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Nawab Nuzhat-ud-dowla and ors. Vs. Beni Madhab and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.692
AppellantNawab Nuzhat-ud-dowla and ors.
RespondentBeni Madhab and ors.
Cases ReferredDurga Das Nandi v. Dewraj Agarwalla
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 11, 15 - execution of decree--decree-holders, several--omission to specify names of other decree-holders, effect of--irregularity. - .....by transfer of certain interests in the decree the persons who, have become entitled to the decree-holders' interests re these: a 10-annas share was sold to one mehdi hossain who in his, turn sold 4-annas out of his 10-annas to one lala mohun lal. the 6:annas that remained with the original decree-holders have now been inherited. by three persons, namely, sultan hossain. mirza, nawab akbari begum and nawab dilband begum. the first one of these persons is the executing decree-holder. the 6-annas share which remained with mehdi hossain after transfer to lala mohun lal of the 4-annas out of the 10 annas purchased by him has now devolved on his death on his widow haidari begum, his two daughters zakia begum and taiba begum and his two sons nazir hossain and abid hossain. nazir hossain.....
Judgment:

Mukerji, J.

1. This appeal arises out of an order passed under Section 47, C.P.C. The judgment-debtor is the appellant in this appeal. The application for execution was, filed by one Prince Sultan Hossain Mirza on the 11th April, 1922, for execution of a decree passed in Original Suit No. 3 of 1900 of the Court of the Additional Subordinate Judge, of 24-Pergahas which was ultimately affirmed by the Privy Council in Appeal No. 16 of 1903. The learned Subordinate Judge has held that the application is maintainable under the provisions of Section 47 of the C.P.C.

2. The decree in question was in favour of one Prince Nanhey Mirza and others. By transfer of certain interests in the decree the persons who, have become entitled to the decree-holders' interests re these: A 10-annas share was sold to one Mehdi Hossain who in his, turn sold 4-annas out of his 10-annas to one Lala Mohun Lal. The 6:annas that remained with the original decree-holders have now been inherited. by three persons, namely, Sultan Hossain. Mirza, Nawab Akbari Begum and Nawab Dilband Begum. The first one of these persons is the executing decree-holder. The 6-annas share which remained with Mehdi Hossain after transfer to Lala Mohun Lal of the 4-annas out of the 10 annas purchased by him has now devolved on his death on his widow Haidari Begum, his two daughters Zakia Begum and Taiba Begum and his two sons Nazir Hossain and Abid Hossain. Nazir Hossain and Abid Hossain have been declared insolvents and. the 3 1/2-annas share which they inherited is now in the hands of the Receiver appointed in the insolvency proceedings, namely, one Pravudayal Rastogi. The 2 1/2-annas share which belonged to the widow and the two daughters of Mehdi Hossain, namely, Haidari Begum and Zakia Begum and Taiba Begum is now in the hands of the administrators to theestate left by them, namely, Beni Madhab and Basanta Roy. Beni Madhab and Basanta Boy are also the heirs of Lala Mohun Lal to, whom Mehdi Hossain had sold 4-annas out of the 10-annas purchased by him.

