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H. Mathewson Vs. Gobardhan Tribedi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal492
AppellantH. Mathewson
RespondentGobardhan Tribedi and anr.
Cases ReferredLalji Mal v. Nand Kishore
Excerpt:
civil procedure code (act xiv of 1882), sections 244, 276 - decree--execution--attachment--judgment--debtor, representative of--specific relief act (i of 1877), section 42,(d) and (g)--declaratory suit--cause of action--receiver. - .....civil procedure, that there was no attachment properly so-called upon the property, and that the property in question being only a maintenance grant for the lifetime of the judgment-debtor, could not be attached and sold. a further question was raised, namely, whether the plaintiffs had any cause of action.4. the subordinate judge has negatived all the objections of the defendant, and given the plaintiffs the declaration that they asked for.5. the defendant, the ijaradar, has appealed against this decree.6. two main points have been discussed before us by the learned vakil for the appellant: first, whether the plaintiffs have any causa of action, and secondly, whether, the suit is barred by the provisions of section 244 of the code of civil procedure. it would seem that these two.....
Judgment:

1. This appeal arises out of a suit instituted by a decree-holder against his judgment-debtor and a person to whom the judgment-debtor had granted an ijara of the property, which he (the decree-holder) had caused to be attached in execution of his decree. The attachment is said to have taken place on the 29th September 1891, and the ijara was executed on the 7th November 1896.

2. The facts, as set out in the plaint, are that, after the property was attached at the instance of the decree-holder, a Receiver was appointed by the Court to take charge thereof, and to make over the proceeds of the property to the plaintiffs and the other attaching creditors; and that subsequently, while the Receiver was in possession of the property, the defendant No. 1, the ijaradar, presented before the Receiver the ijara pattah and asked that the rent payable by him under the ijara might be received. But what took place upon that application being made is not stated. It is, however, alleged that this ijara was granted at a very low rent with the object of throwing difficulties in the way of recovery of the money due to the plaintiffs, and the other decree-holders. The plaintiffs upon these allegations asked that it might be declared that the said ijara of the 7th November 1896 was null and void as against them.

3. The suit was contested by the ijaradar upon the ground that the question raised by the decree-holders should be decided by the Court executing the decree under Section 244 of the Code of Civil Procedure, that there was no attachment properly so-called upon the property, and that the property in question being only a maintenance grant for the lifetime of the judgment-debtor, could not be attached and sold. A further question was raised, namely, whether the plaintiffs had any cause of action.

4. The Subordinate Judge has negatived all the objections of the defendant, and given the plaintiffs the declaration that they asked for.

5. The defendant, the ijaradar, has appealed against this decree.

6. Two main points have been discussed before us by the learned Vakil for the appellant: first, whether the plaintiffs have any causa of action, and secondly, whether, the suit is barred by the provisions of Section 244 of the Code of Civil Procedure. It would seem that these two questions are intimately connected with each other. Taking the first question however by itself, we should not be prepared to say that the plaintiffs have no cause of action. The terms of Section 42 of the Specific Belief Act are such as would favour a case like this. We need only refer in this connection to two of the illustrations given in that section. The first of these two illustrations, namely (d), is: 'A alienates to B property in which A has merely a life-interest. The alienation is invalid as against C, who is entitled as reversioner. The Court may, in a suit by C against A and B, declare that C is so entitled.' The other illustration (g) is: 'A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property.' It is, we think, impossible to say that, if the ijara pattah was set up by the defendant, the ijaradar, before the Receiver, in respect of a property which had been attached at the instance of the plaintiffs, and from which property they (the plaintiffs) were entitled to have their decree satisfied, upon such a claim being preferred by the ijaradar, the plaintiffs would not be entitled to come to Court and ask for a declaration that the ijara set up by the defendant is invalid and inoperative as against themselves. But, however that may be, if the plaintiffs or the Receiver, had brought the matter to the notice of the Court, the Court would have, as we take it, made some order or other upon the matter, viz., whether the Receiver was bound to receive from the ijaradar the rent payable under the ijara pattah or should he in accordance with the orders of the Court, which had been made, receive the whole of the collections from the property in question. Here comes the consideration of the question, whether this matter could have been dealt with under Section 244 of the Code of Civil Procedure. The words of that section are:

The following questions shall be determined by order of the Court executing a decree and not by separate suit (namely):--(c)'--omitting (a) and (b) which are not material for the purpose of the present question--' Any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree.

