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Bechu Singh and anr. Vs. Bichharam Sahu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.677
AppellantBechu Singh and anr.
RespondentBichharam Sahu and ors.
Cases ReferredTiluck v. Parsotien Proshad
Excerpt:
transfer of property act (iv of 1882), sections 83 and 89 - order absolute--decree--instalment decree by consent in mortgage suit--court may make order absolute--where no procedure provided, court may invent one--application under wrong section. - .....the decree. the subordinate judge overruled these objections and on the 12th january 1907 made the decree absolute. the mortgagors have now appealed to this court and on their behalf, it has been contended, first, that the sole remedy of the mortgagees is to sue upon the compromise, and secondly, that they are not entitled to ask for an order absolute under section 89 of the transfer of property act, the provisions of which apply only to a decree made in strict accordance with section 88. in answer to this argument, it has been contended on behalf of the respondents mortgagees, first, that the appeal is incompetent inasmuch as it has been preferred as an appeal from an order in execution proceedings and court fees paid on the memorandum of appeal on that footing, and secondly, that the.....
Judgment:

1. This is an appeal on behalf of some of the defendants in a mortgage suit described as the judgment-debtors, against an order absolute for sale made under section. 89 of the Transfer of Property Act. So far back as 1897, the mortgagees sued to enforce the securities executed in their favour on the 6th July and 5th September 1893. The Court of first instance made the usual mortgage decree on the 25th November 1897. An appeal was then preferred to this Court and during the pendency of the appeal the plaintiffs and defendants settled the matters in controversy between them. On application to this Court, the decree of the Court of first instance was discharged, and a fresh decree was drawn up in accordance with the terms of the compromise, under which the appellants mortgagors agreed to pay Rs. 12,151 with interest, in several instalments. The compromise further provided that in case of non-payment of any two consecutive instalments, the mortgagees would be entitled to realise the entire decretal money with interest at 12 per cent, per annum. It was explicitly stated also that the sum due was to be realised by sale of the mortgaged property in execution of the decree and if the sale proceeds of the mortgaged properties proved insufficient, the mortgagees were to be entitled to realise the balance of the decree from the person and other properties of the defendants. This consent decree was made on the 8th May 1899. On the 15th June 1906, the mortgagees applied to the Subordinate Judge for an order absolute under Section 89 of the Transfer of Property Act, on the allegation that three of the instalments had been regularly paid but default had been made in the payment of the subsequent instalments. The defendants mortgagors opposed the application on the ground that the plaintiffs had no right to obtain an order absolute, and that it was obligatory upon them to institute a separate suit to enforce the compromise, although it was embodied in the decree. The Subordinate Judge overruled these objections and on the 12th January 1907 made the decree absolute. The mortgagors have now appealed to this Court and on their behalf, it has been contended, first, that the sole remedy of the mortgagees is to sue upon the compromise, and secondly, that they are not entitled to ask for an order absolute under Section 89 of the Transfer of Property Act, the provisions of which apply only to a decree made in strict accordance with Section 88. In answer to this argument, it has been contended on behalf of the respondents mortgagees, first, that the appeal is incompetent inasmuch as it has been preferred as an appeal from an order in execution proceedings and Court fees paid on the memorandum of appeal on that footing, and secondly, that the Court has inherent power to make an order absolute when the mortgagee asks for such an order, even though the decree is not strictly in accordance with Section 88 of the Transfer of Property Act. We must first consider the preliminary objection taken by the respondents as to the competency of the appeal and then examine the validity of the grounds on the merits urged by the appellants as well as the respondents.

