1. This is an appeal by the heirs of the decree, holder against an order dated 31st March 1949 passed by Mr. A. B. Ganguly, learned Sub-ordinate Judge, Asansol, District Burdwan dismissing an execution proceeding started by them.
2. The facts are as follows : Ram Kinkar Banerjee, predecessor-in-interest of the appellants instituted a suit for recovery of arrears of royalty of a Colliery known as Chak Sultanpur, for the period 1330 to 1335 B. S. on the basis of a Kabuliyat dated 3rd June 1908 executed by Mr. J. C. Martin. Defendant 1, A K. Patel a firm carrying on business under that name was impleaded on the allegation that the firm had acquired Martin's interest in the leasehold. On 18th May 1923, A. K. Patel executed 2 mortgages respectively in favour of defendant 7 Satyacharan Srimani and the late Jogendra Nath Mukherji. Defendants 3 and 4, Sushil Kumar Mukherji and Sudhir Kumar Mukharji who are two of the sons of Jogendranath Mukharji, were made parties as administrators to the estate of Jogendranath Mukharji (deceased). Defendants 5-6 Kripasankar Worah and Jathasankar Dosa were impleaded as transferees from defendants 3, 4 of the said mortgagee's interest of Jogendranath Mukharji under a conveyance dated 17th April 1928. Defendant 2 Amritlal Chanchani was made a party, being the receiver appointed in mortgage suit No. 336 of 1928. Defendant 8 N. A. Patel was impleaded as the successor-in-interest of A. K. Patel. Defendant 2 N. H. Ojha was made a party as he was the managing agent of the collieries.
3. The suit was decreed on 20th April 1981 against all the defendants except defendants 8 and 9, against whom the suit was dismissed. The decree was for Rs. 30,282-11-3 viz. Rs. 27867-14-0 for arrears of rents and Rs. 2414-14-3 as costs. Against the decree 2 appeals were preferred in this Court respectively by defendants 5, 6 and 7. Defendants 3 and 4 or defendants 1 and 2 did not prefer any appeal. Both the appeals filed by defendants 5, 6 and 7 were allowed on the ground that the appellants who were mortgagees of the colliery or their transferees but who had not gone into possession, were not liable for the royalty and the suit was dismissed as against them.
4. Against the decrees passed by the High Court, the plaintiff Ram Kinkar Banerjee preferred appeals to His Majesty in Council impleading only defendants 5, 6 and 7 as parties respondents. The appeals were dismissed; the judgment of their Lordships of the Privy Council is reported in Ram Kinkar v. Satyacharan, 66 I. A. 50.
5. The result was that the decree of the trial Court was maintained only against defendants 1, 2, 3 and 4. The decree was executed on several occasions.
6. The present execution was started by the appellants on 27th September 1947 for realisation of Rs. 60,174-11-3 viz., dues under the decree Rs. 30,262-11-3 and interest since the decree Rs. 29,892. The execution was sought against Sushil Kumar Mukherji and Sudhir Kumar Mukherji. The, latter having died, his heirs were brought on the record of the execution case. The relief sought was that the decretal dues be recovered by the attachment and sale of the immoveable properties mentioned in .the schedule to the execution petition viz North Moshila Colliery.
7. A petition of objection under Section 47, Civil P. C. was filed by the judgment-debtor No. 3 Sushil Kumar Mukherji.
8. The learned Subordinate Judge by his order dated 3rd March 1949 gave effect to the objection raised by the judgment-debtor No. 3 viz. that the property sought to be attached and sold is the personal property of the judgment-debtor No. 3. The learned Subordinate Judge accordingly dismissed the execution case.
9. The executing decree-holders have preferred this appeal. In this appeal, both Sushil Kumar Mukherji and the heirs of late Sudhir Kumar Mukherji were impleaded as respondents.
10. By an order dated 16th May 1950 the appeal stood dismissed against the heirs of late Sudhir Kumar Mukherji.
11. Mr. Gupta, learned counsel for the appellants has contended that as the property sought to be attached and sold viz. 8 as. share of North Moshila Colliery was the property of the judgment-debtors viz. the estate of late Jogendranath Mukherji and is now in the possession of judgment debtor 'No. 3 Sushil Kumar Mukherji who is one of the heirs of late Jogendranath Mukherji, the decree-holder can execute the decree against the property by virtue of the provisions of Section 52, Civil P. C.
