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Coventry Vs. Tulshi Pershad Narayan Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal822
AppellantCoventry
RespondentTulshi Pershad Narayan Singh
Cases Referred and Sheoraj Singh v. Kameshhar Nath
Excerpt:
decree - execution--mortgage--mitakshara family--civil procedure code (act xiv of 1882) section 248, notice under--order for substitution of the heirs of the deceased judgment-debtor--sale proclamation--order of sale--postponement--estoppel--res judicata. - .....l.r. 2 i.a. 219; 15 b.l.r. 388; 24 w.r. 193 the appellant had obtained a decree for land with mesne profits thereof up to the date of suit. he, however, petitioned in execution proceedings for subsequent mesne profits with interest thereon and for interest on the amount of mesne profits already decreed. the respondent opposed the application, but not on the ground that the decree did not direct payment of subsequent mesne profits. the court executing the decree ascertained the amount payable to the appellant as subsequent mesne profits, but did not allow interest, both parties appealed, and it was for the first time in appeal that the respondent took the objection that the court could not on the decree direct recovery of subsequent mesne profits. it was not and could not be denied.....
Judgment:

Francis W. Maclean, C.J. and Mitra, J.

1. The respondents and their father Chhakouri Singh, since deceased, were members of a joint family governed by the Mitakshara system of Hindu Law. Chhakouri Singh, the managing member became indebted to the proprietors of the Keota Indigo Concern, who obtained on the let June 1899 a decree against him for Rs. 7,135 and costs.

2. Chhakouri Singh died on the 26th July 1900, and the respondents are the survivors as well as his legal representatives. One of the decree-holders is also dead, and the appellants are now entitled to the benefit of the decree.

3. The first application for execution was made on the 10th July, 1901. The appellants prayed for the substitution of the respondents as judgment-debtors in place of their deceased father as his legal heirs in possession and enjoyment of the family properties. They also asked for the levying of execution by attachment and sale of the family properties specified at the foot of the application. Notices under Section 248, Civil Procedure Code, were issued and duly served on the respondents to shew cause why the application for execution should not be granted. No cause was shewn, and on the 10th August 1901, the Court executing the decree directed that the respondents should be substituted in place of the original judgment-debtor. On the 24th August 1901, the Court directed the issue of the process of attachment of the properties specified in the application for execution, and, after the process of attachment had been duly served, made an order for sale on the 15th March 1902. The respondents made no objection throughout these proceedings. On the contrary, they applied on that day for time to enable them to pay up the amount of the decree, and they consented to have the properties sold on the 21st April without a fresh sale proclamation. The decree-holders agreed to this, and the sals was accordingly postponed, and the execution case was struck off.

4. On the 24th March, 1902, the decree-holders again applied for execution. The properties already attached were advertised for sale on the 16th June, 1902. On that day the respondents again came in with a petition asking that the sale might be adjourned to the general sale day in July without a fresh sale proclamation. The decree-holders consented to an order to that effect on the respondent's paying to them Rs. 1,000 in part satisfaction of the decree. The sale was accordingly ordered to take place in July.

5. Before, however, the sale could take place, the respondents on the 10th July 1902, put in a petition of objection in which they said that the properties attached and directed to be sold were joint family properties, that they were in possession by right of survivorship and not as heirs of their father, and that such properties could not be sold after the death of the father in execution of a decree against him. The Subordinate Judge has given effect to the contention raised by the respondents, and has hold that the execution cannot proceed against them. The decree-holders have appealed.

6. It is not suggested by the respondents that the debt covered by the decree in execution was contracted by their father for immoral purposes. They are therefore bound to pay their father's, debt, and it is not denied that the appellants are entitled to recover the amount from the respondents by a suit subject to rules of limitation, if not by execution of the decree already obtained. The liability being undeniable, the question is simply one as to the mode of recovery. The Court executing the decree had jurisdiction to entertain a suit for the recovery of the amount and give the appellants in such suit the same relief as they seek by the present execution. That Court has general jurisdiction over the subject matter of the litigation.

7. The respondents had waived their right, if any, to oppose the levying of the debt by execution, and upon the ordinary principles of estoppel they cannot now be permitted to say that the decree is incapable of execution against them. They allowed the execution to proceed actively for nearly a year without the (sic) objection, and successfully asked the Court twice to stay impending sales on the plea that they would satisfy the decree, if time were allowed. They approbated the proceedings by paying to the decree-holders a part of the debt and thus inducing them to consent to time being granted for payment of the balance. The principle laid down by the Judicial Committee in Sadasiva Pillai v. Ramalinga Pillai (1875) L.R. 2 I.A. 219; 15 B.L.R. 388; 24 W.R. 193 is applicable to the present case. In Sadasiva Pillai v. Ramalinga Piilai (1875) L.R. 2 I.A. 219; 15 B.L.R. 388; 24 W.R. 193 the appellant had obtained a decree for land with mesne profits thereof up to the date of suit. He, however, petitioned in execution proceedings for subsequent mesne profits with interest thereon and for interest on the amount of mesne profits already decreed. The respondent opposed the application, but not on the ground that the decree did not direct payment of subsequent mesne profits. The Court executing the decree ascertained the amount payable to the appellant as subsequent mesne profits, but did not allow interest, Both parties appealed, and it was for the first time in appeal that the respondent took the objection that the Court could not on the decree direct recovery of subsequent mesne profits. It was not and could not be denied that such mesne profits could be recovered by suit. During the course of the proceedings in the suit itself the respondent's father had executed security bonds undertaking to pay subsequent mesne profits. After the death of his father, the respondent substituted himself for his father as defendant in the suit and assumed the position of the defendant with his rights and liabilities. The Judicial Committee held that the appellant was entitled to realise by execution subsequent mesne profits because: 'Upon the ordinary principles of estoppel the respondent cannot now be heard to say that the mesne profits in question are not payable under the decree.' Their Lordships further observed: 'The Court here had a general jurisdiction over the subject matter though the exercise of that jurisdiction by the particular proceeding may have been irregular.' The respondents cannot, therefore, be allowed to resist the execution on the plea raised by them.

8. If the respondents had successfully objected to the orders of the 24th August 1901 and the 15th March 1902, the appellants could at once have brought a suit for the decretal amount against them. They are now possibly barred from this course by the Statute of Limitation, and are thus gravely prejudiced by the respondent's action in not challenging those orders at the time they were made.

9. There is another way of looking at the case. The respondents are precluded from questioning the validity of the orders of the Court directing the issue of the processes of attachment and sale proclamation. These orders are binding on them on the principle of res judicata. In Mungul Pershad Dichit v. Grija Kant Lahiri (1881) L.R. 8 I.A. 123; I.L.R. 8 Calc. 51; 11 C.L.R. 113 an order made for attachment of the properties of the judgment-debtor after the service of the notice to shew cause, why the decree should not be executed against him, was held to operate as a bar as res judicata to the judgment-debtors pleading afterwards that the decree had been barred by limitation at the date of the order. This view has been followed in Lakshmanan Chetti v. Kuttayan Chetti (1901) I.L.R. 24 Mad. 669, Bholanath Dass v. Prafulla Nath Kundu Chowdhry (1900) I.L.R. 28 Calc. 122 and Sheoraj Singh v. Kameshhar Nath (1902) I.L.R. 24 All. 282.

10. We therefore decree the appeal and set aside the order appealed against and direct the Lower Court to proceed with the execution. The costs of this appeal will be borne by the respondents.


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