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A.S. Mallick and ors. Vs. Board of Trustees for the Port of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 2493-2494 of 1978
Judge
Reported inAIR1979Cal268,1979(1)CHN220,(1979)1CompLJ248(Cal)
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 21, Rule 2(3)
AppellantA.S. Mallick and ors.
RespondentBoard of Trustees for the Port of Calcutta and ors.
Appellant AdvocateSaktinath Mukherji and ;Bhaskar Ghosh, Advs.
Respondent AdvocateD.K. Chowdhury, Adv. (for No. 1), ;B.C. Dutta and ;S.N. Tagore, Advs. (for No. 2)
Cases ReferredJyotish Thakur v. Tara Kanta Jha
Excerpt:
- .....january 3, 1978, and the goswamis filed an application for substituting themselves in place of the decree holders as applicants in the said execution case on the ground that they are the assignees from the decree holders. the original decree holders, namely, the trustees for the port of calcutta gave their consent to such substitution and the original judgment debtor, namely, engineerssyndicate did not object to the said prayer being allowed. the executing court thereupon by an order dated april 10, 1978, allowed the application filed by the goswamis and directed that the said goswamis as the assignees of the decree are permitted to proceed with the execution case in place of the decree holders. the execution petition was amended accordingly.4. at that stage two sets of objections under.....
Judgment:

Anil K. Sen, J.

1. These are the two re-visional applications arising out of one and the same execution case being Title Execution Case No. 1 of 1978 of the 6th Court of the learned Subordinate Judge at Alipore which have been heard on 'contest analogously. The petitioners are the objectors whose objections under Section 47 of the Code of Civil Procedure had been dismissed. To appreciate the real issue involved in the dispute between the parties it would be necessary to refer to certain facts which may shortly be set out as follows:

Engineers Syndicate (India) Private Limited took lease of a plot of land situated on the northern side of Taratala Road, P. S. Garden Reach, District, 24 Parganas (hereinafter referred to as the suit land) from the admitted owners thereof, namely, the Commissioners for the Port of Calcutta (since re-designated as Board of Trutees for the Port of Calcutta). Engineers Syndicate defaulted in payment of rent and the Trustees for the Port of Calcutta instituted Title Suit No. 35 of 1970 claiming recovery of possession by evicting the lessee and for arrears of rent. That suit was decreed on July 6, 1972. On October 11, 1972, Engineers Syndicate by aregistered Deed of Sale transferred their right, title and interest in the suit land together with all immovable structures, godowns, sheds, offices, telephones etc., in favour of Messrs. Nabendu Goswami and Nikhilendu Goswami, a proprietary firm of Nirmalendu Goswami (hereinafter referred to as the Goswamis) for valuable consideration therein specified. The Deed of Sale provided that the purchaser shall make arrangement with the Trustees for the Port of Calcutta either as monthly tenant or as a lessee directly under them and the purchaser also agreed to pay all dues then outstanding to the Trustees for the Port of Calcutta.

2. Sometime in the year 1973 the Trustees for the Port of Calcutta put the aforesaid decree into execution in Title Ex. Case No. 11 of 1973. The Goswamis, that is, the purchasers from the judgment debtor Engineers Syndicate paid the decretal arrears whereupon the Trustees for the Port of Calcutta filed an application on August 2, 1974, in the execution proceeding stating that the judgment debtor has paid all the dues under the decree and there is no necessity of proceeding with the execution case which should be dismissed on full satisfaction. Since the said application did not disclose the fact as to whether the decree for possession also had been satisfied in any manner or not, the executing court called upon the Trustees for the Port of Calcutta 'to let the court know whether it wants to proceed for recovery of possession.' The Trustees for the Port of Calcutta took no further steps and did not answer the queries of the executing court. The executing court by an order dated December 17, 1974, disposed of the said Title Execution Case No. 11 of 1973 on part satisfaction.