12. In order to deal with this contention it is necessary to state the title of the judgment-debtor No. 3 Sushil Kumar Mukherji to the North Moshilla Colliery.
13. North Moshila Colliery originally belonged to one Satish Chandra Mitra. In execution of a decree obtained by J. C. Gaulstan against Satish Chandra Mitra the Colliery was sold and was purchased by Aswini Kumar Chatterji on 4th July 1921. Aswini took possession on 8th September 1922.
14. On 2nd September 1925, an indenture of sale Ex. 3 was executed between Aswini Kumar Chatterjee as transferor of the 1st part, Sushil Kumar Mukherjee of the 2nd part and Sudhir Kumar Mukherji and J. C. Patel as transferees of the 3rd part. The indenture recited that the purchase money at the aforesaid auction sale was met as to a moiety by Aswini Kumar Chatterji and Sushil Kumar Mukherji equally out of the funds of a firm Messrs. W. C Mukherjee & Co. of which the sole partners were Sushil Kumar Mukherji and Aswini Kumar Chatterji and as to the other moiety as trustee for Sudhir Kumar Mukherji and J. C. Patel. The indenture further recited that Aswini Kumar Chatterji and Sushil Kumar Mukherji were in possession as to a moiety and Sudhir Kumar Mukherji and J. C. Patel were in possession as to the remaining moiety. By the indenture, Aswini Kumar Chatterji and Sushil Kumar Mukherji transferred the moiety share in the Colliery to Sudhir Kumar Mukerji and J. C. Patel.
15. The effect of the indenture, therefore, was that Aswini Kumar Chatterji, Sushil Kumar Mukherji, Sudhir Kumar Mukherji and J. C. Patel were declared to be entitled each to 1/4th share in the North Moshila Colliery.
16. Jogendranath Mukherji died on 5th January 1926 leaving as his heirs his five sons Sushil Kumar Mukherji, Sudhir Kumar Mukherji, Kristo Kumar Mukherji, Bidyut Kumar Mukherji, Prodyot Kumar Mukherji. Jogendra's widow Charubala Debi, survived Jogendra.
17. On 16th September 1926, letters of administration were granted to Sushil Kumar Mukherji and Sudhir Kumar Mukherji by this Court.
18. It has been found by the Court below that Sushil Kumar Mukherji acquired out of his own funds the 1/4th share of J. C. Patel in the Colliery. This finding was not challenged on behalf of the appellants.
19. It would appear from the indenture Ex. 3 (a) dated 18th December 1931 that Aswini Kumar Chatterji sold his 1/4th share to Bidyut Kumar Mukherji, a son of late Jogendranath Mukherji by a conveyance dated 25th June 1929 for a sum of Rs. 10000. The indenture also recited that the purchase money was paid by Jogendranath Mukherji father of the said Bidyut Kumar Mukherji and that the property so purchased formed part of the estate of Jogendranath Makherji.
20. The recital in so far as it stated that the purchase money was paid by Jogendranath Mukherji is not quite accurate because Jogendra had died on 5th January 1926 more than 3 years prior to purchase.
21. As regards the l/4th share of Sudhir Kumar Mukherji, the indenture Ex. 3 (a) stated that Sudhir Kumar Mukherji was the purchaser in possession.
22. The indenture Ex. 3 (b) dated 18th December 1934 recited that Sudhir had mortgaged his undivided l/4th share on 17th April 1929 to Probodhlal Mukherji.
23. The indenture Ex. 3 (b) declared that this l/4th share of Sudhir Kumar Mukherji belonged to the estate of Jogendranath Makherji.
24. The indenture Ex. 3 (a), recited that on 2nd May 1932 Krishna Kumar Mukherji instituted a suit for partition and administration in the High Court of Calcutta, being Suit No. 994 of 1932,and that in the said suit an order was made on 1st September 1932 for appointment of a receiver in respect of certain properties including the l/4th share of Bidyut Kumar Mukherji in North Moshila Colliery, and that Sushil Kumar Mukherji preferred an appeal, being No. 96 of 1932 against the said order.
