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Mohan Singh Chowdhuri and ors. Vs. Panchanan Sadhukhan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal106
AppellantMohan Singh Chowdhuri and ors.
RespondentPanchanan Sadhukhan and ors.
Cases ReferredLalinan Das v. Jagannath Singh
Excerpt:
- .....did not obtain any interest in the tank by purchasing rup kumarj's 1/5th share therein at the execution sale inasmuch as rup kumari possessed only a life interest in the tank, and that at the time of the sale that interest had come to an end. as against the other defendants the plaintiffs claimed arrears of rent. the trial court dismissed the suit in its entirety, but the lower appellate court allowed the plaintiffs' claim to the extent of 4/5ths of the rent in arrear, and in other respects dismissed the appeal. as regards the plaintiffs' prayer for & declaration that no estate or interest in the said tank passed to defendant gokul das khetry on the sale it was urged on behalf of the defendants-respondents that this cause of action is res judicata, and is also barred by reason of.....
Judgment:

Page, J.

1. This appeal raises an interesting question of practice. The plaintiffs-appellants are members of a Hindu family governed by the Mitakshara law. Earn Singh Chowdhuri died some time before 1888, leaving him surviving a widow Rup Kumari and an only son Mohan Singh Chowdhuri, since deceased. The male plaintiffs are the adult sons of Mohan Singh, and the two minor sons are represented by the plaintiff Rani Kumari their mother and natural guardian. In 1888 as the result of a partition suit a certain tank which is the subject matter of these proceedings remained the joint property of the members of the family, but was divided into specified shares of which the plaintiffs received a 4/5th share and Rup Kumari 1/5th share. In 1898 Sib Gopal Banerji obtained a personal decree for money lent against Rup Kumari. In 1904 Rup Kumari died. In 1905 proceedings in execution of this decree were taken by Sib Gopal, the decree-holder, and in the course of these proceeding's the plaintiffs were brought on the record as the legal representatives of Rup Kumari. On the 14th February 1906 Rup Kumari's 1/5th share of the tank was sold in execution of the decree, and was purchased by Gokul Das Khetry, who is a defendant-respondent in the present appeal. The other defendants-respondents are the heirs and legal representatives of Rasik Lai Sadhukhan who was the tenant of the tank. On the 10th July 1906 Rani Kumari applied under Order 21, Rule 90, for an order setting aside the sale on the ground of irregularity in publishing the sale proclamation, but the application was rejected, and an appeal from the order was dismissed.

2. On the 14th May 1919 the present suit was instituted, and the plaintiffs prayed for a declaration that Gokul Das Khetry did not obtain any interest in the tank by purchasing Rup Kumarj's 1/5th share therein at the execution sale inasmuch as Rup Kumari possessed only a life interest in the tank, and that at the time of the sale that interest had come to an end. As against the other defendants the plaintiffs claimed arrears of rent. The trial Court dismissed the suit in its entirety, but the lower appellate Court allowed the plaintiffs' claim to the extent of 4/5ths of the rent in arrear, and in other respects dismissed the appeal. As regards the plaintiffs' prayer for & declaration that no estate or interest in the said tank passed to defendant Gokul Das Khetry on the sale it was urged on behalf of the defendants-respondents that this cause of action is res judicata, and is also barred by reason of Section 47 of the Civil P.C. In my opinion the claim is not barred by res judicata as it was not necessary or material for the determination of the previous suit that the Court should have decided the question in issue in the present suit. I am clearly of opinion, however, that the plaintiffs' cause of action except in respect of the claim for rent in arrear is barred by reason of Section 47 of the Code. Under Section 47(1) it is provided that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

3. Now it is not open to doubt or controversy that the plaintiffs who were brought upon the record after the decree was passed as the heirs and legal representatives of Rup Kumari were the representatives of Rup Kumari within Section 47, or that the question whether any interest in the tank passed on the sale was a question relating to the execution, discharge or satisfaction of the decree. Kailash Chandra Tarapdar v. Gopal Chandra Poddar A.I.R. 1926 Cal. 798 (F.B.). It is equally clear that the plaintiffs had an opportunity of raising this question in the execution proceedings, but refrained from so doing. In these circumstances, I am of opinion that the plaintiffs' suit except as to the claim for arrears of rent is barred by reason of Section 47 of the Code. I respectfully agree with the Full Bench of the Allababad High Court in thinking that:

If there are questions of this nature, and which properly arise between the parties or their representatives they must be determined by order of the Court executing the decree, and not by separate suit; and the provision disallowing a separate suit to determine these questions applies not only to prohibit a suit between parties and their representatives but also a suit by a party or his representatives against an auction-purchaser in execution of the decree, the object of which is to determine a question which properly arises between parties or their representatives and relates to the execution, discharge or satisfaction of the decree. If the question be of this nature it is one which by Section 244 (now Section 47) must be determined by order of the Court executing the decree and not by separate suit; and it is immaterial whether the party did or did not raise it prior to the auction sale at the time of execution. If he did not, he lost the remedy which the Legislature has provided.

