1. These two Rules are directed against an Order passed by the Court below, allowing two applications under Order 21 Rule 100 of the Code of Civil Procedure.
2. The circumstances, in the background of which the two applications were made, are as hereinafter stated.
3. Nagendra Nath Sau, the petitioner, instituted a suit for partition, being T. S. No. 137 of 1929, in the Court of a Subordinate Judge at Hoogly, against his co-sharers Upendra Nath Sau and others. The suit was resisted, inter alia, on the grounds that there had been a previous partition and some of the properties in suit were not joint properties but the seif-acquired properties of some of the defendants. The trial court dismissed the suit on the ground that there having had been a previous partition, another suit for partition was not maintainable. Against the decree of the trial court, the petitioner preferred an appeal to this Court, being F. A. 189 of 1933.
4. While the aforesaid appeal was pending in this court, one Gostha Behari Roy Kamley appears to have purchased the interest of the defendant respondents, in that appeal, or of some of them, in some out of the properties in suit, in several rent execution sales.
5. F. A. 189 of 1933 succeeded before this Court. The finding as to previous partition was set aside and the case was remanded to the trial court with direction to that court to pass a preliminary decree for partition, after considering the issue as to which of the properties in suit, if any at all, were the self-acquired properties of the defendants Or of any of them. There was also a decree for costs passed in favour of the appellant, who is the present petitioner.
6. After remand, there was a preliminary decree for partition passed by the trial court on 22-1-1938. Most of the properties in suit were found to be joint properties and share of the petitioner in the aforesaid properties was held to be one-half.
7. In execution of the decree for costs, passed in favour of the petitioner, he attached the share of the defendants, in that suit, in the properties, which were the subject matter of partition. Thereupon, Gostha Bebari preferred a claim, under Order XXI, Rule 58 of the Code of Civil Procedure (Misc. Case No. 135 of 1944) in respect of those, out of the attached properties, which he claimed to have had purchased as aforesaid. The claim was allowed.
8. Thereupon, the petitioner filed a suit (Title Suit No. 27 of 1947), under the provision of Order XXI, Rule 63 of the Code of Civil Procedure, against the said Gostha Behari, alleging that the purchases said to have been made by Gostha Behari were merely benami purchases on behalf of the defendants judgment-debtors. The aforesaid suit was dismissed by the trial court and the petitioner filed an appeal (Title Appeal No. 250 of 1950) against the decree, aforesaid. The appeal was dismissed on 6-10-1055.
9. In the meantime the petitioner had applied, for the passing of a final decree ior partition. There was a Commissioner appointed to effect partition. Gostha Behari was dead by the time. But his sons Bhupendra and Dhirendra resisted the Commissioner. Thereupon, iurther proceeding, in the partition suit, was directed to be stayed by the executing court, pending disposal of the appeal against the decree passed in the suit, under Order XXI Rule 63 of the Code of Civil Procedure, hereinbefore referred to.
10. Dissatisfied with the Order for stay of proceedings for preparation of the final decree, the petitioner moved this court and obtained a Rule, being Civil Rule No. 2200 of 1951. In the said Rule Bhupendra, one of the sons of Gostha Behari along with several others, applied for being added as opposite party. Their prayer was granted. The aforesaid Rule was made absolute, the order for stay of further proceedings was set aside, and the find decree was directed to be prepared and passed in the presence of the said added opposite parties, after considering their claim, if any, in the properties in dispute.
11. Curiously enough Bhupendra and others, who had had themselves added as parties, did not press their claim as to title in the partition suit, when the final decree was prepared. Thereupon, on 5-2-1957, there, was a final decree for partition passed and a distinct and separate allotment of properties was-made to the petitioner.
12. On 24-4-1957, the petitioner started Title Execution Case No. 9 of 1957 and applied for delivery of possession of the properties allotted to him, under the final decree.
13. In the aforesaid Title Execution Case, two applications, under Order XXI Rule 100 of the Civil Procedure Code, were filed one by Abaninath Sau and the other by the aforesaid Abaninath Sau and his brother Ram Krishna Sau.