25. During the hearing of the appeal the parties came to terms and the said appeal and the suit were both disposed of on 28th February 1938 on certain terms which were duly recorded. These terms of settlement were marked as Ex. D.
26. The effect of the terms of settlement was that Sudhir Kumar Mukherji was discharged from acting as administrator, and Sushil Kumar Mukherji was absolved from his liability for accounts as administrator and Sushil Kumar Mukherji ceased to be administrator. By the compromise certain disputed questions of title as regards the proprietorship of the firms W. C. Mukherji & Co. and Jardin Menzies & Co., and the title to l/4th share each in North Moshila Colliery standing in the names of Sudhir Kumar Mukherji and Bidyut Kumar Mukherji and to some shares in certain limited Companies and to certain other properties were settled. The terms of settlement also provided for payment of the dues of the creditors of the estate of late Jogendranath Mukherji viz., the dues of Motilal Daga, of Aswini Kumar Chatterji and of A. N. Chowdhury as also the claims of their mother Charubala Debi in regard to certain moneys paid by her. The terms of settlement also provided that 1/2 share of North Moshila Colliery standing in the names of Sudhir Kumar Mukherji and Bidyut Kumar Mukherji would be declared to belong to the estate of late Jogendranath Mukherji and would be conveyed by Sudhir Kumar Mukherji and Bidyut Kumar Mukherji in concurrence with the other heirs of late Jogendranath Mukherji and of Charubala Debi to Sushil Kumar Mukherji and that the latter would execute an indemnity bond indemnifying the estate of Jogendranath Mukherji in respect of a mortgage of Rs. 25000 executed by Sudhir Kumar Mukherji in favour of one Probodhlal Mukherji. In pursuance of the compromise, the above mentioned indentures Ex. 3 (a) and 3 (b) were executed by the heirs of Jogendra in favour of Sushil Kumar Mukherji who in his turn executes an indemnity bond. Sushil Kumar Mukherji thus acquired the remaining 8 as. share in the North Moshila Colliery which had stood in the names of Sudhir Kumar Mukherji and Bidyut Kumar Mukherji.
27. In this Court Mr. Gupta learned counsel for the appellant has limited the decree-holder's prayer for attachment and sale to this 8 as share of Sushil Kumar Mukherji.
28. The decree under execution was obtained against Sushil Kumar Mukherji and Sudhir Kumar Mukherji as administrators to the estate of late Jogendranath Mukherji. This will appear from the decree Ex. c and the decision on issue (5) in the judgment Ex. 7.
29. As Jogendranath Mukherji was dead before the filing of the suit and the suit was filed against the administrators to his estate who are legal representatives within the meaning of Section 2(11) of the Code the provision applicable to the case is Section 52, Civil P. C. This is not disputed.
30. The section runs as follows:
'(1) Where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession., the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.'
31. The section, accordingly entitles the decree-holder to proceed in execution against the property of the deceased in the hands of the legal representative.
32. If the property is no longer in the hands of the legal representative, the decree-holder can proceed personally against the legal representative if the latter fails to satisfy the Court that he has properly accounted for the property which came to his hands.
33. The section does not give the decree-holder a right to proceed in execution against the property of the deceased which is no longer in the hands of the legal representative.
34. The scope of Section 52, Civil P. C. came to be considered in the Bench decision in Joychandra v. Satish Chandra, 34 C. W. N. 761 : 58 Cal. 170. In this case, the decree-holder had obtained a decree for mesne profits against the plaintiffs who were the administrators to the estate of late Jagatchunder Roy, with a copy of the will annexed. The administrators had made over the properties, in suit to the plaintiffs in terms of the will of Jagat chandra Roy. The decree-holder thereafter applied for execution of the said decree and attached the said properties. The plaintiff filed a claim objecting to the attachment on the ground that as assent had been given to the specific legacy in his favour, it was unattachable in execution. The claim was disallowed. The plaintiff then filed a suit under Order 21, Rule 63, Civil P. C. The suit succeeded in the Courts below. It was contended by the decree-holder in this Court that as the debts must be paid before the legacies, the plaintiff was liable for the decretal amount and execution could be levied on the said property. Bankin C. J. who delivered the judgment of the Court held that though the decree-holder could call upon the legatee to refund yet his remedy was not 'by the simple process of levying execution under the decree against the executor or, the administrator but by a suit. The learned Chief Justice observed:
'The matter was considered in the cage of an alienee in the case of Greender Chunder v. Mckintosh, 4 Cal. 897. The language in the older Code of the Section which corresponds to Section 52 was somewhat different from what it is now and the alternations were apparently made in consequence of the observations made by Mr. Justice Pointfex in the very case, where he pointed out that under that section it was intended to confine the procedure to property remaining in the possession of the legal representatives, leaving the creditors to follow property improperly alienated by the legal representative by a separate suit. If one considers the language of Section 52 of the Code and if one considers the machinery provided thereunder by B. 58 onwards of Order. 21, Civil P. C., it is clear in my mind that the right of a creditor to follow the assets in the hands of a legatee is a right which has to be exercised by a suit. It cannot possibly be exercised merely by levying execution against the assets in the hands of the legatee under a judgment against the legal representatives'(pp. 762-763).
