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Hem Chandra Banerji Vs. Annapurna Debi - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1932Cal423
AppellantHem Chandra Banerji
RespondentAnnapurna Debi
Cases ReferredManindra Chandra Nandi v. Ram Kumar Lal Bhagat A.I.R.
-, and rupees 30,000 due to her would have to be paid out of properties nos. 1 and 3,3. the decree-holder annapurna devi applied for execution alleging default in payment of the instalments. she asked for execution against amiyanath banerjee, the judgment-debtor abovenamed and also against one hem chandra banerjee, who was another defendant in the suit, and who was alleged to be transferee of the properties allotted to amiyanath banerjee. she applied in the court at alipur for transmission of the decree to the court at darjeeling saying:as the judgment-debtor amiyanath banerjee has no property sufficient for the realization of the decretal amount within the jurisdiction of this court (meaning the court at alipur) and he having transferred to hem chandra banerjee the property which.....

1. The decree which forms the subject of this execution case was passed on a compromise amongst the parties to a suit for partition. The particular terms of the decree with which we are concerned runs thus:

It is ordered and decreed . . . the said Annapurna Devi, defendant 1, having demanded cash consideration for a moiety of the l/4th share agreed to be allotted to her and valued at Rs. 33,000 it has been agreed that she shall get Rs. 30,000 in cash and the property No. 2 in the share of Amiyanath Banerjee (defendant 2) . . . valued at Rs. 3000 . . . and the said sum of Rs. 30,000 shall be paid out of the properties allotted to Amiyanath Banerjee to the said Annapurna Devi in the following instalments, Etc.

2. It should be stated here that the properties allotted to Amiyanath Banerjee in the said l/4th share were: (1) A business with stock in trade, fixtures and outstanding book-debts etc., together with the building appertaining thereto valued at Rs. 55,000; (2) Aghore Babu's house valued at Rs. 3,000; and (3) Gayabari estate valued at Rs. 8,000. The total value of the properties being Rs. 66,000 the share allotted to Annapurna by the decree would be worth Rs. 33,000; and under the terms aforesaid Annapurna Devi would get property No.2, and Rupees 30,000 due to her would have to be paid out of properties Nos. 1 and 3,

3. The decree-holder Annapurna Devi applied for execution alleging default in payment of the instalments. She asked for execution against Amiyanath Banerjee, the judgment-debtor abovenamed and also against one Hem Chandra Banerjee, who was another defendant in the suit, and who was alleged to be transferee of the properties allotted to Amiyanath Banerjee. She applied in the Court at Alipur for transmission of the decree to the Court at Darjeeling saying:

As the judgment-debtor Amiyanath Banerjee has no property sufficient for the realization of the decretal amount within the jurisdiction of this Court (meaning the Court at Alipur) and he having transferred to Hem Chandra Banerjee the property which is the subject-matter of the decree and the said transferred property being within the jurisdiction of the District Court at Darjeeling for the purpose of execution of this decree, prayer is made for transmission of the same to the said Court.

4. On the decree arriving at the Darjeeling Court with the usual certificate of nonsatisfaction, Annapurna Devi filed the application in the tabular form asking that the decree might be executed against both the persons aforesaid and praying that

after service of notice on the judgment-debtors whatever properties the judgment-debtors have may be attached and sold in auction and the decretal amount realized.

5. The amount due under the decree was said in the petition to be Rs. 16,650.

6. Amiyanath Banerjee put in the following objection:

That your petitioner is absolutely seized and possessed of the business of G. C. Banerjee and Sons carried on at Kurseong and whereas there is a, sum of Rs. 15,000 due and owing to the said decree-holder Annapurna Devi payable out of the assets of the said business of G. C. Banerjee and Sons and your petitioner's uncle Hem Chandra Banerjee has purchased the said business with good will, stock-in-trade outstanding and subject to the payment of the debts and liabilities of the said business as on the 1st day of July 1928 including the liability to pay to the said decree-holder the sum of Rs. 15,000 with interest due thereon . . . your petitioner is not liable to pay the sum to the decree-holder and the decree-holder might proceed against the said Hem Chandra Banerjee and execution cannot be granted against your petitioner.

7. Hem Chandra Banerjee took several picas, one of which was that he not being a judgment-debtor in the decree could not be fastened with any liability whatsoever under it.

8. On 14th March 1931, the Subordinate Judge overruled all the said objections and ordered attachment of the properties which were situate within the jurisdiction of his Court. Prom this order Hem Chandra Banerjee has taken the present appeal to this Court.

9. One of the objections urged against the order is that it does not even specify what the properties are that are to be attached. This objection however has no force now, inasmuch as by a petition subsequently filed the decree-holder respondent has given a list of the properties to be attached.

