Smt. Chapala Devi v. Rakhal Chandra Sen Gupta And Others

Choudhary, J.:— The facts leading to the presentation of this appeal, briefly stated, are these:

2. There was a building known as ‘Navin Kutir’ belonging to Shri Navin Chandra Dey. In the year 1936, a lease was granted to Shri Rakhal Chandra Sen Gupta by his sons and heirs, who are decree-holders 1 to 5. This lease was renewed on the 11th September, 1944, for a period of eight years and it ultimately expired in June, 1953. It appears that one of the heirs of Shri Navin Chandra Dey, namely, Bisheshwar Dey, who had 2/9th undivided share in the building, sold ⅓rd of that share by a sale deed, D/- the 16th June, 1948, to Shrimati Chapala Devi, decree-holder No. 6. Subsequently, the said Bisneshwar Dey sold his further ⅓rd undivided share out of his 2/9th share to the same Shrimati Chapala Devi by a sale deed in the year 1950. In July, 1953, there was a partition of the building in question and the portion marked Block E on the sketch map fell to the share of Bisheshwar Dey, representing his 2/9th share. Thereafter, on the 31st July 1953, Bisheshwar Dey executed a third sale deed in favour of Shrimati Chapala Devi with respect to his remaining ⅓rd share ost of his 2/9th share. Thus, Shrimati Chapala Devi became the owner of the entire 2/9th share in the building which, on partition, was represented by the said Block E of the sketch map. After the expiry of the lease, a proceeding for eviction was started by the decree-holders before the Rent Controller, which was allowed and a decree for eviction of the lessse was passed in favour of these decree-holders 1 to 6. In early 1956, the lessee, who is respondent No. 1 and who will hereafter be referred to as ‘the respondent’, filed Title Suit No. 23 of 1956 in the First Court of the Subordinate Judge at Patna for a declaration that the three sale deeds executed in favour of Shrimati Chapala Devi, who is the appellant in this court, were illegal and invalid and were not binding on him, and also for specific performance of the contract contained in the lease of the year 1944 giving a right of pre-emption to him. That suit was decreed in part and it was held that the first two sale deeds of 1948 and 1950 were invalid and not binding on the respondent, it was further held in that suit that the respondent was entitled to specific performance of contract in respect of the ⅔rd share of Bisheshwar Dey covered by the first two sale deeds on payment of the consideration money. The suit was, however, dismissed with respect to the third sale deed, dated the 31st July, 1953. Apparently, therefore, the appellant, according to this decree, retained an interest in the leasehold property to the extent of ⅓rd share conveyed to her by the third sale deed. In the suit a prayer was also made for permanently injuncting the appellant from taking delivery of possession of the building in question, but that prayer was not granted. An appeal against the above decree, being First Appeal No. 451 of 1961 has been filed in the Court, which is still pending. The respondent, however, deposited the consideration money on the 11th October, 1958, by a chalan (Ext. 2).

3. In the year 1957, however, all the six decree-holdars started execution of the decree for eviction passed by the Controller in Execution Case No. 155 of 1956 of the Munsif's First Court at Patna. In that execution, besides a prayer for eviction, a sum of Rs. 208/-, which was awarded as costs, was also sought to be realised. Sub-sequently, on the 27th March, 1957, the appellant filed Execution Case No. 278 of 1957 against the respondent for execution of the same decree of the House Controller by delivering possession of the leasehold building for the benefit of all the decree-holders under O. 21, R. 15 of the Code of Civil Procedure, inasmuch as, according to her, the other decree-holders were not showing due diligence in executing the decree in the former execution, case.