35. The view taken in Joychandra Roy's case, (84 C. W. N. 761) was applied to a case where the decree had been obtained against an administratrix and thereafter the administratrix made over the estate to the legal heir and execution was sought to be levied against the heir. Edgly J. held that the principles enunciated in Joychandra Roy's case, applied to the facts of the case and that the remedy of the decree-holder was by way of a suit: Debiprosanna v. Indranarain, 45 C. W. N. 78.
36. I may also refer to the Bench decision in Chatakelan v. Gobind karumiar, (11 Mad. 186) where similar views have been taken of Section 234, Civil P. C., 1882 which corresponds to Section 50, Civil P. C., 1908.
37. Mr. Gupta relied on the decision of Panckridge J. in Susil K. Mitter v. Samarendranath Mitter, 42 C. W. N. 65. In that case the fact was entirely different. What had happened in that case was that in the course of an administration suit, the executor who was himself the specific legatee, admitted the claim of the creditor to obtain payment of his dues. Having failed to get payment the creditor attached the specific legacy in favour of Samarendranath Mitter who was himself an executor and the legatee and to whose legacy assent had been previously given by the executors. Samarendra objected to the attachment on the ground that as assent had been given to the specific legacy, the creditor could not attach the same in execution. Reliance was placed on the above decision in Joy Chandra Roy's case, (34 C. W. N. 761). At page 68, Pankridge J. pointed out that the distinguishing feature of the case before him was that the applicant filled the character both of executor and legatee and that the administration decree was a decree passed against the applicant as legal representative of the deceased.
38. The facts in the last case were somewhat singular. The objecting executor had himself agreed to pay the creditor, the specific legacy was still in his possession, his title to the legacy was derived solely from the will of which he was the executor, and the question arose in the course of administration proceedings. In my opinion, the decision of Panckridge J. was rested on the special facts of that case and cannot apply to the facts of the present case.
39. In the present case, the judgment-debtor No. 3 Sushil Kumar Mukherji is in possession of the disputed 8 as. share in North Moshila Colliery, not as a legal representative of the deceased Jogendranath Mukherji. As already stated, Sushil Kumar Mukherji and Sudhir Kumar Mukherji obtained letters of administration to the estate of their father Jogendranath Mukherji. The effect of the grant was that they became the legal representatives of their deceased father and the property of the deceased vested in them under Section 211, Succession Act.
40. I have already referred to the decree in the administration suit filed by Krishna Kumar Mukherji. The terms of settlement Ex. D which were duly recorded, had the effect of terminating their administration. The administrators Sushil Kumar Mukherji and Sudhir Kumar Mukherji became divested of the estate of Jogendranath Mukherji on the passing of the decree. Thereafter the heirs of late Jogendranath Mukherji including Sushil Kumar Mukherji got the properties as mentioned in the terms of settlement Ex. D by virtue of the decree in the administration suit.
41. The terms of settlement Ex. D provided for payment of the dues of several creditors of the estate viz. Matilal Daga, Aswinikumar Chatterji, Abdul Aziz, Mr. A. N. Chowdhury and Charubala Debi. It also settled certain disputed questions of title to certain properties claimed by the different parties.