2. As regards the preliminary objection to the competency of the appeal, the answer must depend on the true nature of an order absolute for sale under Section 89 of the Transfer of Property Act. If it is treated as the final order in the suit, it is in the nature of a decree and in this view, an appeal, by which its propriety is questioned, must be regarded as an appeal against an original decree, and the Court fees on the memorandum of appeal should accordingly be paid ad valorem. On the other hand if the decree nisi in a mortgage suit be treated as the final decree which terminated the litigation and the order absolute as merely the initial order in proceedings in execution of the decree nisi, an appeal against an order absolute would rightly be deemed an appeal from an original order and Court fees would have to be paid on the memorandum of appeal accordingly. The former of these conflicting views was adopted by this Court in the case of Akikunnissa Bibee v. Roop Lal Das 25 C. 133, while the latter was adopted by the Allahabad High Court in Kedar Nath v. Lalji Sahai 12 A. 61 and Oudh Behari Lal v. Nageswar Lal 13 A. 278. The view taken by this Court in the case mentioned has been consistently followed for many years passed. Thus in Srikanta Pal v. Sheikh Yesuddin 1 C.W.N. ccix, it was ruled that an appeal against an order absolute in a mortgage suit is not an appeal against an order under Section 244, C.P.C.; the Court further declined to allow the appellant an opportunity to amend the memorandum of appeal and to pay additional Court fees at the hearing. Again in Pramotha Chandra Roy v. Khetra Mohan Ghose 29 C. 651, it was ruled that proceedings under Section 89 of the Transfer of Property Act are proceedings not in execution of a decree, but in continuation of the original suit, and an appeal from an order absolute made under that section lies under the provisions of Section 540 of the Code of Civil Procedure as an appeal from original decree. Precisely to the same effect are the decisions in Syed Mehdi Hussain v. Beechamkoer (Appeal from Original Decree No. 33 of 1905 decided by Brett and Mitter, JJ., on the 22nd December 1904), Charu Chandra Mitter v. Vagiratha Prosad, (Appeal from order No. 553 of 1907 decided by Mitter and Caspersz, JJ., on the 16th March 1903), Kedar Nath Hazra v. Norendra Nath Roy (Appeal from order No. 75 of 1902 decided by Maclean, C.J., and Stevens, J., on the 25th August 1902,) and Hari Prosad Singh v. Surendra Mohan Sircar (Appeal from Original Decree No. 564 of 1908, decided by Caspersz and Doss, JJ., on the 7th December 1908). In all these cases, time was allowed to the appellant, who had misdescribed the appeal and filed it on a memorandum bearing insufficient Court fees to enable him to comply with the orders of this Court. In one instance, the order was not carried out and the appeal was dismissed. In the other instances, the order was carried out and the appeals were heard on the merits. We further find that in one case Moulani Mahata v. Doman Singh (Appeal from order No. 529 of 1906) when the appeal was admitted, the question of its competency was reserved but at the hearing, the attention of the Court does not appear to have been invited to the point and the appeal was dismissed on the merits. It is clear, therefore, that although in some of the earliest cases, as for instance in Ajudhia Pershad v. Buldeo Singh 21 C. 818, which was heard as an appeal from order, the point was overlooked, ever since the decision of this Court in Akikunnissa Bibee v. Roop Lal 25 C. 133, the rule has been uniformly followed that an order absolute for sale under Section 89 of the Transfer of Property Act is a decree and appealable as such. In our opinion, there can be no question that upon a true construction of Section 89 of the Transfer of Property Act, this view is right, and we are unable to adopt the contrary rule laid down by the High Court of Allahabad. We are fortified in this opinion by the provisions of the Code of Civil Procedure, 1908, by which the sections of the Transfer of Property Act relating to procedure in mortgage suit have been repealed. Order XXXIV, Rules 4 and 5, show that what was previously described as the decree nisi is in future to be treated as the preliminary decree in a suit for sale, and what was previously described as the order absolute is henceforth to be described as the final decree in a suit for sale. It is manifest that the Legislature has now approved of the view adopted by this Court as to the true character of the order absolute for sale in a mortgage suit, and this circumstance may be legitimately relied upon in support of our view, according to a well-known rule for construction of statues explained by this Court in Jogendra Chandra v. Sham Das 9 C.L.J. 271; (1909) 1 I.C. 168 (ante). There has been in substance the re-enactment of the provisions of the Transfer of Property Act with such verbal alterations as to terminate the controversy which had arisen on their constructions and to afford a legislative recognition of the settled judicial construction adopted by this Court. We must hence adhere to the view, that an application for an order absolute under Section 89 of the Transfer of Property Act is not an application for execution of a decree, that the order absolute is itself not an order in execution proceedings, that in its essence it is the final decree for sale and is consequently appealable as such. The preliminary objection, therefore, as to the incompetency of the appeal is well founded and must be upheld. We may add that the learned Vakil for the appellants asked for an opportunity to amend the memorandum of appeal and to pay additional Court fees. But, we have not thought it desirable to prolong the litigation further by a postponement to enable him to do so, because we are satisfied, for reasons to be presently stated, that there is no substance in the appeal which must consequently fail not merely on the preliminary ground but also on the merits.