3. The objections put forward on behalf of the appellant in this appeal are mainly three. The first objection is that the application for execution is not maintainable, inasmuch as there are defects in it and because it is not complete. It is urged that the necessary particulars have not been embodied in the application and furthermore, when it is an application under Order XXI, Rule 15, C.P.C. it should contain the names of all the decree holders who are interested in the decree so that notices of the application may be served on them. It appears that, in the application for execution, besides the names of the executing decree-holders, who are interested the names of certain other persons are given, namely, those of Beni Madhab and Basanta Roy and also of Nawab Dilb and Begum and Nawab Akibari Begum. The names of Beni Madhab and Basanta Roy are mentioned; but it is not stated whether they are there in their capacity as administrators to the estate of Haidri Begum, Zakia Begum and Taiba Begum or as heirs of Lala Mohun Lal. It is contended on behalf of the appellant that this is one of me defects in the application. The other defect in the application that is complained of is that the names of Nazir Hossain and Ibid Hossain are not mentioned nor does he name of Pravudayal Rastogi who has been appointed Receiver to their estate, appear therein as one of the decree-holders. Applications have been filed subsequent to he institution of these proceedings both by the Receiver, Pravudayal Rastogi, as also by the administrators, Beni Madhab and Basanta Roy, giving their consent expressly o the execution proceedings. The question now arises as to whether the omission in the part of the applicant for execution if the decree to mention the names of these persons and the interests which they have n the decree is such a defect as would be sufficient for holding that the proceedings are incomplete and, therefore, invalid. On reference to Order XXI, Rule 11, C.P.C. it appears that, so far as the names of parties are concerned, all that is necessary to be stated in the application is, first of all, the names of the parties to the decree and then the name of the person against, whom execution of the decree is sought. These particulars have to be embodied in the application so that there may not be any difficulty in the matter of identification of the decree, in respect of which execution is sought for. I am not prepared to hold that the omission on the part of a decree-holder to state in the application for execution the names of all the persons who are interested in the decree is such a defect as would invalidate the execution proceedings It is quite true that when an application is made under Order XXI, Rule 15, C.P.C., by one of the decree-holders for execution of the whole decree which has been passed jointly in favour of himself and others, the Court has got to pass proper orders in order to protect the interests of all the decree-holders; but, in my opinion, it is not absolutely necessary that the names of all the decree-holders should be given in the execution petition by the executing decree-holder. As has been held in the case of Durga Das Nandi v. Dewraj Agarwalla 33 C. 306 : 306 : 3(sic) C.L.J. 112 : 10 C.W.N. 297 it is in the discretion of the Court whether or not notice should be given to the other decree-holders or to the judgment-debtor before making an order for execution under Order XXI, Rule 15, C.P.C. but it is not obligatory upon the Court to issue such notice. In the present case, the other decree-holders having subsequently come in and having given consent to the execution of the decree and there being no reason to suppose that their Interests have not been properly safeguarded, I am unable to say that this defect is one which would invalidate the proceedings in any way.

4. The next contention that has been urged on behalf of the appellant is that the learned Judge of the Court below was wrong in allowing the decree-holders to adduce further evidence after arguments had been heard and order has been reserved in the ease. The arguments were heard on the 11th August, 1923. After that date, an application was filed on behalf of the decree-holders praying for an opportunity to adduce further evidence. The application was filed on the 16th August, 1923, and the learned Judge granted the same in view of the fact that, in the petition of objection that was filed on behalf of the judgment-debtor, it was not expressly stated what was the ground upon which it was sought to be contended that the decree-holder was not entitled to maintain the application. It seems to me that there is considerable substance in what has been urged before us on behalf of the decree-holder when it is stated that his client or his lawyers understood the objection of the judgment-debtor to mean that it was not proved that the executing decree-holder was the son of Prince Nunhey Mirza who was one of the original decree-holders. It is said on their behalf that evidence was given on that point and that they did not understand that there was a further objection which the judgment-debtor put forward at the time of the hearing to the effect that the Receiver to the estate of Prince Nunhey Mirza was dead and, therefore, the executing decree-holder was not entitled*to maintain the application without adducing proof of the fact that the estate had been inherited by him. The learned Judge granted the application of the decree-holders and I am unable to hold that in the circumstances to which I have referred, he exercised his discretion wrongly in allowing the decree-holders to adduce further evidence although arguments had already been heard in the case.

5. The last objection urged on behalf of the judgment-debtor-appellant is with regard to the question of limitation. The learned Judge has found in his judgment that there was a successful application for execution in the year 1914 and he is of opinion that, it having been proved that there was such an application, the present application is not barred by limitation. It is urged on behalf of the appellant that the learned Judge was wrong in supposing that there was such an application in 1914 and that, as a matter of fact, what was put in before the learned Judge, was a copy of an application for execution--not in respect of the decree which is at present under execution but of some other, decree. We have gone into this matter with some degree of care and we are satisfied that there is no substance in, this contention, In any event, when the witness Mozaffei Ali Khan who spoke to this application and the proceedings in connection with it was examined on behalf of the decree-holders, he was not at all cross-examined with regard to this matter and no question was put to him to show that has a matter of fact this application of the year 1914 did not relate to the decree now under execution. The appellant's further grievance is that certain documents which he had filed in order to show that the execution was barred by limitation had not been received by the learned Judge. Those papers are on the record and it does not appear, that any attempt was made on his behalf to have them admitted on the record as evidence and further, even if the statements contained in those documents be accepted as correct, the fact still remains that there was a successful application in the year 1906 and there was a further application in the year 1914 which was also successful and, consequently, the pre sent application cannot be said to be barred by limitation.

6. For all these reasons, I am of opinion, that there is no substance in this appeal and that it should be dismissed with costs--hearing fee, ten gold mohurs, which will be divided equally between the two sets of respondents who have appeared.

Walmsley, J.

7. I agree.


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