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Narayan Chandra Nag and ors. Vs. Dinatarini Debi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 9 of 1956
Judge
Reported inAIR1961Cal643
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 148
AppellantNarayan Chandra Nag and ors.
RespondentDinatarini Debi and anr.
Appellant AdvocateRabindranath Bhattacharya and ;Binoyendra Deb Rai Mahasai, Advs.
Respondent AdvocateApurbadhan Mukherjee and ;Barun Kumar Roy Chowdhury, Advs.
DispositionAppeal allowed
Cases ReferredAghorakumar v. Mahomed Musa
Excerpt:
- banerjee, j.1.the decree-holders, who are the appellants, filed a suit against the judgment-debtors for declaring certain documents as fraudulent. the suit, being title suit no. 49 of 1944 was decreed on september 24, 1945. the decree, however, contained the direction that the decree-holders must deposit in court a sum of rs. 300/-; to the credit of the judgment-debtors, within a period of six months from the date of the decree, in default whereof the suit, in which the decree was made, shall be deemed to have been dismissed.2. the judgment-debtors preferred an appeal against the decree. during the pendency of the said appeal, on april 1, 1946, the decree-holders made a deposit of- rs. 300/-, as directed by the decree, but said to have been too late by eight days in so doing it. the.....
Judgment:

Banerjee, J.

1.The decree-holders, who are the appellants, filed a suit against the judgment-debtors for declaring certain documents as fraudulent. The suit, being Title Suit No. 49 of 1944 was decreed on September 24, 1945. The decree, however, contained the direction that the decree-holders must deposit in court a sum of Rs. 300/-; to the credit of the judgment-debtors, within a period of six months from the date of the decree, in default whereof the suit, in which the decree was made, shall be deemed to have been dismissed.

2. The judgment-debtors preferred an appeal against the decree. During the pendency of the said appeal, on April 1, 1946, the decree-holders made a deposit of- Rs. 300/-, as directed by the decree, but said to have been too late by eight days in so doing it. The appeal was allowed, on December 6, 1946. The judgment and decree of the trial court were set aside and the claim was dismissed in its entirety.

3. There is dispute as to whether the plaintiffs decree-holders had also preferred a cross appeal against that portion of decree, which directed them to deposit Rs. 300/-. In the judgment under appeal there is a statement to the effect that the cross-appeal by the plaintiffs decree-holders was dismissed along with the appeal. Mr. Apurbadhan Mukherjee, learned advocate for the judgment debtors respondents, states that the aforesaid statement is a wrong statement of fact. We have no materials before us to check the: correctness or otherwise of the dispute. As Mr. Rabindranath Bhattacharya, learned advocate for the appellants, did not emphasize on this aspect of the dispute, we shall proceed on the basis that there was no cross-appeal.

4. Against the appellate decree there was a second appeal taken to this court by the plaintiffs, who had obtained the decree before the trial court. On August 1-4, 1951, this Court set aside the judgment and decree of the first appellate court and remanded the matter to that court for being reheard. After remand the first appellate Court affirmed the judgment and decree of the trial court, on July 16, 1952.

5. On December 9, 1952, the decree-holders put the decree into execution. The judgment debtors preferred an objection to the execution, under Section 47 of the Code of Civil Procedure, contending that inasmuch as the decree holders had not made the deposit of Rs. 300/- within six months from September 24, 1945, the decree had spent itself by efflux of time, with the result that the decree-holders' claim must be deemed to have been dismissed. It was therefore, contended that there was no decree in favour of the decree holders capable of execution.

6. The decree-holders tried to repel the objections on a threefold ground-

(a) The deposit was made within time, because on account of the merger of the trial court's decree in the appellate decree, six months' time must be calculated from the date of the appellate decree.

(b) Defendants judgment-debtors had themselves applied for stay of the execution of the decreeand thus given to the decree holders an extension oftime to deposit the money.

(c) Even assuming that the suit stood, dismissedin terms of the default clause in the decree, thedefendants, by prosecuting appeal even thereafter,had accepted the position that there was a subsisting decree and must not be allowed to go backupon the position.

7. The executing court negatived the second branch of the argument on behalf of the decree holders but upheld the other two. The executing court, therefore, dismissed the objection under Section 47 of the Code of Civil Procedure.