4. In the meantime, two of the decree-holders namely, Phanindra Nath Dev and Sudhir Kumar Dey, entered into compromise with the respondent and relinquished their right to execute the decree in their favour, and a part satisfaction of the decree was noted in the execution case. It further appears that both these decree-holders leased out their interest in the building to the respondent and recognised him as a tenant with respect to their interest in the building in question. It also appears that in the year 1957 the respondent instituted-Title Suit No. 37 of 1957 for a declaration that the eviction order passed by the Controller was invalid. That suit was dismissed by the trial court; but, on appeal by the respondent, which was numbered as Title Appeal No. 135 of 1960, the judgment and decree of the trial court was reversed and the suit was decreed declaring the eviction order to be invalid. A Second Appeal, being Second Appeal No. 322 of 1963, filed by the appellant is pending in this Court. After the decision of the said title appeal, the appellant has filed a fresh eviction case against the respondent, which is numbered as Title suit No. 70 of 1963 and is still pending in the Court below.

5. In both the execution cases aforesaid, separate objections under Section 47 of the CPC were filed by the respondent objecting to the execution mainly on the ground that the decree had become in-executable by reason of his acquiring the interest of the two decree-holders by a compromise and granting of a fresh lease and also on the ground that, by virtue of the decree in title suit No. 23 of 1956, the appellant could not execute the decree either in whole or for her share in the leasehold property.

6. So far as Execution case No. 155 of 1956 is concerned, that was dismissed, because one of the decree-holders, Bisheshwar Dey, died during the pendency of the execution case and all his heirs were not brought on the record, nor was any step taken for executing the decree for the benefit of those heirs of Bisheshwar Dey undar O. 21, R. 15 of the Code of Civil Procedure. We are, therefore, not concerned in this appeal with Execution Case No. 155 of 1956 or Miscellaneous Case No. 260 of 1957 arising out of that execution case. The only contest between the parties is now in Miscellaneous Case No. 213 of 1957 arising out of Execution case No. 278 of 1957.

7. The Executing Court overruled the objection raised on behalf of the respondent, and held that, unless, the appellant had been permanently restrained by the Court from taking possession of the building in question, she was entitled to execute the entire decree under O. 21 R. 15 of the Code of Civil Procedure. On appeal by the respondent, the lower Appellate Court held that the appellant was entitled to proceed with the execution case only against Block E of ‘Navin Kutir, as mentioned in her sale deed, dated the 31st July, 1953, subject to adjustment of equity in respect of the cost incurred by the respondent in making improvements in the building, and’ it further held that the other non-compromising decree-holders might separately proceed against the judgmant-debtor for eviction according to their specified blocks in the building, if the same was not barred by limitation or by any other provision of law. It, therefore, allowed the appeal in part and modified the order of the Executing Court accordingly. Being thus aggrieved, the appellant, Shrimati Chapala Devi, the applicant in Execution case No. 278 of 1957, has preferred this appeal. The Judgment-debtor-respondent has filed a cross-objection with regard to certain observations made in the judgment of the lower Appellate Court and also with regard to its decision in respect of Block E, raferred to above.

8. It may be mentioned here that, during the pendency of the appeal, the other non-compromising decree-holders, except the appellant, have entered into a compromise with the respondent, by virtue of which their interest in the decree has passed on to the respondent who is now entitled to the 7/9th share in the decree for eviction representing the shares of all the decree-holders, other than the appellant, in his own right.

9. Learned Counsel for the appellant has pressed an argument that, the decree being a joint decree and there being no specification of the shares of the different decree-holders under it, the appellant was entitled, in law, to execute the whole decree under O. 21, R. 15, of the Code of Civil Procedure for the benefit of all the decree-holders, notwithstanding any adjustment made between the judgment-debtor-respondent and some of the decree-holders. In other words, it has been contended that any adjustment made by some of the decree-holders and the respondent has to be ignored for the purposes of executing the decree by any one of the decree-holders under the above provision of law. On the other hand, Counsel for the respondent has submitted an argument that, by reason of adjustment between the respondent and some of the decree-holders, the entire decree became in executable, because the execution could not be said to be for the benefit of those decree-holders who have compromised and transferred their share in the decree to the judgment-debtor-respondent. It has been further contended on behalf of the respondent that, in view of the decree for specific performance of contract passed in Title suit No. 23 of 1956 as well as in view of the decree declaring the eviction order of the Controller to be invalid passed by the appellate Court in Title Appeal No. 135 of 1960, the decree for eviction from the building in question is no longer in existence and as such it cannot be executed. In my opinion, all these arguments advanced an behalf of both the parties are not legally valid and they cannot be accepted as correct.