3. The first point taken on behalf of the appellants is to the effect that the only remedy of the mortgagees is to enforce the compromise by a separate suit. In support of this view, reference is made to the decision of the Allahabad High Court in Kashi Prasad v. Sheo Sahai 19 A. 186. That decision, however, is clearly distinguishable, as it refers to the validity of a compromise by which the terms of a decree are sought to be varied by the parties in the course of execution proceedings, while here the decree with which we are concerned has never been varied, and the mortgagees merely seek to enforce it strictly according to its terms. There can be no question that the decree directs the sale of the mortgaged properties in execution in the event of the failure of the mortgagors to pay two consecutive instalments. If the facts by the mortgagees are true this contingency has happened and they are consequently entitled to execute the decree without recourse to another suit. The first ground of appeal must consequently be overruled.

4. The second ground taken on behalf of the appellants raises the question of the applicability of Section 89 of the Transfer of Property Act to cases of decrees not drawn up in strict accordance with the provisions of Section 88. It has been argued by the learned Vakil for the appellants that Section 89, by its very terms, is limited in its application to cases where the decree has been drawn up pursuant to Section 88. In our opinion this contention is well-founded. Section 89 authorises the Court to make an order absolute only in cases under Section 88, in the event of the non-payment of the sum determined under that section as due to the mortgagees. Indeed the characteristic of a decree under Section 88 of the Transfer of Property Act is that the entire sum due is made payable on a day specified, and, as observed in Brojo Lal Rai Chowdhury v. Tara Prasanna Bhattacharji 3 C.L.J. 188 at p. 193, a decree for payment by instalments is not contemplated by the Transfer of Property Act. Another characteristic of a decree under Section 89 is that unless the entire amount specified as payable is brought into Court for payment to the mortgagee, the latter is entitled to an order absolute; for as observed in Ram Kamlessuri Pershad Singh v. Sukhan Singh 7 C.W.N. 172, the mortgagee is not bound to accept any sum in part satisfaction of his decree, a view which is supported by the cases of Cotton v. Goodwin 7 M. & W. 147, Dixon v. Clark 5 C.B. 365, and Chunder Caunt Mookerjee v. Jodoonath Khan 3 C. 468. It cannot be said, therefore, that a consent decree which lacks these essential characteristics is a decree in accordance with Section 88 of the Transfer of Property Act; and if such a decree is not contemplated by Section 88, it cannot be reasonably suggested that the provisions of Section 89 are applicable thereto. No doubt, it cannot be suggested with any show of reason that a consent decree which is not in accordance with Section 88 is not a valid decree; for, as observed by this Court in Asutosh Sikdar v. Behari Lal Kirtunia 6 C.L.J. 320 at p. 325, there is nothing to prevent the parties to a litigation from waiving an advantage of a particular law or rule, if that law or rule is not based on a ground of public policy and is intended solely for the benefit and protection of an individual in his private capacity. It is clear, therefore, that as ruled in Abir Pramanik v. Jahor Mahomed 11 C.W.N. 879, a consent decree of the description now before us is perfectly valid in law, though it is not covered by Section 88 and though the provisions of Section 89 are consequently inapplicable to it. Our attention has been invited to the case of Ajudhia Pershad v. Baldeo Singh 21 C. 818, in which it was assumed without discussion that an order absolute might be made in the case of a consent decree in a mortgage suit. That case, however, cannot be treated as an authority on the question now before us, as the attention of the Court was not invited to this point, we must consequently uphold the contention of the appellants that it was not open to the mortgagees to make an application under Section 89 of the Transfer of Property Act. The question, however, remains whether as argued by the learned Vakil for the respondents the Court may not have inherent power to make an order absolute in the case of a mortgage decree to which the terms of Section 88 are not strictly applicable.

