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Jagdeo Sao And Others v. Basudeo Narain Singh And Others
Factual and Procedural Background
The decree-holders-respondents filed Title Suit No. 127/6 of 1949/1951 seeking declaration of their title and recovery of possession of 32.84 acres of land in village Daulatpore Basawanbigha. The plaintiffs claimed the land as their bakasht, while the defendants claimed possession based on cultivation settlements. The trial Court decreed the suit in favor of the plaintiffs, holding that the defendants had no right to possession and that some receipts produced by the defendants were fabricated. The decree was pronounced on 27-11-1951, but the formal decree was signed only on 5-12-1951.
On 28-11-1951, before the decree was formally drawn up, the decree-holders filed an application for execution seeking immediate delivery of possession. The executing Court passed an order on 29-11-1951 directing delivery of possession without issuing notice under Order 21, Rule 22 of the CPC, and possession was delivered on 30-11-1951. The judgment-debtors-appellants challenged this order contending lack of jurisdiction and premature execution.
Legal Issues Presented
- Whether execution proceedings can be initiated and possession delivered before the formal decree is drawn up and signed.
- Whether the executing Court had jurisdiction to order delivery of possession on 29-11-1951 in the absence of a signed decree.
- The applicability of Order 41, Rule 1(1) CPC provisions relating to appeal and whether they restrict execution prior to signing of decree.
Arguments of the Parties
Appellants' Arguments
- No execution is maintainable until the decree is formally prepared and signed.
- The executing Court lacked jurisdiction to order possession delivery on 29-11-1951.
- Until the decree was signed, the appellants had no right of appeal or to be subject to execution.
- Reliance on Order 41, Rule 1(1) CPC requiring a copy of the decree with the memorandum of appeal to assert that execution cannot precede signing of decree.
- Supported by precedents: Bai Divali v. Vishnav Manordas, Vamanacharya Ramacharya v. Govind Madhavacharya, Gela Ram v. Ganga Ram, and Ranjit Singh v. Ilahi Bakhsh, which concern rights of appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bai Divali v. Vishnav Manordas, 34 Bom 182 (A) | Right of appeal from judgment on some issues only | Held not applicable as it concerns appeal rights, not execution prior to decree signing |
| Vamanacharya Ramacharya v. Govind Madhavacharya, AIR 1924 Bom 33 (B) | Right of appeal from partial judgment | Distinguished on facts; concerned appeal rights, not execution |
| Gela Ram v. Ganga Ram, AIR 1920 Lah 395 (C) | Right of appeal | Not applicable to execution jurisdiction before decree signing |
| Ranjit Singh v. Ilahi Bakhsh, 5 All 520 (D) | Right of appeal | Also concerned appeal rights, not execution proceedings |
Court's Reasoning and Analysis
The Court distinguished the cited precedents, noting that they primarily dealt with the right of appeal rather than execution proceedings. It emphasized that under Order 21 of the CPC, which governs execution, the filing of a formal decree copy with the execution petition is not mandatory. The Court explained that the date of the decree is the date of the judgment, which confers decree-holder status and the right to execute from that date, even if the decree is signed later.
The Court highlighted relevant provisions of Order 21, Rules 10 to 14 and 17, noting that while the Court may require a certified copy of the decree, it did not do so here. The executing Court was the same that decided the suit and was fully aware of the facts, thus had jurisdiction to order immediate delivery of possession. The Court found no legal impediment to execution on 29-11-1951, prior to formal signing of the decree on 5-12-1951.
Holding and Implications
The appeal is dismissed with costs.
The Court upheld the executing Court's jurisdiction to order delivery of possession prior to the formal signing of the decree, confirming that a decree-holder's rights commence from the date of the judgment. The decision clarifies that execution proceedings may be validly initiated based on the judgment date without waiting for the formal drawing up of the decree. No broader precedent beyond the direct effect on the parties was established.
Rai, J.:— This appeal by the judgment-debtors is directed against the order dated 29-11-1951 passed by Mr. C.M Prasad, Additional Subordinate Judge, fifth Court of Patna.
2. In order to appreciate the points raised at the bar it is necessary to give some relevant facts of the litigation out of which the present appeal arises. The decree-holders-respondents filed Title Suit No. 127/6 of 1949/1951 for declaration of their title to and recovery of possession of 32.84 acres of land appertaining to khata No. 584 in village Daulatpore Basawanbigha bearing tauzi No. 964 of the Patna Collectorate. The plaintiffs claimed the land as their bakasht while the defts. claimed different areas out of the area in dispute as the lands settled with them for cultivation from time to time of which they were entitled to remain in possession. The trial Court decreed the suit holdings that the lands in dispute were really the bakasht lands of the plaintiffs and the defendants had acquired no right to remain in possession of the same. The relevant portion of the judgment of the trial Court dated 27-11-51 ran as follows:
“The whole case of the defendants regarding settlement, possession and grant of receipts is so full of material discrepancies and glaring contradictions that it cannot be accepted for a moment. I have no hesitation in holding that the purja receipts, Exts. C series, were fabricated at the instance of the tenant-defendants for the purpose of this litigation. The evidence on the record proves that with the advent of the new Bakasht law there was a ferment in the tenant world and they were imbued with the idea of grabbing the Bakasht lands of the landlords.”
