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Raghubar Dayal Sukul and ors. Vs. Jadu Nandan Missir and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.365
AppellantRaghubar Dayal Sukul and ors.
RespondentJadu Nandan Missir and ors.
Cases Referred and Bagley v. Mople
Excerpt:
bengal tenancy act (viii of 1885), section 174 - party litigant if permitted to assume inconsistent positions--appellant before i.a. court not permitted to object that no appeal lies in case--civil procedure code (act v of 1908), section 47, order xxi, rule 11(3), 89, 91, 92--execution of rent-decree--decree-holder auction-purchaser--application to set aside sale--order or decree are appealable--court's power to extend time for malting deposit under-section 174, bengal tenancy act--act of court not to prejudice any one--five per cent, on purchase-money to be paid even when decree-holder is auction-purchaser--copy of decree, or vakalatnamah, not necessary in execution proceedings--poundage fee, refund of, on sale being set aside. - .....paid into court rs. 5 on the 13th january 1910. two days later, upon the objection of the decree-holders auction-purchasers, the court dismissed the application, as the judgment-debtors had failed to deposit the decretal amount with compensation in full within 30 days of the sale as required by section 174 of the bengal tenancy act, the judgment-debtors appealed against that order. the district judge, upon this appeal, has held, on the authority of the decision in amir hussain khan v. nanak chand 6 ind. case. 424 : 14 c.w.n. 882 : 12 c.l.j. 62 that the court had authority to extend the time within which the deposit was to be made and that it was consequently unfair to refuse to set aside the sale after the judgment-debtors had carried out the order of the court for payment of.....
Judgment:

1. This appeal is directed against an order by which the Court of Appeal below in reversal of the order of the Court of first instance has set aside an execution sale. It appears that the appellants obtained a decree for rent on the 12th August 1909. They applied for execution on the 14th September following and themselves purchased the properties at the execution sale on the 13th December 1909 for Rs. 99-11. The purchase-money was not brought into Court but was set off against the judgment-debt. On the 10th January 1910, the judgment-debtor applied to have the sale set aside under Section 174 of the Bengal Tenancy Act and on the next day deposited Rs. 100-3. On the day following, the Court directed the judgment-debtors to deposit an additional sum of Rs. 4-8 inasmuch as the office had reported that the amount deposited was insufficient. Thereupon, the judgment-debtors paid into Court Rs. 5 on the 13th January 1910. Two days later, upon the objection of the decree-holders auction-purchasers, the Court dismissed the application, as the judgment-debtors had failed to deposit the decretal amount with compensation in full within 30 days of the sale as required by Section 174 of the Bengal Tenancy Act, The judgment-debtors appealed against that order. The District Judge, upon this appeal, has held, on the authority of the decision in Amir Hussain Khan v. Nanak Chand 6 Ind. Case. 424 : 14 C.W.N. 882 : 12 C.L.J. 62 that the Court had authority to extend the time within which the deposit was to be made and that it was consequently unfair to refuse to set aside the sale after the judgment-debtors had carried out the order of the Court for payment of the balance of the sum due. In this view the District Judge has allowed the appeal and reversed the sale.

2. The decree holders-purchasers have now appealed to this Court and on their behalf the decision of the District Judge has been assailed on the ground that it was not competent either to the original Court or to the Court of Appeal below to extend the time within which the judgment-debtors were required by law to make the necessary deposit. In support of this proposition reliance has been placed upon the case of Sharofan v. Muhamed Habibuddin 10 Ind. Cas. 148 : 13 C.L.J. 535 : 15 C.W.N. 685. On behalf of the judgment-debtors it has been suggested that the appeal is incompetent because the order of the original Court could not rightly be treated as an order under Section 47 of the Code of 1903. It has also been argued chat the judgment-debtors had deposited within the time allowed by law whatever sum was justly payable by them and the decree-holders were consequently not entitled to resist the application for reversal of the sale. Before we deal with the case on the merits, it is necessary to examine briefly the objection to the competency of the appeal taken on behalf of the respondent.