5. The second point taken by the respondents in support of the order of the Court below is that irrespective of the provisions of Section 89, it is competent to the Court to grant an application by the mortgagees for an order absolute and in support of this view reliance has been placed upon the cases of Bhagwan Ramji Marwali v. Ganu 23 B. 644 and Tara Prosad Roy v. Bhobadeb Roy 22 C. 931. The first of these cases to some extent supports the contention of the respondents, because it was ruled there that an agreement filed under Section 44 of Bombay Act XVII of 1879 was subject to the provisions of Section 89 of the Transfer of Property Act, on the ground that the principle of the latter section was applicable, even though there was no suit for sale. The second case, however, is clearly distinguishable because all that was held there was that Section 89 was applicable to a decree passed on an award of arbitrators tiled in Court. Apart from these decisions, however, we are of opinion that upon general principles the contention of the respondents ought to prevail. It was ruled by this Court in Panchanan Singha Roy v. Dwarka Nath Roy 3 C.L.J. 29, Hukum Chand Baid v. Kamalanand Singh 3 C.L.J. 67, Rasik Lall Dutt v. Bidhu Mukhi Dasi 10 C.W.N. 719 and Gurdeo Singh v. Chandrikah Singh 5 C.L.J. 611, that the Court has, where the circumstances require it, an inherent power to do that justice for the administration of which it alone exists. As was observed by Sir John Edge in Girdhari v. Kanhaiya Lal 15 A. 50, where the Legislature has provided no procedure to be followed in cases which must and do arise, the Courts must be taken to have inherent power to decide the question of procedure, and, if necessary, to invent a procedure for themselves. This principle has since been embodied by the Legislature in Section 151 of the Code of 1908. Now it is manifest that the Transfer of Property Act, in so far at any rate as it relates to the procedure in mortgage suits, is not a complete Code. It makes no provision for decrees by consent and is necessarily silent upon the question of the procedure to be followed for orders absolute when such a decree has been made. There is no foundation for any possible suggestion that the Legislature intended by implication to exclude decrees by consent in the case of mortgage suits. We must, therefore, consider what procedure may be followed in such cases by a Court of Justice in the exercise of its inherent power. In our opinion, there is no room for controversy that in a case of this description where the mortgagee decree-holder applies for an order absolute, the Court ought to entertain the application and make the necessary order. The object of an order absolute is to afford to the mortgagor an opportunity to show that the preliminary decree has been satisfied. An application, therefore, for an order absolute is entirely for the benefit of the mortgagor on the principle that when a conditional decree has been made, the decree-holder ought not to be originally allowed to take out execution on the allegation that the condition or contingency has been fulfilled without previous notice to the judgment-debtor. In support of this position, reference may be made to the decision of this Court in the case of S.M. Sudevi Devi v. Sovaram Agarwallah 10 C.W.N. 306, in which it was ruled by Mr. Justice Woodroffe that, when a conditional decree has been made, the plaintiff on the default of the defendant should apply to the Court which passed the decree, on notice to the defendant, by motion on notice or by rule, for an order absolute, and that if such an order is obtained ex parte, the Court has inherent power to set it aside, if a proper case is substantiated. It is not necessary for our present purposes to hold that an order absolute is necessary in the case of every conditional or contingent decree as is rendered essential by order XLII, Rule 9 of the Rules of the Supreme Court in England. It is sufficient for us to hold that, if the decree-holder chooses to ask for an order absolute upon notice to the judgment-debtor, the Court ought to deal with the application. That previous notice to the judgment-debtor is just in the case of enforcement of a conditional or contingent decree is obvious from the circumstance that such a procedure has been followed in other systems of law. For instance, as explained by the Court in the case of Jogendra Chandra v. Sham Das 9 C.L.J. 271; (1909) 1 I.C. 168 (ante) at p. 277 (171 ante), in England, a writ of scire facias was necessary when the execution creditor sought to enforce a conditional