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Lakshan Chandra Naskar Vs. Ramdas Mandal - Court Judgment

LegalCrystal Citation
SubjectProoperty;Civil
CourtKolkata
Decided On
Reported inAIR1929Cal374,118Ind.Cas.857
AppellantLakshan Chandra Naskar
RespondentRamdas Mandal
Cases ReferredTepu Khan v. Ranjani
Excerpt:
- .....can insist upon and obtain an order for attachment, an order for sale, an order confirming the sale, a sale certificate and delivery of possession of the property sold. is this intended by the legislature to be provisional, as a means whereby the execution court may carry out its work with celerity but subject to the judgment-debtor's right to set it all aside by appropriate proceedings based on the ground of fraud or on other grounds now, the code does provide instances of an intention that in some cases an execution court should act subject to check or control by the result of a subsequent suit. claims by third parties to property attached in execution are to be investigated in manner provided by order 21, rule 60 and by rule 63 the losing party may bring a suit to establish his.....
Judgment:

Rankin, C.J.

1. The plaintiff in 1909 obtained a money decree against the defendant and his brother for Rs. 27-8-0. After much contest it has been found by the lower appellate Court that in 1913 the defendant and his brother transferred to the plaintiff 10 cottahs of land in satisfaction of all debts on whatever account due to the plaintiff and that thus the decretal amount was discharged. It is clear, however, that this adjustment of the decree was not certified by the plaintiff under Order 21, Rule 2 and that the judgment-debtors failed to apply to the Court within the ninety days prescribed by Article 174, Schedule 1, Lim. Act 1908, to have the adjustment recorded. Clause 3 of the rule took effect accordingly; the adjustment 'shall not be recognized by any Court executing the decree.' In this state of things the plaintiff in 1914 sought to have execution of the decree; the defendant set up the adjustment as an objection in the execution case: but this objection being clearly unsustainable it was not persisted in and was dismissed for default on 23rd November 1914. The land in suit was sold in execution and purchased by the plaintiff in 1915 and in 1916 delivery of possession was given to the plaintiff under Order 21, Rule 95. The lower appellate Court has come to no specific findings on the matter but the plaintiff's averment was that he had peaceable possession until 1919 when the defendant committed various acts of trespass and soon thereafter dispossessed the plaintiff. Whether the possession given to the plaintiff in 1916 was effective and complete or so ineffective and incomplete as to deserve the adjective 'symbolical' is of no importance in the present suit which was instituted in 1925. The only question is as to the plaintiff's title there being no room for objection to the claim on the ground of limitation. The plaintiff put in evidence the sale certificate dated 22nd May 1915. The defendant contends that the decree having been satisfied in 1913 the proceedings of 1914-16 were had in fraud of the defendant and that this is a defence which the Court in the present suit must entertain as it goes to the validity of the plaintiff's title.

2. This raises an important question and the reference to this Full Bench states the question in this form:

Whether an objection to an execution sale on the ground that the decree in execution of which the sale took place was satisfied prior to the sale might be pleaded by way of defence in a suit by the purchaser for possession of the property sold in execution of the decree although such objection was raised in execution proceedings but was not determined on account of the laches of the judgment-debtor in allowing the objection case to be dismissed for default

3. Now I think that for the purposes of the present case the circumstance that the objection was raised before the executing Court and the circumstance that the objection was before that Court abandoned are devoid of all importance. The defendant was forbidden by Clause 3, Rule 2, Order 21, to raise before any Court executing the decree the plea that the decree had been satisfied and it may safely be supposed that his failure to persist in that plea is explained by the fact that it could not be entertained. He is no worse off and no better off for having thought of raising it. As he could neither bring a suit nor apply under Section 47 there is no question of the defendant having lost by laches his right to impeach the sale. Thus the present case is altogether free of any complication such as may arise when the objection taken to defeat an auction-purchaser's suit in ejectment is of a kind which might and should have been taken and decided in the executing Court. If for example the objection be that the judgment-debtor's interest in the property was of a kind that was not saleable in execution, a question may arise whether the objection comes too late, whether the defendant having (for example) suffered an order for sale or an order confirming the sale can take the objection at a late stage and dispute the previous orders. This question may arise upon the judgment-debtor's application under Section 47 to set aside the sale as in Durga Charan v. Kali Prasanna [1899] 26 Cal. 727. If it be true that Section 47 permits the defendant in a subsequent ejectment suit to assert by his defence the invalidity of the sale it may be that the same question can arise in a suit. It was thought to arise and it was dealt with in Murullah v. Sh. Burullah [1905] 9 C.W.N. 972 and Dwarkanath Pal v. Tarini Sankar Roy [1907] 34 Cal.199.