3. The preliminary objection ought to be overruled, in our opinion, on two grounds. In the first place, the judgment-debtors appealed to the District Judge on the assumption that the adverse order of the Court of first instance had been made under Section 174 of the Bengal Tenancy Act read with Section 47 of the Code of Civil Procedure of 1908. It is, therefore, not competent to them to urge before this Court that the order in their favour by the District Judge was, as a matter of fact, made without jurisdiction and that although the appeal preferred by them was incompetent, it is not open to the decree-holders to assail that order by way of appeal. It was pointed out by this Court in the case of Bindeswari Prosad Singh v. Lakpat Nath Singh 15 C.W.N. 725 : 8 Ind. Cas. 26 that it is not open to a party litigant to assume inconsistent positions of this character. As we have just explained, the respondents have succeeded in the Court of the District Judge on the assumption that the order of the original Court was of a particular description: they cannot now be permitted to turn round and assume an entirely different and inconsistent position. In the second place, we are of opinion that the order of the original Court must be treated as one within the scope of Section 47 of the Code of 1908 and in the nature of a decree against which a first appeal and a second appeal lie under the law. It was pointed out by this Court in the case of Joytara v. Pran Krishna Seal 7 Ind. Cas. 769 : 15 C.L.J. 257 : 15 C.W.N. 512 that the answer to the question, whether an order in execution proceedings is within the scope of Section 47 of the Code of 1903 must depend upon its nature and contents. If it decides a question relating to the execution, satisfaction or discharge of the decree and if the decision has been given between parties to the suit or their representatives-in-interest, the order of the Court falls within the scope of Section 47 and is a decree within the meaning of Section 2. Tested in the light of this principle, there can be no room for serious controversy that the order of the original Court in the case before us was a decree, and in support of this position it is sufficient to refer to the oases of Chundi Charan Mandal v. Banke Behary Lal Mandal 26 C. 449 : 3 C.W.N. 283 and Sital Rai v. Nanda Lal 1 Ind. Cas. 304 : 13 C.W.N. 591 : 11 C.L.J. 202. In both these cases the decree-holder was the auction-purchaser. The sale has been held in execution of a decree for arrears of rent and the order of which the propriety was called in question, bad been made tinder Section 174 of the Bengal Tenancy Act. In both instances, it was held that the order was appealable as a decree. The recent decision of this Court in Asimuddi Sheikh v. Sundari Bibee 10 Ind. Cas. 345 : 38 C. 339 : 15 C.W.N. 844 : 14 C.L.:J. 224 does not militate against that view. That decision merely points out that in cases under Rule 89 of Order XXI of the Code of 1908, which corresponds to Section 310A of the Code of 1882, only a first appeal is allowed under the new Code. That is so, because the order is made appealable under Rule 1, Clause (1) of Order XLIII of the Code, and consequently a second appeal is barred under the provisions of Sub-section 2 of Section 184. But an order under Section 174 of the Bengal Tenancy Act is not appealable under Order XLIII of the Code of 1908 and Sub-section 2 of Section 104 does not, therefore, bar a second appeal. The result is that the preliminary objection mast be overruled and the propriety of the order of the District Judge examined on the merits.

4. It cannot be seriously disputed that the view adopted by the District Judge is erroneous. He has held, upon the authority of the decision in Amir Hossain Khan v. Nanah Chand 6 Ind. Case. 424 : 14 C.W.N. 882 : 12 C.L.J. 62 that it is open to the Court to extend the time within which the judgment-debtor is required to make a deposit under Section 174 of the Bengal Tenancy Act. The case mentioned, however, is clearly distinguishable. It was ruled in that case as also in the case of Golab Chand v. Bahuria Rammurat Koer 10 Ind. Cas. 268 : 13 C.L.J. 432 that when fall Court-fees have not been paid upon a plaint or memorandum of appeal, it is competent to the Court to extend the time for payment. That principle has plainly no application to cases under Section 174 of the Bengal Tenancy Act. As was explained in Sharofan v. Muhomed Habibuddin 10 Ind. Cas. 148 : 13 C.L.J. 535 : 15 C.W.N. 685 the Court has no authority to extend the time within which the deposit bas to be made under Section 174 of the Bengal Tenancy Act, as Rule 89 of Order XXI of the Code of 1908. A similar view has in substance been taken in Kabilaso Koer v. Raghunath Saran 18 C. 481 and Akbar Zaman Khan v. Sukhdeo Pandey 10 Ind. Cas. 51 : 13 C.L.J. 467. No doubt the position may be different if the party has been prevented from making the deposit by reason of the action of the Court, because, as observed in Mohamed Akbur Zaman Khan v. Sukhdeo Pandey 10 Ind. Cas. 51 : 13 C.L.J. 467 and Dulhin Mothura Koer v. Bansidhar Singh 10 Ind. Cas. 880 15 C.J.L. 82 in such contingency the Court is guided by the principle that an act of the Court prejudices no man. The case before us, however, does not fall within the scope of this doctrine. It has not been suggested that if there has been any default on the part of the judgment-debtors that it can be rightly attributed to any act of the Court. We must consequently hold that the ground upon which the order of the District Judge is based cannot be supported.