8. On appeal by the judgment-debtors, the appellate court upheld the objections and allowed the appeal. Hence, this appeal at the instance of the decree-holders.

9. Mr. Rabindranath Bhattacharya, learned advocate for the decree-holders appellants argued that on account of successive appeals, taken against the decree of the trial court, time for the purpose of the default clause was to run only after the decree, passed by the lower appellate Court, after remand, that is to say, after July 16, 1952. The deposit having had been made on April 1, 1946, long prior to the decree after remand, there was no question of any default.

10. This argument requires careful consideration, because the reported decisions on the point have not used uniform language.

11. The earliest case on the point, so far as this court is concerned, is the one reported in Noor Ali Chowdhuri v. Koni Meah, ILR 13 Cal 13. In that case a decree under Section 52 of Bengal Act VIII of 1869 provided that unless the amount due was paid within 15 days from the date of the decree the, tenant (judgment-debtor) would be liable to ejectment from the holding. That decree was confirmed in appeal, no steps to execute the decree having been taken in the meantime. The tenant paid the decretal amount into court within 15 days of the appellate decree. The decree-holder made an application to be put in possession of the holding thereafter. The question arose whether the period of 15 days should be computed from the date of the original or the appellate decree. The executing court granted the application being of the opinion that time was to be computed from the trial court's decree and the deposit by the tenant not having been made within the period fixed by the decree, he came within the mischief of the default clause in the decree. On appeal, the District Judge affirmed the order of the Munsiff. On second appeal to this Court McDonell and Beverley, JJ. held that inasmuch as the appellate decree must be presumed to incorporate the terms of the original decree, and Was the only decree of which execution could be taken, the tenant, (judgment-debtor) having paid the decretal amount within 15 days of that decree was protected from ejectment.

12. The reasons, which weighed with theirLordships, appear from the following extract quotedfrom their judgment:

'The Full Bench of the High Court of Bengal, however in Ram Charan Bysack v. Lakhi Kant, 16 Suth WR FB 1 has ruled that whether the decree of the lower court is reversed or modified or affirmed, the decree passed by the Appellate Court is the final decree in the suit; and in the words of Mr. Justice Mitter 'as such the only decree which is capable of being enforced by execution'. And that is in accordance with the Madras decision in' Aruna Chella Thudayan v. Veludayan, 5 Mad HCR 215. Chief Justice Scotland's words are : 'Whether that decree be in affirmance or reversal or modification of the decree appealed from, it becomes the final decree in the suit, and therefore the decree enforceable by execution' '.

13. The next case in order of chronology is the one reported in Bhola Nath Bhuttacharjee v. Kanti Chundra Bhuttacharjee, ILR 25 Cal 311. In that case there was a preliminary mortgage decree made, giving the defendant three months' time in which to redeem, the three months to run from the date of that decree. An appeal against the decree, at the instance of the defendant, was heard and dismissed, thus leaving the original decree untouched. Thereafter an application was made by the plaintiff for foreclosure absolute and after notice to the defendant the foreclosure was made absolute. Delivery of possession was also given to the plaintiff. More than one year after the passing of the original decree the defendant made an application to the Munsif to set aside his own foreclosure order and the ground for his application was that the three months given for payment under the original decree should be taken to run not from the date of that decree but from the date of the Appellate Court's decree. The trial court acceded to that view and set aside the order for foreclosure. On appeal the first appellate Court reversed the order of the trial court and that is how the matter came up to the High Court.

14. Maclean, C. J. disposed of the appeal with the following observation:

'To my mind it is not necessary for us to go into the question whether the three months for redemption run from the date of the original decree or from the date of the appellate decree. In my judgment if the defendant desired to raise that point, the proper time to raise it was when the matter came before the Munsif upon the application by the plaintiff for foreclosure absolute. He ought then to have raised it; he ought then to have invited the court to hold that the three months for payment ought to run from the 24th July, 1894, and not from the 8th September, 1893, and that as that period had not expired, the foreclosure ought not to be made absolute. He did nothing of the sort. To my mind it is too late for him to raise the question now'.

