Sir Lancelot Sanderson:
These are two appeals (consolidated) from one judgment and two decrees dated 27th April 1928, of the High Court of Judicature at Patna, which reversed two orders dated 7th January 1928, and 3rd March 1928 of the Subordinate Judge of Dhanbad. The appellant is a decree-holder, and the above mentioned orders of the Subordinate Judge were made on two applications by the appellant for the execution of a consent decree dated 15th February 1926, and made in a suit No. 72 of 1924, which was brought by the appellant against the respondent, Raja Shri Shiv Prasad Singh (hereinafter called "the Raja)".
The respondent, S.M. Ghosh, was appointed on 22nd December 1927, Receiver of the Jharia Raj by the High Court of Calcutta in a suit brought by the Ranees of the late Raja against the Raja.
On 7th March 1916, the Raja succeeded to the Jharia Raj. On 6th March 1919, the widows of the late Raja (hereinafter referred to as the Ranees) sued the Raja in the Court of the Subordinate Judge, Alipore for possession of the Jharia Raj. On 3rd November 1921 the Subordinate Judge at Alipore dismissed the Ranees' suit and the Ranees appealed against that decree to the High Court at Calcutta. By two agreements dated 16th and 18th November 1921, during the pendency of the Ranees' appeal, the appellant agreed to take from the Raja, who agreed to grant, mining leases in respect of 1,050 bighas of land, in mouza Barki Bowa, one of the villages of the Jharia Raj, on the terms and for the consideration therein mentioned. The Ranees thereupon obtained an order from the High Court at Calcutta restraining the Raja from executing any mining patta in favour of the appellant.
On 14th November 1924, the appellant brought Suit No. 72 of 1924 in the Court of the Subordinate Judge, Dhanbad, against the Raja for a decree for specific performance of the said agreements, or, alternatively, for a decree for Rs. 1,89,313. On 10th February, 1926 the High Court at Calcutta gave the Raja permission to grant a lease to the appellant in the following terms :
" Permission is granted to the petitioner to grant a lease to Mayasankar Bhagwanji on the terms mentioned in the petition subject to the following conditions :
1. That the lease will be without prejudice to the rights of the plaintiffs (meaning the Ranees) if any.
2. That the defendant (meaning the Raja) will bring into Court all rents and royalties which he may receive under the proposed lease.
3. That the defendant (meaning the Raja) will procure a report within a month from either Bird and Co. or Jardine Skinner and Co. estimating the value of the coal which may reasonably be extracted from the lands proposed to be demised within three years from date having regard to the present conditions of such land, and the defendant further undertakes that he will furnish security within a fortnight of the date of the report to the satisfaction of this Court for the amount so reported."
On 15th February 1926, the appellant and the Raja entered into a compromise in Suit No. 72 of 1924, and on the same date the Subordinate Judge of Dhanbad passed a consent decree, of which the material portion was as follows :
"1. That the plaintiff will get a decree for Rs. 1,40,353 (one lakh forty thousand three hundred fifty-three) and Rs. 2,701-14-9 pies as costs therefor i. e., in proportion thereto.
2. That the plaintiff will not be competent to execute the said decree within six months from this day, and if the defendant according to the order of the Honourable Calcutta High Court dated 10th February 1926 executes a patta in terms of the agreement and the plaintiffs execute a kabuliyat in similar terms the plaintiff will not be competent to realize this decree money from the defendant. Otherwise the plaintiff will be competent to realize the decree money by executing this decree after the expiry of the said six months and with interest at the rate of 8 annas per cent per month from the date of the decree from the defendant. To that the defendant will not be competent to raise any objection."
On 10th March 1926, it was reported by Mr. Bathgate to the Calcutta High Court that no coal could possibly be extracted within 3 years of the order of 10th February 1926, and on 22nd March 1926, the said High Court made the following order:
"Let the report of 10th March 1926 made by Mr. Bhagat (? Mr. Bathgate) be recorded. It
is not necessary in our judgment to make any further order except that we make it clear that no security need be given at present. As the learned Advocate-General on behalf of his client (meaning the Raja) has no objection we add that the appellants (meaning the Ranees) shall have liberty to apply."
