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Case Number

AFOO No. 41 of 1952

Advocates

Nirmal Chandra Chakrabarty
Muktipada Chat-terjee
Rama Prosanna Bagchi
Satya Santi Mukherjee and Bimal Kumar Banerjee
Purushottam Chatterjee and Rameswar Saha

Judges

Guha
Mullick, JJ.

Acts

section 47 of the Code of Civil Procedure.
section 36 of the Code of Civil Procedure
section 99 of the Code of Civil Procedure
Order 21, Rule 15,

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Smart Summary

Summary of Judgment — Mullick, J.

Factual and Procedural Background

By an agreement for sale dated 19 December 1936, the Mandals (the defendants) agreed to sell certain land and premises to Sachindra Nath Goswami. On 5 June 1939 a suit for specific performance was instituted in the Court of the 3rd Subordinate Judge of 24-Parganas by five persons named Daga(s) and Sachindra Nath Goswami. The plaint pleaded that Goswami had entered into the agreement as agent/benamdar for the Dagas, so the Dagas were the real beneficiaries. A decree for specific performance was ultimately passed on 29 January 1945: it decreed the suit on compromise as to defendant No.1 and on contest as to defendants Nos.2 and 3, directing defendants Nos.2 and 3 to execute a deed of sale in terms of the agreement on receipt of the balance consideration and to register the sale deed at the cost of the plaintiffs within one month.

The Dagas filed a tabular statement for execution on 13 July 1945 describing Goswami as a "pro forma judgment-debtor" and seeking directions that judgment-debtors Nos.2 and 3 execute and register the sale deed as per the draft filed, which named the Dagas as purchasers. An appeal against the trial decree (First Appeal No. 152 of 1945) stayed execution; that appeal was dismissed on 27 November 1950 and the stay vacated. Execution steps already taken by the Dagas thereafter were objected to by Amulya Charan Mandal (one of the judgment-debtors) by a petition under section 47, CPC (Misc. Case No. 11 of 1951). Two points were pressed before the executing court: (1) certain phrase in the draft conveyance should be clearly specified; (2) because the agreement of sale was in favour of Goswami, without any nomination by him the Dagas were not entitled to a conveyance. The executing court accepted the first objection (directing the phrase to be aligned with the agreement) and overruled the second objection on the ground that the High Court in F.A. No. 152 of 1945 had held the Dagas to be the real beneficiaries and Goswami to be their agent. The present appeal challenges that order of the executing court.

Legal Issues Presented

Whether the executing court was correct in permitting execution proceedings at the instance of the Dagas (some of the joint decree‑holders) and allowing a conveyance in their favour where the original agreement named Goswami as purchaser (i.e., whether the Dagas were entitled to execute the decree in their own names given the pleadings and the appellate judgment).
Whether, under Order 21, Rule 15 CPC, some of the joint decree‑holders (here the Dagas) are competent to execute the decree for the benefit of all when one of the joint decree‑holders (Goswami) is only an agent/benamdar.
Whether, following dismissal of the First Appeal, the trial court decree merges into the appellate decree so that only the appellate decree is executable and the pending execution of the trial court decree is thereby defeated.

Arguments of the Parties

Appellant's Arguments (Mr. Nirmal Chandra Chakraborty)

The decree requires defendants to execute a deed in terms of the agreement, and under that agreement the defendants were bound to convey only to Sachindra Nath Goswami or his nominee; as Goswami made no nomination, the conveyance must be to Goswami alone.
The draft conveyance filed in execution which names the Dagas as purchasers is not in terms of the decree, which is clear and unambiguous that Goswami (and not the Dagas) is the purchaser; the executing court should have dismissed the execution application on this ground.
If the judgment (which, appellant claims, recognises the Dagas as real purchasers) contradicts the decree, the executing court should give effect to the decree and not to the judgment, relying on Maharaj Kumar Shoshi Kanta Acharji Chowdhury Bahadur v. Raja Sarat Chandra Roy Choudhury (35 C.L.J. p.339).
The decree of the trial court merges in the decree of the appellate court after dismissal of the appeal; therefore the only executable decree is the decree of the appellate court.

