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Lala Murari Lal v. L. Debi Saran
Factual and Procedural Background
The plaintiff, Lala Debi Saran, obtained a lease of a plot of land on 29 December 1937 at a monthly rent of Rs. 25 for a fixed term of five years and constructed shops on the land. Before expiry of that lease, defendants 2–4 granted a theka to defendant no. 1, Lala Murari Lal, on 11 April 1942 that included the leased property. After the lease expired, Murari Lal filed Suit No. 385 of 1943 for ejectment of Debi Saran; that suit was decreed on 13 March 1944, with the decree granting Debi Saran the right to remove materials of the constructions.
Debi Saran appealed to the District Judge (appeal dismissed) and then to this Court, seeking a stay of execution. This Court authorised execution (possession) but directed that the decree-holder not demolish constructions until disposal of the appeal; ultimately this Court dismissed the appeal and allowed Debi Saran one month from the date of its decree (decree dated 5 April 1946) to remove the materials. On 6 May 1946 Debi Saran applied to the executing court for assistance to remove materials, alleging he had been prevented by tenants in possession; that application was dismissed with a direction to file a regular suit.
Pursuant to that direction, Debi Saran filed a suit claiming the right to remove materials of the shops and a decree for Rs. 1,500 as damages for non-removal. The trial court dismissed the suit as barred by Section 47 C.P.C and Section 11 C.P.C. The lower appellate court disagreed, held Sections 47 and 11 inapplicable, allowed the appeal and remanded the case. The present appeal is by the defendant (the decree-holder) against that appellate order dated 10 July 1951 of the District Judge of Meerut.
Legal Issues Presented
- Whether Section 47, C.P.C. is applicable to the present case — i.e., whether the plaintiff's right to remove materials arises out of the decree and thus must be enforced in execution proceedings rather than by a separate suit.
- Whether the relief for damages claimed by the plaintiff could have been granted in execution proceedings as consequential to the right to remove materials.
- Whether the defendants in the suit (specifically sub-lessees and other parties) are "parties to the decree" or their "representatives-in-interest" within the meaning of Section 47, C.P.C., thereby affecting the availability of execution proceedings as the proper remedy.
- Whether, if the suit is not maintainable, the court may treat the plaint as an application under Section 47(2), C.P.C., subject to limitation and jurisdiction, and direct the trial court to decide it as such.
Arguments of the Parties
Appellant's Arguments
- The plaintiff's right to remove the materials of the shop (constructions) was a matter relating to the execution of the decree and should have been decided in execution proceedings, not by a separate suit.
- The present case is one of excessive execution in the sense that if the decree-holder obtained possession of property in excess of what he was entitled to, the proper remedy for the judgment-debtor is application in execution proceedings for restitution of that excess property rather than a separate suit; several decisions were relied upon in support.
Respondent's Arguments
- The decree for possession was satisfied when the decree-holder obtained possession, leaving nothing further in the decree; therefore the right to remove materials did not relate to execution, discharge or satisfaction of the decree.
- Even if the right to remove did arise from the decree, the plaintiff also claimed damages for being prevented from removing materials — and such relief for damages could not, respondent contended, be granted in execution proceedings.
- The parties arrayed in the suit were not parties to the decree and thus Section 47 would not apply; in particular the tenants to whom the decree-holder had granted the land and shops were not representatives-in-interest of the decree-holder.
- Under Section 47(2), C.P.C., the court has power to treat the present suit as proceedings under Section 47, subject to limitation and jurisdiction; therefore, if the suit was not maintainable, the trial court might be directed to treat it as an execution application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| I.L.R. 38 Allahabad 339 — Abdul Karim v. Ilamunissa Bibi | Relied upon by appellant to support the proposition that when a decree-holder obtains possession in excess of entitlement, the remedy of the judgment-debtor is in execution proceedings rather than by a separate suit. | The Court stated it was not necessary to consider this decision in detail because the Court considered the present case differently: the judgment-debtor here sought to enforce rights granted to him under the decree itself. |
| I.L.R. 44 Bombay 97 — Ganpat Rao Sultan Rao Mahurkar v. Anand Rao Jagdeo Rao Mahurkar | Relied upon by appellant for the same general proposition regarding restitution/remedies in execution where the decree-holder has taken excess property in execution. | The Court again observed that consideration of these decisions was unnecessary for its conclusion because it viewed the present case as one where the judgment-debtor sought to enforce rights conferred by the decree. |
Court's Reasoning and Analysis
The Court framed the central inquiry as whether Section 47, C.P.C. applied to the present suit. To answer this it examined whether the matter in dispute (the plaintiff's right to remove materials) related to the execution, discharge or satisfaction of the decree and whether the disputing parties were parties to the decree or their representatives-in-interest.