3. The order portion of the judgment ran thus:
“Hence, it is ordered that the suit be decreed on contest against defendants 1 to 17 and ex parte against the rest with costs payable by the contesting defendants. Pleaders' fee at 10 per cent.”
4. On 28-11-1951, the decree-holders filed a petition for execution without a copy of the decree which had not been formally drawn up by then. On this application Execution Case No. 19 of 1951, of the Court of the Additional Subordinate Judge, fifth Court of Patna was started. In their application the decree-holders had given reasons for immediate delivery of possession to them. The application was considered on 29-11-1951 on which date the following order was passed by the executing Court:
“Issue delivery of possession as prayed returnable by 5-12-1951. I am satisfied for the reason stated in the petition supported by an affidavit that the issue of notice under O. 21, R. 22 be dispensed with.”
5. The delivery of possession was given on 30-11-1951. The decree was, however, subsequently drawn up and it was actually signed on 5-12-1951.
6. Mr. Girjanandan Prasad for the judgment-debtors-appellants contended that no execution was maintainable until the decree had been prepared and signed. He submitted that the executing Court had no jurisdiction to pass an order on 29-11-1951 for issue of writ for delivery of possession. According to his submission, until the decree was drawn up, nobody had either any right of appeal or any right of levying execution. In this connection he referred to the provisions of O. 41, R. 1(1) of the CPC which runs thus:
“Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded.”
7. The learned advocate for the appellants further contended that his clients could not have appealed until after 5-12-1951 when the decree was signed. But before such right had accrued in their favour the lands in their possession were taken away from them by the delivery of possession on 30-11-1951. This, according to him, was highly unjust. In support of his contention he relied upon the decisions in the cases of — ‘Bai Divali v. Vishnav Manordas’, 34 Bom 182 (A); — ‘Vamanacharya Ramacharya…Plaintiff v. Govind Madhavacharya…Defendant .’. A.I.R 1924 Bom 33 (B); — ‘Gela Ram v. Ganga Ram’, AIR 1920 Lah 395 (C) and — ‘Ranjit Singh v. Ilahi Bakhsh’, 5 All 520 (D).
8. In my opinion, the decisions relied upon by Mr. Girjanandan Prasad do not apply to the facts and circumstances of the present case. In the cases of — ‘Bai Divali v. Vishnav Manordas’ (A) and — ‘Vamanacharya Ramacharya…Plaintiff v. Govind Madhavacharya…Defendant .’, (B). the point for consideration was whether a litigant had right of appeal from the judgment on some of the issues only. In both the above mentioned cases their Lordships of the Bombay High Court came to the conclusion that the person aggrieved by the decision on some of the points involved in the suit had no right to appeal because the entire suit had not been decided. The other two decisions relied upon by Mr. Girjanandan Prasad also dealt with the right of appeal. In the present case, however, we are not actually concerned with the right of appeal. Order 41, R. 1 of the CPC no doubt makes it incumbent upon an appellant to file a copy of the decree appealed against along with the memorandum of appeal; but no such restriction appears to have been imposed by the provisions of O. 21 of the CPC which deal with the execution matter.
9. Order 21, Rr. 10 to 14 and 17 are some of the relevant rules dealing with the filing of an application for execution. Order 21, R. 10 of the CPC empowers the decree-holder to apply for execution to the court which passed the decree. The word “decree-holder” has been defined in Section 2(3) of the CPC. The definition runs thus:
“‘decree-holder’ means any person in whose favour a decree has been passed or an order capable of execution has been made:”
It is admitted on all hands that a decree bears the date of the judgment. On the wording of the order portion of the judgment of the present case, therefore, the present decree-holders were no doubt decree-holders on the date they filed the petition for execution. The decree may be signed sometimes later, but the right of the decree-holder under the decree commences from the date of the judgment which is the date of the decree. In my opinion, therefore, the plaintiffs-respondents had every right to file an application for delivery of possession on 28-11-1951. Order 21, R. 11(2) of the CPC provides the form in which an application for execution has to be filed. Column 3 requires only the date of the decree to be given. This can be supplied from the date of the judgment which is the date of the decree. Order 21, R. 11(3) of the CPC runs thus:
“The Court to which an application is made under sub-r. (2) may require the applicant to produce a certified copy of the decree.”
Order 21. R. 11 of the CPC, therefore, does not make it obligatory for the decree-holder to file a copy of the decree along with the petition of execution. Order 21, Rr. 12, 13 and 14 also do not require a copy of the decree to be filed along with execution petition. Order 21, R. 17(1) as amended by this Court runs thus:
“On receiving an application for the execution of a decree as provided by R. 11, sub-r. (2), the Court shall ascertain whether such of the requirements of Rr. 11 to 14 as may be applicable to the case have been complied with and, if they have not been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it and if the decree-holder fails to remedy the defect within such time the Court may reject the application.”
10. In the present case, however, the executing Court did not require the decree-holder to file a copy of the decree. The execution petition was filed before the same learned Subordinate Judge who had decided the case.
11. He was thoroughly aware of the facts and circumstances of the case and, if he considered that it was just and proper that immediate delivery of possession should be given, he had every jurisdiction to order for immediate delivery of possession. I agree with Mr. Lalnarain Sinha for the decree-holders that the executing Court had jurisdiction to pass the order under appeal.
12. The result is that the appeal fails and is dismissed with costs.
13. Sinha, J.:— I agree.
B/K.S.B
14. Appeal dismissed.
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