Respondent's Arguments (Mr. Purushattam Chatterjee)

Under Order 21, Rule 15 CPC some of the joint decree‑holders are competent to execute the decree for the benefit of all; here the Dagas applied to execute for their own benefit because the appellate judgment held that they alone were beneficially entitled (Goswami being only agent/benamdar).
The doctrine of merger should not be applied so as to defeat execution of a trial court decree affirmed on appeal; authorities applying merger have been confined to specific purposes (determining time from which limitation runs and for amending decrees), and it would be inequitable and absurd to require a decree‑holder to re‑file execution proceedings following an affirmation on appeal.
If revival of pending execution after dismissal of appeal is defective in form, that defect is curable under section 99 CPC (Harilal Dalsukhram v. Mulchand Asharam cited).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Maharaj Kumar Shoshi Kanta Acharji Chowdhury Bahadur v. Raja Sarat Chandra Roy Choudhury (35 C.L.J. p.339)	Principle that where the judgment and the decree cannot be reconciled and the decree is unambiguous, the court should execute the decree and disregard the judgment.	The court held this authority distinguishable: in the present case the decree was ambiguous and the judgment and pleadings could resolve that ambiguity, so the principle in this case did not apply.
Jowad Hossain v. Gendan Singh (L.R. 53 I.A. 197)	Cited as authority for the broader proposition that a trial court decree merges in the decree of the appellate court so that the appellate decree is the one executable.	The court examined such authorities and concluded that merger has been applied only for limited purposes (limitation and amendment of decrees) and should not be used to defeat an execution proceeding when the appellate court merely affirms the trial court decree.
Gajadhar Singh v. Kishan Jiwan Lal (I.L.R. 39 All. 641)	Another authority cited in support of the merger proposition (that trial decree merges in appellate decree).	The court treated it as part of the group of authorities showing merger has limited application and should not prevent execution of an affirmed trial decree.
Syam Mondal v. Satinath Banerjee (21 C.W.N. 776)	Cited among cases supporting the merger theory in some contexts.	Again, the court held such authorities do not support applying merger to defeat execution where the appellate decree affirms the trial decree.
Syed Ekram Hussain v. Musammat Umatul Rasul* (A.I.R. 1931 Pat. 27)	Authority holding that where the appellate decree merely affirms a trial court decree, the fiction of merger should not be carried so far as to wipe out the trial decree for all purposes.	The court expressly agreed with this decision, found its facts analogous, and relied on its reasoning to refuse to apply merger to defeat the pending execution proceeding.
Saroop Narain v. Suraj Mohan Dayal (A.I.R. 1942 Oudh 84)	Authority supporting the proposition that the fiction of merger should not be carried to an absurd result where appellate decree merely affirms trial decree.	The court noted the Oudh case facts were on all fours with the present case and relied on it to overrule the merger objection.
Pateshwari Prasad Singh v. Abdul Karim (A.I.R. 1946 All. 496)	Cited among authorities supporting the limited application of the merger doctrine.	The court listed it as one of the cases that justify not applying merger so as to prevent execution of an affirmed trial decree.
Harilal Dalsukhram v. Mulchand Asharam (A.I.R. 1930 Bom. 225)	Authority cited for the proposition that procedural defects in reviving execution proceedings after appeal dismissal are curable under section 99 CPC.	The court relied on this authority to state that any procedural irregularity in resuming pending execution is curable under section 99 CPC.

Court's Reasoning and Analysis

The court proceeded in two main strands of reasoning corresponding to the principal issues raised:

Decree ambiguity and entitlement to execution:
- The court examined the decree and found it not to be clear and unambiguous. Although the decree purports to be in favour of all plaintiffs (the Dagas and Goswami), the underlying agreement named only Goswami as purchaser — producing a clear ambiguity.
- Where a decree is ambiguous, the executing court is bound to look to the judgment and the pleadings to resolve the ambiguity. On examining the pleadings the court found the suit was instituted on the basis that Goswami was agent/benamdar for the Dagas, and Goswami had signed the plaint, accepting that position.
- The High Court (in F.A. No. 152 of 1945) had held that the Dagas were the real purchasers and Goswami was their agent. The appellate judgment thus confirmed that the Dagas were entitled to a conveyance. Having regard to plea, judgment and that Goswami had effectively nominated the Dagas, it was not open to the appellant to contend that the Dagas were not entitled.
- Applying Order 21, Rule 15 CPC, the court held that some joint decree‑holders (here the Dagas), being beneficially entitled, could validly apply to execute the decree for their benefit; the court exercised its discretion to allow execution by the Dagas alone since Goswami had no beneficial interest (being merely agent/benamdar).
- The court distinguished the Maharaj Kumar (35 C.L.J.) authority relied on by the appellant because in that case the judgment and decree could not be reconciled and the decree was unambiguous — unlike the present case where the decree was ambiguous and could be clarified by the judgment and pleadings.
Doctrine of merger and executability after dismissal of appeal:
- The appellant argued that after dismissal of the First Appeal the trial court decree merged in the appellate decree and only the appellate decree was executable. The court reviewed authorities that on their face support the merger proposition.
- However, the court analysed those authorities and concluded that the doctrine of merger had been applied in two narrow contexts only: (a) for the purpose of determining when limitation would begin to run, and (b) for the purpose of amendment of decrees (i.e., practical and procedural consequences of appellate decrees).
- The court refused to extend the doctrine of merger to mean that where the appellate court simply affirms the trial court decree the pending execution proceedings on the trial decree are thereby nullified. Doing so would lead to absurdity and injustice by compelling the decree‑holder to re‑initiate execution proceedings for essentially the same decree and cause multiplicity of proceedings.
- The court relied on certain decisions from other jurisdictions (notably the Patna and Oudh cases cited) that rejected an overbroad application of merger in such circumstances and agreed with their reasoning. It also observed that even if resumption of pending execution after appeal dismissal involved a procedural irregularity, that would be curable under section 99 CPC (citing Harilal Dalsukhram v. Mulchand Asharam).

The court therefore sustained the executing court's approach: resolving the decree's ambiguity by reference to pleadings and the appellate judgment and permitting execution at the instance of the Dagas; and rejecting the contention that the trial court decree was no longer executable by virtue of merger following the appellate dismissal.

Holding and Implications

Holding: The appeal is dismissed.

Direct consequences and immediate implications:

The executing court was correct to resolve the ambiguity in the decree by reference to the judgment and the pleadings and to permit execution by the Dagas (some of the joint decree‑holders) because the appellate judgment had held they were the beneficial purchasers and Goswami was only agent/benamdar.
The contention that the decree of the trial court was merged in the appellate decree to the extent that the pending execution of the trial decree became non‑executable was rejected; the court held merger is not to be applied so as to defeat execution where the appellate court merely affirms the trial decree.
Any procedural infirmity (if any) in resuming execution after dismissal of the appeal would be curable under section 99 CPC.
No order as to costs was made: the court expressly made no order as to costs.

Broader legal implication as stated by the court:

The decision clarifies that where a decree is ambiguous, the executing court must look to the pleadings and judgment to resolve ambiguity; where the appellate judgment clarifies beneficial entitlement, that determination can govern execution even if the original agreement or decree language mentions another party.
The court cautioned against an unduly broad application of the doctrine of merger that would cause impractical and inequitable results by depriving decree‑holders of pending execution remedies after an affirmation on appeal.

No new rule of law was laid down beyond the application and articulation of these principles to the facts of the case; the decision disposes of the appeal and leaves the order of the executing court intact subject to the terms stated above.

Judges: Mullick, J. delivered the judgment; Guha, J. concurred.

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Ratan Mala Mondal And Anr. v. Gopal Lal Daga And Ors.