4. In these cases the Court was proceeding on the footing of an erroneous doctrine laid down in Bhiram Alt v. Gopi Kanth [1897] 24 Cal. 355 to the effect that a non transferable occupancy holding was not saleable in execution, a doctrine which has now been negatived in Chandra Binode v. Alabux A.I.R. 1921 Cal. 15. Apart from this doctrine and apart from the question whether Section 47 can apply to bar a defendant, Bhiram Ali's case [1897] 24 Cal. 355 appears to have proceeded on the ground, not that the sale was Liable to be set aside, but that the plaintiff took nothing by his purchase. It may be doubted whether this reasoning was sound. If a judgment-debtor has no interest the purchaser takes nothing by his purchase. But if he has an interest and the execution Court purports to pass it by a sale the objection that it was not transferable or saleable would seem, in the defendant's mouth at least, to be an objection to the propriety of the sale; and if this objection is not based on want of jurisdiction in or fraud practised on the execution Court, it is not evident to me that the defendant in another Court can raise the point at all, unless indeed it can be said that apart from Section 47 the merits of an order in execution can be revised by a separate suit between the parties. The cases to which I have referred and Beni Madhab Rai Charan A.I.R. 1926 Cal. 247 thus raise more than one question of difficulty. It is not necessary here to discuss them all.

5. We are required to consider what consequences the legislature has intended to attach to a failure on the part of a judgment-debtor who has satisfied the decree, to get the satisfaction or adjustment recorded under Rule 2, Order 21. For this purpose the rule has to be read with Section 47 of the Code which enacts that

all 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 shall be determined by the Court executing the decree and not by a separate suit.

6. It is clear enough nor is it disputed that Clause 3, Rule 2, Order 21, prevents the adjustment from impeding in any way the course of execution. The decree-holder can insist upon and obtain an order for attachment, an order for sale, an order confirming the sale, a sale certificate and delivery of possession of the property sold. Is this intended by the legislature to be provisional, as a means whereby the execution Court may carry out its work with celerity but subject to the judgment-debtor's right to set it all aside by appropriate proceedings based on the ground of fraud or on other grounds Now, the Code does provide instances of an intention that in some cases an execution Court should act subject to check or control by the result of a subsequent suit. Claims by third parties to property attached in execution are to be investigated in manner provided by Order 21, Rule 60 and by Rule 63 the losing party may bring a suit to establish his right. A similar arrangement is made by Rule 103 as regards claims by a third party which arise or are preferred at the time of delivery of possession. But questions between decree-holder and judgment-debtor as to whether the decree has been satisfied or adjusted are not so treated by the Code, ana it is clear enough that a judgment-debtor who has failed to have an adjustment recorded can neither bring a suit to set aside the sale on the footing of the adjustment nor apply under Section 47 for any such relief. The former course is forbidden by Section 47 and the latter by Clause 3, Rule 2, Order 21. He may bring a suit for damages for the decree-holder's breach of contract or for recovery of the money paid under the adjustment; these are not questions of execution of the decree nor are they proper to be raised in a Court whose duty is confined to executing the decree. They may in some wide sense be questions 'relating to the discharge or satisfaction of the decree' but they are not within the meaning of these words as used in Section 47. Whether damages be recovered or not, the sale in execution will stand; and the executing Court will neither be troubled with a dispute as to the fact of an adjustment, nor required to adjust the rights of the auction purchaser on the footing that the sale has become void.

7. If these be admitted consequences of a failure to get an adjustment recorded, the question arises whether it is consistent with the language and intention of the legislature to suppose that the judgment-debtor who is so effectually debarred from challenging the sale either in the execution Court or as plaintiff in an independent suit, is at liberty, after retaking possession of the property, to challenging the validity of the sale as defendant to an ordinary suit in ejectment. This is the construction for which the defendants contends, and on the meaning of Section 47 he cites as authority: Bhiram Ali's case A.I.R. 1921 Cal. 15, already mentioned: also Nil Kamal v. Jahnabi [1900] 27 Cal. 916; Durga Charan v. Karamat Khan [1903] 7 C.W.N. 607; Chandramoni v. Halijennissa [1909] 9 C.L.J. 464; Venkataramanachariar v. Meenatahi Sundaram Aiyar [1909] 19 M.L.J. 1; Thathu Naik v. Kondu Reddi [1909] 32 Mad. 242; China Dandsi v. Tatiah A.I.R. 1921 Mad. 279 and Suradhani v. Sitoo A.I.R. 1922 Cal 311.