3. The Goswamis thereafter obtained a lease for 30 years with effect from August 12, 1975, of the suit land from the Trustees for the Port of Calcutta in terms of a registered Deed of Lease dated March 11, 1978. Just preceding the execution of such a lease the Trustees for the Port of Calcutta filed a fresh execution case being Title Execution Case No. 1 of 1978 for recovery of possession in execution of the very same decree as against the original judgment debtor namely, Engineers Syndicate. The said execution case was filed on January 3, 1978, and the Goswamis filed an application for substituting themselves in place of the decree holders as applicants in the said execution case on the ground that they are the assignees from the decree holders. The original decree holders, namely, the Trustees for the Port of Calcutta gave their consent to such substitution and the original judgment debtor, namely, EngineersSyndicate did not object to the said prayer being allowed. The executing court thereupon by an order dated April 10, 1978, allowed the application filed by the Goswamis and directed that the said Goswamis as the assignees of the decree are permitted to proceed with the execution case in place of the decree holders. The execution petition was amended accordingly.

4. At that stage two sets of objections under Section 47 of the Civil Procedure Code were filed by the petitioners in the two revisional applications now before us. In one, the objectors were A. S. Mallik and N. R. Banerji carrying on business in a part of the suit land. They claimed to be sub-tenants in respect of a part of the suit land in their occupation under Engineers Syndicate. In the other one Md. Safi was the objector who too claimed to be carrying on business in a part of the suit land as a sub-tenant under the principal judgment debtors, namely, Engineers Syndicate. Both the objectors raised substantially the same objection, namely, that the decree holder and the judgment debtor both having transferred their right, title and interest in favour of the Goswamis and the original decree holders, namely, the Trustees for the Port of Calcutta having filed an application in the earlier execution informing the court of full satisfaction the decree is no longer executable. They also claimed that there being no specific assignment of the decree by the Trustees for the Port of Calcutta in favour of the Goswamis, the Goswamis cannot proceed with the execution case. It was also claimed on their behalf that the decree under execution being a fraudulent and collusive one---the whole abject being to evict the subtenants from the portions occupied by them --the execution case is liable to be dismissed.

5. Both the Trustees for the Port of Calcutta and the Goswamis filed their rejoinders to the said objections. So far as the Trustees for the Port of Calcutta are concerned, they claimed that they are no longer necessary parties since they have transferred their right, title and interest under the decree in favour of the Goswamis. The Goswamis, on the other hand, took the stand that the execution is still maintainable in law, the objectors as sub-lessees being bound by the decree. They further challenged the locus standi of the objectors to file such objection under Section 47 of the Code of Civil Procedure when they were not parties to the suit. They also claimed that whatever right, title and interest the objectors had the same stood extinguished by the decree and when they took lease of the suit land from the Trustees they did not take settlement of the said land subject to thealleged subtenancy of the objectors. Accordingly, the Goswamis claimed that the objections under Section 47 of the Civil Procedure Code being without any substance the same should be dismissed.

6. These objections were heard on evidence and were dismissed by two independent orders passed on the same date, namely, June 16, 1978. The learned judge held that when on the order recorded by the executing court the earlier execution case stood disposed of on part satisfaction and when the decree holders, namely, the Trustees for the Port of Calcutta had settled the suit premises in favour of the Goswamis, the Goswamis are entitled to proceed with the execution in view of the provisions of Section 140 read with Order 21 Rule 16 of the Civil Procedure Code. The learned Judge further held that the application for substitution, in place of the decree-holdors at the instance of the Goswamis having been allowed, the right of the Goswamis to proceed with the execution can no longer be challenged since that issue was filially decided by the order allowing the substitution which would operate as res judicata between the parties. The learned judge overruled the objection that the decree is vitiated by fraud and collusion on a finding that no such fraud or collusion could be proved by the objectors. So as the objectors A. S. Mallick and N. R. Banerji are concerned, the learned judge further found that since they were carrying on a partnership business which was not a registered one, such a firm has no locus standi to enforce their alleged right by maintaining an objection under Section 17 of the Civil Procedure Code. The objections were accordingly overruled and feeling aggrieved the objectors moved the above revisional applications and obtained Rules thereon from this Court on August 21, 1978.