14. The case made by Abaninath Sau was that he had purchased the properties, claimed by him, from Dhiredra Nath Roy, one of the sons of Gostha Behari, by a conveyance, dated July 24, 1956, and was in possession thereof until he was dispossessed therefrom, in process of execution, on May 24, 1957. The application by Abaninath Sau was registered as Misc. Case No. 62 of 1957.
15. The case made by Abaninath Sau and Ram Krishna Sau was that they had purchased some other properties from Dhirendra Nath Roy and Bhupendra Nath Roy, sons of Gostha Behari Roy, by two conveyances, respectively dated 29-5-1951 and 24-9-1951, and were in possession thereof until 24-5-1957, when they were dispossessed therefrom, in process of execution. The application by Abaninath Sau and Ram Krishna Sau was registered as Misc. Case No. 63 of 1957.
16. One of the objections taken by the petitioners was that the aforesaid two applications were not maintainable in law. The nature of the objection and the reasons given by the Court below in overruling the said objection will appear from the following extract from the order passed by the Court below, which is hereinbelow quoted:
'The learned pleader for the O. P. further urged that Gostha Behari acquired rights in these properties by purchase in Rent sale held in 1935, 1936 and 1937 and the interest claimed on the basis of involuntary transfer, cannot form the basis of a claim under Order 21 Rule 100 C. P. C. From the judgment passed in appeal Ex. 2(a), I find that it is so noted that the auction purchases by Gostha were made in 1935 and 1936. Under Order 21 Rule 102 a bar is imposed as against possession of property by one to whom judgment-debtor has transferred after the institution of the suit. Here the transfer is not by a judgment-debtor. In the case reported in Bepin Chandra v. Hem Chandra : AIR1939Cal709 , it has been so observed that such transfer may be by involuntary sale. But that observation had been considered in the case reported in Guna Durga Prasad Rao v. Krishna Rao, AIR 1946 Pat 134 and it was round that involuntary transfer cannot be effected, I find therefore, that the applications are maintainable.
It is clear from the evidence, dispossession took place through the process of the court when delivery of possession was taken. There is no reason to hold that the applicants were dispossessed at any subsequent date. P. W. 1 Abani stated that he grew brinjals in c. s. dag 4348 and that brinjals plucked by him had been snatched away by Nagen at the date of taking delivery of possession. The fact of dispossession through court, gives rise to a claim and actual enjoyment of the usufruct as a result of such dispossession, even if it happens a few days after when such occasion arises does not affect the claim.
I thus find that the applicants are entitled to be restored to possession'.
17. It is the propriety of the Order passed by the Court below which is being disputed in these two Rules.
18. It was contended before us by Mr. Apurbadhan Mukherjee, learned Advocate for the petitioners, that each of the opposite parties was bound by the decree passed in the partition suit, inasmuch as Gostha Behari, the father and predecessor-in-interest of Dhirendra and Bhupendra, had derived his title to the disputed properties in certain rent execution sales, held during the pendency of the partition suit, and also inasmuch as Bhupendra was himself an added party to the partition suit, at the stage of passing of the final decree in the said partition suit. Mr. Mukherjee strongly contended that a purchaser, in an involuntary sale, of the judgment-debtor's interest in the disputed properties must be deemed to be 'a person to whom the judgment-debtor has transferred the properties after the institution of the suit in which the decree was passed'. At the instance of such a person an application under Order XXI Rule 100 of the Code of Civil Procedure cannot be entertained. Mr. Mukherjee submitted that the view contended for by him was the view expressed by this court in a decision, reported in : AIR1939Cal709 and the court below was in error in preferring a different view of law, on the point, expressed by the Patna High Court, in a decision reported in AIR 1946 Pat 134.
19. The Patna High Court decision is certainly contrary to the decision of this court reported in : AIR1939Cal709 . The court below, in our opinion, took a strange liberty in this carding the interpretation of law by this court and in preferring to accept a different interpretation of law, on the point, by a different High Court.