15. Banerjee, J., who delivered a separate judgment in that matter, observed as follows:

'I only wish to add that if it were necessary to go into the question raised, namely, whether the time for redemption should run from the date of the first courts decree, or from the date of the decreeappeal, I should not have felt much hesitation in answering it in favour of the respondent, and saying that the time should run, having regard to the terms of the decree in the Appellate Court, from the date, of the decree of the first court. No doubt as there was an appeal here, the final decree in the case is the decree of the Appellate Court. But the decree of the Appellate Court simply dismissed the appeal, leaving the decree of the first court untouched, and I find very great difficulty in understanding how it can be said that, although the decree of the first court, which is thus left untouched, provided that, if payment was not made within three months from the date thereof, the mortgage should be foreclosed, the mortgagor, by simply preferring an unsuccessful appeal, and without obtaining any order from the Appellate Court to that effect, gets, necessarily, and by the mere fact of the appeal, an extension of time, namely, three months from the date of the Appellate Court's decree'.

16. The third case on the point is the one reported in Faijuddi Sardar v. Asimuddi Biswas, 11 Cal WN 679 in which Maclean C. J. (sitting with Fletcher, J.) observed as follows:

'The only question on this appeal is whether the six months allowed by the lower Court to the Defendant Nos. 1 and 2 for redeeming the mortgage should run from the 13th July, 1905 that is the date of the lower Court's decree or from the 7th February, 1906, that is, the date of the Appellate Court's decree. '* **** This question was discussed in the case of ILR 25 Cal 311 and there it was held -- I did not express my own opinion on the point definitely, inasmuch as I did not think that the point had arisen -- by Mr. Justice Banerjee that the time runs from the date of the first decree. I entirely agree in that view: and, for that reason, I think that this appeal must be allowed. That is the only question we have to dispose of.

17. The fourth case on the point is the one reported in Kailash Chandra Basu v. Girija Sundari Debi, ILR 39 Cal 925. This was a Letters Patent Appeal against the judgment and the decree of Coxe, J., sitting singly. In this case there was a decree for foreclosure against a widow, who had succeeded in life interest to her husband's estate. The widow preferred an appeal but the during the pendency thereof. The appeal was continued not by the reversioner of her husband but by her own personal legal representative. The decree by the appellate Court confirmed the decree of the trial court. Thereafter, the plaintiff, reversionary heir, instituted a suit for redemption. The suit succeeded before the trial court and the decree was confirmed in appeal. On second appeal Coxe, J. reversed the decree. In Letters Parent Appeal Jenkins, C. J. (sitting with N. R. Chatterjea, J.) held that the decree for foreclosure was no bar to a suit by the reversionary heir to redeem. In course of the judgment his Lordship observed:

'But whatever may have been the effect of that decree, had it stood by itself, it was superseded by the decree passed on appeal. The decree of the. Court of first instance could not in the circumstances be pleaded as res judicata, and the effect of a decree on appeal was indicated in ILR 13 Cal 13. which professes to follow earlier decision. It is there pointed out that where there is a decree on appeal which, confirms the decree against which the appeal is made, it is the appellate decree to which regard must be had, and the appellate decree supersedes the original decree'.

18. The other case on the point is the one reported in Basanta Kumar Adak v. Sin, Radha Rani Dasi, 26 Cal WN 440 : (AIR 1922 Cal 329). In that case a decree declared the right of the decree-holder to recover possession of certain property, subject to the right of the judgment-debtor to redeem on payment of a certain sum within six months of the date of the decree. Against that decree, the judgment-debtor appealed arid the decree holder filed a petition of cross-objection, but both were dismissed and the decree of the first court confirmed. Then within the six months' time of the appellate decree but more than six months after the date of the original decree, the judgment-debtor paid into court the sum necessary for the redemption. The decree-holder applied for execution of the decree; Newhould and Cuming JJ. held that where in a suit on a mortgage the decree of the Appellate Court simply dismissed the appeal leaving the decree of the first court untouched, the time for redemption runs from the date of the decree of the first court. In course of their judgment their Lordships observed as follows:

' In our opinion, on the authority of the decisions of this court, we must hold that this appeal must succeed. In the case of ILR 25 Cal 311, the learned Judges held that where in a suit on a mortgage the decree of the Appellate Court simply dismissed the appeal leaving the decree of the first court untouched, the time for redemption would run from the date of the decree of the first court. In that case, Maclean C. J., decided the appeal on another ground. But, in a later case, 11 Cal WN 679, the same learned Chief Justice expressly stated when the same point arose again that he entirely agreed with the view taken by Mr. Justice Bannerjee in the case of Bholanath Bhuttacharjee v. Kanti Chunder Mookerjee. ***** This view is also supported by the decision of the Madras High Court in the case of Ramaswami Kone v. Sundara Kone, ILR 31 Mad 28. In that case also, the objection taken on behalf of the Respondent in the present case is met; for at p. 32 of the re-port of that case it was held that it was not open to the learned Judges to construe such a decree in one way when the condition was imposed on the Respondent in the appeal and in another way when it was imposed on the Appellant. This, we think, is the right view and is in no way affected by the fact relied on by the Respondent that the decree-holder filed a petition of cross-objection denying that the judgment debtor had any right of redemption. On behalf of the Respondent, reliance is placed on the case of Satvaji Balajirao v. Sakharlal Atmaramshet, ILR 39 Bom 175: (AIR 1914 Bom 132). In that case, we are unable to understand the reasons given for distinguishing the case of ILR 25 Cal 311 already referred to. The decision in that case is contrary to the decisions of the Calcutta cases which we are bound to follow'. (19) We now turn to the case reported in ILR 39 Bom 175: (AIR 1914 Bom 132) which was criticised by Newbould and Cuming, JJ. in the case reported in 26 Cal WN 440. (AIR 1922 Cal 329). In that case the plaintiff brought a suit to recover possession of property as purchaser from defendants 1-6 and to redeem the mortgage of defendant 7. The first court having dismissed the suit, the appellate court, on plaintiff's appeal, passed a decree directing the plaintiff to recover possession on payment to defendants 1-6 of a certain sum of money within six months of the date of its decree and then to redeem defendant 7, and on plaintiffs failure to pay Within six months' time from the date of the decree he should forfeit, his right to recover possession. All parties being dissatisfied with the decree the plaintiff preferred a second appeal to the High Court and the two sets of defendants filed separate sets of cross objections. The High Court confirmed the decree and the plaintiff's second appeal and the defendants' cross objections were dismissed. Within six months of the date of the High Court's decree the plaintiff deposited in court the amount payable by him and applied for execution. The defendant 7 contended that the plaintiff not having complied with the terms of the decree of the first appellate court, his right to recover possession in execution was forfeited. The lower courts upheld the defendant's contention and dismissed the petitioner. On second appeal their Lordships of the High Court of Bombay held that the time for executing a decree for possession ran from the date of the High Court's decree, confirming the decree of the lower court, for, what was to be looked at and interpreted was the decree of the final appellate court. Scott, C. J. made the following observations in course of his judgment: 'The decision of the Madras High Court followed by the lower courts refers to the judgment of Sir John Edge in Jaggar Nath v. Jokhu Tewari, ILR 18 All, 223, which was based upon the express provisions of Section 214 of the Civil Procedure Code applicable in decrees in pre-emption suits, but we do not understand that judgment as throwing any doubt on the Full Bench decision in Muhammad Sulaiman Khan v. Muhammad Yar Khan, ILR 11 All. 267, delivered by the same learned Chief Justice and applied in Sakhalchand Rikhawdas v. Velchand Gujar, ILR 18 Bom 203 and Nanchand v. Vithu, ILR 19 Bom 258, or the Full Bench decision of the Allahabad High Court, Shohrat Singh v. Bridgman, ILR 4 All 376 explained and adopted in ILR 11 All 267 (FB), The observations of Banerjee J. in ILR 25 Cal 311, referred to in ILR 3l Mad 28 and relied on by the respondent's pleader before us, were in a case where the decree of the lower Court had been dismissed and not confirmed; and Banerji, J. may have had in mind the possible distinction between dismissal and confirmation indicated by Jenkins, C. J. in ILR 39 Cal 925'.