The Judgment of the Court was delivered by

Mullick, J.:— This appeal arises out of a petition for execution of a decree obtained by some of the plaintiffs in a suit for specific performance. The facts leading to the present appeal may be stated as follows:—

By an agreement for sale, dated 19th December, 1936, the defendants, who for convenience may be referred to as the Mandals, as vendors, agreed to sell and convey to Sachindra Nath Goswami as purchaser the land and premises referred to in the said agreement. On the 5th June, 1939, a suit for specific performance of the said agreement was instituted in the Court of 3rd Subordinate Judge of 24-Parganas against the said Mandals. The plaintiffs in the said suit are 5 Dagas and the said Sachindra Nath Goswami. It is pleaded in the plaint that Goswami entered into the said agreement with the Mandals for and on behalf of the Dagas as their agent and benamdar so that the real beneficiaries under the agreement are the Dagas and not Goswami. Needless to say that plaint bears the signature of all the Dagas and Goswami. The suit was contested but ultimately a decree was passed on the 29th January, 1945, 1945, in favour of the plaintiffs. One of the Mandals being defendant No. 1 settled the suit with the plaintiffs and a compromise petition was put in. The operative part of the decree in so far as it is material runs as follows:—

“It is ordered that the suit is decreed on compromise against the defendant No. 1 in terms of petition of compromise filed and on contest against defendant Nos. 2 and 3 in part with ⅔rd costs on contested scale. The defendant Nos. 2 and 3 do execute a Deed of Sale in respect of properties in suit in terms of the agreement on receipt of the balance of the consideration due for their share of ⅔rd and also register the sale deed at the cost of the plaintiffs within one month hereafter”.

2. The decree was put to execution by the Dagas by filing the tabular statement on 13th July, 1945. In column 2 of the tabular statement, where the names of the plaintiffs are to appear, the Dagas described Sachindra Nath Goswami as the “pro forma judgment-debtor” and in column 11 of the tabular statement it was prayed “that the judgment-debtor Nos. 2 and 3 be directed to execute and register the sale deed as per draft filed herewith.” In the draft filed the purchasers named are the Dagas and not Sachindra Nath Goswami. Against the decree passed by the learned Subordinate Judge an appeal was taken to this Hon'ble Court on the 6th May, 1945, being First Appeal No. 152 of 1945. By an order of this Court in the said appeal the execution of the decree was stayed. On the 27th November, 1950, the appeal was dismissed and the order of stay was vacated. Thereupon the Dagas took steps in execution already filed by them on 16th July, 1945, as hereinbefore stated. Against the said application for execution a petition of objection was filed by Amulya Charan Mandal, one of the judgment-debtors on 18th April, 1951, under section 47 of the Code of Civil Procedure. This objection was numbered as Misc. Case No. 11 of 1951. Various grounds were taken in the said petition of objection of which two were pressed before the executing court, namely, (1) that a certain phrase in the draft conveyance should be clearly specified and (2) that the agreement for sale having been in favour of Sachindra Nath Goswami, the Dagas are not entitled to a conveyance, in the absence of any nomination by Goswami. The executing court accepted the first objection and directed the phrase to be clearly stated bringing it on the lines with the agreement for sale. The second objection was overruled on the ground that the judgment of the High Court in the said F.A No. 152 of 1945 clearly indicated that the Dagas were the real beneficiaries under the agreement and Sachindra Nath Goswami was their agent or benamdar. Against this order the present appeal has been taken.

3. Mr. Nirmal Chandra Chakraborty who appeared in support of the appeal contends that the decree directs the defendants to execute a deed of sale in terms of a deed of agreement. Under the said agreement the defendants are bound to execute a conveyance in favour of Sachindra Nath Goswami or his nominee. There being no nomination by Goswami the conveyance must be in favour of Goswami and nobody else. The conveyance filed however named the Dagas as the purchasers. This is not in terms of the decree and the learned Subordinate Judge should have dismissed the application on this ground. He contends that the decree by itself is clear and unambiguous in that the purchaser would be Sachindra Nath Goswami in whose favour alone the conveyance could be executed. Inasmuch as the conveyance claimed in the execution case is in favour of the Dagas the court should have dismissed the application. He further contends that if in the judgment the Dagas are held to be the real purchasers and are entitled to a conveyance there is a contradiction, between the judgment and the decree, then the executing court should give effect to the decree and not to the judgment. He relies on the decision reported in Maharaj Kumar Shoshi Kanta Acharji Chowdhury Bahadur v. Raja Sarat Chandra Roy Choudhury (1) (35 C.L.J page 339), in support of his argument.