On the question whether the right to remove the materials arose from the decree, the Court rejected the respondent's contention that it did not. The Court reasoned that, although the respondent might have an "independent" right, in the present case the right was explicitly given to him under the decree (the Court's decree allowed removal within one month). Because that right was granted by the decree, it was properly a matter for execution proceedings: rights granted by a decree should ordinarily be enforced in execution and not by a separate suit. The Court thus found no satisfactory reason to permit a separate suit when enforcement could be sought in execution proceedings.
Regarding the claimed damages, the Court held that damages sought by the plaintiff for being prevented from removing the materials were consequential to the primary relief (removal of materials) and could have been awarded in execution proceedings if wrongful acts by the decree-holder or his representatives-in-interest were found to have caused loss.
On whether the parties in the present suit were within Section 47's scope as "parties to the decree" or "representatives-in-interest," the Court differentiated among the defendants:
- Defendants 5 to 10 (sub-lessees of the decree-holder): the Court held they are representatives-in-interest of the decree-holder because they took their sub-lease subject to liabilities of the decree-holder on the date of the sub-lease; thus they would be bound if the decree-holder could not retain the materials.
- Defendants 2 to 4 (who earlier granted the theka to defendant 1): the Court found it doubtful they were representatives-in-interest because they did not derive title or interest from the decree-holder; indeed, it was the decree-holder who obtained the theka from them. The Court observed the plaint indicated that the plaintiff had been prevented from removing materials by the decree-holder and his sub-tenants rather than by defendants 2–4, and suggested those three were impleaded perhaps to avoid the effect of Section 47.
The Court also addressed Section 47(2), C.P.C., which permits a court to treat a suit as an execution proceeding subject to limitation and jurisdiction. The respondent relied on this, and the Court, noting no objection from the appellant provided limitation and jurisdiction were satisfied, agreed there was no objection to treating the plaint as an application under Section 47 for the relevant defendants.
Applying these conclusions, the Court held that Section 47 barred the suit against the decree-holder and his sub-lessees (defendants 1 and 5–10), but not necessarily against defendants 2–4; therefore the appellate court's order remanding the suit should be set aside in part and the matter remitted to the trial court to treat the plaint as an application under Section 47, C.P.C. (subject to limitation and jurisdiction) against defendants 1 and 5–10, while the plaintiff remained at liberty to pursue the suit against defendants 2–4 in a regular suit if he had any grievance against them.
Holding and Implications
APPEAL ALLOWED; ORDER OF THE LOWER APPELLATE COURT SET ASIDE
Direct dispositive actions ordered by the Court:
- The appeal is allowed and the lower appellate court's order (that had set aside the trial court's decree and remanded the case) is set aside.
- The suit is dismissed against defendants 1 and 5–10 (the decree-holder and his sub-lessees) on the ground that Section 47, C.P.C. bars the remedy by a separate suit as to them.
- The case is remitted to the learned Munsif with the direction that, subject to questions of limitation and jurisdiction, the plaint may be treated as an application under Section 47, C.P.C. against defendants 1 and 5–10 and decided according to law.
- The plaintiff remains at liberty to proceed by a regular suit against defendants 2–4 (who the Court found were likely not representatives-in-interest of the decree-holder).
- Leave for special appeal was granted by the Court.
Implications: The decision has the direct effect of channeling enforcement of rights conferred by the decree (such as removal of constructions and consequential damages) into execution proceedings against the decree-holder and his representatives-in-interest, subject to limitation and jurisdictional constraints; the plaintiff may still litigate matters against persons who are not representatives-in-interest in a regular suit. The opinion does not indicate that a new legal precedent was laid down beyond applying Section 47 to the facts; it focuses on application of existing procedural rules to the parties before the Court.
Asthana, J.:— This is a defendant's appeal against the order dated the 10th July, 1951 of the District Judge of Meerut setting aside the decree of the trial court and remanding the case to it for disposal according to law.
