substance that Dwarka Nath was benamidar of the judgment-debtor, Shib Chandra, and that question could be gone into in a proceeding under Order 21, Rule 16, as I have indicated above. No doubt a notice under Order 21, Rule 16 had been issued on Shib Chandra when Dwarka first applied for execution, but the proceedings between Dwarka Nath and Shib Chandra were all collusive. The fact of collusion between them would not have prevented a reconsideration of the questions which fall within Order 21, Rule 16 on the principle laid down by Lord Brougham in 3 Cl & F 479. Bandon v. Bechor (1835) 3 Cl & F 479 The passage is as follows:

A sentence is a judicial determination of a case, agitated between real parties, upon which real interest has been settled; in order to make a sentence, there must be a real interest, a real argument, a real prosecution, a real defence and a real decision; of all these requisites, not one takes place in the case of collusive and fraudulent suits; there is no Judge, but a person, invested with the ensigns of Judicial offices, is misemployed in listening to a fictitious cause proposed to him. There is no party litigating, there is no party defendant, and there is no real interest brought into question. The whole proceeding is collusive and fraudulent. It cannot therefore be treated as a judicial proceeding but may be passed by as availaing nothing to the party who sets it up.

10. I accordingly hold that I am bound by no precedent of this Court and I think I am justified for the reasons given above in overruling the second contention also of the appellant's advocate.

11. The result is that this appeal is dismissed but without costs throughout.

12. Prayer for leave to appeal under Section 15 of the Letters Patent is granted.

L.P. Appeal.

13. This is an appeal under Section 15 of the Letters Patent against the judgment of our learned brother, Mr. R.C. Mitter, J. and it has arisen out of a proceeding in execution of a decree. The judgment-debtor appellant preferred an objection under Section 47, Civil P. C, to the execution as started by the decree-holder in question, on the ground that there was an adjustment of the decree. The adjustment on which the judgment-debtor had relied, so far as the objection under Section 47 was concerned, was not certified by the Court as provided by law. In this circumstance, the courts below came to the decision that the adjustment pleaded by the judgment-debtor as a bar to the proceeding in execution could not be taken into account in the proceeding in execution. The learned Judge, Mr. Mitter, has agreed with the decision arrived at by the courts below, and has, in his judgment, dealt exhaustively with the questions that arise for consideration under the law, regard being had to the fact that the adjustment pleaded by the judgment-debtor appellant was not a certified adjustment. The judgment of our learned brother Mr. R.C. Mitter, J. was subjected to comment by the learned advocate for the appellant. On careful consideration of the same, we do not see any reason to differ from the said decision, and no useful purpose will be served by our dealing with the questions which have been exhaustively dealt with by our learned brother in his judgment.

14. The appeal is dismissed with costs. The hearing fee in the appeal is assessed at 2 gold mohurs.


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