4. On looking to the decree, however, we are satisfied that the decree is not clear. The decree purports to be in favour of all the plaintiffs, that is, the Dagas and Goswami in whose favour a decree for specific performance has been passed. The decree, however, refers to the agreement in which the Dagas do not appear as purchasers. This is a case of clear ambiguity and hence to resolve the ambiguity the executing court is bound to look to the judgment and the pleadings. On referring to the pleading we find that the suit was instituted on the footing that the Dagas are the real purchasers and Goswami their agent. Goswami himself has signed the plaint and clearly, therefore, accepts that position. The position therefore is that Goswami nominated Dagas as purchasers in whose favour the conveyance is to be executed. This court in F.A 152 of 1945 took the view in its judgment delivered on the 27th November, 1950, that the Dagas were the real purchasers and that Goswami entered into the agreement with the defendants for and on behalf of the Dagas as their agent. It is clear, therefore, that according to the judgment referred to, the Dagas are the purchasers and are entitled to a conveyance from the defendants. After this it is not open to the appellant to contend that the Dagas are not the real purchasers and are not entitled to a conveyance.

5. It is next contended that the decree is in favour of all the plaintiffs, viz., the Dagas and Goswami. Dagas are not competent to execute the decree without Goswami, one of the joint decree-holders. In reply it is contended by Mr. Purushattam Chatterjee who appears for the respondents that under Order 21, Rule 15, some of the joint decree-holders are competent to execute the decree for the benefit of all. In this case Dagas have applied to execute the decree for their own benefit, it is true, but that is so because it has been held that they alone are beneficially entitled to the agreement, Goswami having been held to be mere agent or benamdar. The Court having discretion to allow execution of a joint decree at the instance of some of the decree-holders, it is urged, the Court should, in the circumstances of this case, exercise its discretion in favour of the Dagas who alone have interest in the agreement. This argument has considerable substance and must prevail. The case reported in 35 C.L.J page 399 cited by Mr. Chakraborty is clearly distinguishable. In that case the judgment and decree could not be reconciled and the decree was unambiguous and hence it was held that the Court should execute the decree and ignore the judgment. But here the decree is ambiguous and by referring to the judgment, the ambiguity can be resolved. Hence principles laid down in 35 C.L.J, page 339, have no appli-cation to the facts of this case. We hold, therefore, that the present petition for execution of the decree by the Dagas alone is competent and is maintainable in law.

6. The second point urged by Mr. Chakraborty is that after the dismissal of the First Appeal No. 152 of 1945 the decree of the trial Court which has been put to execution is merged in the decree of the appeal Court and the only decree that is executable is that decree of the appeal Court.

7. There are authorities in support of the propositions that after appeal the decree of the trial Court is merged in the decree of the appeal Court and the only executable decree is the decree of the appeal court [see Jowad Hossain v. Gendan Singh (2) (L.R 53 I.A 197), Gajadhar Singh v. Kishan Jiwan Lal (3) (I.L.R 39 All. 641), Syam Mondal v. Satinath Banerjee (4) (21 C.W.N 776), and the cases referred to in the notes under section 36 of the Code of Civil Procedure by Sir Dinshaw Mulla]. An examination of the authorities, however, shows that the court has applied the theory of merger in two classes of cases only, viz., for the purpose of determining the point of time when limitation would run and for the purpose of amending the decrees. It has been held that limitation would run from the date as provided in the decree of the Appeal Court and not that of the trial court and appeal court alone is competent to amend the decree even if the appeal court decree is a decree of dismissal of the appeal and confirmation of the decree of the trial court. The court has never applied the doctrine of merger for the purpose of defeating an execution petition of the decree of the trial Court when the appeal has been dismissed and the decree of the trial Court confirmed. Although it is true that technically the decree of the trial court merges in the decree of the appeal court, it cannot be said that even when the decree of the trial Court is affirmed in appeal, the decree of the trial Court is wiped out for all purposes. To apply the doctrine of merger in such cases would lead to palpably absurd and inequitable result. The decree-holder would be put to the inconvenience of filing a fresh petition for execution of the decree of the appeal court which is nothing but the same decree of the trial court and pursue the execution proceedings de novo. There could conceivably be no point in such senseless multiplicity of proceedings. Filing of the appeal does not operate as a stay of execution of the decree. On what principle can it be said that the dismissal of the appeal will operate as a dismissal of the pending execution case of the decree of the trial court, when the appeal court does nothing but dismiss the appeal and confirm the decree of the trial court? I can find none. No direct authority of this High Court on the point has been referred to us. But there are authorities of the other courts in support of the proposition that the fiction of merger should not be carried too far in cases like the present because it would lead to obvious injustice [see Syed Ekram Hussain v. Musammat Umatul Rasul* (5) (A.I.R 1931 Pat. 27), Saroop Narain v. Suraj Mohan Dayal (6) (A.I.R 1942 Oudh 84), Pateshwari Prasad Singh v. Abdul Karim (7) (A.I.R 1946 All. 496)]. Of these authorities the facts in the Oudh case are on all fours with the facts in this case. In the Oudh case as in this case during the pendency of the execution of the decree of the trial court an appeal was filed by the judgment-debtor and execution of the decree was stayed. After the dismissal of the appeal the stay order was vacated. Thereupon the decree-holder applied to the executing court to resume the execution proceedings. The judgment-debtor objected that the decree of the trial court was no longer executable and the only decree executable was the decree of the appeal court even though the decree of the appeal court was a decree affirming the decree of the trial court.

