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Kali Charan Nath and anr. Vs. Sukhada Sundari Debi and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in30Ind.Cas.824
AppellantKali Charan Nath and anr.
RespondentSukhada Sundari Debi and ors.
Cases ReferredWilliams v. Jones
civil procedure code (act v of 908), section 47 - execution of decree representative--decree against ostensible representative-- execution against executor--remedies of decree-holder--suit upon domestic judgment. - .....with the question of the binding character of orders made or sales held in execution of a decree obtained against persons who, as subsequent events show, are either not the proper representatives of the deceased defendant or constitute only some of his representatives. there has been some divergence of judicial opinion upon this matter, as is clear from an examination of the decisions in general manager of the raj durbhnuga. v. ramaput singh 14 m.i.a. 605 : 10 b.l.r. 294 : 17 w.r. 459 : 2 suth. p.c. 7 575 : 3. sar. p.c.j. 117 : 20 e.r. 912; assamathem nessa bibee v. lutchmeeput singh 4 c. 142 : c.l.r. 223 : 1 shome l.r. 219; chuni lal v. osmond beeby 30 c. 1044; baswantapa shidapa v. ranu 9 b. 86; janaki v. dhanu lal 14 m. 454; chathakelan v. govinda karumiar 17 m. 186 : 4.....

1. This is an appeal by the decree-holders against an order in execution proceedings, and illustrates, what has been often stated before, that the difficulties of a litigant begin when he has obtained his decree. On the 16th September 1911 the appellants instituted a suit against one Mahim Chandra Chakrabarti for recovery of a large sum of money. During the pendency of the suit, the defendant died on the 27th November 1911. On the application of the plaintiffs, the three sons of the deceased, who were ostensibly his heirs and representatives, were brought on the record in his place. They did not object to the adoption of this course. The case was tried on the merits, and on the 8th May 1912 a decree was made against the persons supposed to be the heirs and representatives of the original debtor. The decree directed as usual that the judgment-debt be realised out of the estate of the deceased in the hands of the substituted defendants. On the 9th June 1913, the decree-holders applied for execution of their decree, and notices were duly issued. Thereupon the wives of the three sons of the deceased intervened and stated that execution could not proceed as Mohim, Chandra, their father-in-law, had made a testamentary disposition of his properties on the 1st May 1911, whereby they had been appointed executrices. They alleged that the Will had been duly proved in 1913, but that the Probate had not been actually issued as the question of valuation of estate was still under investigation by the Collector. The Court held that the decree had been obtained against persons who were not the true representatives of the deceased debtor and could not be executed against the estate in the hands of the executrices. The application for execution was consequently dismissed. The decree holders appealed to the District Judge, but the appeal has been dismissed as incompetent. The decree-holders have now appealed to this Court and have contended that the appeal should have been heard on the merits by the District Judge and execution allowed against the estate in the hands of the executrices. It is plain that the answer to the question whether the order of the primary Court was appealable or not, depends upon the question, whether the decree is capable of execution against the estate in the hands of the executrices; if the latter are representatives of the parties to the suit, the order falls within the scope of Section 47 of the Code and is appealable as a decree; if they cannot be deemed such representatives, the order is not covered by that section and cannot be challenged by way of appeal.

2. We may at the outset deal with a narrow ground assigned by the respondents in support of the view that the executrices are not representatives of the parties to the suit; they have argued that they are the representatives of the original debtor but are in no sense representatives of the sons of the debtor, who were brought on the record of the suit as his successors-in-interest. This contention is based on a limited view of the meaning of the term representative. The sons of the deceased defendant were brought on the record as his representatives-in-interest; they were unquestionably his representatives to all appearances; the Will had not been proved at that time, nor were the plaintiffs ever; aware of its existence. Consequently, they were the only persons who could be brought on the record as successors-in-interest of the deceased. Since then the Will has been proved, and the Probate, by a legal fiction, takes effect retrospectively from the date of the death of the testator. Consequently the estate which was then ostensibly represented by the sons and heirs of the deceased, is now represented by the executrices. Without undue stretch of language, the view may, in these circumstances, be maintained that the executrices are representatives of the parties to the suit who were themselves before the Court in a representative character. Reference may in this connection be made to the decision in Premmoyi v. Preonath Dhur 28 C. 636, where an analogous question arose for consideration. There a Hindu widow had instituted a suit as representative of the estate of her husband; on her death during the pendency of the suit, the reversionary heirs were brought on the record. It was contended that they were not her representatives as they derived title not from her, but from her husband. This contention was negatived, and it was ruled that as the widow and the reversioners successively represented the same interest, the reversioners might be treated as representatives of the widow. We are, therefore, not prepared to hold that the order of the primary Court is beyond the scope of Section 47, merely because the executrices cannot, in popular language, be called representatives of the deceased debtor. Whether they can be deemed representatives of parties to the suit or not, depends, in our opinion, upon the answer to a more fundamental question.

