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Jatindra Mohan Banerjee and ors. Vs. Kali Charan Alias Kalipada Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 1 of 1958
Judge
Reported inAIR1960Cal623,64CWN780
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 47(3) and 146 - Order 21, Rules 16, 22 and 32
AppellantJatindra Mohan Banerjee and ors.
RespondentKali Charan Alias Kalipada Sarkar and ors.
Appellant AdvocateManindranath Ghose and ;Anil Kumar Sett, Advs.
Respondent AdvocateKrishna Binode Ray, Adv.
Cases ReferredJugal Kishore Saraf v. Raw Cotton Co. Ltd.
Excerpt:
- .....the holder of the decree may apply to the court which passed it toexecute the same against the legal representative of the deceased'.therefore persons who were not on the record at the time when the decree was passed may also be liable under the decree and execution can be sought as against them. the process by which this has to be achieved is under order 21 rules 16 or 22 of the code of civil procedure. it is submitted that the respondents were not parties by name. hence they were not parties to the decree. they are not transferees from the judgment-debtors defendants nor are they legal representatives of the judgment-debtors.7. what is stated is that the respondents are not the legal representatives within the meaning of order 21 rule 22 of the code and, therefore, order 21 rule 22.....
Judgment:

P. Chatterjee, J.

1. This second appeal is on behalf of the plaintiffs decree-holders. In this second appeal an important question of procedure has arisen. The question is regarding the executability of a decree for injunction in a representative suit. The defendants were sued in a representative capacity and a decree was passed against them. All the persons against whom execution has been applied for were not eo nomine parties to the suit. The question is whether the decree can be executed against such persons.

2. The plaintiffs applied for execution of the decree against persons who were parties defendantsby name and also against persons who were not parties by name. The objection now under consideration is one by persons whose names did not appear on the decree. It is stated that the decree could not be executed against the objectors respondents. It is submitted that the relevant rule is Order 21 Rule 32 of the Code of Civil Procedure. That rule says:

'Where the party against whom a decree for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced for an injunction by his detention in the civil prison, or by the attachment of his property, or by both'.

Hence it is submitted that the decree can be executed against a party to the decree. What is alleged is that the judgment-debtors were not eo nomine patties to the suit; their names do not appear on the record. Therefore, the decree cannot be executed against them.

3. The question is whether such persons are to be treated as parties against whom the decree was passed. It is contended they cannot be.

4. The next question is, if so, how can persons whose names were not in the decree, can be made parties so that the decree may be executed as against them. It is submitted that the methods by which they can be added as such parties are either by Order 21 Rule 16 of the Code or by issuing notices under Order 21 Rule 22 of the Code.

5. Order 1 Rule 8 Sub-clause (2) of the Code of Civil Procedure has also been referred to which is:

''Any person on whose behalf or for whose benefit a suit is instituted or defendant under Sub-rule (1) may apply to the Court to be made a party to such suit'.

But then two questions that will arise are -- first, whether Order I Rule 8 of the Code would apply after the decree has been passed; secondly, does it apply with respect to the defendants who did not apply to be made parties? With regard to the first question the Madras High Court in a case of one Swaminatha v. Kumarswami AIR 1923 Mad 472 (2) held that they can be brought on record as plaintifts. It is submitted that Order 1 Rule 8 Sub-clause (2) has no application after the decree is passed and there are authorities of this High Court to the effect that there can be no addition after the decree. Secondly it is submitted that the persons themselves might apply on their own choice as in the Madras case but the plaintiffs could not bring them on record. Hence Order 1 Rule 8(2) of the Code is of no help to the plaintiffs decree-holders.

6. Reference has been made to Sections 49 and 50 of the Code of Civil Procedure. Section 49 says:

'Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder'.

Therefore, the transferee who was not on the record at the time of the passing of the decree, may execute the decree. Section 50 says:

'Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it toexecute the same against the legal representative of the deceased'.

Therefore persons who were not on the record at the time when the decree was passed may also be liable under the decree and execution can be sought as against them. The process by which this has to be achieved is under Order 21 Rules 16 or 22 of the Code of Civil Procedure. It is submitted that the respondents were not parties by name. Hence they were not parties to the decree. They are not transferees from the judgment-debtors defendants nor are they legal representatives of the judgment-debtors.

7. What is stated is that the respondents are not the legal representatives within the meaning of Order 21 Rule 22 of the Code and, therefore, Order 21 Rule 22 of the Code would not apply and that not being applied, nothing else remains. With regard to the first part reference has been made to the definition of the words 'legal representatives'. The definition as given in the Code of Civil Procedure is in Section 2(11) 'and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.' 'Legal representative', therefore, includes the representative in character but that again only on death and, therefore, it is submitted that the respondents are not legal representatives.