10. So far as the contention of the respondent regarding the inexecutability of the decree by reason of the aforesaid two decrees is concerned, the argument may be overruled on the simple ground that against both these decrees appeals are pending in this Court, being First Appeal No. 451 of 1961 and Second Appeal No. 322 of 1963. Thus the questions involved in these two cases are still sub judice and are not therefore, final. The existence of these two decrees, therefore, cannot make the decree for eviction inexecutable.

11. In support of his argument that, notwithstanding the adjustment of the decree between the respondent and some of the decree-holders, the appellant is entitled to execute the whole decree under the provisions of O. 21, R. 15 of the Code of Civil Procedure. Counsel for the appellant has submitted that the executing Court had no jurisdiction to vary the terms of the decree and the decree had to be executed as it was passed. In support of this contention, reliance has been placed on the cases of Mihir Bose v. Jobada Khatun, 63 Cal WN 570, Jai Narain Ram Lundia v. Kedar Nath Khetan, 1956 SCR 62: ((S) AIR 1956 SC 359) and Anantalal Daga v. Debi Prasad, AIR 1959 Pat 258.

12. The facts of the case reported in 63 Cal WN 570, which is a Single Judge decision, were mostly similar to the facts of the present case. In that case the appellant Mihir Bose was a tenant under the seven respondents in respect of certain premises. A suit for eviction was brought against the appellant jointly by the seven respondents and the suit was decreed ex parte. The decree for possession which was passed in favour of the decree-holders was put into execution on behalf of all the decree-holders by their constituted attorney one Sheikh Abdur Rahman. Apart from other objections an objection was raised by the appellant to the execution of the decree on the ground that two of the decree-holders, namely, respondents 6 and 7, had adjusted the decree with the judgment-debtor and allowed him to continue as a tenant in occupation and they were receiving rent from him. It was contended that the remaining decree-holders were not entitled to khas possession of the disputed premises by evicting the appellant. This objection was allowed by the executing Court. But, on appeal by the five decree-holders, who were not parties to the alleged adjustment, the lower Appellate Court reversed the decision of the executing Court and directed that the execution of the decree would proceed in so far as it related to delivery of possession of the entire premises.

13. The judgment-debtor, therefore, preferred a second appeal in the High Court. In that case, it was, no doubt, held that, where a decree was passed for khas possession of the disputed premises by evicting the tenant, without any specification of the shares of the decree-holders, and the decree was a joint and indivisible one, such a decree could be adjusted only by the consent of the entire body of decree-holders, and not by some of them. It was further pointed out in that case that should such an adjustment at the instance of some of the decree-holders be recognised then the original decree for khas possession would be converted into a new decree for joint possession and it was not permissible for the Court to create such a new decree which should be at variance with the original decree. For reaching the above conclusion, his Lordship relied on a decision of the Bombay High Court in Valchand Gulchand v. Manekbai Hirachand, AIR 1953 Bom 137.

14. That was a case of adjustment of a money decree and it was held by their Lordships of the Bombay High Court that payment to one of the several joint decree-holders could not be recognised as a payment to all (unless he was authorised to receive such payment on behalf of all) and did not amount to a pro tanto satisfaction even to the extent of what was regarded to be a share in the decree of the decree-holder who received the payment. In an earlier case of the Calcutta High Curt, in Tarruck Chunder v. Divendro Nath, ILR 9 Cal 831 however, a judgment-debtor was given credit for a sum of money paid bona fide to one of the several joint decree-holders and duly certified to the Court by the latter. It was held in that case that the other Joint decree-holders were not competent to execute the decree for more than their shares. On the basis of this decision, his Lordship observed that to some extent there was a conflict between the case of the Bombay High Court, referred to above, and the Calcutta case where the decrees were for money.