On 19th April 1926, the pleader for the Raja sent a draft patta to the pleader for the appellant for approval, and asked for a kabuliyat in the terms thereof, but the latter failed to comply with that request. Correspondence took place in June 1926, between the pleader for the appellant and the pleader of the Raja. The appellant's pleader, however, refused to accept the patta.
The ground taken on behalf of the appellant was that the draft was not in accordance with the consent decree of 15th February 1926, and that the order of the Calcutta High Court, dated 22nd March 1926, for which the Raja was alleged to be mainly responsible, had made the execution of the patta by the Raja according to the terms of the consent decree, impossible.
The Raja's pleader asserted that the draft patta was in accordance with the said consent decree, and suggested that the appellant's pleader should send a draft of his own or alter the draft which had been submitted, so as to bring it into conformity with the terms of the decree, and stated that he would accept the same. The appellant's pleader did not comply with the last mentioned request, but repeated the objection that the execution of the patta by the Raja in accordance with the terms of the consent decree had become impossible.
It appears that the High Court of Calcutta, on the hearing of the Ranee's appeal in August 1925, dismissed the Ranees' claim to the Jharia Raj, but allowed it in respect of the self-acquired properties of the late Raja, and remanded the suit to the Subordinate Judge of Dhanbad to ascertain what those properties were, and on 7th May 1927, the Subordinate Judge held that the village of Bowa, both as regards the surface and underground, was the self-acquired property of the late Raja, and made a decree for possession in favour of the Ranees.
The matters in dispute between the Raja and the Ranees are the subject of an appeal to His Majesty in Council now pending. On 9th August 1927, the appellant made the application (Execution Case No. 464 of 1927) giving rise to the second appeal, for execution of the compromise decree for realization of the decretal amount. The Raja filed objections opposing the application, but on 7th January 1928, the Subordinate Judge made an order dismissing the Raja's objections. The Raja thereupon appealed to the High Court of Judicature at Patna. The appellant's application for execution was, however, struck off on 24th January 1928.
On 25th January 1928, the appellant made another application for execution (Execution Case No. 49 of 1928), giving rise to the first appeal for realization of the decretal amount by sale of certain properties described therein.
On the application of the Raja the Subordinate Judge made the receiver who was in possession of the property proposed to be sold a party to the last mentioned application. The Receiver filed objections to the application, contending that the appellant was not entitled to execute the compromise decree as a money decree on the grounds that the Raja had submitted a draft patta, but the appellant failed to approve it, and thus prevented the Raja from executing the patta, that the appellant was therefore not entitled to take advantage of his own default by executing the decree as a money decree, that the Raja had always been ready and willing to execute the patta, and that there was no difficulty in granting the patta with the permission of the Calcutta High Court.
On 3rd March 1928, the Subordinate Judge of Dhanbad made an order disallowing the receiver's objection and allowing the appellant's application for execution to proceed. In making the order he followed his previous order of 7th January 1928, disallowing the Raja's objections. The learned Subordinate Judge held that the order of the Calcutta High Court dated 10th February 1926, directing the Raja to furnish security, was intended to indemnify the appellant in case it should be held that the property to be leased belonged to the Ranees and not to the Raja; that the Raja by his conduct in consenting to the order of 22nd March 1926, giving the Ranees liberty to apply for security, prejudiced the position of the appellant, and consequently the appellant was justified in refusing to approve the draft patta; that by the decree of 7th May 1927, of the Subordinate Judge of Alipore, the title to the property to be leased was with the Ranees, and not with the Raja; and that the Raja by his conduct had made the condition for the execution of the patta impossible of performance, and consequently the decree for the payment of money by the Raja must be given effect to, and that the execution must be allowed to proceed.
Against the said order of 3rd March 1928, the Receiver appealed to the High Court of Judicature at Patna. His appeal and the appeal of the Raja were heard together and disposed of by one judgment delivered on 27th April 1928. The learned Judges held that under the terms of the consent decree the appellant had not reserved to himself the right to refuse to execute a kabuliyat; that the order of the Calcutta High Court did not affect the appellant's position, and, if anything, it was more favourable to him than the order of 10th February 1926, of the said High Court; that the decree dated 7th May 1927, of the Subordinate Judge of Alipore, which was under appeal, did not affect the rights of the parties under the consent decree, because the appellant had agreed to take the mining lease during the pendency of the litigation between the Raja and the Ranees; that the receiver had agreed to apply for leave to execute the patta on behalf of all the parties and under a patta so executed the title of the appellant would be complete; and that the appellant was not entitled to execute the consent decree as a money degree. In the result they allowed the appeals with costs in both Courts, set aside the orders appealed from and dismissed the appellant's applications for execution.