2. The circumstances which gave rise to the case out of which this appeal has arisen may be stated as follows: The plaintiff Lala Debi Saran, along with one another person, obtained on lease on a monthly rent of Rs. 25/- a piece of land on the 29th December, 1937 and thereafter constructed some shops on it. The lease was for a fixed term of 5 years. Before the expiry of the period of the lease the defendants 2-4 granted a theka to the defendant no. 1, Lala Murari Lal, on the 11th April, 1942 in respect of some property including the property which had been given on lease to Debi Saran. After the expiry of the term of the lease in favour of Debi Saran, Lala Murari Lal filed a suit, no. 385 of 1943, against Debi Saran for his ejectment from the land in dispute.
3. This suit was decreed on the 13th March, 1944. Debi Saran was given a right under the decree to remove the materials of the constructions which had been built by him on the disputed land. Debi Saran filed an appeal against this decision before the District Judge and his appeal was dismissed. He then filed a second appeal in this Court and also made an application for the stay of the execution of the decree till the disposal of the appeal. This Court did not stay the execution and authorised the decree-holder to take possession of the land together with the structures on it, but in order to safeguard the rights of the plaintiff, directed the decree-holder not to demolish the constructions till the disposal of the appeal. Thereafter the decree-holder entered into possession of the land together with the constructions on it but he did not demolish the constructions in pursuance of the orders of this Court. The appeal was dismissed by this Court and the appellant Debi Saran was allowed one month's time for the removal of the materials, from the date of the decree of this Court. It may be mentioned here that the decree of this Court was passed on the 5th April, 1946. On the 6th May, 1946 Debi Saran made an application to the executing court asking for its assistance to remove the materials on the ground that he had not been permitted to remove them within the period of one month by the tenants who were in possession of the land along with the constructions on it. It may be mentioned that at the time this application was made the decree-holder had granted a sub-lease of the property in dispute in favour of the defendants 5 to 10. This application was dismissed and the plaintiff was directed to bring a regular suit for the enforcement of this claim. In pursuance of this direction he filed a suit against the decree-holder, his tenants and also the zamindars who had originally granted the lease in favour of the plaintiff and subsequently the theka in the name of Debi Saran. In this suit the plaintiff claimed that he should be allowed to remove the materials of the shops which had been constructed by him on the disputed land and that a decree for Rs. 1,500/- be granted in his favour against the defendant 1 or whoever may be found liable for the damages suffered by him due to non-removal of the materials. The trial court dismissed the suit on the ground that it was barred by Sec. 47, C.P.C and also Sec. 11, C.P.C The lower appellate court did not agree with the decision of the trial court. It was of the opinion that neither Sec. 47 nor Sec. 11, C.P.C was applicable to the present case. It, therefore, allowed the appeal and remanded the case as has already been said above.
4. The main question for consideration is whether Sec. 47, C.P.C is applicable to the present case. In order to decide this question it is necessary to determine whether the matter in dispute in the present case is one relating to execution, discharge or satisfaction of the decree and whether it is between the parties to that decree or their representatives-in-interest. It has been contended on behalf if the appellant that the right of the plaintiff to remove the materials of the shop constructed on the disputed land was a matter which related to the execution of the decree and should have been decided in the execution proceedings and not by a separate suit. On the other hand it was contended on behalf of the respondent that so far as the decree for the possession of the land was concerned it was satisfied as soon as the decree-holder obtained possession over it; that there was nothing further left in the decree and, as such, it could not be said that the right of the respondent to remove the materials was a matter relating to the execution, discharge or satisfaction of the decree. So far as the right of the respondent to remove the materials is concerned, it was given to him under the decree and it was by the decree of this Court that he was given a right to remove the materials within one month from the date of the decree. I am not prepared to accept the contention on behalf of the respondent that the right to remove the materials did not arise out of the decree. It may be that the respondent may have got an independent right to remove the materials; but at the same time there can be no doubt that in the present case he was given that right under the decree itself. It cannot, therefore, be said that the right to remove the materials did not arise out of the decree. He could certainly enforce this right if he would have made an application for the removal of the materials within one month according to the terms of the decree, and if he could exercise this right in the execution proceeding there does not appear any satisfactory reason why he should be permitted to file a separate suit in respect of such a right. If the decree grants certain rights to both the parties there can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate suit as the matters relating to the execution of such rights are matters relating to the execution of the decree. I do not think that merely because the decree-holder's right given in that decree is satisfied the judgment-debtor would not be able to apply in the execution proceedings for the enforcement of the rights given to him under that decree. Learned counsel for the appellant contended that the present case is one of excessive execution of the decree and if in the execution of the decree the decree-holder has obtained possession over certain property to which he is not entitled under the decree, the remedy of the judgment-debtor is to apply for the restitution of that property in execution proceedings and not by a separate suit. In support of this contention he has relied on several decisions.