8. These decisions have been doubted in Ramsona v. Naba Kumar [1912] 16 C.W.N. 805: of also Malkarjun v. Narhari [1900] 25 Bom. 337, and in my opinion they are wrong and should be overruled upon this question. I am unable to see that they are consistent either with the language or the purpose of the legislature in enacting Section 47. A question between plaintiff and defendant as to whether the decree has been satisfied or is a decree of which the plaintiff is entitled to have execution is clearly one of a class of questions which 'shall be determined by the Court executing the decree.' This does not mean merely that the execution Court must determine it, if it is raised in the course of the execution proceedings. It means that the Court executing the decree is given exclusive jurisdiction over this matter as being one which relates to the execution. The words 'and not by a separate suit' show clearly that the section is forbidding for this purpose the use of the ordinary means whereby rights are determined. This is on my reading of the section an express negative to carry out and make clear the purpose of the section in pointing to a particular Court as the proper Court. This reading is enforced in my opinion by the facts that the Court to which the section points (1) is governed by particular rules which affect the rights of the parties e.g., Order 21, Rule 2 (3)(2) is not governed under Section 141 by the same procedure as is applied to suits;(3) is a Court before which the parties are already arraigned by service of the prescribed notices and (4) is the Court which has seisin of the execution. To say that questions relating to the execution of the decree shall be determined by the Court executing the decree' means more than that such Court has jurisdiction to determine them. How much more? Merely that the Court when called upon is not to shirk its duty? Certainly not. It means that a party to any suit which has been decreed, who finds it necessary to raise such questions as are mentioned must get them determined in the execution and cannot carry them for decision to another jurisdiction. As between parties and their representatives the act of the Court in effecting a sale is to confer title to property and not merely title to litigation:

It is of the utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible per Lord Macnaghten Prosunno Kumar v. Kali Das [1892] 19 cal. 683.

9. That is one part of the purpose of Section 47. Another part of its purpose is to ensure that execution matters shall be dealt with by the executing Court and on the principles laid down for execution cases. It seems to me that in Section 47 the prohibition of a suit is a provision in aid of the previous direction which means that questions within the scope of the section shall be determined in execution and not otherwise. In these circumstances the argument that the section says 'and not by a separate suit' as distinct from 'and not in a separate suit' seems to me to be pedantic rather than substantial. The ordinary rule on questions of jurisdiction is that relief which a Court cannot give to a plaintiff it cannot give at all. It is only in a Court which has jurisdiction to grant specific performance or rescission of a contract or the setting aside of a conveyance that a defendant can make good a defence which depends upon his right to have such relief Mostyn's case [1876] 1 C.P.D. 145, Warren v. Murray [1894] 2 Q.B. 648, Walsh v. Lonsdale [1882] 21 Ch. D. 9, Manchestor Brewery v. Coombs [1901] 2 Ch. 608 and the case is even stronger when one is construing a section of which the purpose is to keep execution questions for the executing Court. It is in my opinion as good an objection to a defence as it is to a plaint to say that the question which it seeks to raise

could only have been determined by the order of the Court which executed the decree : cf. Prosunno Kumar's case [1892] 19 cal. 683 (at 688),

