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Brajabashi Modak and ors. Vs. Manik Chandra Modak - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Reported inAIR1927Cal694
AppellantBrajabashi Modak and ors.
RespondentManik Chandra Modak
Cases ReferredPonnusami Nadar v. Letchmanan Chettiar
Excerpt:
- .....had been under attachment in execution case no. 158 of 1922, at the instance of the decree-holder khali mahmud, as stated above, there was a settlement in which three parties took part, viz. the judgment-debtor, the decree holder khali mahmud and the respondent. the position at that time was that there were several creditors who had to be paid off. some of them, rather all with the exception of only five - one of those five being khali mahmud were paid off by sale of some of the properties belonging to the appellant, the sale being made by the appellants' mother acting as guardian on their behalf and on the strength of a permission obtained from the judge. khali mahmud, in execution of his decree, had now attached some lands as well as the homestead of the appellants......
Judgment:

Mukerji, J.

1. (After stating facts, the judgment proceeded.) The objection that was taken to the execution of the decree was as follows: When the lands and homestead of the judgment-debtors had been under attachment in execution case No. 158 of 1922, at the instance of the decree-holder Khali Mahmud, as stated above, there was a settlement in which three parties took part, viz. the judgment-debtor, the decree holder Khali Mahmud and the respondent. The position at that time was that there were several creditors who had to be paid off. Some of them, rather all with the exception of only five - one of those five being Khali Mahmud were paid off by sale of some of the properties belonging to the appellant, the sale being made by the appellants' mother acting as guardian on their behalf and on the strength of a permission obtained from the Judge. Khali Mahmud, in execution of his decree, had now attached some lands as well as the homestead of the appellants. Finding the helpless plight of the appellants he took pity on them and agreed to receive Rs. 325 in full satisfaction of his decree. For this amount he was prepared to assign hid decree over to the respondent, who agreed to pay off also four other creditors of the appellants; and for all this the respondent agreed to have from the appellants only 8 pakhis of land. By adopting this course it was expected that the homestead of the appellants would be saved to them. The appellants' case is that the respondent paid Rs. 325 to Khali Mahmud and obtained an assignment of the decree, but since then paid none of the other creditors. As an apprehension was entertained as to whether the District Judge would grant permission for the sale of the minors' properties a second time, it was arranged that the respondent would execute the decree against the 8 pakhis of land. This was done and the respondent purchased the same himself. Thereafter, in breach of the agreement, the respondent again put the decree to execution, and this time for the balance, that is to say, for Rs. 344-5-9'; which represents the difference between the decretal dues with interest less the sale-price, Rs. 500, for which he had purchased the 8 pakhis of land, and against the homestead of the appellants. This substantially is the appellants' case and both the Courts below have found that it has been established upon the evidence. The only point on which there may be a doubt is as regards the stipulation to pay off the other four creditors.

2. The District Judge has held that the objection cannot be given effect to as the arrangement amounted to an adjustment which was not certified in accordance with Order 21, Rule 2 and consequently cannot be recognized by an executing Court.

3. Two grounds have been urged on behalf of the appellants in this appeal : the first is to the effect that the Court was not the Court which was executing the decree and therefore the objection was capable of being recognized by it; and the second, that the arrangment required no certification under Order 21, Rule 2, Civil P.C. To take the first contention first. The decree was passed by the same Court in which it was being executed. The appellants' argument is that, as the application for execution was made not by the original decree-holder but by the assignee, his application must be regarded as one made under Order 21, Rule 16, Civil P.C., and as such as application lies only in the Court which passed the decree. It should be held that the Court was dealing with it in the latter capacity, and consequently, under the first proviso to that rule, the decree cannot be executed until the judgment-debtor's objection, if any, to its execution has been heard. It is an ingenious argument, but I am afraid it is without any substance. The rule evidently contemplates the occasion when, for the first time, the assignee comes before the Court to apply for execution. The respondent did this when he applied on the 12th June 1923 and execution case No. 97 of 1923 was started. The object of issuing notices under that rule to the transferrer and the judgment-debtor is to determine once for all, and in the presence of all parties concerned, the validity of the assignment. It cannot be said that each time the assignee comes to get the decree executed he should come in under this rule. The application filed on the 15th September 1924 is a simple tabular statement for the execution of the decree. It neither is, nor can be regarded as an, application under Order 21, Rule 16, Civil P.C. The case of Tameshar Prasad v. Thakur Prasad [1903] 25 All. 443 and Raghunath Gobind v. Gangaram Tesu A.I.R. 1923 Bom. 404, upon which reliance has been placed on behalf of the appellants, do not assist them. This contention, therefore, has no substance.

4. As regards the second contention id rests upon two grounds. The first ground is that Order 21, Rule 2 is restricted by its terms to original decree-holders and does not extend to an assignee of a decree, who steps into their shoes, as it were, under the assignment. For this contention reference has been made to the amendment that was made by the Code of 1908 to the definition of 'decree-holder' as given in the Code of 1882. The alteration is noteworthy, but it is not necessary to enquire into the object of the change, for the proposition, in the broad form in which it has been put before us, cannot be supported. Once the assignee comes in under Order 21, Rule 16,

the decree may be executed in the same manner, and subject to the same conditions, as if the application were made by the decree-holder.