(1) I.L.R 38 Allahabad, 339 Abdul Karim v. Ilamunissa Bibi1.
(2) I.L.R 44, Bombay, 97 Ganpat Rao Sultan Rao Mahurkar v. Anand Rao Jagdeo Rao Mahurkar2
5. It has not been seriously disputed before me on behalf of the respondent that where the decree-holder has obtained possession in execution of the decree in excess of that to which he was entitled under the decree, the remedy of the judgment-debtor, who is the owner of this excess property, is to apply in execution proceedings and not to file a separate suit for recovery of possession of that property, I do not think it is necessary to consider these decisions in view of the fact that I am of opinion that the present case is one where the judgment-debtor seeks to enforce the rights which have been granted to him under the decree itself. In the circumstances, I am not inclined to accept the contention on behalf of the respondent that the right of the plaintiff to remove the materials from the disputed land was not a matter relating to the execution, discharge or satisfaction of the decree.
6. It was next contended for the respondents that in the present suit the plaintiff had claimed damages also which accrued to him due to the wrongful act on the part of the defendants in not allowing him to remove the materials of the shop and this relief could not have been granted to him in the execution proceedings. In my opinion the relief for damages is consequential to the relief for the removal of the materials and flows from it. The plaintiff could have been granted damages in execution proceedings if it was found that he had suffered on account of any wrongful act on the part of the decree-holder or his representatives-in-interest.
7. It was further contended that the parties to the suit were not parties to the decree and as such Sec. 47 would not apply because that section was restricted in its application to the parties to the decree or to their representatives-in-interest. It was also contended that the tenants to whom the disputed land along with the shops was given by the decree-holder after the decree, were not representatives-in-interest of the decree-holder. I have not been able to understand as to why the sublessees of the property in dispute from the decree-holder are not his representatives-in-interest. They took the sub-lease subject to the liabilities of the decree-holder on the date of the execution of the sub-lease. If the decree-holder was not competent to retain the materials of the shops then the sub-lessees could not retain it and they would be bound to deliver possession of it to the plaintiff-respondent. In my opinion the defendants 5 to 10, who are the sub-lessees of the decree-holder Debi Saran, are his representatives-in-interest within the meaning of Sec. 47, C.P.C So far as the defendants 2 to 4 are concerned, it is very doubtful if they are the representatives-in-interest of the decree-holder. These persons do not derive any title or interest from the decree-holder. On the contrary, it is the decree-holder who obtained the theka from them. In the circumstances, I am of opinion that so far as these three persons are concerned the plaintiff could not have proceeded against them in the execution proceeding. It, however, appears from an examination of the plaint that the plaintiff was prevented from removing the materials by the decree-holder and his sub-tenants who obtained possession of the property after the execution of the sublease, and not by the defendants 2 to 4. It appears that the defendants 2 to 4 have been impleaded merely to escape the effect of Sec. 47 C.P.C Anyway, if the plaintiff has really got any grievance against the defendants 2 to 4 he is entitled to proceed against them in a regular suit, but so far as the other defendants are concerned, I am of opinion that Sec. 47 is clearly a bar against them.
8. It has been contended before me on behalf of the respondent that according to Sec. 47(2), C.P.C it is open to the court to treat the present suit as a proceeding under Sec. 47, C.P.C subject to the question of limitation or jurisdiction, and in view of this provision even if the present, suit is not maintainable the trial court may be directed to treat it as an application in the execution proceeding and may decide it according to law. Learned counsel for the appellant has no objection to this proposal, provided the application is within limitation and the trial court has jurisdiction. I do not think that there should be any objection to this proposal.
9. I, therefore, allow this appeal, set aside the order of the lower appellate court, dismiss the suit against the defendants 1 and 5 to 10 and send back the case to the learned Munsif with the direction that subject to the question of limitation and jurisdiction the plaint may be treated as an application under section 47 C.P.C against them and decided according to law. As against the defendants 2 to 4 the plaintiff is at liberty to proceed in the suit.
10. Leave for special appeal is granted.
11. Appeal allowed.
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