5. The learned Vakil for the respondent judgment-debtors has, however, strenuously endeavoured to support the order of the District Judge on other grounds, and has contended that the amount deposited by the judgment-debtor was amply sufficient under Section 174 of the Bengal Tenancy Act; it has been urged in substance that the amount claimed by the decree holders was excessive and could not be legally obtained from the judgment-debtors.

6. It has been argued, in the first place, that as the decree-holders themselves were purchasers at the execution, sale, they were not entitled to receive 5 per cant, of the purchase-money under Section 174 of the Bengal Tenancy Act. The learned Vakil for the respondents has sought to support this position by a reference to Sub-section 2 which provides that in the case of a reversal of the sale, the provisions of Rule 93 of Order XXI, of the Code of Civil Procedure shall apply. That rule provides that when a sale is so set aside, the purchaser shall be entitled to an order for re-payment of his purchase-money. The learned Vakil for the respondent has contended that as in this case the purchase money was less than the decretal amount and as no part of it was brought into Court by the decree-holders, the provisions of Rule 93 cannot apply, and consequently the decree-holders were not entitled to receive 5 per cent, of the purchase-money. In our opinion, this contention is not well founded. It is sufficient to point out that Section 174 is so framed as to apply to all purchasers, whether they are decree-holders or strangers to the execution proceedings. The question now argued before us was raised with reference to Section 310A of the Code of 1882 and it was held by this Court as also by the High Court of Bombay and Allahabad that the decree-holder auction-purchaser was entitled to got 5 per cent, upon the purchase-money just like any other auction-purchaser. Chundi Charan Mandal v. Banke Behary Lal Mandal 26 C. 449 : 3 C.W.N. 283; Mendai Lal v. Bhuija Singh A.W.N. (1895) 140; Tirumal Rao v. Dastaghiri Miyah 22 M. 286. We are not prepared to question the correctness of these decisions and upon the plain language of Section 174 of the Bengal Tenancy Act we cannot accept the contention of the respondent as well founded.

7. It has been argued on behalf of the respondents, in the second place, that the decree-holders are not entitled to several items included by them in the statement of costs. It will be observed that Section 174 makes it obligatory upon the judgment-debtors to deposit the amount recoverable under the decree with costs. The costs here referred to are obviously costs properly incurred by the decree-holders subsequent to She decree and in the course of execution proceedings.

8. One of the items claimed by the decree-holders is the costs incurred by them in obtaining a copy of the decree. It has been argued on behalf of the respondent that, a copy of the decree was not necessary for the purpose of the execution proceedings. In support of this position, reliance has been placed upon the cases of Gunga Gobind Gooptoo v. Mahhun Lal Hottee 9 W.R. 302; Ramdhan Rakhit v. Panchanan Chuckerbutty 10 W.R. 144 : 1 B.L.R. (S.N.) 9; Khettur Mohan Chuttopadhya v. Ishur Chunder Surma 11 W.R. 271 and Modhoo Dossia v. Nobin Chunder Roy 16 W.R. 25. These cases were decided under the Code of 1859 and were repeatedly treated as good law under the Codes of 1877 and 1882 Raigir v. Ishwardhari; Ishwardhari v. Rajgir 5 Ind. Cas. 660 : 11 C.L.J. 243. Under the Code of 1903 the position is still clearer. Rule 11 of Order XXI specifies the contents of the written application for execution of decrees. Sub-rule 3 of that rule provides expressly that the Court to which an application is made under Sub-rule (2) may require the applicant to produce a certified copy of the decree. It has not been suggested in the case before us, that the Court made any such order. In fact such order would be wholly needless, because the Court in which the application for execution was made, was the very Court which had made the decree and if any reference to the decree was needed, the original could easily have been examined. We must consequently hold that the decree-holders are not entitled to charge the amount spent by them in obtaining a copy of the decree as part of the costs mentioned in Section 174 of the Bengal Tenancy Act.