5. This provision means that the rules relating to execution would apply in all their integrity to the case of an assignee. In a simple case, where there has been an adjustment or satisfaction, as between the judgment-debtor and an assignee who has attained the status of a decree-holder by an order made under Order 21, Rule 16, Civil P.C., Order 21, Rule 2 would be clearly applicable. The other ground on which the contention rests is not quite so plain and must be carefully considered. It is obvious that the agreement that is pleaded as a bar to the execution was reached at a time when the decree had not yet been assigned to the respondent and long before he applied under Order 21, Rule 16. The question is whether this agreement requires certification under Order 21, Rule 2. On behalf of the respondent has been urged that it was a tripartite agreement, to which admittedly the original decree-holder was a party, and, therefore, it does come under that rule. The real nature of the arrangement, to my mind, was this : the original decree-holder was satisfied with Rs. 325 and for that consideration he assigned the entire decree together with all his rights thereunder to the respondent. The agreement between the judgment-debtors and the respondent was that the latter would pay Rs. 325, and perhaps also some other amounts due to the other creditors, and for all this he would get 8 pakhis of land and nothing more, and that, although he was getting an assignment of the decree, he would not be able to execute it except for the purpose of obtaining the 8 pakhis of land. This agreement took place at a time when the respondent was not before the Court at all, and so no application by him nor any by the judgment-debtors for its certification would have been entertained by the Court until the respondent had taken the steps necessary under Order 21, Rule 16, Civil P.C. This view, to my mind, seems reasonable and has some authority in its support.

6. In the case of Rama Ayyan v. Sreenivasa Pattar [1896] 19 Mad. 230, the facts were these : A judgment-debtor alleged that he had transferred certain immovable property to another person in consideration of his paying the judgment-debt to the original decree-holder. That person accordingly discharged the debt and subsequently got the decree transferred to himself and thus becoming the assignee, instead of entering satisfaction thereof fraudulently applied for its execution. It was held by Subramaniya Ayyar, J., that this adjustment could be pleaded notwithstanding Section 258, Civil P.C. It is true that there are several points of distinction between that case and the one we are dealing with; e.g., there it was a question whether the decree having bean satisfied the assignee acquired any interest by the assignments and also, the objection was taken before the Court which had passed the decree and at a stage when the transferee had applied to that Court for execution, and therefore the objection was such as would have come within Order 21, Rule 16 of the present Code and would have been entertainable thereunder, and so on. But these points of difference do not really matter, for it is the view of Section 258 of the Code of 1882 that was taken by the learned Judge that is really material for our present purposes. That section was much in the same words as Order 21, Rule 2 of the Code of 1908, and the slight variation in Clause 5, if at all, only makes the rule more stringent. Referring the three paragraphs of the section the learned Judge observed thus:

Manifestly therefore the enquiry under the said second paragraph can take place only between parties standing in the relation of judgment-debtor and judgment-creditor. If' the former has entered into a contract, not with the latter, but with a third party with reference to the satisfaction or adjustment of a decree, the judgment-creditor cannot make any application against such third party under Section 258, and consequently the latter cannot on principle be permitted to take advantage of the prohibition imposed by the concluding paragraph of that section as a penalty for the judgment-debtor's omi3sion to apply to the Court under the previous paragraph or for his failure to prove his case if he did apply. The circumstances that the third party, subsequently to the contract, becomes the transferee of the decree which he contracted, to satisfy, can have no retrospective reflect, so as to deprive the judgment-debtor of his right to establish that the transferee is, by the anterior contract, precluded from realizing the judgment-debt.

7. These observations, in my opinion, apply equally well to the present case. It has been urged that in this case the adjustment of the decree with the original decree-holder and the agreement with the respondent and the assignment were all at one and the same time, and all the three parties were parties to the whole arrangement and that the whole arrangement was effected at one and the same time. I am, however, of opinion that the agreement between the judgment-debtors and the respondent must have been reached before the assignment; however short the interval may have been is not material; and in the agreement that the defendant would get nothing more than 8 pakhis of land, the original decree-holder was not interested though it was to his knowledge.

8. Subramaniya Ayyar, J., himself had occasion to refer to this case in Periatambi Udayan v. Vellava Goundan [1897] 21 Mad. 409, and there he and Benson, J., said:

In the case of Rama Ayyan v. Sreenivasa Pattar [1896] 19 Mad. 230 the person relying on the adjustment was not entitled to make any application...as against the person who denied the payment inasmuch as the latter was not then an assignee.

9. In the case of Ponnusami Nadar v. Letchmanan Chettiar [1911] 35 Mad. 659, Abdur Rahim, J., was unable to accept the dictum as a correct exposition of Section 258 of the Code, and sought to support the decision of the case on the ground of fraud committed by the assignee and also on the ground that when a question arises as to whether the assignee is a benamidar of the original decree-holder, the question of adjustment or satisfaction of the decree does not really arise. In the same case Sundara Ayyar, J., referred to the dictum with approval and observed:

It may perhaps be contended that the anterior contract is no reason for depriving the assignee of rights under the transfer that he is entitled to all the rights of his transferrer and therefore has the right to execute the decree which has not not been satisfied on the record of the Court. Bat to such an argument it may well be replied that, after entering into the contract he should not be allowed to set up any right in opposition to that contract by virtue of an assignment,

10. In a later decision of the same Court. Arumugam Pillai v. Krishnasami Naidu [1920] 43 Mad. 725, in which, however, the dictum was hardly o. any relevancy, Oldfield, J., passed it over as being the decision of a single Judge.

11. I am of opinion that the dictum does apply to this case and the observations of Sundara Ayyar, J., in Ponnusami Nadar v. Letchmanan Chettiar [1911] 35 Mad. 659 do also apply to it.

12. In my opinion the agreement upon which the judgment-debtors relied as a bar to the execution of the decree was fit to be entertained by the executing Court Order 21, Rule 2, notwithstanding.

13. The appeal accordingly should be allowed, the order by the District Judge set) aside and that of the Subordinate Judge restored with costs in this Court and the lower appellate Court. Hearing fee of this appeal is assessed at two good mohurs.

Graham, J.

14. I agree.


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