7. Mr. Mukherji appearing in support of these two Rules has raised two points. In the first place, it has been contended by Mr. Mukherji that the original decree holders, namely, the Trustees for the port of Calcutta in their application dated August 2, 1974, having certified full satisfaction of the decree there can be no further execution. According to Mr. Mukherji, the order of the executing court recording part satisfaction on such an application is wholly inconsequential since under Order 21 Rule 2 (3) of the Civil Procedure Code the satisfaction of the entire decree having been certified, the same should prevail irrespective of whether such satisfaction had been recorded or not. The second point raised by Mr. Mukherji is that on the admitted facts the interest of the decree holders as also that of the judgment debtorshaving devolved on one and the same person, namely, the Goswamis the decree must be held to have become extinguished because the opposite character of debtor and creditor having united in the same person there is an extinction of the liability. It should, however, be noted that the second point thus raised by Mr. Mukherji had not been argued in that way before the executing court but the point being covered by the objection and having been argued as a principle of law on the admitted facts we have allowed Mr. Mukherji to raise the same before us.

8. Though the Trustees for the Port of Calcutta had entered appearance they are not contesting these Rules. Obviously they stand by their pleading, namely, that they having settled the suit land in favour of the Goswami are no longer interested in the present execution. These Rules, however, have been contested by the Goswamis. Mr. Dutt appearing on their behalf has contested both the points raised by Mr. Mukherji. According to Mr. Dutt the executing court having recorded part satisfaction in its order dated December 17, 1974, it is no longer open to the obejctors to claim that there had been full satisfaction of the decree. According to Mr. Dutt, the parties are not entitled to go behind the record and claim that there had been full satisfaction so that the decree is no longer executable. So far as the other objection raised by Mr. Mukherji is concerned, according to Mr. Dutt the doctrine of merger can have application only in the event that there was the necessary intention to merge and no such intention having been established in the present case it cannot be said that there was a complete merger of the two interests, namely, that of the decree holder and the judgment debtor resulting in extinction of the decree.

9. We have carefully considered the rival contentions put forward before us. To support the first point raised, Mr. Mukherji relies on the provision of Order 21 Rule 2 of the Civil Procedure Code which is set out hereunder:

2. (1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause whythe payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.

Particular reliance is placed on the terms ofSub-rule (3) as aforesaid, and an earlier Benchdecision of this Court in the case of TarakNath Sarkar v. Natabar Mondal,21 Cal LJ 632: (AIR 1915 Cal 744 (2)).No doubt Sub-rule (3) provides thata payment or adjustment which hasnot been certified or recorded shall notbe recognised by any court executing the decree which necessarily implies that any suchpayment or adjustment which has either beencertified or recorded shall be so recognised,yet we are unable to go to such an extent asto hold that even where an adjustment hadbeen recorded by an order of the court adjudging the extent or nature of the adjustment we can override the said record andgo by the certification itself. In the case relied on by Mr. Mukherji the record itselfwas not available and it was found as a factthat full satisfaction of the decree was certified by the decree holder in an applicationmade by him. In that context, it was laiddown by Sir Ashutosh Mookerji that the decree-holder having certified the adjustmentthe Court should recognise such adjustmenteven if recording thereof is not available tothe court. That was not a case like the present one where the decree holder in substancecertified part satisfaction though prayed fordismissal of the execution on full satisfactionand the court having made the necessary adjudication had recorded merely a part satisfaction of the decree. In a case of this nature,in our view, the certification itself cannotprevail and the same cannot override the court's order which is binding on the parties.In this view, we must overrule the first pointraised by Mr. Mukherji.