20. We now propose to examine the reason behind the two conflicting decisions hereinbefore referred to.
21. The reasons which weighed with Edgley J. in the case reported in : AIR1939Cal709 are hereinbelow quoted:
'The general provisions of the law with regard to the principle of lis pendens are contained in Section 52 of the Transfer of Property Act. Having regard, however, to the terms or Section 2(d) of the Transfer of Property Act, the provision of Section 52 would not directly apply as regards the matter with which we are now dealing. At the same time, as regards transfers in the course of execution proceedings, the rule of lid pendens is expressly recognised in Order XXI Rule 102 of the Code of Civil Procedure. The precise effect of this Rule must therefore be considered.
* * * * ** * * * *In order to ascertain the precise meaning of this rule some reference is necessary to some of the preceding rules of Order XXI. If there is resistance or obstruction to the execution of a decree for the possession of immoveable properly, the decree-holder may complain under Rule 97. Rule 98 of Order XXI provides that, when the resistance or obstruction was occasioned without any just cause, the decree-holder will be put into possession of the property. If, however, there is any just cause for the resistance or obstruction of the nature mentioned in Rule 99 of Order XXI, the decree-holder's application is rejected. But, having regard to the provisions of Rule 102, the person in possession cannot be said to have a right to be in possession if he has received the property on transfer from the judgment-debtor, after the institution of the suit in which the decree was passed. In such a case the decree-holder's application would be allowed under Rule 98. The two succeeding Rules 100 and 101, relate to applications which may be made by the person other than the judgment-debtor in possession of the property which is the subject-matter of the execution proceedings. If any person in possession of such property other than the judgment-debtor is dispossessed, he may complain under Rule 100 of Order XXI. If it is found that he was in possession on his own account, the Court will order him to be restored to possession, unless, in view of the provisions of Rule 102, the judgment-debtor has transferred the property to him after the institution of the suit in which a decree was passed. The terms of Rule 102 are therefore such as to exclude from the benefit of Rule 99 a transferee pendente lite from the judgment-debtor, who has resisted or obstructed the execution of the decree, and from the benefit of Rule 101 any such transferee who has been dispossessed of the transferred property.
It has been argued that the words 'a person to whom the judgment-debtor has transferred the property' can only refer to a voluntary alienation on the part of a judgment-debtor and not to a transfer by a court sale or a sale under the Public Demands Recovery Act. Admittedly, the general doctrine of Us pendens under Section 52 of the Transfer of Property Act has been extended by judicial decision to involuntaty alienations and I see no reason why the same principle should not apply in the case of transfers which are covered by Rule 102. The transfer of property belonging to the judgment-debtor, whether such transfer be voluntary or involuntary, nevertheless operates as a transfer by the judgment-debtor and, in the view of the case, I think that the language of Rule 102 is sufficiently wide to cover both kinds of alienations by a judgment-debtor'.
22. The reason on which Shearer and Pande JJ. dissented from the view expressed by Edgley J. will appear from the following passage from their Lordships' decision, reported in AIR 1946 Pat 134: (ILR 24 Pat 695):
'For the appellants much reliance was placed in this court, as also in the court below, on a decision of a Judge of the Calcutta High Court, sitting singly, in : AIR1939Cal709 . That learned Judge there observed: 'Admittedly the general doctrine of lis pendens under Section 52 of the Transfer of Property Act has been extended by judicial decisions to involuntary alienations and I see no reason why the same principle should not apply in the case of transfers which are covered by Rule 102'. With the greatest respect, it seems to me that the conclusion which the learned Judge has drawn does not follow necessarily, or at all, from the premises. Moreover, it has escaped the notice of the learned Judge that Order XXI Rule 102, of the present Code corresponds to Section 333 of the Code of 1882. Now, in 1882 the doctrine of lis pendens had not yet been extended by judicial decisions to transfers in invitum. It may perhaps be desirable that Order XXI Rule 102 should be made applicable to sales in execution of decrees and, more particularly, to sales in execution of mortgage decrees, but it is for the legislature or the High Courts to amend the rule. It is not for the Courts to strain the language used in the rule and to attempt to put on it an interpretation which, in my opinion, it cannot reasonably bear'.