4. See Basti Ram. v. Fattu [1886] 8 All. 146; also Punchanun v. Rabia [1890] 17 Cal. 711, Prosunno Coomar Sanyal v. Kasi Das Sanyal [1892] 19 Cal. 683, Dwarka Nath Pal v. Tarini Sankar Ray [1907] 34 Cal. 199, Ganapathy Mudaliar v. Krishnamachariar [1918] 41 Mad. 403, Khitish Chandra Banerjee v. Thako Mani Debi [1918] 27 C.L.J. 572, Seth Chand Mal v. Durga Dei [1890] 12 All. 313, Gokul Sinn v. Kisan Singh [1910] 34 Bom. 546, Nadamuni v. Veerabhadra Pillai [1910] 34 Mad. 417. The appellants contend, however, that as their claim in the present suit is brought against a stranger-uction-purahaser, who is neither a party to the suit nor the representative of a party, Section 47 can have no application to the present proceedings. The answer to that contention is that the1 Legislature by enacting Section 47 and Order 21 of the Code intended and provided that all questions arising between the parties to the suit or their representatives in interest relating to the execution, discharge or satisfaction of the decree should be determined in the proceedings in which the decree was passed. If a party to the suit or his representatives desire to raise an issue which falls within Section 47, such as whether the gale ought to be set aside on the ground of irregularity or fraud as provided in Order 21, Rule 90, or whether the property sold was liable to attachment in execution of the decree, they must do so in the course of the execution proceedings as provided in the Code and not otherwise. A stranger-auction-purchaser, after the sale has become absolute and a sale certificate has been granted, ought not to be left in doubt as to whether the parties or their representatives intend in the future to attack the sale in further or other proceedings.

5. If a party to the suit or his representatives in interest refrain from raising a question which falls within the ambit of Section 47 and elect to stand by and de nothing while property alleged to belong to the judgment-debtor is attached and sold in execution of the decree, such persons are not to be permitted thereafter to canvass such questions in oilier proceedings, or to harass the auction-purchaser by launching a separate suit against him in which the sale is attacked upon some ground which could and ought to have been raised in the execution proceedings and which falls within Section 47 of the Code. In like manner the parties or their representatives are also precluded from raising such issues by way of defence in any proceedings other than those for which provision is made in the Code : see Gokul Singh v. Kisan Singh [1910] 34 Bom. 546, Mayan Lal v. Doshi Mulji [1901] 25 Bom. 631, and Amir Bai v. Basdeo Singh [1906] 5 C.L.J. 204 upon which the learned pleaders for the appellants relied do not support the appellants' contention, for in each of those cases the judgment-debtors applied to the Court to set aside the sale under Section 310A of the Code of 1882 (now Order 21, Rule 89), and thus the question to be determined upon the application arose solely between the judgment-debtor and the auction purchaser, for it matters not to the decree-holder whether he receives payment of the sum due to him under the decree from the judgment-debtor or from the auction-purchaser. For these reasons, in my opinion the plaintiffs' claim to the declaration for which they pray is barred by Section 47. Further, the Court is not entitled now to treat the present suit as an application under Section 47, for such an application would be barred by limitation : Lalinan Das v. Jagannath Singh [1900] 22 All. 367; Satish Chandra v Nishi Chandra [1920] 46 Cal. 975.

6. As regards the claim for arrears o rent, the plaintiffs-appellants contend that they are entitled to interest upon the sum awarded to them and the costs of that issue, but, in my opinion, in the circumstances the order of the learned District Judge refusing the plaintiffs such relief ought not to be disturbed. The result is that the appeal fails, and must be dismissed with costs.

Suhrawardy, J.

7. I agree. I wish to express my surprise at the strenuousness with which it was argued that the words 'all questions arising between the parties to the suit' in Section 47 of the Code must mean all questions which were actually raised in the execution proceedings. I do loot think that those words should be interpreted in that way. What I understand by those words is that the questions must be such as would relate to or affect the rights of parties to the suit. Otherwise, if we accept the contention of the appellant, the result will be that by not raising a. particular question in the execution proceedings a party will thereby retain the right to bring a separate suit in order to agitate that question. As has been pointed out by the Privy Council in several cases, proceedings under Section 244 of the Code of 1882 (corresponding to Section 47 of the Code of 1908) were intended to dispose ex-peditiously of all questions arising relating to execution. On other points. I agree with the judgment of my learned brother.


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