8. Reference has been made to Raghunath Das v. Sundar Das, reported in 41 Ind App 251: (AIR 1914 PC 129) where it has been held that the official assignee in whom the estate of the insolvent judgment-debtor vested could apply; he was not the legal representative but the definition of the words 'legal representative' was not there in the old Code. That means even though the official assignee was not a party to the decree because the estate came to him, he was the representative whether there was death or not. But no estate of the parties devolved on the objectors. The result according to the objectors respondents is that the decree cannot be executed against themselves.

9. On behalf of the appellants it is submitted if the respondents are bound by the decree and it the principle of res judicata is also applicable to them, there is no reason why the decree cannot be executed against them simply because the law of procedure, if very strictly construed, would not include them. What is submitted is, the law of procedure is the process for doing justice and cannot be understood as creating difficulties in the dispensation of justice and that is why the Courts have said to have an inherent power.

10. It is in exercise of this inherent power that the parties were added as plaintiffs after a decree in the case reported in AIR 1923 Mad 472 (2). It is also because of this power that the official assignee was considered to be a legal representative for the purpose even though the judgment-debtor was not dead. Hence it is submitted that the respondents could be added parties to the decree under inherent power of the Court.

11. I have been referred to the Full Bench decision of the Madras High Court as reported in Kodia Goundar v. Velandi Goundar, (S) : AIR1955Mad281 . According to the decision of the Madras High Court, such a decree is not executable againsta person who was not a party on the record. The Madras High Court has referred to the relevant rules in England and also to certain English cases, but the very principle referred to in those rules as well as the decisions of the Kings Bench, the very decisions show that they do not encourage suits in a representative capacity, but our Code of Civil Procedure not merely provides for such suit but goes further and states in Section 11 of the Code that this should be res judicata even against persons whose names do not appear on the record. Therefore the definite law in our country is contradictory to the principles laid down in the English cases as well as to their rules. There are two other decisions of Indian High Courts -- one of Lahore and the other of Allahabad. The case of Mool Chandra Jain v. Jagdish Chandra Joshi of the Allahabad High Court is reported in (S) : AIR1955All385 and the case of Waryam Singha v. Sher Singh is reported in AIR 1942 Lah 136. The Madras High Court had not the opportunity of considering the Allahabad case but they disposed of the Lahore case with a very few words and, therefore, I shall go into the principle in support of the decisions underlying the cases reported in (S) : AIR1955All385 and AIR 1942 Lah 136. In my opinion, there is no doubt that a decree cannot ordinarily be executed against a person who is not a party to the decree. Therefore, so far as that broad principle is concerned, I agree most respectfully with the view taken by the Full Bench of the Madras High Court but what I say more is that such a person may be brought on the record and having been brought on the record, he would become a party to the decree or to the execution case and the decree would then be executed. The processes by which such a person could be brought on the record and then execution levied will be discussed.

12. Indeed, it is very difficult to say that the objectors could be brought on the record either as transferees or as legal representatives. It is clear, therefore, that there is no definite provision in the Code by which such decree would be executed against persons who are not parties eo nomine.

13. The only thing for consideration is Section 146 of the Code of Civil Procedure. This section applies only when there are no other provisions of the Code. It has been found that if Order 21 Rule 16 and Order 21 Rule 22 do not apply and if these persons are not strictly either transferees or legal representatives, there are no other provisions of the Code. In that view of the matter Section 146 of the Code would apply so far as this matter is concerned.

14. The next thing is whether the present proceeding for execution is a proceeding within the meaning of Section 146 of the Code. There is no doubt about that and none of the advocates denied that a proceeding for execution under Order 21 Rule 32 is not a proceeding within the meaning of Section 146 of the Code. The whole question arises is whether the persons who were not eo nomine parties can be considered to be persons claiming under him. In substance, Section 146 says, if there is no other provision in the Code of Civil Procedure, then any person claiming under the person who is a party may start the proceeding or a proceeding may be started against him. In this case a proceeding could be brought against the defendants who were by name partiesand the question is whether the other persons who were not parties but who belonged to the village are persons claiming under him and whether they could take proceedings.

15. It is suggested that the words 'claiming under him' must be limited to the cases of a transferee and a legal representative. If that is so, then the whole section becomes redundant for there is enough provision for the transferee as well as the legal representative under Order 21 Rule 16 and Order 21 Rule 22. Necessarily, this means (sic) (that as regards) persons why are neither transferees of the decree nor the legal representatives of the judgment-debtors, the words 'any person claiming under him' mean 'any person claiming under him by the same title' -- that means, when the title to which or the title against which any person is bound, then any other person who claims under the same title, would be equally bound. In order to test that we may refer to Section 11, Explanation 6. That Explanation says 'where persons litigate bona fide in respect of a public right all persons interested in such right shall for the purposes of this section be deemed to claim under the persons so litigating'. That shows that persons who are not eo nomine parties are considered to be the persons claiming under the persons who are eo nomine parties. What is necessary is that the other persons must be interested in such right, that means, the other persons must come under the same title as those represented by name.

