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Smt. Radharani Dassi W/O Narayan Chaudra Ghose Vs. Smt. Binodamoyee Dassi W/O Abinash Chandra Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Reported inAIR1942Cal92
AppellantSmt. Radharani Dassi W/O Narayan Chaudra Ghose
RespondentSmt. Binodamoyee Dassi W/O Abinash Chandra Ghosh and ors.
Cases ReferredPeari Mohan v. Durlavi Dassya
Excerpt:
- nasim ali, j.1. the following genealogy about which there is no dispute will explain the facts of the case: __________________________________ | | | abmas khelaram nibarn (died in (died in (died in 1315 b. s.) kartic falgoon 1326 b.s.) 1336 b.s.) ______________________________ | | | | | rabi atul upen | (defendant 1) | _________________| | _______________|_________________ | | | | charu maitra rajani sajani (defendant 2)2. the facts which are not in dispute in this appeal are these: abinash acquired the properties included in schedule ka of the plaint, with his own earnings. as he had no son he and his wife liked defendants 1 and 2 very much. the latter used to live at the house of abinash during his life-time. after abinash's death binoda moyee being an illiterate pardanashih lady, the.....
Judgment:

Nasim Ali, J.

1. The following genealogy about which there is no dispute will explain the facts of the case:

__________________________________

| | |

Abmas Khelaram Nibarn

(died in (died in (died in

1315 B. S.) Kartic Falgoon

1326 B.S.) 1336 B.S.)

______________________________ |

| | | |

Rabi Atul Upen |

(Defendant 1) |

_________________|

|

_______________|_________________

| | | |

Charu Maitra Rajani Sajani

(Defendant 2)

2. The facts which are not in dispute in this appeal are these: Abinash acquired the properties included in Schedule Ka of the plaint, with his own earnings. As he had no son he and his wife liked defendants 1 and 2 very much. The latter used to live at the house of Abinash during his life-time. After Abinash's death Binoda Moyee being an illiterate pardanashih lady, the properties inherited by her from Abinash were managed and looked after by defendants 1 and 2. On 6th Kartic 1326 B. S.=23rd October 1919, a deed of gift was executed by Binoda Moyee and Nibaran. The material portion of this document is this:

Recipients of the deed of gift:.Atul Chandra Ghosh...and Sri Sajani Kanta Ghosh....

Executant of the deed of gift:.Binodamoyi Dassi, widow of late Abinas Chandra Ghosh...Sri Khelaram Ghosh and Sri Nibaran Chandra Ghosh, sons of late Dinanath Ghosh, by caste Sadgope...

This deed of gift in respect of the moveable and immovable properties mentioned in the schedules below is executed to the following effect:

I am Srimati Binodamoyi Dasi. My husband the late Abinash Chandra Ghosh...acquired...various properties, moveable and immovable...with his own earnings and when after remaining in possession and enjoyment of the same, he died leaving me as his sole heir, I inherited all those properties and have been till now possessing and enjoying them. But as I, being a woman, cannot properly manage these properties, you, two have been protecting and managing the properties since the death of my husband and if you had not managed all those properties in that way, they would have been destroyed. Moreover, I am highly pleased with you as you hold me in great respect and reverence and have been assisting me in performing my Bratas, Basanti Pooja, and other religious observances. But I have only a life interest in all these properties and have no authority in law to dispose them of. Sj. Khelaram Ghosh and Sj. Nibaran Chandra Ghosh, the elder and the younger brothers, respectively, of my husband, are the reversionary heirs, and you, Atul Chandra Ghosh, are the son of the said elder brother of my husband and you, Sajani Kanta Ghosh, are the son of the said younger brother of my husband. For these reasons, I, who have got the life-interest in the properties, and my husband's said elder and younger brothers, who are the next reversioners we three, jointly by this deed of gift make an absolute gift of our present and future rights and interests in the said properties as also in the properties purchased by myself. From this day you, down to your sons, grandsons and other successors-in-interest go on enjoying and possessing in great felicity all the properties, either left by my husband or purchased by me, mentioned in the schedule by exercising all kinds of rights therein including the rights of gift, sale &c....On; the strength of this deed of gift you go on enjoying and possessing the properties either by inducting new tenants therein or by evicting old tenants therefrom or by possessing them yourselves, after mutating your name in the records of the zemindars and of the Collectorate. So long as I, Sm. Binodamoyi Dassi, will remain alive, you will allow me to reside in the house at Kasibati, and will maintain me in a befitting manner and to the best of your abilities will perform the Bratas and Basanti Pooja etc., according to the conventions. You will not be entitled to object to these. The approximate value of the said properties gifted away is Rupees Nineteen Thousand Seven Hundred and ninety five only. (Rs. 19,795).