23. The view, expressed by Shearer and Pande JJ., in the case above relerred to, has its inspiration in an earlier decision by the same High Court, reported in Harihar Prosad v. Lakhan Lal, AIR 1935 Patna 230. In that case Fazl Ali J. observed as follows:
'It is contended that as the opposite party purchased the property during the pendency of the partition suit he is not entitled to claim the benefit of Order XXI, Rule 100 or Rule 101. It is, however, to be noticed that Order XXI Rule 102 does not in terms apply to an involuntary sale, but it is contended on behalf of the petitioner that the language used in Rule 102 is not materially different from the language of Section 52 and that in any case the general doctrine of lis pendens will apply to the present case. It appears to me, however, that in granting the summary relief which has been provided by Rules 100 and 101 the Court will have to confine itself to the language of the specific provision by which a remedy is provided'.
24. With very great respect to the learned Judges of the Patna High Court, who decided the two cases, above referred to, it seems to us that the construction put by them on Order XXI, Rule 102 of the Code of Civil Procedure is too literal a construction of the language used in the rule.
25. In our opinion Edgley J. was right in his observation made in : AIR1939Cal709 that the general doctrine of lis pendens must be taken to have been extended to involuntary Isales by general consensus of judicial opinion.
25a. The material portion of the language used in Section 52 of the Transfer of Property Act is as follows:
'During the pendency in any court..... of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order which may be made therein.....'
26. The language used in Rule 102 of Order XXI of the Code of Civil Procedure is as hereinbelow quoted:
'Nothing in Rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immoveable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person'.
27. The words 'property cannot be transferred ..... .by any party to the suit.' as in Section 52 of the Transfer of Property Act, have been interpreted to include sales in execution of decrees.
28. The cases on this point are numerous. We propose, however, to refer to a few from amongst the more recent decisions on the point.
29. In the case in 36 Cal. L.J. 101; (AIR 1923 Cal 252), Shyama Charan v. Satya Prosad, Mookerji and Chotzner JJ. expressed the following opinion:
'The first defendant, who purchased pendente lite, is bound by the decree in the previous suit, and is in no better position than the other defendants, whose right, title and interest had vested in him. He cannot escape the operation of Section 52 of the Transfer of Property Act, either because he purchased at an involuntary sale ...... or because the suit terminated in a consent decree.'
30. In the case reported in : AIR1936Cal590 , Emdad Ali v. Haran Sheikh, R.C. Mitter J. observed as follows:
'Regarding the first point, no doubt, Section 52 of the Transfer of Property Act does not in terms apply, as Haran Sheikh purchased at a court sale. But Section 52 embodies the principle of lis pendens which is wide enough to include sales in invitum.'
31. To the same effect is the decision of Pal J. reported in : AIR1943Cal577 , Muhamad Juman v. Akali Mudiani.
32. In the case of Ram Sanehilal v. Janki Prosad : AIR1931All466 Sulaiman A.C.J., in delivering the majority judgment of the Full Bench, observed as follows:
'The language of Section 52 has been held to be applicable not only to private transfers, but also to court sales held in execution of decrees.'
33. Also to the same effect is the view of the Madras High Court and Satyanarayana Rao J. observed as follows, in a case reported in AIR 1949 Mad 207, Subba Rao v. Venkataseshcharlu:
'As the purchase by Subba Rao was during the pendency of the mortgage suit, though the transfer was not a voluntary transfer, the principle of Section 52 Transfer of Property Act applies.'
34. Roy J. of the Patna High Court expressed the same view in the case of Sarat Chandra v. Chintamani, AIR 1948 Pat 111, and we quote below the relevant extract:
'Section 52 T.P. Act, defines the doctrine of lis pendens and it has been authoritatively pronounced, time and again, that the principle of lis pendens applies as well to private transfers as to transfers in execution of decrees in Court auction.'