3. It was explained by a Full Bench of the Court in Ishan Chunder Sirkar v. Beni Madhub Sirhar 24 C. 62 : 1 C.W.N. 36 that the term representative includes not merely a legal representative such as heir, executor or administrator, but also a representative-in-interest, that is, a representative of the decree-holder or judgment-debtor who, so far as such interest is concerned, is bound by the decree: Gidzari Lal v. Madho Ram 26 A. 447 (F.B.) : A.W.N. (1904) 61 : I.A.L.J. 65. We are thus brought back to what must, be deemed the root of the matter in this case, namely are the executrices bound by the decree. We are of opinion that the decree as it stands cannot be executed against the estate in their hands and that the remedy of the decree-holders is, either, to have the decree vacated, the suit restored, the executrices brought on the record and a new decree made against them, or, to institutes suit on the judgment and to obtain a decree thereon against the executrices. This is clear, from the decision in Ashi Bhushan Dasi v. Pelaram Mandal 21 Ind. Cas. 519 : 18 C.L.J. 362 : 18 C.W.N. 173. There a decree had been obtained for mesne profits against an alleged adopted minor son as the representative of the wrong-doer. The adoption was subsequently declared invalid, whereupon the decree-holder sought to proceed in execution against the real representative. It was ruled that the decree-holder could not proceed against the judgment-debtor on the record as he had not received any assets of the wrong-doer; nor could he ask the Court to substitute the name of the real representative in the decree, because the result would be really a new decree in his favour against such representative. At the same time, it is clear that a suit can be brought against the executrices on the basis of the judgment already obtained.

