1. This appeal by the plaintiff is in a suit under Order 21, Rule 63, Civil P.C. The plaintiff instituted Suit No. 561 of 1931 in the Original Side of this Court. The defendant in that suit was described : 'Pramatha Nath Pramanik and Anukul Chandra Pramanik, a firm carrying on business at Ghurni and Goari in the District of Nadia, traders and landholders.' The suit was decreed on 24th July 1931, against the defendant firm as described above.
2. The plaintiff's case in the present suit is that Protap Chandra Pramanik, Nilmani Pramanik and Hari Charan Pramanik were three brothers living jointly at Ghurni, that the brothers had a joint business which descended to their heirs; that Pramatha Nath Pramanik was the second son of Nilmani and Anukul is the son of Pratap; that after several successive deaths in the family, the above family business was carried on by Pramatha and Anukul as kartas on behalf of the family and that while thus carrying on the above family business they purchased goods from the plaintiff; that the amount claimed in the Suit No. 561 of 1931 above referred to was due by the plaintiff from the Pramanik family on this account. After having obtained a decree in Suit No. 561 of 1931, the plaintiff got the decree transferred to Nadia Court and took out execution of the same as per Execution Case No. 76 of 1933 and Execution Case No. 261 of 1934. The last named Execution Case was dismissed on 5th February 1935. Thereafter he started the Execution Case No. 156 of 1935 and this time execution of the decree was sought against the members of the joint family of the Pramaniks and attachment was prayed for of the property belonging to this joint family. In this execution case the dwelling house of the Pramaniks was attached and the present defendant Probal Kumar Pramanik objected to this attachment, claiming that he had purchased this property in 1934 at an auction sale held in execution Case No. 1117 of 1933, and that the property no longer belonged to the family of the Pramaniks. This Probal Kumar Pramanik is not a member of the Pramanik family. The plaintiff decree-holder in that objection case asserted that the claimant was merely a benamidar of the family. The claim however was allowed by the executing Court on 8th February 1936. Thereupon the plaintiff instituted the present suit on 19th November 1936. In this suit he prayed for a declaration that the defendant was a mere benamidar of the Pramaniks and that the property in dispute belonged to the joint family of the Pramaniks and consequently was liable to attachment and sale in his Execution Case No. 156 of 1935. The defendant appeared and filed a written statement contesting the claim of the plaintiff on various grounds and ultimately the learned Munsif framed 17 issues on the pleadings of the parties. Of these issues, only issues 2 and 3 were first picked up for hearing and these were accordingly heard by the learned Munsif with the concurrence of both the parties. The issues run as follows : (2) Is the suit maintainable according to law and in its present form? (3) Is the suit bad for vagueness?
3. The learned Munsif then proceeded to consider these two issues together for the sake of convenience and decided them both against the plaintiff. He held (1) that the plaint was really vague, inasmuch as it did not make it clear how a decree standing against a firm which was in all appearance a contractual one, could be made available against the members of the family and (2) that the present suit was not maintainable, inasmuch as the decree obtained by the plaintiff being against the firm Pramatha Nath Pramanik and Anukul Chandra Pramanik and not against the joint family of the Pramaniks the execution case against the family was untenable, and consequently, the execution against the joint family property could not proceed. He, therefore, dismissed the suit. On appeal by the plaintiff, the learned District Judge of Nadia affirmed this decision holding that the decree in question was against a contractual firm and not against the joint family of the Pramaniks and con-sequently the prayer for its execution by attaching the joint family property was not maintainable. Mr. Mukherjee appearing for the appellant, urged the following points in support of this appeal : (1) that the present suit being one under Order 21, Rule 63, Civil P.C., the plaintiff is entitled to succeed only on establishing the right which he claimed to the property in dispute in his execution case and that therefore the only relevant point for decision in this suit was whether the property belonged to the Pramanik family or whether it belonged to the defendant; (2) that the present execution case having been taken out against the joint family of the Pramaniks and they not having raised any objection to the execution, it was not open to the present defendant who was a stranger to that family to raise the question in the present suit whether the decree should be executed against the joint family; (3) that the issue raised and tried did not at all cover the points decided by the Courts below and that this has greatly prejudiced the appellant inasmuch as he had no opportunity of meeting the points raised and decided against him by the judgments; (4) that, at any rate, the construction put upon the decree that it was only against a contractual firm and not against the joint family of the Pramaniks was wrong and was based on insufficient materials.
4. As regards point 3 raised by Mr. Mukherjee in support of this appeal it must be said that issue 2 as framed by the learned Munsif fails adequately to raise the question actually considered by him in his judgment. The issue is 'Is the suit maintainable according to law and in its present form?' No defect in form, however, seems to have been alleged in this case. At least no such defect has been adverted to by the Courts below and none could be pointed out to us here. The defect complained of, viz., that the decree in question is not available against the execution-debtors named in the application for execution, is certainly not a defect in the frame of the present suit, and, strictly speaking, the defect, if any, does not touch the maintainability of the suit at all. This may defeat the title claimed by the plaintiff in the suit; but that is a matter very different from any preliminary defect in the frame of the suit rendering the suit as framed not maintainable in law. The object of framing an issue is to direct the attention of the parties to the main questions of fact or law to be decided and the duty of framing and recording the proper issues has been placed on the Court by the Code of Civil Procedure. It is expected that in framing such issues our Courts of law should exert themselves so as to make them sufficiently expressive of the matters which they desire to consider under such issues. In spite of the defect in the frame of the issue, however, the parties in the present case seem to have gone to trial knowing full well what the question for decision was. At least the plaintiff was given an opportunity of meeting the point raised at the trial though not covered by the issue, and he cannot be heard to say that the defect in the frame of the issue prejudiced him when he did not avail himself of that opportunity.