I, Sri Khelaram Ghosh and I, Sri Nibaran Chandra Ghosh, we two, do hereby make a gift to you in conjunction with the said Binodamoyi Dassi, of the interest we have in the properties of the schedule as future reversioners. At no time shall we claim those properties on any ground whatever, nor shall our other heirs or legal representatives be entitled to do so and even if we or they do, it will not be valid. There are ample reasons why a gift of those properties should be made to you. Being very much pleased with you at your conduct and diligence we make a gift of our future rights to you....

3. This document was registered on 9th February 1920. Defendant 3 obtained a decree against defendant 2 in the year 1926 and attached the properties mentioned in Schedule Kha of the plaint in execution of the said decree. 8th September 1936 was fixed for the sale of these properties. On 7th September 1936, Binodamoyee raised the present suit in the Court of the Second Subordinate Judge at Hooghly for a declaration that the deed of gift dated 23rd October 1909 was a fraudulent, inoperative and void document. Her case in substance is this : She is an illiterate old pardanashin lady. She is incapable of personally managing her own properties and defendants 1 and 2 have been carrying on the management on her behalf all along. After the death of her husband defendants 1 and 2 asked her to execute an amukternama in their favour. As she had implicit faith in them she agreed to execute an amukternama. Defendants 1 and 2 got the deed of gift registered by her, representing to her that the same was an amukternama. She was not aware of the contents of the said deed of gift; it was never read over to her. She had no independent advice at the time when she executed and registered the deed of gift. She was all along under the impression that the said document was an amukternama and that her properties were being managed on the strength of that amukternama. She came to know 6f the attachment of the properties in suit on 16th Bhadra last (1st September 1936.) The suit was contested by defendant 3. Her case is as follows : Binodamoyee executed the deed of gift with full knowledge and understanding of all its contents out of her own free will and on independent advice. Binodamoyee's allegation that she executed the deed of gift under the impression that it was an amukternama is absolutely false. Ever since the execution of the deed of gift defendants 1 and 2 are in possession of the properties observed by the said deed. The trial Judge decreed the suit on 26th November 1937. He declared that the deed of gift was a fraudulent, inoperative and void document. Defendant 3 presented this appeal in this Court on 15th March 1938.

4. The first contention on behalf of the appellant is that the trial Judge was wrong in his appreciation of the facts of the case and that his decision that the deed of gift is fraudulent, inoperative and void is not borne out by the evidence on record. The value of the properties covered by the deed of gift as stated in it is about Rs. 20,000. Binodamoyee was about 62 years old at the time when the deed of gift was executed by her. She is illiterate and pardanashin. In the deed of gift there is no mention as regards the amount which she is to get for her maintenance from the donees. There cannot be any doubt that the gift was an improvident gift. She had no independent advice. The writer and the attesting witnesses to the deed of gift were not called by the appellant to prove that the document was read over or explained to her or that she understood the contents of this document. There is no satisfactory explanation as to why they were not called. The appellant examined one Upendra Nath Ghosh. This witness said that the plaintiff executed a deed of gift, but in his cross-examination he stated that he was not present at the time when this deed was executed. Binodamoyee in her evidence said that she was unaware of the contents of this document. The evidence in this case clearly shows that she had implicit confidence in defendants 1 and 2. Defendants 1 and 2 admittedly were managing the properties at the time. Plaintiff's evidence that defendants asked her to execute an amuktearnama for the management of her properties is consistent with probabilitiess. The trial Judge was, therefore, right in believing her evidence. There is no satisfactory evidence in this case to show that defendants 1 and 2 obtained possession, of the properties covered by the deed of gift on the basis of the alleged gift before the properties were attached in execution of the decree obtained by the appellant. I am, therefore, of opinion that the deed of gift is void and inoperative and that defendants 1 and 2 did not acquire any title to the properties covered by the said deed of gift.