(20-21) We need not multiply survey of cases on the point, any further excepting that we have to notice on decision of the Supreme Court reported in Naguba Appa v. Namdev, : AIR1954SC50 . That was a case of preemption in which the suit was decreed and the plaintiff was ordered to deposit the purchase money within two months from the decree. The pre-emption money was not paid in time. There-upon the suit stood dismissed. On appeal the decision wits set aside but on second appeal the order of dismissal of the suit was restored. When thematter came up before the Supreme Court, Mahajan,J. (as His Lordship then was) observed that the merefiling of an appeal would not suspend the decree ofthe trial Judge and unless that decree was alteredin any manner by the court of appeal, the pre-emptor was bound to comply with its directions. HisLordship further observed that the High Court wasright in holding that the pre-emptor's suit would bedismissed by reason of his default in not depositingthe pre-emption money within the time fixed in filetrial court's decree. When an original decree isreversed, modified or affirmed, the decree passed bythe appellate court is the final decree which iscapable of being enforced in execution and is theonly such decree. This will appear froth the language of Article 182 of the Indian Limitation Act, underwhich time for three years' limitation for executionof decree is to run from the date of the final decreeor order of the appellate Court, if there has beenan appeal. Also if an application for review of thejudgment or decree of the trial court has to be made,after affirmation of the decree of the trial court inappeal, the same must be made before the appellate court and not before the trial court, because thejudgment and the decree of the trial court must betaken to have merged in the decree of the appellatecourt.

22. This was the view taken by Mookerjee, J. in Chandra Kanta v. Lakshman Chandra 24 Cal LJ 517 : (AIR 1917 Cal 417) after a review of cases on the point as hereinbelow quoted:

'The effect of the disposal of an appeal upon the decree of the primary Court Was lucidly stated by Mr. Justice Dwarkanath Mitter in 7 Beng LR 704 (714) (FB). 'If the decree of the lower Court is reversed by the appellate Court, it is absolutely dead and gone; if, on the other hand, it is affirmed by the appellate Court, it is equally dead arid gone, though in a different way, namely, by being merged in the decree, of the superior Court which takes its place for all intents and purposes; both the decrees cannot exist simultaneously.' This is in accord with the view expounded by Scotland, C. J. in 5 Mad HCR 215, and was subsequently adopted by the majority of tile Full Bench in ILR 11 All 267(FB) where the observations of the Judicial Committee in Kistokinker Ghose v. Burroda Caunt Singh, 14 Moo Ind App 465 (PC) were explained. This principle has been repeatedly applied to determine the Court which can entertain an application for amendment of a decree, after an appeal from that decree has been dismissed. Srigobind v. Gangatri Pershad, 6 Cal LJ 542; Kumar Rameswar v. Bhabasundari Debi, 11 Cal LJ 81; Aghorakumar v. Mahomed Musa, 11 Cal LJ 155'.

23. But excepting in cases of execution, review and application for amendment of decrees', how far the doctrine of the merger of the lower court's decree in the decree of the appellate court applies is the question for our consideration.

24. The view expressed in ILR 13 Cal 13 is the view of one extreme. That case held that after a decree was passed in appeal, that was the only decree of which execution could be taken out and that decree must be presumed to have incorporated the terms of the original decree. As such, if money was to be paid within a given period, under the terms of the original decree, it would be sufficient compliance if that money was paid within the period calculated from the date of the appellate decree. (25)In ILR 25 Cal 311, Maclean, C. J. did not make any criticism of the particular statementof law made in ILR 13 Cal 13 but Benerjee, J. ina separate judgment did. His Lordship introduceda qualification to the above statement of law to theeffect that if the appeal court simply dismissed theappeal, leaving the decree of the trial court untouched, then the time for default, if any, wouldhave to be calculated from the date of the originaldecree.

26. In 11 Cal WN 679 Maclean, C. J. (sitting with Fletcher J.) expressed his entire agreement With the view expressed by Banerjee, J. in his Lordship's separate judgment above referred to.

27. In ILR 39 Cal 925, Jenkins, C. J. (sittingwith N. B. Chatterjea J.) followed the statementof law in ILR 13 Cal 13 in a case where the originaldecree had been reversed in appeal. His Lordshipdid not express any opinion as to what would happen if the original decree had been affirmed insteadof being reversed.