5. In our opinion, the first two points raised by Mr. Mukherjee are of much greater substance. Order 21, Rule 63, Civil P.C., lays down : 'Where a claim or objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute.... 'In this particular case the present plaintiff as decree-holder claimed in his execution case the right to proceed against the property in question as belonging to the joint family of the Pramaniks. The application for execution is Ex. B-1 in this case and it is amply clear from this execution petition that, rightly or wrongly, the plaintiff decree-holder applied for execution of his decree against the members of the joint family of the Pramaniks and prayed for attachment and sale of the property belonging to the family. Pursuant to this prayer, the properties were attached which were alleged as belonging to that family. The present property is only one of the items thus attached. The present defendant who was not a member of the family preferred a claim to this property under Order 21, Rule 58 asserting a title in himself on the basis of a purchase of 1934, as has been stated above. On this claim being preferred, an order was made against the present plaintiff by which it was field that the property belonged to the claimant. So the plaintiff is the party against whom the order was made within the meaning of Order 21, Rule 63, Civil P.C., and he instituted the present suit to establish the right which he claimed there. In our opinion, the words 'the right which he claims to the property in dispute' as used in Rule 63 of Order 21 refer to the right which the party claims in the execution proceedings. In this particular case the plaintiff in the execution proceedings claimed that the property belonged to the joint family of the Pramaniks, and that is the right for the establishment of which the present suit has been instituted. It is difficult to see why an objector should be allowed to question the legality or validity of the proceeding against the execution-debtors named in the execution case. There is no doubt that if the execution proceedings proceeded upto the stage of sale and the present decree-holders purchased this property at the sale held in execution of this decree, the present claimant could not have defeated their title to the property by alleging that the joint family was not liable for the decree. In order to succeed in an action after such sale, the present defendant must have taken his stand only on his own title, or on want of title of the joint family. It appears that this view was taken by a Division Bench of this Court as far back as the year 1875 in Tofail Ahmud v. Bani Madhub ('75) 24 W.R. 394; (Sir Richard Garth C.J. and Birch J.); it was held that in a suit by an 'execution-creditor' to establish the title of his 'execution-debtor' to certain property which had been released from attachment on a claim preferred by the defendant the latter had no right to set up any irregularities in the execution in answer to the execution-creditors' claim of title. Garth C.J. observed as follows:
We consider that the only question which could properly have been tried in this case is whether the property seized did really belong to the 'execution-debtor' as against the defendant in this suit. As between the 'execution creditor' and the 'execution debtor', it would of course have been open to the latter to contend that his immovable property could not be seized till the remedies against his person and movable property were exhausted. But the defendant who merely comes in to contest the title to the property has no right to set up any irregularities in the execution as an answer to the execution-creditors' claim to title.' In the present case the joint family is the 'execution-debtor', though they may not be the judgment-debtor named in the decree. No member of the family is coming forward to object to the execution. We do not see why the present defendant who is merely a stranger claimant should be allowed to set up the defence that the decree cannot be executed against the execution-debtors named in the execution case. Similar view was taken in Tofail Ahmud v. Bani Madhub ('75) 10 Bom. 659, a (Sargent C.J. and Birdwood J.). The decision in Narayyan v. Nageswarayyan ('94) 17 Mad. 389 not against this view. There the defendant claimant was connected with the judgment-debtor as being reversionary heir of the judgment-debtor's husband or being his coparcener and consequently it was held that it was open to him to question the decree itself, in a suit under Section 283, Civil P. C. of 1882 (now Order 21, Rule 63 of the present Code).
6. Mr. Sinha appearing for the respondent contended that the defendant in the present suit having been alleged to be the benamidar of the execution-debtors named in the execution case was competent to question the maintainability of the execution proceeding itself on behalf of the real owners. We are unable to accede to this contention. In the execution proceeding itself, the members of the family have been made parties and the executing Court has directed the execution to proceed against them. So long as that order stands, these members themselves may be debarred from raising this question. At any rate a benamdar does not always represent the real owner in a suit or proceeding. The alleged real owners here have been made parties to the execution proceeding and they are not contesting there the claim of the plaintiff-decree-holder. It is, difficult to see on what principle their benamidar who is no party to the execution proceeding and who comes to fight his own fight, can be allowed to take up the cause of the real owners particularly when the latter are not at all moving in the matter. The difficulties of a decree-holder are already numerous and their trouble will indeed be endless if any one can thus come and question the validity of the execution. In our opinion, therefore, the grounds on which the present suit has been dismissed by the Court of appeal below were not open to the present defendant and the order of dismissal cannot be allowed to stand. The result is that this appeal is allowed; the judgments and decrees of the Courts below are set aside and the suit is sent back to the Court of first instance for disposal according to law keeping in view the observations made above. We would like to make it clear that our observation made above should not be taken as deciding who is the real owner of the property. That is a question which is to be decided by the Court hearing the Suit. Costs will abide the result.
Mohamad Akram, J.
7. I agree.