5. The next contention on behalf of the appellant is that in view of certain events which have happened since the presentation of the appeal in this Court the plaintiff's claim is now barred by res judicata. The subsequent events on which the appellant relies are these : One Sarat Chandra Ghosh was added on the petition of the plaintiff as a defendant in this suit on 3rd July 1937, while this suit was pending before the trial Judge on the ground that he had attached the kha schedule properties in execution of a decree obtained by him against defendants 1 and 2. Sarat was subsequently discharged from the category of the defendants on his own application on the ground that he had withdrawn the attachment. After the disposal of the present suit by the trial Judge Sarat again attached kha schedule properties. Thereupon, Binodamoyee made an application under Order 21, Rule 58, Civil P.C., for releasing this property from attachment. This claim was allowed on 26th February 1988. Sarat thereafter brought a suit under Order 21 Rule 63, Civil P.C, in the second Court of the Subordinate Judge at Hooghly against Binodamoyee. In this suit defendants 2 and 3 were impleaded as pro forma defendants but they did not appear in this suit. The suit of Sarat was contested by Binodamoyee. On 5th May 1939, Sarat's suit was decreed by the Subordinate Judge. He found that Binodamoyee's life interest passed by the deed of gift to the donees and that this life interest was liable to be sold in execution of the decree obtained by Sarat. Binodamoyee then preferred an appeal against this decree to this Court but this was dismissed for her failure to pay the paper book costs. On these facts the argument on behalf of the appellant is this : The decision in Sarat's suit operates as res judicata between the plaintiff and defendant 3 inasmuch as (a) defendant 3 claims under defendants 1 and 2, and (b) it has been decided finally that defendants 1 and 2 have acquired life interest in the properties in schedule kha by gift from the plaintiff.

6. Attachment does not create any specific charge on the property attached. It does not by itself give the attaching decree-holder in strictness a title to the attached properties but it is the basis of the decree-holders' right to assert his judgment-debtors' interest in the property attached : Najimunnessa Bibi v. Nacharuddin Sardar : AIR1924Cal744 . I see no reason why this right created in favour of the decree-holder by attachment cannot be considered as a claim under the judgment-debtor within the meanin of Section 11, Civil P.C. To hold otherwise would produce the result that the unsuccessful claimant in the former suit would be able to re-agitate the same dispute with the judgment-debtor as soon as the judgment-debtors' property is attached by a creditor by the simple device of instituting a suit against the judgment-debtor and the attaching creditor. It may be that this view is not consistent with the decision in Rukeya Banu v. Nazira Banu 0044/1927 : AIR1928Cal130 . But the authority of that ease has been very much shaken by the decision of the Judicial Committee in Muni v. Tirloki Nath .