28. In 26 Cal WN 440: (AIR 1922 Cal 329), Newbould and Cuming JJ. followed the statement of law in ILR 25 Cal 311, in a case where also the original decree had been affirmed in appeal.

29. In ILR 39 Bom 175 : (AIR 1914 Bom 132),Scott, C. J. tried to distinguish the decision ofBanerjee J. in ILR 25 Cal 311, on the theory thatBanerjee J. might have had in mind the possibledistinction between confirmation and dismissal aswas later On indicated by Jenkins, C. J. in ILR 39Cal 925. In 26 Cal WN 440: (AIR 1922 Cal 329)criticising the above decision of Scott, C. J. Newbould and Cuming JJ. were pleased to observe thattheir Lordships were unable to understand : thereasons' given for distinguishing the case of ILR 25Cal 311. The view expressed by the Supreme Courtin the case of : AIR1954SC50 , however, supportsthe distinction sought to be made by Scott, C. J.in ILR 39 Bom 175: (AIR 1914 Bom 132) as willappear from the following statement of law in theabove judgment:

'Mere filing of an appeal does not suspend the decree of the trial court and unless that decree is altered in any manner by the court of appeal, the pre-emptor is bound to comply with its direction''. It is, no doubt, true that the Supreme Court emphasized on the special provision of Order 20 Rule 14 of the Code of Civil Procedure, which provides that a pre-emption decree must specify a date on or before which the purchase money shall be paid in court arid if within that time, the purchase-money and costs (if any) be not paid, the suit shall stand dismissed. But nevertheless the above-quoted statement of law is of general application and is not limited to a suit for pre-emption. The survey of case laws on the point inclines us to hold that if the original decree is affirmed in appeal, the time fixed for payment of any sum of money shall be calculated to run from the date fixed in the original decree. If, however, the decree is altered or modified in appeal, the time shall run from the date of the final appellate decree or such other time that the final appellate decree may fix.

30. That being our opinion of the position of law, let us now try to apply that law to the facts of the present case. Under the original decree the sum of Rs. 300/- was payable by the appellant by March 24, 1946. Before that time expired the defendant appealed against the decree. During the pendency of the appeal, on April 1, 1946, the plain-tiff decree-holders deposited the money in court. The appeal succeeded and the decree of the trial court was reversed, on December 6, 1946.

31. If the original decree had been affirmed by the appellate court, the position of law would have been that the decree would have been deemed to have spent itself and the suit dismissed on account of default by the decree-holders to comply with the terms of the decree.

32. Mr. Apurbadhan Mookerjee, learned advocate for the respondents, submitted that the decree of the trial court stood vacated of its own force during the pendency of the appeal, on account of the failure on the part of the decree-holders to deposit the money in terms of the decree and the reversal of the decree merely confirmed that position. This argument is mis-conceived. In the first place, the first appellate decree did not reverse the original decree on the ground that the decree had spent its force and the suit stood dismissed in terms of the decree. In the next place, failure on the part of the decree-holders to comply with terms of the decree did not affect jurisdiction of the first appellate court to hear and decide the appeal and the appellate court would retain the power to confirm, reverse, alter or modify the decree in such manner as it thought fit, the failure of the decree-holders to comply with the terms of the original decree notwithstanding. It reversed the decree in exercise of that power. We, therefore, repel this branch of argument advanced by Mr. Mookerjee. Against the first appellate decree there was an appeal taken by the plaintiff to this Court. That appeal succeeded and the decree of the lower appellate court was reversed and the case was remanded to that court for re-hearing. After remand the lower appellate court affirmed the original decree.

33. In our opinion, in such a case the time for deposit must run from the date of the appellate decree after remand, which confirmed the decree of the original Court. The reason which induces us to be of that opinion is that the original decree was at first reversed by the first appellate court and that decree was again reversed in second appeal, and before the first appellate court affirmed the original decree, after remand, the money required to be deposited under the decree had been put in.

34. In the view that we take we set aside the order of the lower appellate court, and restore that of the learned Munsiff, dismissing the objection under Section 47 of the Code of Civil Procedure.

35. This appeal is allowed but there will be no order as to costs.

36. Amaresh Roy, J.

I agree.


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