Against this decree of the High Court the appellant has lodged the present appeal. At the hearing it was not contended that the decree of the Subordinate Judge which decided that the village of Bowa was the self-acquired property of the late Raja, and which gave possession thereof to the Ranees, affected the rights of the parties under the consent decree. It is obvious that the appellant agreed to take the lease while litigation between the Raja and the Ranees of the late Raja was pending with respect to the Raj, of which the village in question was alleged to be part, and the appellant must be taken to have known of the Ranees' claim with respect thereto, and to have agreed to take the lease for what it was worth. It is also to be remembered that the aforesaid litigation has not yet been finally determined in view of the appeal to His Majesty in Council.
The only point argued on behalf of the appellant before the Board, shortly stated, was that by reason of the order of the High Court of Calcutta dated 22nd March 1926, the Raja was not in a position to execute a patta in accordance with the terms of the consent decree of 15th February 1926.
It was argued that the Raja, by consenting to the order of 22nd March 1926, of the Calcutta High Court in the Ranees' suit, had altered the position contemplated at the time of the consent decree in the appellant's suit. It was said that it was then intended that such security as should be necessary should be given within a fortnight of the date of the report, mentioned in the order of 10th February 1926; that this was varied by the terms of 22nd March 1926, and that if the appellant worked the colliery vigorously and did succeed in raising coal, the Ranees would insist on security being given by the Raja, who might or might not give the same, whereby the position of the appellant was altered and prejudiced. Their Lordships are unable to accept this argument.
They are of opinion that the Raja, by consenting to the terms of the order of the High Court of Calcutta dated 22nd March 1926, did not render it impossible for him to grant a lease in accordance with the terms of the consent decree, dated 15th February 1926, and they are further of opinion that in fact the Raja was prepared and did offer to grant a lease in accordance with the said consent decree.
It is necessary to refer again to the terms of the said consent decree dated 15th February 1926. It provided among other matters, that if the Raja, according to the order of the Calcutta High Court, dated 10th February 1926, executed a patta in terms of the agreement ..... the appellant would not be competent to realise the decree money from the Raja.
The important words relating to the question now under consideration are,
"According to the order of the Honourable Calcutta High Court dated 10th February 1926."
On reference to the order of 10th February 1926, which was made in the Ranees' suit against the Raja, it appears that permission was thereby granted to the Raja to grant a lease to the appellant on the terms mentioned in the petition, subject to the conditions therein stated. There is no suggestion that the terms of the draft patta were not in accordance with the terms mentioned in the petition. What, then, were the conditions? They have already been fully stated.
Nothing turns upon the first condition. The second amounts to an undertaking by the Raja to bring into Court the rents and royalties which he may receive under the lease. The third refers to two undertakings by the Raja, viz., (a) that he will procure within a month the report therein mentioned and (b) that he will furnish security within a fortnight of the date of the report to the satisfaction of the Court for the amounts so reported. The Raja gave these undertakings. Upon the Raja giving these undertakings, the conditions imposed by the Court were fulfilled and the permission to grant a lease became complete and effective.
It so happened that the report was to the effect that no coal could possibly be extracted within three years and consequently the High Court of Calcutta directed, on 22nd March 1920, that no security need then be given; but in order to protect the interests of the Ranees, and with the consent of the Raja, liberty to apply was given to the Ranees. The liberty to apply so granted, to the Ranees did not in any way affect or invalidate the permission to grant a lease which the Court had given to the Raja on 10th February 1926, and which became effectual when he gave the undertakings required by the Court.
If the Raja had failed to carry out the undertakings given by him, or any of them, the Raja might have become liable to the sanction of the Court, but the validity of the lease, if granted by him with the permission of the Court, would not have been affected thereby. For these reasons their Lordships are of opinion that the decree of the High Court was correct, and that this appeal should be dismissed with costs. They will humbly advise His Majesty accordingly.