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A.K.M. Zakaria Vs. Choudhuri Golam Martuza and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 3 of 1951
Judge
Reported inAIR1953Cal666
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 16 - Order 22, Rule 10
AppellantA.K.M. Zakaria
RespondentChoudhuri Golam Martuza and anr.
Appellant AdvocateHiralal Chakravartti, ;Ranjit Kumar Banerji and ;Radha Kanta Bhattacharya, Advs.
Respondent AdvocateApurbadhan Mukherji and ;Hrishikesh Chaterji, Advs. for Respondent No. 1
DispositionAppeal dismissed
Excerpt:
- .....judge, berhampore, for declaration of title and recovery of possession of certain properties. that suit was compromised and a decree in accordance with the terms of compromise was passed. one of the terms of the compromise was that on the plaintiff paying to the present appellant a.k.m. zakaria rs. 6000/- fay the end of falgun, 1355 b.s., zakaria will give to the plaintiff possession of the properties of schedules ka, kha and ga. on 4-4-1949, taheriatannessa applied for execution of the decree on a statement that she had deposited the amount in accordance with the terms of the compromise decree. on 6-5-1949, zakaria applied for withdrawal of the amount in deposit. that application was as a result of taheriatannessa's objection, unsuccessful. on 10-5-1949, zakaria filed an objection under.....
Judgment:

Das Gupta, J.

1. The respondent Taheriatannessa brought a suit being Title Suit No. 66 of 1946 in the Court of the Subordinate Judge, Berhampore, for declaration of title and recovery of possession of certain properties. That suit was compromised and a decree in accordance with the terms of compromise was passed. One of the terms of the compromise was that on the plaintiff paying to the present appellant A.K.M. Zakaria Rs. 6000/- fay the end of Falgun, 1355 B.S., Zakaria will give to the plaintiff possession of the properties of Schedules Ka, Kha and Ga. On 4-4-1949, Taheriatannessa applied for execution of the decree on a statement that she had deposited the amount in accordance with the terms of the compromise decree. On 6-5-1949, Zakaria applied for withdrawal of the amount in deposit. That application was as a result of Taheriatannessa's objection, unsuccessful. On 10-5-1949, Zakaria filed an objection under Section 47, Civil P.C., in which he stated that the deposit was a conditional deposit and so was not a valid performance of the term of the compromise and consequently the decree could not be executed. This application was, in the first instance, rejected by the executing Court on 27-6-1949, the Court being of opinion that a valid deposit had been made. That order was, however, set aside on appeal and the case sent back for rehearing. On 16-12-1949, Taheriatannessa executed a deed of conveyance in favour of respondent 1 Choudhury Golam Martuza. This conveyance was registered on 8-3-1950.

In the meantime Choudhury Golam Martuza filed a petition to the executing Court praying to be substituted in place of the decree-holder on the ground of assignment in his favour and for permission to continue the execution. On 6-2-1950, an application was filed by Taheriatannessa and Zakaria stating the Miscellaneous Case which was started on Zakaria's application under Section 47, Civil P. C., had been compromised and that the terms being that the deposit be held to be bad the money should be returned to her and the property should remain with Zakaria. On 22-2-1950, she however resiled from the position and through another pleader filed another application in which she stated that the compromise petition was filed under some misapprehension and that the matter had not really been compromised. Thereafter, she filed a further petition on 22-7-1950 in which she stated that she disowned the petition filed on 22-2-1950, and wanted to stand by the compromise. The executing Court held that by the deed of conveyance there was an assignment only of the property in suit and that Choudhury Golam Martuza was not entitled to be substituted so as to continue the execution proceedings. It rejected his application of 21-1-1950, and in view of the last application filed on behalf of Taheriatannessa decided that the matter had been settled and it directed that the solenama be recorded. The final order passed by the executing Court is in these words:

'The solenama is accordingly recorded and the Misc. case is disposed of accordingly. The amount of Rs. 6000/- deposited by Taheriatannessa be transferred to her credit and A.K.M. Zakaria be restored to possession of the properties on the basis of the terms of the solenama.'

2. Two appeals were taken from this decision by Choudhury Golam Martuza, one against the order refusing to substitute him, the other against the compromise decree. These appeals have been allowed by the learned District Judge. The learned District Judge is of the opinion that Order 22, Rule 10 Civil P. C., applies to proceedings in execution and there having been an assignment of the property in suit the petitioner Choudhury Golam Martuza being a transferee of the decree-holder's interest in the property involved in the decree is entitled to be substituted in his place and to continue the execution case. He held therefore that the decision of the learned Sub-ordinate Judge could not b& upheld and sent back the cases to the learned Subordinate Judge 'for execution of the decree after the disposal of the Section 47 case according to law.'

