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issuri Dasi and ors. Vs. Haragobind Das Koiburto and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1888)ILR15Cal187
Appellantissuri Dasi and ors.
RespondentHaragobind Das Koiburto and anr.
Cases ReferredPatankar v. Devji
civil procedure code, sections 244 and 258 - judgment-debtor as part-purchaser of a decree, suit by. - .....for which is, that it shall operate in satisfaction of the decree. the present is not such a suit. this suit is not brought upon the footing or upon the allegation that the decrees were satisfied by the purchase in bashoraj's name. on the contrary, it is-founded upon the proposition that the decrees were not so satisfied. the plaintiffs say that in virtue of that purchase they became owners of 10 annas of the decrees on their way to execution. in the judgment delivered by farran, j., in the bombay case referred to, a number of cases, decided before act xii of 1879 was passed, are discussed, the most important of which is, perhaps, the -full bench decision of this court in gunamani dasi v. prankishori dasi 5 b.l.r. 223. the result of those cases is thus stated at p. 28 : 'by a.....

Pigot, J.

1. This is an appeal from a decision of the Officiating Second Subordinate Judge of Tipperah, delivered on the 27th April last year, confirming a decree of the Munsif by which the sum claimed by the plaintiffs against the defendants as due to them in respect of monies realized in proceedings in execution in four several suits, viz., 22 of 1870, 37 of 1876 and 21 of 1877 in the Court of the Subordinate Judge of Tipperah, and 1761 of 1877 in the Court of the Munsif of Brahmon-baria, had been allowed. The case is part of a dispute in which, during eight or nine years, the parties have been wandering in a wilderness of litigation arising out of questions upon the construction and effect of the sections of the Civil Procedure Code relating to the execution of decrees, and a vast mass of questions have, in the course of the multifarious proceedings that have taken place, bean debated and decided. We think it unnecessary to refer to any of the questions that have arisen in the suit or in these proceedings save the question which was argued before us upon the hearing of the review. The case came before this Court (PRINSEP and AGNEW, JJ.) in appeal from the decision of the Subordinate Judge, which has just been mentioned, and which decision was arrived at after a remand in June 1885, ordered by this Court. The judgment of this Court upon the appeal after remand, which was delivered on the 22nd December 1886, dismissed the appeal from the judgment of the Subordinate Judge, and on an application for review of judgment a rule, made absolute on the 2nd July, was granted, and it was upon the hearing of that application for review that the only point really left in the case was argued before this Bench by Mr. Woodroffe on one side and Mr. Evans on the other.

2. The defendants who appealed became owners of a 6-anna share in the decrees in the four suits I have mentioned. The plaintiffs were judgment-debtors together with other persons in those four suits which were rent suits. Upon an application for execution made on behalf of the judgment-creditors a petition was made by the person Rashoraj, whose name appears as first plaintiff in the present suit, praying that his name should be recorded as assignee of the 10-anna share in the decrees under execution. That application (there were in form several, as the four execution matters were concerned; but they may be treated as one, as in effect they were) was opposed and was rejected upon the ground that Bashoraj was the benamidar of judgment-debtors under the decrees, that is to say, plaintiffs Nos. 4 and 5 in the present suit. Subsequently to this benami purchase, it appears that the defendants, the present appellants, purchased or attempted to purchase at an execution sale the 10-anna share in the decrees which had been, as we have said, already purchased in Rashoraj's name, benami for plaintiffs Nos. 4 and 5 in this suit. It is unnecessary to do more than to refer to that attempted purchase, for it has been held, and no question now arises with respect to it, that that purchase is of no avail, and passed no right to the purchasers, the benami purchase in Eashoraj's name having long preceded the issue of the attachment which led to the sale at which the defendants, the present appellants, purchased, if they did purchase, that share in the decrees. The defendants, appellants, applied for leave to execute the decrees, and they were required to give, and did give, security under Section 231 for the protection of the rights of other persons interested in the decrees. Of that fact there is no question. The decrees were executed against all the judgment-debtors, the plaintiffs in this suit, Nos. 4 and 5, unsuccessfully seeking to restrain the execution of those decrees as against them set up their position as purchasers of a 10-anna share which they had been held really to be, although in Rashoraj's name. That contention of theirs was rejected upon the ground that no certificate of satisfaction according to the terms of Section 258 had been made. The entire amount of the decrees claimed in execution was satisfied by the present plaintiffs Nos. 4 and 5, and was received by the defendants, appellants, and this suit is brought by the plaintiffs Nos. 4 and 5 to recover from the defendants, appellants, the amount of the execution money which represents the 10-anna share in the decrees of which the plaintiffs undoubtedly became purchasers in the name of Rashoraj.

3. The position of the claim in the present suit as between these parties is therefore simply this that the plaintiffs have paid twice over in respect of the 10-anna share of the decrees against them. They have satisfied the decrees, and they have done so after having previously, as it has been found, paid the sum of Rs. 550 for the purchase of the 10-anna share. That is the plaintiffs' position. The position of the defendants, appellants, is that, having never been legally entitled to more than a 6-anna share of the decretal amount, they have recovered the entire amount, for it is unnecessary to dwell, as we have said, upon their first contention that they had become owners of a 10-anna share under the sale to which we have referred.