10. The second point raised by Mr. Mukherji raises an important question of law. On the facts set out hereinbefore it is well established that the Goswamis acquired right, title and interest of the judgment-debtors namely, Engineers Syndicate in the suit land together with the liabilities by purchase. After such purchase they paid off the arrears of rent decreed in favour of the Trustees and they in their turn took settlement of the suit land from the Trustees and stepped into the shoes of the decree holder. According to Mr. Mukherji both the interests, that is, the interest of the decree holder and the judgment debtor having vested in the same person, namely, the Goswamis the decree must beheld to have been extinguished. According to Mr. Mukherji if a decree for delivery of possession is yet to be executed it has to be executed by the Goswamis against themselves which is inconceivable. On the authorities cited, in our view, the objection raised by Mr. Mukherji has great substance. Even at a time when a provision corresponding to the second proviso to Rule 16 of Order 21 of the present Code of Civil Procedure had not been incorporated in the Code the Full Bench in the case of Degumburee Dabee v. Eshanchunder Sein (1868) 9 Suth WR 230 recognised extinguishment of a decree under similar circumstances. Therein, it was ruled by Sir Bernes Peacock that where one of the several judgment debtors purchases a decree against himself and his co-debtors he cannot issue execution against his co-debtors and recover from them the whole amount of the common debt. The principle so laid down by the Full Bench has consistently been approved and followed. Jenkins, C. J., in Rustomji v. Purshotamdas, (1901) ILR 25 Bom 606 pointed out that it is an elementary rule of procedure that the same individual even in different capacities cannot be both the plaintiff and the defendant in one and the same action in any of its stages whether before decree or after decree in proceedings in execution. This rule was recognised and codified in part in proviso (b) to Section 232 of the Code of 1882 which corresponds to the second proviso to Rule 16 of Order 21 of the present Code but that provision by itself is not exhaustive. It has been held as such by the Full Bench of Travancore Cochin High Court in the case of Ahamed v. Kochummini AIR 1956 Trav. Co. 171. Application of the said principle irrespective of the said proviso to Rule 16 of Order 21 was recognised by Patna High Court in the case of Chapala Debi v. Rakhal Chandra : AIR1964Pat363 where it was laid down that where a decree for eviction is passed in favour of several decree-holders against the quondam lessee and the decree holders hold several shares in the house property the subject of lease, then an adjustment between some of the decree holders and the judgment debtor lessee whereby the lessee steps into the shoes of those decree holders, should legally be taken as satisfaction of the eviction decree pro tanto. This position is also recognised by the Bombay High Court by the Bench decision in the case of Namdeo v. Vijay Kumar : AIR1963Bom244 . In our view Mr. Mukherji can justly invoke the above principle in support of his contention that when Goswamis have since acquired the interest both of the decree holders and the judgment debtor so far as the decree for recovery of possession is concerned, the decree must be held to be extinguished.

11. Mr. Dutt appearing on behalf of the Goswamis has, however, contended that there can be such extinguishment of the decree only on the merger of the two interests and there can be no such merger unless an intention to merge is established. Mr. Dutt has referred to a number of English decisions apart from a decision of the Privy Council and the other of the Supreme Court. Principles laid down in these decisions being the same, in our view it will be sufficient if we refer to the Privy Council decision and the decision of the Supreme Court. The Privy Council decision relied on by Mr. Dutt is the decision in the case of Dulhin Lacchanbati Kumari v. Bodh Nath Tiwari 48 Ind App 485 : (AIR 1922 PC 94). It was laid down by the Privy Council that in the case of acquisition of the inferior right by the holder of a superior interest there arises no merger ipso jure the intention becomes a relevant consideration. This principle was approved by the Supreme Court in the case of Jyotish Thakur v. Tara Kanta Jha : AIR1963SC605 where it was laid down: 'The legal position as regards merger apart from these statutory provisions may be slated thus: That while the union of the superior and the subordinate interests will not automatically cause a merger, merger will be held to have taken place if the intention to merge is clear and not otherwise,' Strongly relying On the principles thus enunciated Mr. Dutt had seriously contended that we should not come to a conclusion that there was a merger of the interest of the judgment debtors in that of the decree holders when both those interests were acquired by the Goswamis. We arc, however, of the opinion that intention does not really count in a case like the present one where the acquisition is not of an inferior right by the holder of a superior interest. The Privy Council rightly pointed that in cases of that nature for different considerations one who acquires the inferior right may hold the same independently of his superior rights. But in a case like the present one by acquiring the interest both of the decree holder and the judgment debtor the same person invests in him both the characters of being of the decree holder and the judgment debtor. Having assumed the said position certainly it is not conceivable that he could still put the decree into execution as against himself and enforce the relief thereunder. It had been rightly pointed out by Mr. Mukherji that the decree being one of recovery of possession against the lessee it has got to be executed as against the lessee or the transferee of the lessee's interest. So far as subordinate interests created by the lessee areconcerned, be it a lease or otherwise they would be bound by the decree in the sense that when the lessee is evicted they would also be evicted along with the lessee. There can be no independent execution as against the holders of such subordinate interests. Therefore, unless the Goswamis can take out an execution against themselves they cannot evict the holders of subordinate interests created by the original judgment debtors like the present objectors. Such being the position it has rightly been contended that both the interest of the judgment debtor and decree holder having vested in the same person, he cannot conceivably levy execution against himself and therefore, the decree must necessarily be held to have been extinguished.