35. The view of the Nagpur High Court is not different from what has been hereinbefore stated and the case of Sheolal v. Balkrishna is a case on the point.
36. Although we have referred to judgments on the point delivered in comparatively recent times, the doctrine that an execution sale purchaser is hit by the doctrine of lis pendens was enunciated in cases of far grater antiquity. Reference may be made, in this connection to three Privy Council decisions reported in 15 Ind App 97, Radhamadhub Holdar v. Monohur Mukherji, 24 Ind App 170, Motilal v. Karrab-Ud-Din, 34 Ind App 102, Faiyaz Husain Khan v. Munshi Prag Narain and three decisions of this Court reported in ILR 12 Cal 299, Jharoo v. Raj Chunder; ILR 15 Cal. 94, Gobind Chunder Roy v. Guru Churn Kurmokar and 1 Cal WN 36 (FB), Ishan Chandra v. Benimadhab.
37. If a transferee from any party to the suit within the meaning of Section 52 of the Transfer of Property Act includes an execution-sale purchaser, there is no reason why the words 'a person to whom a judgment-debtor has transferred' shall exclude a purchaser, who has purchased the judgment-debtor's interest in execution sale.
38. In the Full Bench decision reported in 1 Cal WN 37, this aspect of the matter was considered and it was held that inasmuch as an auction purchaser derived his title from the judgment-debtor he was his legal representative and as such bound by the doctrine of lis pendens. We quote below two extracts from the above decision:
'(i) At one time, there was some conflict of opinion as to the application of the. doctrine of lis pendena to the case of the latter (auction purchaser) .... But the question must now be taken to be practically settled by the decision of the Privy Council in 15 Ind App 97 and it must be held that an execution purchaser is hound by the doctrine of lis pen-dens quite as much as purchaser at a private sale.'
'(ii) It is true that an execution-purchaser makes his purchase not from the judgment-debtor and often against his wish, and he is not bound by some of the acts of the judgment-debtor such as alienations made by the latter to defeat the decree; but that does not show that his rights are not derived from the judgment-debtor or that he is not the representative in interest of the judgment-debtors in any sense or for any purpose.'
39. The consensus of judicial opinion On the meaning of the word 'transfer' being as hereinbefore stated, we hold that the words, 'person to whom the judgment-debtor has transferred', as in Order XXI Rule 102 of the Code of Civil Procedure must be deemed to include a purchaser in an execution-sale. We, therefore, respectfully agree with the view expressed by Edgley J. In : AIR1939Cal709 and dissent from the contrary view expressed by Shearer and Pande JJ. in AIR 1946 Pat 134: (ILR 24 Pat 695).
40. In our opinion the learned Subordinate Judge was in error in so far as he held that the applicants, in the two miscellaneous cases, being purchasers in execution sales were not persons to whom the judgment-debtor had transferred the disputed properties and as such the applications under Order XXI Rule 100, Civil Procedure Code were maintainable, at their instance.
41. We now turn to the other question as to whether, by virtue of the decree passed in the suit under Order XXI Rule 63 of the Code of Civil Procedure, which decree was affirmed in appeal, the applicants in the two Misc. cases, (Opposite parties herein) can resist the claim of the decree-holders (petitioners in these two rules) for delivery of possession of the disputed properties, in execution of the final decree for partition. This aspect of the matter was not gone into by the Court below and must be considered by an appropriate court, if called upon to do so by the opposite parties.
42. We, therefore, make these two rules absolute and dismiss Misc. Cases Nos. 62 and 63 of 1957. We make it perfectly clear, however, that in spite of the dismissal of the applications under Order XXI Rule 100 of the Code of Civil Procedure, the opposite parties may, if they like, agitate their rights, if any, under decrees passed in their favour in the suit under O.XXI Rule 63 of the Code of Civil Procedure, as affirmed in appeal, in appropriate proceedings and in appropriate manner. There will be no order as to costs in these two rules.
43. I agree.