8. The Court consisting of Golam Hossan and Agarwal, JJ., overruled the objection and allowed the decree-holder to resume the execution proceedings of the decree of the trial court still pending. At page 86, their Lordships observed:

“We do not think that in a case where the appellate decree merely affirms the decree of the trial Court, and does not affect the terms of that decree in any way whatsoever, the fiction of merger should be carried so far as to lead to such a palpably absurd and inequitable result that the decree-holder should be put to the inconvenience of filing a fresh application in the Court which originally passed the decree, getting a fresh transfer certificate to another Court and pursuing the proceedings for execution in that Court. We are not prepared to hold that even where a decree of the trial Court has been affirmed by the appellate Court its result is to wipe out the decree of the trial Court for all purposes.”

9. With this observation we respectfully agree as also with the reasonings given by Fazl Ali, J., in A.I.R 1931 Patna 27 (Syed Ekram Hussain v. Musammat Umatul Rasul*) (5) (supra). Even if the revival of the pending execution proceeding after the dismissal of the appeal is considered to be bad it is only bad in form and is merely an error of procedure which is curable under section 99 of the Code of Civil Procedure [see Harilal Dalsukhram v. Mulchand Asharam (8) (A.I.R 1930 Bom. 225)]. We overrule the second point urged by Mr. Chakraborty in support of the appeal.

10. Mr. Purusottam Chatterjee appearing for the respondent contended that the appellant should not be permitted to raise the second point on two grounds—first the point was not taken in the petition of objection filed by the judgment-debtor and second that by reason of the Order No. 5, dated 1st March, 1951, directing execution to proceed which has not been set aside the judgment-debtor is debarred from agitating the question on principles of res judicata.

11. As regards the first point it is true that apart from taking the general ground that the decree is not executable, the point has not been taken in the objection petition. We find however from the paper-book, and it is the common case, that the appeal has been dismissed, the certified copy of which was filed in the executing court (see Order dated 28th February, 1951). Thus, the facts being admitted the question becomes a pure question of law which can certainly be taken for the first time in appeal. The first point of Mr. Purushottam Chatterjee therefore fails. In view of our decision on merit in favour of Mr. Purushottam Chatterjee's client, we need not decide the question of res judicata raised by Mr. Chatterjee. That disposes of all the points raised before us.

12. The result is that the appeal fails and is dismissed.

13. In the circumstances of this case, we make no order as to costs.

Guha, J.:— I agree.

P.S

Ratan Mala Mondal And Anr. v. Gopal Lal Daga And Ors.

Summary of Judgment — Mullick, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Mr. Nirmal Chandra Chakraborty)

Respondent's Arguments (Mr. Purushattam Chatterjee)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ratan Mala Mondal And Anr. v. Gopal Lal Daga And Ors.

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