42. I do not agree with Mr. Gupta's contention that the decree was a mere arrangement between the heirs of late Jogendranath Mukherji for a division of his assets. In my opinion, the decree against the administrators of the estate of Jogendranath Mukherji cannot now be executed against Sushil Kumar Mukherji although he was one of the administrators and is one of the legal heirs of the deceased Jogendranath Mukherji.
43. There is another aspect of the matter. By the terms of settlement Ex. D, Sushil Kumar Mukherji undertook the liability to pay the mortgage of Probodhlal Mukherji for Rs. 25000 executed by Sudhir Kumar Mukherji charging 1/4th share in the disputed Colliery. He executed an indemnity bond absolving the widow and sons of Jogendranath Mukherji from the said liability.
43a. In my opinion, Sushil Kumar Mukherji can, at any rate, be deemed to have applied the said l/4th share of the disputed colliery for payment of the legitimate dues of the late Jogendranath Mukherji as alleged in the terms of settlement. There is nothing to show the real value of the l/4th share of the Colliery. As already stated Bidyut Kumar Mukherji purchased l/4th share of the Colliery for Rs. 10,000 only. In the petition for execution, the Colliery has been valued at Rs. 6660.
44. In the above circumstances, the principles laid down in the case of Veera Sokkaraju v. Papiah, 26 Mad. 792, to the effect that where property of a deceaed remains in the hands of the legal representative, it does not necessarily follow that a creditor is entitled to proceed against it as assets in the hands of the legal representatives. The question to be considered is the real effect of what has been done, and where payments have been made by the legal representative to the extent of the face value of the property of the deceased which has come into his hands, a decree cannot be executed even although he may still have in his possession property which originally belonged to the deceased will apply to the facts of the present case.
45. I have already pointed out that Sudhir Kumar Mukherji asserted his own title and possession to l/4th share in the disputed colliery and that Bidyut Kumar Mukherji purchased another 1/4th share sometime after the death of Jogendranath Mukherji.
46. Apart from the recitals in Exs. 3 (a) and 3 (b), wherein the said Sudhir Kumar Mukherji and Bidyut Kumar Mukherji declared that the title to the shares standing in their names belonged to the estate of Jogendranath Mukherji, there is no evidence that the said shares were acquired by Jogendranath Mukherji in the names of his sons Sudhir Kumar Mukherji and Bidyut Kumar Mukherji.
47. On the other hand, the ostensible title and possession rested with Sudhir Kumar Mukherji and Bidyut Kumar Mukherji. The affidavit of assets Ex. F (1) filed by the administrators does not mention the disputed colliery as an asset of lake Jogendranath Mukherji.
48. The recitals can be explained on the footing that they were made for settling the disputes amongst the widow and sons of late Jogendranath Mukherji and arranging for payment of debts of the deceased. The 8 as share of Sudhir Kumar Mukherji and Bidyut Kumar Mukherji were conveyed to Sushil Kumar Mukherji in settlement of bona fide disputed questions of title. In my opinion, it may safely be inferred that the title of Sushil Kumar Mukherji to the disputed 8 as. share in the disputed colliery was based on the terms of settlement and that the decree-holders have failed to show that in point of fact, the said share belonged to Jogendranath Mukherji and had come into the hands of the administrators. In my opinion, the decree-holders cannot recover their decretal dues by the simple mode of levying execution by the attachment and sale of the said 8 as share.
49. The decision of their Lordships of the Judicial Committee in the case of Mirza Mohamad Kazim Ali v. Mirza Mohamad Sadiq Ali, 65 I.A, 219, to which Mr. Gupta referred, dealt with the question of contribution of one of the heirs whose property was taken in execution of a decree against all the heirs of the deceased. The question which is now before us, did not call for a decision in that case.
50. For the foregoing reasons I am of opinion that the contention of Mr. Gupta cannot be accepted.
51. Mr. Sanyal learned counsel for the respondent faintly suggested that the decree against the administrators had been erroneously passed and that they were not in law liable for the claim on the principles laid down by the Judicial Committee in the very case Ram Kinkar v. Satyacharan, 66 I. A. 50. This is a matter which cannot be considered by a Court of execution which cannot question the validity of the decree.
52. For the reasons already given I hold that the decree-holders are not entitled to attach and sell in execution the disputed colliery.
53. The result, therefore, is that the appeal fails and is dismissed with costs.
54. I agree.