7. The plaintiff and defendants 1 and 2 were co-defendants in Sarat's suit. The limits within which the doctrine of res judicata should be applied as between co-defendants are these: (a) that the co-defendants were necessary or proper parties in the former suit; (b) that there was a conflict of interest between them; (c) that there was a necessity to decide that conflict in order to give the plaintiff appropriate relief; and (d) that there was a decision of the question between the co-defendants. See cases in Muni v. Tirloki Nath , Maung Sein Done v. Ma Pan Nyun and Kedar Nath Goenka v. Ram Narain Lal . An order in a claim case is conclusive as against the party against whom it is made. It is conclusive only as regards the properties which are the subject-matter of the claim case. Order 21, Rule 63 authorises the party against whom an order in the claim case is made to institute a suit to establish' the right which he claims to the property attached. Where a claim is allowed but the judgment-debtor is not a party to the claim case it cannot be said that the order in the claim case is against the judgment-debtor. The petition of Binodamoyee under Order 21, Rule 58 is not before us and we do not know whether defendants 1 and 2 were parties to the claim ease. Where a claim is allowed the attaching decree-holder is the person against whom the order in the claim ease is made. He is therefore entitled in a suit under Order 21, Rule 63 to establish the right which he claims to the property attached. In such a suit the judgment-debtor may not be a necessary party. But whether he is a proper party in such a suit would depend upon the pleadings. The pleadings, however, are not before us.

8. On the materials before us it is not possible to determine whether the decision in Sarat's suit operates as res judicata between the plaintiff and the defendants 1 and 2. The result therefore is that this appeal is allowed. The decree of the trial Judge is. set aside. The finding of the trial Judge that the deed of gift executed by the plaintiff in favour of defendants 1 and 2 is void and inoperative is affirmed. The case is sent back to the trial Judge in order to enable him to determine the question whether the decision in Sarat's suit operates as res judicata between the plaintiff and defendants 1 and 2 after taking such evidence as the parties may choose to adduce on this point. If the trial Judge finds that the said decision operates as res judicata between the plaintiff and defendants 1 and 2 the suit will be dismissed. Otherwise the suit will be decreed. Costs in this appeal will abide the result. Hearing fee is assessed at ten gold mohurs.

Pal, J.

9. I agree. But I would like to add a few words on the question as to whether the claim of defendant 3 in the present suit is a claim under defendants 1 and 2. The English law on the point is summarised thus in Halsbury's Laws of England:

A judgment inter partes raises an estoppel only against the parties to the proceeding in which it is given, and their privies, i.e., those claiming and deriving title under them.

10. Later on the learned author says:

An execution creditor is not a privy to the debtor and is not bound by an estoppel which prevents the debtor from denying the title of a third person who has in fact no property in the goods.

11. The following cases are relied on as supporting this proposition : Richards v. Johnston (1859) 4 H & N 660, Heane v. Rogers (1829) 9 B & C 577, Richard v. Jenkins (1886) 18 QBD 451. Heane v. Rogers (1829) 9 B & C 577 was an action of trover brought by the plaintiff (against whom a commission of bankrupt had issued) against his assignees to recover goods which they had, as such assignees, sold. It appeared that the plaintiff himself had assisted the assignees by giving directions as to the sale of the goods and that, after the issuing of the commission, he gave notice to the lessors of a farm which he held that he had become bankrupt and that he was willing to give up the farm and, in consequence, the lessors received the lease and accepted possession of the premises. In the present action his case was that the commission of bankrupt was invalid as he was not a trader within the meaning of the statute. Two questions arose for decision: (1) Whether the plaintiff was estopped from disputing the validity of the commission under which the defendant acted; (2) if he was not, whether the commission was valid. The second was a question juris positivi and depended entirely upon the construction of the then Bankrupt Statutes (34 & 35 Hen. VIII e. 4; 13 Eliz. c. 7; 1 Jac. IC. 15; 21 Jac. I, C. 19; 6 Geo. IV, c. 16). On a construction of these statutes, it was held that the plaintiff was not a trader and consequently was not liable to be adjudged bankrupt. On the first question also it was held that so far as the defendants (commission of bankrupt) was concerned the plaintiff was not in any way estopped. Bayley J. observed:

There is no doubt but that the express admission of a party to the suit or admission implied from his conduct, are evidence, and strong evidence, against him, but we think that he is...not estopped or concluded by them unless another person has been induced by them to alter his condition. In such a case the party is estopped from disputing their truth with respect to that person and those claiming under him and that transaction; but as to third persons he is not bound. It is well established rule of law that estoppel binds parties and privies and not strangers.