9. Another item claimed by the decree-holders is the amount of Court-fees paid by them upon the Vakalatnama which they attached to their application for execution. It has been contended on behalf of the respondent that the. Vakalatnama was wholly unnecessary and in support of this view reference has been made to the case of Sadashiv Ganpatrao v. Vithaldas Nanchand 20 B. 198 and Gopal Jayachand v. Hargobind 5 B.H.C.R. A.C.J. 83. These oases affirm the doctrine that the authority of a Pleader engaged in the suit does not terminate with the decree, but that it is competent to him to appear on behalf of his client in the course of execution proceedings without a fresh authority. This principle is supported by the decision of the Judicial Committee in the case of Thakur Prasad v. Fakirullah 17 A. 106 : 22 I.A. 44 where it was pointed out that an execution proceeding is essentially a continuation of the suit. We may further point out that, as observed by this Court in the case of Mohin Mohan Patra v. Ram Narain Patra and Baroda Kanta Sircar 14 C.L.J. 445 : 12 Ind. Cas. 780 the proposition cannot be maintained that the authority of a Pleader necessarily terminates with the decree in the suit in which he has been engaged. This principle is also supported by the cases of Lady Dela Pole v. Dick (1885) 29 Ch. D. 351 : 54 L.J. Ch. 940 : 52 L.T. 457 : 33 W.R. 585 and Bagley v. Mople & Co. 27 T.L.R. 284. The contention of the respondent that the Vakalatnama was unnecessary must, therefore, prevail.

10. The third item claimed by the decree-holders is the poundage-fee paid by them in respect of the execution sale at which they purchased. This poundage-fee is a percentage of the gross amount realised by the sale and is calculated at the rate of 2 per cent. upon sums not exceeding Rs. 1,000. The decree-holders urge that they were obliged by the rules and circular orders of this Court to pay the amount at the time when they applied for permission to set off the purchase-money against the decretal amount and, as they have actually paid that money, they are legitimately entitled to claim it from the judgment-debtors as part of the costs incurred by them. In our opinion, this contention is not well founded. The rules and circular orders of this Court (Vol. I.p. 129) provide that when a sale of immoveable property is set aside under Order XXI, Rules 89, 91 or 92, Code of Civil Procedure or under Section 174 of the Bengal Tenancy Act, the decree-holder becomes entitled to a refund of the fee. It is, therefore, not right to contend that the decree-holders are entitled, in spite of the reversal of the sale, to recover from the judgment-debtor the poundage-fee. But it has been urged that as the sale has not been reversed, the decree-holders are entitled to treat the poundage-fee as an integral part of the costs incurred by them. This contention is fallacious. If the contingency mentioned happens, namely, if the sale is reversed, the decree-holders will forthwith become entitled to a refund of this money. If, on the other hand, the sale is not set aside, he will not be entitled to a refund. In either event, it is clear that he is not entitled to claim the money from the judgment-debtors.

11. There are other items also claimed by the decree-holders in respect of which objection has been taken by the judgment-debtors: they relate to the fees paid for the service of processes. It is not necessary, however, to examine this part of the case in detail, because it is clear that if the amount claimed for copy of the decree, for Vakalatnama and for poundage-fee is disallowed, the amount paid by the judgment-debtors is amply sufficient for the reversal of the sale under Section 174 of the Bengal Tenancy Act. But we may add that we are by no means satisfied that the amount claimed by the decree-holders in the shape of fees for service of processes is not excessive.

12. The conclusion follows that although the order of the District Judge cannot be supported on the ground assigned by him, the order is substantially right on the merits and must be affirmed. The appeal is, therefore, dismissed, but, under the circumstances of the case, there will be no order for costs in any of the Courts.


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