10. when a judgment-debtor's property has been sold in execution and the judgment-debtor has been put out of possession by the Court's delivery of possession to the purchaser, it seems clear both on principle and authority that the cannot upon any allegation of fraud claim to ignore the sale. He may have a right to set the sale aside in appropriate proceedings and some cases this right may be admitted at least in equity as a defence to a claim. I will assume, without deciding the question, that this right may be asserted by a defendant even after the Limitation Act has made it impossible for him to institute proceedings to enforce it. But if there is no right to have sale set aside the case is very different. Here it has to be conceded that neither in execution nor by a suit could the defendant at any time have asserted that the sale was liable to be set aside at his instance. There is only one Court in which he could have claimed the relief and in that Court he had failed to do what was necessary to enable to set up his case. Upon what principle can he claim as a defendant to be in a better position to challenge the sale than he would have occupied in a proceeding brought by himself for the purpose? It seems to me that we have to choose in this ease between two views of the intention of the legislature. On one view the failure to get an adjustment of the decree recorded involves that the defendant must treat the sale as valid and seek his remedy; in damages or otherwise without challenging the sale. On the other view he must suffer ejectment under Rule 95, Order 21 and can by no proceedings seek to be restored to possession, but, if he seizes possession, he can claim that the sale was never binding upon him and that he is the rightful owner. This it would seem to follow, he can do at any time, provided that his ouster of the decree-holder auction-purchaser was within twelve years of delivery of possession. In my opinion the former view is correct and the latter view is erroneous. It is part of the purpose of Section 47 to ensure that so far as regards parties to the suit the executing Court shall, where the decree itself is valid, settle and decide the right to have execution and give a title to the purchaser. It is no part of its purpose to put a premium upon the forceful or wrongful seizure of possession, or to make titles valid or invalid according as the one party or the other is plaintiff or defendant in any litigation subsequent to the sale -- a thing which is matter of pure chance. How little the defendant's possession has to do with the matter can be been by the circumstance that he cannot resist eviction under Rule 95, Order 21. On the contrary, I agree in the conclusion arrived at in Jagneswar v. Kailash : AIR1925Cal81 , that under Rule 92, Order 21 an order confirming the sale is intended as a judicial determination between the parties that none of the objections exists upon which the validity of the sale could have been questioned. The legislature in enacting Clause 3, Rule 2, Order 21, cannot have been ignorant that decrees would be executed despite unrecorded adjustments, and that such cases would commonly, if not necessarily, raise a question of fraud. On a question of title and on a question of fraud it is highly difficult in my judgment to suppose that the legislature intended neither that the sale should hold good nor that the judgment-debtor should be able by proceedings of his own to have it set aside.

11. It remains to consider an argument adduced by the learned advocate for the defendant to the effect that the right he claims is given to him by Section 44, Evidence Act. That section refers, not to all judgment, orders or decrees that may be put in evidence, but to those only which are relevant under Sections 40, 41 or 42. It is said that Section 40 has some application to. this case.

The existence of any judgment, order or decree which by law prevents any Court from taking recognizance of a suit, or holding a trial is a relevent fact when the question is whether such Court ought to take recognizance of such suit or to hold such trial.

12. I have not succeeded in understanding what judgment or order is thought to have been tendered by the plaintiff under this section. The plaintiff to prove this title produced his sale certificate dated 22nd May 1915 which was Ex. 3. He did not have to produce, and I do not find from the record that he did in fact produce, or exhibit the order for sale or the order confirming the sale. He produced the sale certificate as his title-deed just as he might with appropriate proof have produced a conveyance executed by the defendant. Nothing was at any time put in evidence for the purpose of saying that it prevented the Court from taking cognizance of the suit or any part of the suit or any part of the defence. This is not a case like Rajib. Panda v. Lakhan Sendh [1900] 27 Cal.11 where the plaintiff put forward a compromise decree to prove his right to khas possession. A sale certificate is not a plea of res judicata. The plaintiff does not say:

We litigated before as to whether the land was yours or mine and the Court held it to be mine.

13. He says:

The Court sold it to me in execution and by the act of the Court your title passed to me.

14. The defendant wishing to show that the act of the Court did not pass the title, is barred, not by Section 11 of the Code, but by Section 47. He is barred just as he would be barred if he brought a probate suit before a Munsiff, or a suit for a lac of rupees in the Small Cause Court. Section 40, Evidence Act, applies to a case in which the Court has jurisdiction to decide a matter and one party says that it should not do so because that matter has been decided before. In the present case the trial Court had no jurisdiction to entertain the defence raised and it could so decide upon the pleadings upon a mere inspection of the defendant's own statement of his case. We were referred to the case of Gujju Lal v. Fatteh Lal [1881] 6 Cal. 171, which is no longer authoritative in view of decisions of the Privy Council of Ram Ranjan v. Ram Narain [1895] 22 Cal. 533, Bitto Kunwar v. Kesho Prasad [1897] 19 All. 277, Tepu Khan v. Ranjani [1902] 25 Cal. 522; but in my judgment there is nothing in the reasoning of that ease which assists the defendant on the present point.

15. I would in answer to the question referred to us say that an objection to an execution sale on the ground that the decree in execution of which the sale took place was satisfied prior to the sale! cannot be pleaded by the judgment-debt-] or by way of defence in a suit by the plaintiff as purchaser for possession of the property sold in execution of the decree.

16. The second appeal should be allowed and the decree of the Munsiff restored with costs in all the Courts. Hearing fee before Full Bench ten gold mohurs.

C.C. Ghose, J.

17. I agree.

B.B. Ghose, J.

18. I agree.

Panton, J.

19. I agree.

Mukerji, J.

20. I agree.


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