12. In Richards v. Johnstons (1859) 4 H & N 660, one William Johnston obtained a decree against R. H. Martin and in execution of this decree certain pieces of furniture were seized on 18th October 1858, by the Sheriff under a writ of fi fa. One George Richards, an auctioneer residing in London, laid claim to the furniture and proved that in May 1858, one Hord, father-in-law of Martin, applied to him for a loan, and offered a bill of sale of the furniture at Rose Cottage, Stevenage. Richards went down to Stevenage and there in the presence of Martin, a bill of sale of the goods in question was duly executed by Hord on 27th May and registered on 1st June 1858. Martin stated to Richards that the furniture were Hord's and went with Hord before a Magistrate where Hord in Martin's presence made a statutory declaration, that the goods were his (Hord's) own property. The execution creditor (the defendant) proved in this case that the furniture seized had been sold and supplied by him to Martin and were seized under the fi fa against Martin at his suit. Upon this evidence the learned Judge asked the jury, (1) whether there had been any dealing between Hord and Martin so as to make the furniture the property of Hord as between himself and Martin; and (2) if not, whether in point of fact there had been an actual transfer of the goods from Martin to Hord. The jury found that there has been no actual transfer from Martin to Hord. The case was decided in favour of the creditor. Pollock, C. B. said ;

A sheriff who comes to seize the goods of a debtor armed with a writ of execution in favour of a creditor, is not bound by estoppels which might have prevented the debtor himself from claiming the goods.

13. Martin, B. observed:

There is no doubt but that Martin stood by and assented while his father-in-law assigned the goods to the claimant, who lent his money and took the assignment honestly. But Martin was no party to the assignment. There was therefore only a title by estoppel as against him....It is clear that, if an action of trover had been brought against Martin by the present claimant, Martin would have been estopped. But no authority has been cited to shew that a judgment-creditor is party or privy to the acts of the judgment-debtor. The fi fa directs the Sheriff to seize the goods of the debtor. The Sheriff is a stranger to the debtor and the only question for him is--Are these goods the goods of the debtor or not?...We must say that the Sheriff and the execution creditor are not bound by the estoppel which would affect the execution debtor.

14. Watson, B. and Channell, B. also took the same view. Watson, B. observed:

Though Martin may be estopped, there was no transfer of any kind, no pretence of any transfer from Martin to Hord : therefore the property did not pass at all.

15. Channel, B. said:

Whatever may have been the case as against Martin, there was no estoppel which could prevail against the execution creditor.

16. In course of the hearing of this case Martin, B. is reported to have observed that the execution creditor claims adversely to his debtor, and Pollock C.B. enquired if there was any authority that an execution creditor could not claim any property which the execution debtor had disabled himself from claiming: Richard v. Jenkins (1886) 18 QBD 451. Lord Esher, M.R., Bowen L.J. and Fry L.J. In this case the defendant, the execution creditor having recovered a judgment against one Williams, took out execution against him and certain goods found to be in his possession were Seized by the sheriff under a fieri facias issued upon the judgment. The plaintiff claimed those goods as belonging to him. It appeared that the plaintiff had prior to 1884 made a demise of a brick field and had let therewith certain personal chattels to the debtor, Williams. These personal chattels were the goods seized. The plaintiff became bankrupt in 1884 but did not inform the trustees in bankruptcy that he owned these goods. The debtor, Williams, the tenant of the brick field yard, being unaware of the plaintiff's bankruptcy continued to pay him money for the hire of the goods. The case of the plaintiff was that though as result of his bankruptcy the property in the goods would vest in the trustee in bankruptcy, his hirer was estopped from denying his title as he continued to pay him the hire money even after the bankruptcy. The question to be decided in this case was whether the goods are the goods of the claimant as against the execution creditor. Assuming that the execution debtor was estopped from saying that the goods were not the claimant's and that if the claimant brought an action against the execution debtor in respect of the hire of the goods, the execution debtor would have no defence, Lord Esher, M.R. observed:

Even then there would be merely an estoppel between those parties and such an estoppel would give the claimant no real title to or interest in the goods. Such an estoppel merely prevents the party who is estopped from saying as against some other party that the goods do not belong to such other party, though in fact they do not belong to him; and it only takes effect as between parties and privies. If the execution creditor could for this purpose be said to claim through and under the execution debtor so as to be in privity with him he might be estopped. But I do not think he can be said so to claim; he claims through and by the law as against the execution debtor and not through and under him. That appears to me to be the effect of what was said by the Judge in Richard v. Jenkins (1886) 18 QBD 451, though no doubt that case was not on all fours with the present.

17. Fry L.J. said:

The question we have to answer is whether the goods at the time of the seizure were the property, of the claimant as against the execution creditor. It seems to me clear that the claimant had at the time no property in the goods. At the utmost he had only a right by way of estoppel against the execution debtor. Assuming that he had that, such an estoppel is only effective as between parties and privies. In my opinion the execution creditor is not a party or privy to the estoppel, and is not bound by it.

18. It was found in this case that the goods were in the possession of the execution debtor and therefore prima facie they were his: The question in issue was not whether the goods were really the execution debtor's but whether they were the goods of the claimant as against the execution creditor. The claimant therefore was to shew affirmatively that he had some title to or interest in the goods as against the execution creditor. If it appears on the facts that the claimant had no title to the goods he must fail. Similarly the following passage occurs in Bigelow's 'Law of Estoppel:'

No privity exists between creditor and debtor; there is neither devolution nor subordination of rights in the relation...no privity in law...for the legal relation between debtor and creditor is one of antagonism rather than of confidence or of mutual dependence, nor by estate, for they have none in the debtor's land....The truth is the relation of judgment creditors to their debtor's real estate is anomalous. They have a lien upon it by virtue of statute law, but they have no interest in it such as makes them privies in estate with the debtor.

19. It may be noticed here that though the learned authors referred to above use the word 'privy' which does not occur in Section 11, Civil P.C., some of the authorities relied on by them in support of the proposition use expressions similar to the one used in the Civil Procedure Code. Lord Esher, for example, in Richard v. Jenkins (1886) 18 QBD 451, says that the execution creditor cannot be said to claim through and under the execution debtor. According to his Lordship, he claims through and by the law as against the execution debtor and not through and under him. All the above cases, it must have been noticed, are cases on estoppel. The doctrine of res judicata no doubt resembles the doctrine of estoppel in some respects; but the two are materially different. The distinction between the two doctrines was explained by Mahmood J. in Sitaram v. Amir Begum ('86) 8 ALL 324 at p. 332. ' That the effect of the plea of res judicata ' said the learned Judge,

may, in the result, operate like an estoppel, by preventing a party to a litigation from denying the accuracy of the former adjudication, cannot be doubted.

20. But here the similarity between the two rules virtually ends:

Perhaps the shortest way to describe the difference between the plea of res judicata and an estoppel is to say that while the former prohibits the Court from entering into an inquiry at all as to a matter already adjudicated upon, the latter prohibits a party after the inquiry has already been entered upon, from proving anything which would contradict his own previous declaration or acts to the prejudice of another party who relying upon those declarations or acts, has altered his position. In other words res judicata prohibits an inquiry in limine, whilst an estoppel is only a piece of evidence.