10. The next objection taken is that the proceedings are entirely misconceived in so far as they have gone on as against the appellant, treating him as a judgment-debtor on the footing of the transfer that he has obtained from Amiyanath Banerjee. The argument advanced on behalf of the decree-holder respondent is that inasmuch as the appellant has appealed from the order of the Court below treating it as one passed under Section 47, Civil P. C , he is either a judgment-debtor or a representative of the judgment-debtor and therefore he is bound by the decree, and so the decree may be executed against him. This argument, in our opinion, is specious but not sound. The scheme of the Code is to allow execution to be taken against the judgment-debtor or his legal representative and none else. In the course of execution, other persons may intervene; and if on a person so intervening a question, of the nature contemplated by Section 47 of the Code arises, then the question whether it would fall to be determined under that section or not would depend, inter alia, on the question whether such a person is a representative of the judgment-debtor or not. The term representative used in that section has been interpreted in the Full Bench decision of this Court in the case of Ishan Chandra v. Beni Madhab [1897] 24 Cal. 62 as including not merely legal representatives in the sense of heirs, executors or administrators, but representatives-in-interest, that is, any transferee of the decree-holder's-interest or any transferee of the judgment-debtor's interest, who so far as such, interest is concerned, is bound by the decree.

11. The fact that a person is bound by the decree does not necessarily mean that the decree is executable against him: the two things are not identical or synonymous. The mere fact therefore that Hem Chandra Banerjee is a transferee from the judgment-debtor, and has taken up the position of a representative of the judgment-debtor bound by the decree to the extent of the interest acquired by the transfer, does not entitle the decree-holder to proceed against him in execution. It has also been urged on behalf of the decree-holder respondent that inasmuch as Order 22, Rule 12, Civil P. C, which excludes the operation of Rules 3, 4 and 8 of that order in respect of proceedings in execution, does not speak of Rule 10, therefore it should be held that Rule 10 applies to execution proceedings and that a transferee from the judgment-debtor may be proceeded against in execution. This argument too, in our opinion, has not much force, because an express provision, in Rule 12, which was meant to set at rest the conflict that previously existed on the question whether the provision as to abatement of suits and appeals applied to proceedings in execution, can hardly be taken to imply that all the other provisions of the order are applicable to execution proceedings to which in terms they do not apply. The question whether Order 21, Rule 10 applies to execution proceedings or not is a question which has not yet been authoritatively decided. In Goodall v. The Mussoorie Bank, Ltd. [1887] 10 All. 97 the corresponding Section 372 of the previous Code was held not to apply to execution proceedings.

12. The applicability of the said section to execution proceedings was doubted in Harish Chandra Tewary v. Chandpore Co., Ltd. [1903] 30 Cal. 961. In the case of Midnapore Zamindary Co. v. Naresh Narain Boy [1912] 39 Cal. 220 the learned Judges were inclined to think that by the principle of exclusion Order 22, Rule 12 should be construed as implying that Rule 10 was applicable though they observed that the point was not necessary to be decided. In the case of Raghunath Das v. Sundar Das A.I.R. 1914 P.C. 129 their Lordships of the Judicial Committee referred to the case of Goodall v. Musoorie Bank, Ltd. [1887] 10 All. 97 and observed that it was open to considerable doubt whether Section 372 applied after a final decree was passed. In the case of Manindra Chandra Nandi v. Ram Kumar Lal Bhagat A.I.R. 1922 P.C. 304 the Judicial Committee had to consider the question of the applicability of Order 22, Rule 10, Civil P.C., at a stage antecedent to a final decree under Order 20, Rule 12 (2) of the Code, and it was held that the rule did not apply as there was no assignment, creation or devolution of interest within the meaning of the rule: the question of its applicability to execution proceedings was not considered in the case. We entertain grave doubts as to the applicability of the rule to such proceedings. But we are far from suggesting that in a suitable case the Court may not have the power, even apart from the provisions of the rule, of adding a party for the purposes of execution or of allowing an execution to proceed against a legal representative or a transferee. This however is not a case in which the necessity to exercise that power is manifest. It is clear, in our judgment, that the decree-holder's application for execution, in so far as it is against the appellant, was misconceived and that appellant's name should be expunged from the proceedings. This is all the relief that the appellant can ask for and will have in this appeal.

13. From what has been stated above it follows that at the present moment there is nothing in the decree-holder's way to proceed with her application for execution as against the judgment-debtor Amiyanath Banerjee and on the footing that the properties sought to be attached are his properties, should the decree-holder desire to proceed on that footing and ignoring the transfer which has been made by him in favour of the appellant. But such proceedings are bound to be infructuous in the end, in case the appellant, on the attachment being made, prefers a claim under Order 21, Rule 58 of the Code and the Court thinks fit to entertain and allow it under Order 21, Rule 60 of the Code. What the exact rights are which the appellant has acquired under the transfer we do not know: the deed of transfer has not been produced before us; the objection which the judgment-debtor Amiyanath Banerjee filed, and which has been reproduced above, would seem to suggest that the transfer was only in respect of the business at Kurseong; the decree-holder's case appears to be that all the properties out of which the decretal amount is to be satisfied have been transferred; and in a petition which the appellant has filed before us he has stated that he has filed a separate suit. What the rights of the respective parties are, in these circumstances, it is neither possible nor necessary for us to decide. The appeal will be allowed to the extent indicated above, but without any order for costs. The applications have not been pressed. They are dismissed.

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