7. There can be no doubt that the matter that was raised upon the application of the ijaradar was a matter relating to the discharge or satisfaction of the decree, which was then being executed, as we take it, because the action of the Receiver in receiving the rents and profits of the property under orders of the Court and applying the same towards satisfaction of the claims of the various decree-holders was a part of the execution of decrees. That being so, the only question which demands consideration is whether the ijaradar could be regarded as a representative within the meaning of the section. For, if he might be so regarded, there could be no doubt that the question now raised by the plaintiffs might well have been dealt with by the Court executing the decree. Whether the defendant No. 1, who, subsequent to the alleged attachment, took a lease of the property and is bound under the lease to pay only a portion of the usufruct of the property as rent thereof for a term of years, is a representative of the judgment-debtor, is a question which is not altogether free from difficulty. But having regard to some of the cases to which our attention has been called by the learned Vakil for the appellant, we are not prepared to say, that he is not a representative within the meaning of Section 244 of the Code. In the case of Lalji Mal v. Nand Kishore (1897) I.L. Rule 19 All. 332 where a decree-holder brought a suit for declaration that in execution of his decree a certain property, which had been attached at his instance, but which had subsequent to the said attachment been sold to another party, was liable to be brought to sale in execution of his decree, it was held that the purchaser was a representative within the meaning of Section 244 of the Code. The learned Judges, in the course of their judgment, made, amongst others, the following observations:

8. 'Convenience, which is not always a good reason for laying down a proposition of law, would suggest that a sale which was contrary to the provisions of Section 276 of the Code of Civil Procedure, should, if challenged by the decree-holder, be a matter to be adjudicated upon under Section 244. In our opinion, as the property in question was under attachment at the time the sale took place, the purchaser must be treated as a representative of the judgment-debtor, on the same principle as he would have been a representative of the judgment-debtor by reason of his purchase, if the decree had been one for sale of a particular property. The position of a purchaser of a property affected by a decree for sale was discussed by this Court in Madho Das v. Ramji Patak (1897) I.L. Rule 16 All. 286. 'And they accordingly dismissed the suit upon that single ground.

9. In a later case before the same Court, namely, the case of Gur Prasad v. Ram Lal (sic), the same view was accepted. In that case the plaintiff was the purchaser, and it was determined that the suit brought by him was not maintainable, it being held that he was a representative of the judgment-debtor within the meaning of Section 244 of the Code of Civil Procedure.

10. Then, in a case decided by a Full Bench of this Court, namely, the case of Ishan Chunder Sirkar v. Beni Madhub Sirkar (sic) the question was raised what was the exact significance of the word 'representatives' as mentioned in Section 244 of the Code. The facts of that case were that after a mortgage decree was passed, the equity of redemption subsisting in the mortgagor was sold in execution of a money-decree at the instance of a third party, and the question was raised, whether in the course of the execution of the mortgage decree, he (the purchaser) could be allowed to come in under Section 244 as a representative of the judgment-debtor. It was held that he could come in, and it seems to us that, though the observations that were made by Mr. Justice Banerjee, who delivered the judgment of the Court, had reference to the facts of the particular case before them, yet they were such as to indicate that the word ' representative ' occurring in Section 244 had a wider significance than ' legal representative;' namely, that it includes a person, who is a representative in interest of the judgment-debtor; and this is the view which was substantially accepted by the Allahabad High Court in the case of Lalji Mal v. Nand Kishore (1894) I.L.R. 10 Cal. 342 to which we have already referred.

11. Having regard to the principle that underlies these cases, we think we ought to hold that the ijaradar in this case is a representative of the judgment-debtor, and it does not, to our minds, make any substantial difference in that principle, that he has not acquired the whole interest of the judgment-debtor. Suppose the latter sold a fifteen-sixteenth share of the. property, which had been attached in evolution of a decree, could it be rightly said that, because he retained in his hands a one-sixteenth share, therefore the assignee of the fifteen-sixteenth share of the property was not his representative quoad that share? The ijaradar in this case has under his ijara acquired a substantial interest in the property, he is bound under the terms of his ijara to pay, as it is alleged, a small share of the proceeds of the property, he being entitled to appropriate to himself the rest; and, so far as regards the share of the proceeds which has thus been transferred to him, though for a term of years, he might well be regarded as a representative of the judgment-debtor.

12. Upon these grounds we are of opinion that the contention raised by the learned Vakil for the appellant that the present suit is not maintainable, having regard to Section 244 of the Code, ought to prevail.

13. In this view of the matter, it is not necessary to discuss the other question raised before us.

14. The result is that this appeal will be allowed and the suit dismissed, but having regard to the fact that the objection, which has been raised by the defendant, and upon which he has succeeded, is an objection as to the form of action, and does not really go to the merits of the case, and, inasmuch as the merits were in the Court below found entirely against him and in favour of the plaintiffs, we think that each party should bear his own costs in both Courts.


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