or contingent judgment upon the allegation that the condition has not been performed or the contingency has happened. The same principle was adopted by this Court in the case of Bibi Tasliman v. Harihar Mahto 32 C. 253, where it was ruled by a Full 'Bench that an order absolute under Section 89 of the Transfer of Porperty Act ought not to be made ex parte, although that section does not expressly provide for the issue of notice to the mortgagor, and that if such an order has been made without notice to the judgment-debtors mortgagors, the Court has inherent power to set aside the order made ex parte. The essence of the matter is that every Court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction and to prevent any abuse of its processes. When, therefore, a conditional or contingent decree has been made and the decree-holder asks for an order absolute upon allegation that the contingency has happened, his application is essential in the furtherance of justice, and an investigation, upon notice to the judgment-debtor, undoubtedly tends to prevent future dispute as to whether the condition has been fulfilled or not. If an application of this character is made, it is the duty of the Court to deal with it on the merits. It has been faintly suggested by the learned Vakil for the appellants that as the application in this case was made expressly under Section 89 of the Transfer of Property Act and as, in our opinion, that section has no application, the Court ought not to exercise its inherent powers in favour of the decree-holders. We are clearly of opinion that there is no foundation for this contention, for, as was observed in the case of Tribeni Sahu v. Bhagwat Bux 34 C. 1037 at p. 1051, it is not to be supposed that a Court in the administration of justice will refuse an application, which on the merits it ought to grant and in law can grant, simply because the applicant asked the Court to exercise its admitted powers under a wrong section. Judicial procedure has been framed for the furtherance of justice and not to defeat it, and the Court cannot refuse to act in aid of justice on merely technical grounds. It has further been suggested by the learned Vakil for the appellants that the view we take as to the inherent power of a Court to grant an application for order absolute in the case of conditional decree, may enable the decree-holder to evade the law of limitation inasmuch as according to the decisions of this Court in Tiluck Singh v. Parsotien Proshad 22 C. 924, Ajudhia Pershad v. Baldeo Singh 21 C. 818, Akikunnissa v. Roop Lal 25 C. 133 Pramatha Chandra Roy v. Khetra Mohan Ghose 29 C. 651 and Purna Chandra Mandal v. Radha Nath Dass 33 C. 867; 4 C.L.J. 141, no period of limitation is applicable to an application for order absolute. It has been suggested that the mortgagee decree-holder might, at a time when an application to execute to decree would be barred by limitation, apply for an order absolute and thus obtain a new decree to which the bar of limitation Would not be applicable. We do not think there is any real apprehension of such danger, for, as observed by the learned Judges in the case of Tiluck v. Parsotien Proshad 22 C. 924, the Court in dealing with the application for an order absolute must be guided by consideration as to whether any delay on the part of the mortgagee has not been unreasonable, so as to bring it within the rules applied in such cases by Courts of Equity. In our opinion, it would be quite open to the Court in a case where an application for order absolute is made with a view to defeat the operation of the law of limitation, to consider whether the applicant should be assisted to attain this purpose. In the case before us, no question of limitation arises because the application for order absolute was made within three years of the date when by reason of default on the part of the judgment-debtors, the decree-holders became entitled to enforce their rights under the decree. On all these grounds, we must hold that the consent-decree is valid that it entitles the decree-holders, without recourse to a fresh suit, to proceed to sell in execution the mortgaged properties for realization of their dues, that they have acted within their rights in asking for an order absolute after notice to the mortgagors, and that the Court had inherent power to entertain and allow the application.

6. The result, therefore, is that the order made by the Court below must be affirmed and this appeal dismissed with costs. We assess the hearing fee at two gold mohurs.


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