4. Reference may be made to the decision of Markby, J., in Prosunnre Chunder Bhuttacharjee v. Kristo Chytunno Pal 4 C. 342 : 3 C.L.R. 154, where, under circumstances somewhat similar to those of the present case, it was held that if the decree could not be executed against the estate in the hands of the executor, it was at any rate sufficient to enable the plaintiff to bring a suit against the executor to have the decree satisfied. We are not now concerned with the question of the binding character of orders made or sales held in execution of a decree obtained against persons who, as subsequent events show, are either not the proper representatives of the deceased defendant or constitute only some of his representatives. There has been some divergence of judicial opinion upon this matter, as is clear from an examination of the decisions in General Manager of the Raj Durbhnuga. v. Ramaput Singh 14 M.I.A. 605 : 10 B.L.R. 294 : 17 W.R. 459 : 2 Suth. P.C. 7 575 : 3. Sar. P.C.J. 117 : 20 E.R. 912; Assamathem Nessa Bibee v. Lutchmeeput Singh 4 C. 142 : C.L.R. 223 : 1 Shome L.R. 219; Chuni Lal v. Osmond Beeby 30 C. 1044; Baswantapa Shidapa v. Ranu 9 B. 86; Janaki v. Dhanu Lal 14 M. 454; Chathakelan v. Govinda Karumiar 17 M. 186 : 4 M.L.J. 59; Kadir Mohideen Marakkayar v. Muthukrishna Ayyar 26 M. 230 : 12 M.L.J. 368 and Ramasawmi Chettiar v. Oppilamani Chetti 4 Ind. Cas. 1059 : 33 M. 6 : 6 M.L.T. 269 : 19 M.L.T. 671 on the one hand, and Sitanath Das v. Roy Luchmiput Singh 11 C.L.R. 268; Harish Chunder Biswas v. Puri Das Das 6 Ind. Cas. 627 : 12 C.L.J. 561 : 14 C.W.N. 1041 and Lal Behary v. Nagendra Nath 16 Ind. Cas. 690 : 22 C.L.J. 266 on other hand. These decisions do not directly touch the question in controversy now before us, viz., whether the decree obtained against the ostensible representatives should be allowed to be executed against the estate in the hands of the executrices though objection is taken before execution has been issued, or whether the decree-holders should be limited to their remedy by way of a decree against the executrices, either by re-opening the suit or by instituting a fresh suit on the judgment previously obtained. The decision in Rameshwar Singh v. Janeshuari Babooshin 21 Ind. Cas. 397 : 18 C.W.N. 129 : 19 C.L.J. 19, which bears on the subject, is clearly distinguishable, in view of the special circumstances under which the decree in the first suit was obtained. There cannot, we think, be a reasonable doubt that a suit would lie on the judgment; this, indeed, is to some extent borne out by Article 122 of the Schedule to the Indian Limitation Act, which shows that the Legislature contemplated the possibility of suits upon judgments obtained in British India, though we are not unmindful that the Limitation Act cannot give rise to a cause of action where none exists independently of the provisions thereof; as Sir Richard Couch observed in Hari Nath v. Mothuramohan 20 I.A. 183 : 21 C. 8, the intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right: Khunni Lal v. Kunwar Gobind Krishna Narain 10 Ind. Cas. 477 : 15 C.W.N. 545 (P.C.) : 38 I.A. 87 : 8 A.L.J. 552 : 13 BOm. L.R. 427 : 13 C.L.J. 575 : 10 M.L.T. 25 : 21 M.L.J. 645 : 33 A. 356 : (1911) 1 M.W.N. 432. It is not necessary, for our present purpose, to enter upon a discussion of the circumstances under which a suit lies upon a judgment in British India. A n examination of the cases, specially those of Sondes v. Jomir Shaikh 9 M.W.N. 432; Attermoney Dossee v. Hurry Doss Dutt 7 C. 94 : 9 C.L.R. 357 : 4 Shome L.R. 192; Golam Arab V. Curreembux Shaikjee 5 C. 294 : 4 C.L.R. 477; Bhavanishankar v. Pursadri 6 B. 292; Merwanji Nowroji v. Achabai 8 B. 1; Ramayya v. Venkataratnam 17 M. 122 : 4 M.L.J. 52; Annoda Prasad v. Nobo Kissore Roy 9 C.W.N. 952 : 33 C. 560; Mallesam Naidu v. Jugala Panda 23 M. 292; Periasami Mudaliar v. Seetharama Chettiar 27 M. 243 (F.B.) : 14 M.L.J.Q. 84, shows that there is considerable divergence of judicial opinion upon the subject, and that the Courts are by no means agreed as to the circumstances Under which a suit may be instituted in this country on what may be called a domestic as distinguished from a foreign judgment. It is well known that in England there has been divergence of judicial opinion on the subject [Freeman on Judgments, Chapter XVII; Black or Judgments, Chapter XXIV], and it is only in recent years that the principle has been adopted that although an action lies on judgment which finally establishes a debt, whether the judgment be English or foreign, it is an abuse of the process of the Court to bring an action upon an English judgment if it can be enforced in some other way: Pritchett v. English and Colonial Syndicate (1899) 2 Q.B. 428 : 86 I.J.Q.B. 801 : 47 W.R. 577 : 81 L.T. 206; Grant v. Easton (1883) 13 Q.B.D. 302 : 53 L.J.Q.B. 68 : 49 L.T. 645 : 32 W.R. 239; Nouvion v. Freeman (1889) 15 App. Cas. 1 : 59 L.J. Ch. 337 : 62 L.T. 189 : 38 W.R. 581; Pemberton v. Hughes (1899) 1 Ch. 781 : 68 L.J. Ch. 281 : 47 W.R. 354 : 80 L.T. 369 : 15 T.L.R. 211; Hodsoll v. Baxter (1858) E1. B1. & E1. 884 : 28 L.J.B. 61 : 4 Jur. (N.S.) 556 : 6 W.R. 686 : 120 E.R. 739 : 113 R.R. 929. The principle on which an action is allowed to be maintained on a judgment was concisely explained by Baron Parke in Williams v. Jones (1845) 13 M. & W. 628 : 57 R.R. 767 : 2 D. & L. 680 : 14 L.J. Ex. 145. The principle is, that, where a Court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.' No mischief can result from the acceptance of this principle, if it is adopted subject to the qualification recognised in modern English law, viz., that an action is permissible only where the judgment cannot be enforced, in some other way; and beyond this, it is not necessary for our purpose to proceed.

5. We hold accordingly that the decree-holders are not entitled to execute their decree against the estate in the hands of the executrices. The appeal is consequently dismissed, but there will be no order for costs.

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