16. It is, indeed, true. Explanation 6 says it is for the purposes of this section. The purposes of that section is for the purposes of giving binding effect of that judgment by the doctrine of res judicata. What comes to this is that the judgment is binding against them as res judicata because they are claiming under the same title or because they are equally interested hence the whole reason of a person being bound is that he is claiming under the same title or, in other words, he is equally interested. Therefore, under Section 146 of the Code the words 'claiming under him' means 'claiming under him under the same title or be equally inte-rested.'

17. We have two recent decisions of the Supreme Court where they have considered Section 146 of the Code. In a case between Saila Bala Dassi v. Nirmala Sundari Dassi, in an appeal from this Court reported in : [1958]1SCR1287 it has been stated that it should be considered much liberally so as to advance justice and not in a restricted or technical sense. The reason is that if read in a technical or a restricted sense, then the difficulty would be that the persons who are really entitled to the benefits of a decree or persons who are really burdened by a decree would escape the benefit or a liability under the decree and, therefore, the decrees would be in-fructuous and that is the reason why the Supreme Court has considered that the provisions should be read not in a restricted sense nor in a technical sense.

18. The question also came up in a case of Jugal Kishore Saraf v. Raw Cotton Co. Ltd. reported in (S) AIR 1955 SC 376, as to whether a person who was not a party to the decree nor who was. a legal representative of the decree-holder, could execute the decree. The decree was on the basis of certain book-debts but the book-debts had already been assigned to somebody else and the other person, the assignee, was not in the decree. The assignment took place before the decree in question, therefore, the assignee was not a transferee of the decree either by act of party or by operation of law nor was a legal representative of the decree-holder and if he could not execute the decree, the decree would remain infructuous. Under that circumstance the Supreme Court considered the matter very liberally, found that he is the person who is interested in the decree and then applied Section 146 of the Code as a person claiming under it. The whole reason is that the benefit of the decree belonged to him. He was interested in the decree in the same manner as the decree-holder by name and, therefore, Section 146 of the Code was applied.

19. I have just referred to the decisions of the Supreme Court in the case reported in : [1958]1SCR1287 . There during the pendency of an appeal a person who was the transferee of the property but not of the decree, applied for being made a party because he understood that the person in whose favour the decree stood, might not proceed with that matter. The application was rejected by a Division Bench of this High Court probably on the reason that Order 22 Rule 10 of the Code would not apply. The Supreme Court in considering that matter again applied Section 146 and allowed him to continue the appeal. The person who sought himself to be added as a party to the appeal, was neither the legal representative nor the transferee of the decree but he was the person who was interested in the decree and who was entitled to the benefit of the decree.

20. Now it is beyond doubt that so far as in this case the burden of the decree is upon the villagers against whom the suit was instituted. If a person was a villager and belonged to the particular class of jute growers, he would be all the same bound by the decree whether he was born before or after the decree or he migrated or not, the whole question would be, if he was a man who was sought to be represented, he will have to bear the burden of the decree and if the persons who had objected, were persons who satislied the categories as stated there, there is no reason why they should not be bound by the decree.

21. I, therefore, come to the conclusion that the person who were not eo nomine parties claim under the persons who were eo nomine parties for the purpose of Section 146 of the Code and. therefore, for the purpose of Order 21 Rule 32 of the Code. This conclusion is amply supported by the two decisions of the Supreme Court which I have most respectfully followed.

22. The third question then comes is what about the present objection. The Appellate Court has dismissed the petition on the ground that these persons were not made parties by name. That decision must be set aside. These objectors are bound by the decree provided the Court finds that they have the same interest as those whose names appear in the decree, that is, provided the Court finds that these persons reside in the village permanently with an intention so to reside and belong to the particular class of people of the village against whom the decree was obtained. The two questions, therefore, the Court has got to consider are, first, whether they are permanent residents of the village with an inten-tion so to reside and secondly whether they are thejute growers of the village. The learned advocate for the respondents says that if I apply Section 146 of the Code, there is no scope of the other matter being considered, namely, their objection on merits. What he means is that Section 47 of the Code will not apply.

23. I have not the slightest doubt that Section 47 would apply. Section 47, Sub-section (3) says

'Where a question arises as to whether any person is or is not a representative of the party, such questions shall for the purposes of this section be determined by the Court'.

Therefore, whether the objectors are to be considered to be the representatives of the parties who are on the record, is a matter which comes under Section 47 of the Code and the Trial Court below will consider the two matters as to whether they are permanent residents of the village with an intention so to reside and whether they are jute growers. If the Court finds both the points against the objectors, the Court will proceed to execute the decree.

24. In the result the judgment of the Court of Appeal below is set aside and the matter is sent back to the Trial Court below for deciding the two questions aforesaid and then for proceeding in accordance with the directions given above.

25. Each party will bear his costs up to thepresent stage.

26. Leave under Clause 15 of the Letters Patent is prayed for. As I have merely followed the two decisions of the Supreme Court, I have no reason to grant the leave prayed for and the same is refused.


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