3. It is against this decision of the learned District Judge that the present appeal has been filed.

4. The decision of the appeal depends, in my judgment, on the answer to the question whether a deed of conveyance of December, 1949, effected in law an assignment not only of the property but also of the decree. A question which was raised and on which considerable arguments were pressed before us was whether the provisions of Order 22, Rule 10, Civil P.C., apply to execution proceedings. There has been some conflict of judicial opinion on this question, but for reasons to be mentioned presently, I do not think it necessary for us to arrive at a conclusion on this question. The relevant portion of Order 22, Rule 10, Civil P. C. is in these words:

'In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.'

If the correct position in law be that this rule applies to execution proceedings, it is obvious that in so applying it we have to read 'execution proceedings' for the word 'suit' where-ever it occurs in this rule. For application, to execution proceedings the rule would therefore read thus:

'In other cases of an assignment, creation or devolution of any interest during the pendency of an application for execution, the application may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.'

5. Devolution of interest would then mean devolution of interest not in the subject-matter of the suit, but devolution of interest in the subject-matter of the execution proceedings, i.e., an interest in the decree, for the subject-matter of the execution proceedings is the decree.

6. Unless there was therefore an assignment of the decree in favour of the respondent Choudhury Golam Martuza, his application for substitution would fail, even though Order 22, Rule 10, Civil P. C. did apply to execution proceedings.

7. On the other hand, even if Order 22, Rule 10 of the Code did not apply to execution proceedings, the respondent's application must be allowed under the provisions of Order 22, Rule 16, (Sic. 21?), Civil P. C. read with Section 46, (Sic. Section 47?) of the Code, if there has been, an assignment in writing in his favour of the decree.

8. It is necessary, therefore, as already indicated, to examine the deed of conveyance to see what, in fact, it did assign. The relevant portion of the deed of conveyance which is in Bengali may be translated thus:

'I am the owner of the property described in the schedule given below. Over this property there has been litigation between me and Syed Colam Mohbub and others being Title Suit No. 66 of 1946 of the Subordinate Judge's Court, Berhampore; that suit has been amicably settled between the parties and a solenama has been filed on 20-7-1948, under the terms of which, I have to pay Rs. 6000/- in cash to defendant 4 A.K.M. Zakaria. Being in need of money on this account I announced my intention to sell the properties mentioned in the schedule, thereupon you having expressed your desire to purchase the same I contracted to sell the property to you at Rs. 15,000/- which is the highest reasonable price for it and executed in your favour a Bainama, on receipt of Rs. 11,000/- as earnest money and I have informed the Court by a petition of this agreement to sell, and I have on 12-3-1949, deposited in the Berhampore Subordinate Judge's Court, Rs. 6000/- out of the earnest money mentioned above, in accordance with the terms of the solenarna and I have obtained possession of all the properties. Defendant 4 has admitted in Court that I have without any obstruction obtained possession of the properties, and has filed an application for withdrawal of the Rs. 6000/- deposited by him. By executing this deed of sale in your favour this day, I undertake and admit that whatever interest, title, properties, possession & any other interest whatsoever I had in this property will cease to be in me and will stand fully transferred to you.'

This deed was executed at an early stage on 16-12-1949, and was registered in March 1950.

9. Reading the document as a whole,. I am of the opinion that the vendor was transferring to the purchaser every thing that was necessary for the possession of the property. The recitals were no doubt to the effect that possession had already been obtained on the basis of the compromise; if that was the correct position there would be no need of execution. But I think it fair and reasonable to read into the document the implied stipulation that if any thing more remained to be done on the basis of the compromise decree that would be done by the purchaser,

10. My conclusion therefore is that the deed of sale transferred not only the vendor's right, title and interest in the property, but also his right, title and interest in the compromise decree.

11. I have therefore come to the conclusion that the appln. by Choudhury Golam Martuza for substitution in place of Taheriatanessa and to continue the application for execution has rightly been allowed. As a necessary consequence the order recording the compromise has been rightly set aside.

12. The appeal therefore fails and is dismissed, with costs to respondent 1, hearing fee being assessed at three gold mohurs.

13. In view of the order made in the appeal no order is necessary on the application filed by the appellant under Section 115, Civil P. C.

Guha Ray, J.

14. I agree.


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