4. Against the right of the plaintiffs to bring this suit, it is argued that the suit will not lie by reason of the provisions of Section 258, that the purchase of the 10-annas share being in truth, pro tanto, a satisfaction of the decree and not being certified as such under that section, could not be recognized for any purpose by the Court. The case of Abdul Rahiman v. Khoja Khaki Aruth 11 B. 6 was dwelt upon at length by the learned Counsel for the appellants. That case decides that a suit will not lie to enforce an uncertified agreement of adjustment of a decree against a judgment-debtor, the consideration for which is, that it shall operate in satisfaction of the decree. The present is not such a suit. This suit is not brought upon the footing or upon the allegation that the decrees were satisfied by the purchase in Bashoraj's name. On the contrary, it is-founded upon the proposition that the decrees were not so satisfied. The plaintiffs say that in virtue of that purchase they became owners of 10 annas of the decrees on their way to execution. In the judgment delivered by Farran, J., in the Bombay case referred to, a number of cases, decided before Act XII of 1879 was passed, are discussed, the most important of which is, perhaps, the -Full Bench decision of this Court in Gunamani Dasi v. Prankishori Dasi 5 B.L.R. 223. The result of those cases is thus stated at p. 28 : 'By a consensus of opinion of all the High Courts it was therefore held that where a judgment-creditor, without certifying, had received money or property in satisfaction of a decree from his judgment-debtor, and then executed his decree, he was liable to restore the money or property so recovered in the first instance.' He then a little farther on, at page 30, says : 'Such was the state of the law when Act XII of 1879 was passed. Applying to this enactment the principles of construction which I have referred to, I think it would be straining its language, and would be imputing to the Legislature a desire to work injustice, if it were held that it deprived the Courts of their power to give relief to a judgment-debtor who, after having paid money out of Court to his decree-holder, is compelled by the latter to pay over again under execution process. If the Legislature had intended to override that consensus of decision to which I have referred, it would, I think, have used clearer and more apt terms. The payment itself would, in that case, have been declared to be void, incapable of proof, or possibly illegal. The decision in Poromanand Khasnabish v. Khepoo Paramanick 10 C. 354 is in accordance with this view. That case follows the case of Sitaram v. Mahipal 3 A. 533 and Ishen Chunder Bandopadhya v. Indro Narain Gossami 9 C. 788 : 12 C.L.R. 201 but is opposed to the ruling of this Court in Patankar v. Devji 6 B. 146. The ruling in the latter case cannot, I think, be supported. What the Courts are forbidden to recognize is the payment of the decree, not the fact that a certain number of rupees passed from the hands of the judgment-debtor to those of the decree-holder.'

5. It appears to us, therefore, that the decision of the Court of Bombay cited by the appellants does not, as to the effect of Section 258, make in their favour. The case is not an authority for the proposition which might perhaps seem to be countenanced by the head note as it stands, that a transaction intended to operate as a satisfaction of decree, but which fails to have that operation because not certified, is void for every purpose, as if it were tainted with illegality. It goes no farther than the proposition stated by the Chief Justice at p. 12 that no Court can recognize an uncertified adjustment as operating in satisfaction of a decree for any judicial purpose whatever.' This proposition is incompletely stated in the head note of the case in which the words 'as operating in satisfaction of a decree' are omitted. The claim on the part of the plaintiffs may then be regarded in a two-fold light. They claim as persons who are owners by purchase of 10-16ths of a thing which the defendants, who have no right to it beyond a 6-16th share, have obtained possession of. They say that defendants obtained leave, giving security under Section 231 to recover the decretal amounts, as Section 231 describes it, for the benefit of all persons jointly interested in the decree, the Court making such order as it deemed necessary for protecting the interests of the persons not joining in the application ; and they say that not merely is there an equitable foundation for their claiming the money, but that there is an express obligation incumbent upon the defendants to pay the money recovered in execution to the different persons who shall appear to be owners of the decree with the defendants. That second consideration does not seem to have been before the lower Court ; it was discussed before us. But it is in truth as much an illustration of the nature of defendants' obligation as a fact creating it; for, whether he gave security or not, he would equally, when allowed to issue execution, being only a part owner of the decretal amount, hold the surplus, if it came into his hands, for such persons as were really entitled to it; no doubt so far as the security creates an obligation, plaintiff could not recover in respect of it in this suit, as it is not referred to in the plaint. We think there is no doubt of the defendant's liability; and that Section 258 does not constitute any defence to the suit. Then it is said that, although this is not a claim made in respect of an alleged satisfaction of a decree uncertified, it is 'a question arising between the parties to the suit relating to the execution of the decree.' These words 'relating to the execution of the decree' are no doubt very vague and sweeping words, but the question arising here is certainly not in respect to the furtherance of, or hindrance to, or the manner of carrying out, the execution of the decree, for the foundation of the plaintiffs' claim is the execution of the decree. It is a right, an alleged right, arising partly in consequence of the decree having been executed by the defendants, appellants, and that is all. It is at least doubtful whether, even by giving the widest possible meaning to the words ' relating to the execution of the decree,' we could include the present case within them, for the question between the parties arises in consequence of defendants having taken out of Court all the decretal monies in place of 6-16 the of them, which they did after the decrees had been satisfied by payment. We must give the terms of the section a liberal construction in order to include a claim such as this within them supposing it possible, and why should we do so? In order to enable the defendants, appellants, to keep what certainly they had no right to? Or in order to punish the plaintiffs Nos. 4 and 5 for having omitted to cause the benami purchase to be entered as satisfaction of the decree? We see no reason why we should strain the section in order to accomplish either of these results. We think that under these circumstances, the former decree of this Court dismissing the appeal should be restored, and this appeal shall stand dismissed with costs, including the costs of the review.

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