21. The doctrine of 'res judicata' differs from 'estoppel' chiefly in not resulting from an act of party himself but from a decision of the Court. An execution creditor while claiming to take in execution a property in assertion of his debtor's title thereto may not claim through and under his debtor so as to be bound by his debtor's acts, and his claim may, for this purpose, be adverse to the debtor; yet, what he is claiming to take is nothing but his judgment-debtor's title and any determination of that title available to the judgment-debtor himself as against any claimant will be equally available to him. The plea of res judicata is not merely a plea of estoppel. It amounts to an assertion that the very legal rights of the parties are such as they have been determined to be by the judgment of a competent Court and no other Court should proceed to determine this again. A matter once formally decided is decided once for all as between the parties to the decision or as between those claiming under them. That which has been delivered in judgment must be taken for established truth. In all probability it is true in fact; even if not, it is expedient that it should be held as true none the less. The operation of the doctrine is thus the transformation of a question of fact into a question of law.

22. Section 11, Civil P.C, simply requires that the party in the subsequent suit must claim under the party in the former suit. Here the execution creditor is claiming to assert the very title of his debtor. He claims the debtor's title and nothing else. In my judgment he is claiming under his judgment, debtor within the meaning of the section. The decisions of the Indian Court having direct bearing on the meaning and scope of Section 11, Civil P.C, seem to take the view that the execution creditor while claiming to take in execution the property of his judgment-debtor claims under him within the meaning of the above section. Thus, in Ram Sewak v. Bahal : AIR1935All888 (Sulaiman C.J. and Bennet J.) certain property was attached bys in execution of a decree against R as belonging to R.A. suit filed by p to which both R and S were impleaded for a declaration that he was the absolute owner of the property was decreed. Subsequently, B, another creditor of E, attached the same property in execution of his decree and it was purchased by N.P then filed another declaratory suit. It was held that the question of title decided in prior suit was binding on E, and all the subsequent representatives. Sulaiman C.J. observed that as B attached the property subsequently to the decree he must be deemed to be a representative of R. Hence the previous judgment operated as res judicata against R and also against his attaching creditor B. It was further observed by the learned Chief Justice:

It will be intolerable for Earn Sewak if all simple creditors of Rsaghubir were to call upon him to prove his title over and over again.

23. In U Tha Lu v. Devanarain ('34) 21 AIR 1934 Rang 206 (Dunkley J.) it was held that in a suit under Order 21, Rule 63, Civil P.C, the decree-holder claims under his judgment-debtor within the meaning of Section 11, Civil P.C. The decree-holder in such a suit claims under his judgment-debtor because he is litigating to assert the title of his judgment-debtor to the property, and he obtains his right to bring or defend the suit through his judgment-debtor: see also Ramjiwan v. Inder Bahadur : AIR1936All722 . These are sufficient authorities for saying that the execution creditor claims under the judgment-debtor within the meaning of Section 11, Civil P.C, when he seeks to seize and sell the property as belonging to his judgment-debtor. The authority contrary to this view is to be found in Rukeya Banu v. Nazira Banu 0044/1927 : AIR1928Cal130 . But the authority of that case is very much shaken by the decision of the Judicial Committee in Muni v. Tirloki Nath .

24. In my opinion the question may be approached from another view point. Section 60, Civil P.C, lays down what properties can be taken in execution. The word 'property' is used there in a very wide sense. All the interests in the properties which are available to the judgment-debtor for his benefit can be seized in execution. Even if the property does not belong to the judgment-debtor if he has acquired any right or power in respect of the same which can be sold by him for his benefit, such right or power will be seizable property within the meaning of the section: See in this connexion Najimunnessa Bibi v. Nacharsuddin Sardar : AIR1924Cal744 . Assuming that the prior decision will operate as res judicata between the present plaintiff and the present defendants 1 and 2, defendants 1 and 2 would be entitled to sell the property so as to enable the purchaser from them to take the plea of res judicata as against the present plaintiff. Plea of res judicata is not strictly a mere plea of estoppel. The legal rights of the parties are such as they have been determined to be by the judgment of a competent Court. Consequently as against the present plaintiff defendants 1 and 2 can be said to have acquired a saleable interest in the property itself. The property can therefore be taken in execution by a creditor of defendants 1 and 2. The decision in Peari Mohan v. Durlavi Dassya ('14) 1 AIR 1914 Cal 281 is an authority for this view.


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