12. Incidentally Mr. Dutt had strongly contended that by the transfer dated October 11, 1972, executed by Engineers Syndicate, the transferees Goswamis acquired no right, title and interest, and as such, it cannot be said that there had been any merger of the interest of the decree holders and that of the judgment debtors. According to Mr. Dutt such transfer was effected when the lease stood terminated by the decree so that the transferor had no right, title and interest to transfer. We are, however, available to accept such a contention of Mr. Dutt. True, by the decree, the lease in favour of the original lessee, namely, Engineers Syndicate stood determined so that Engineers Syndicate had no longer any right, title and interest as a lessee but so long possession had not been recovered by execution of the decree his possessory title still remained and such title constitutes transmissible interest in the property which is good against the whole world except the rightful owner. (See Halsbury's Laws of England 3rd Edition Vol. 24 Article 490) Such being the position, it cannot be said that by the transfer from the judgment debtors the Goswamis acquired no interest in the property which could be said to be still subsisting in the original judgment debtors.

13. In the result, we hold that the Goswamis having acquired both the interest of the decree holders and the judgment debtors in respect of the suit property the decree for recovery of possession stood extinguished in law and there could be no further execution at the instance of the Goswamis.

14. Before we dispose of finally the two revisional applications we must dispose of two other objections raised by Mr. Dutt. So far as the objection raised by A. S. Mallick and N. R. Banerji is concerned, it had been contended by Mr. Dutt that since they constitute an unregistered partnership the objection preferred by them is hit by Section 69 of thePartnership Act as found by the learned executing court, and as such, objection at their instance was not maintainable. In our view, there is substance in this objection because it has been found as a fact that these objectors constituted an unregistered partnership and the claim put forward on behalf of such a partnership was clearly not sustainable as it was unregistered. Mr. Mukherji has contended that even if this objection be upheld liberty must be reserved in favour of these objectors to raise a fresh objection because since then the partnership had been registered. In our view, when we are rejecting the objection only on the ground of non-maintainability because of the provision of Section 69 of the Partnership Act, certainly it would remain open to the objectors to prefer a fresh objection as and when they get themselves registered. But nonetheless when the objection with which we are now concerned was preferred by them at a time when they were not registered, the objection must be held to be not maintainable so that the order as passed by the executing court overruling their objection must be upheld. Subject to the observation made hereinbefore, their revisional application fails and is dismissed. Relevant Rule is, therefore, discharged.

15. So far as Md. Safi is concerned, ho too has filed an objection under Section 47 claiming to be a sub-lessee under the original judgment debtors. Though there was no specific denial of such a claim in the executing court by the Goswamis yet before us it had been sought to be argued by Mr. Dutt that what they were paying was not rent but service charges, and as such, they cannot be said to be the sub-lessees. Even if we accept the contention of Mr. Dutt and hold that Md. Safi was allowed to occupy a part of the suit land on payment of certain service charges by the original lessee, that certainly would constitute at least license in favour of Md. Safi which would entitle him to raise an objection under Section 47 because he cannot then be evicted in execution of a decree against his licensor if the decree has been extinguished and he can certainly seek protection of his possession until license in his favour has been terminated. Therefore, it is not necessary for us to go into and decide as to whether the objector Md. Safi was really a sub-lessee under the original lessee or not. The objection raised by Md. Safi, therefore, must prevail. The revisional application preferred by him, therefore, succeeds and the judgment and order of the executing court dismissing his objection is set aside. It be declared that as the decree for possession stands extinguished there can be no further execution thereof. The execution case, therefore, is dismissed. The Rule is made absolute. There will be no order for costs in either of the two Rules.

B.C. Chakrabarti, J.

16. I agree.


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