15. Both the cases referred to above were with respect to joint decrees for payment of money and they have no application to a case where, on adjustment between some of the joint decree-holders and the judgment-debtor, the interest of those decree-holders had passed on to the judgment-debtor. But his Lordship took the view that a joint decree for khas possession of certain premises stood on a different footing from that of a decree for payment of money, and adjustment of a joint decree of this nature by some out of the entire body of the decree-holders is not valid in law. It was further held that the remaining decree-holders were entitled to execute the whole decree as it was originally passed. No reason has, however, been given for reaching this conclusion apart from the view taken by the Bombay High Court in the case referred to above. With utmost respect to the learned Judge who decided that case, I do not find my way to agree with that view.

16. In the case of Jai Narain Ram Lundia, 1956 SCR 62: ((S) AIR 1956 SC 359), a decree for specific performance of a contract to sell certain shares in a private limited company known as ‘Ganga Devi Sugar Mills’, together with five annas share in a partnership firm called the ‘Marwari Brothers’, on payment of a sum of Rs. 2,45,000/- was passed in favour of the plaintiffs. Subsequently, the partnership firm was dissolved by an agreement between the parties, including the plaintiffs and the defendants of the suit in which the decree for specific performance of the contract was passed. One of the defendants in that suit started execution of the decree to which an objection was raised that the defendant judgment-debtor was not in a position to perform his own part of the contract by selling the five annas share in the partnership firm as the same had been dissolved. A question arose as to whether, when the obligations the decree imposed on the parties were reciprocal and inseverable rendering partial execution impossible, the decree could be executed wholly as it stood or not at all. It was held by the Supreme Court that the case before their Lordships was not a case of two independent and severable directions in the same decree but of one set of reciprocal conditions indissolubly linked together so that they could not exist without each other.

17. That being so, it was held that the decree could not be executed unless the side seeking performance was ready and willing to perform his side of the bargain and was in a position to do so. As in that case the partnership firm had been dissolved, the defendant was not in a position to perform his own part of the obligation by selling the five annas share in the partnership firm. In that connection their Lordshiss observed that to hold otherwise would be to permit an executing Court to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole into distinct and divisible parts having separate and severable existence without any interrelation between them just as if they had been separate decrees in separate and distinct suits. The question whether, in case of any adjustment between some of the decree-holders and the judgment-debtor, the latter steps into the shoes of those decree-holders the decree could be executed in whole or in part was not under consideration in that case.

18. In AIR 1959 Pat 258, the question under consideration was whether by an agreement between the decree-holder and the judgment-debtor the latter could be made liable for interest subsequent to the date of the decree where the decree itself had not allowed such an interest. In that case a decree for realisation of money was passed against the judgment-debtor which could be executed at once, but by agreement between the parties the decretal dues were allowed to be paid by instalments for a long, period in consideration of the judgment-debtor agreeing to pay interest subsequent to the date of the decree. It was held that such an agreement was valid. In that connection it was observed that the position might be different if the stipulation for interest was made for the period prior to the date of the decree which would really amount to introduction of a new decree in place of the old one which could not be permitted to be done by agreement between the parties in an execution proceeding. The question that arises for consideration in the present case was not the subject-matter of consideration in that case.

19. Reference has also been made to a Bench decision of this Court in Kumaid Kumar Singh v. Amar Nath Singh*, AIR 1943 Pat 10, by the learned Counsel for the appellant in support of his contention. In that case a joint decree was passed in favour of a joint Hindu family. There was a payment by the judgment-debtor to one of the members of the family who was neither the Karts nor an agent of the family. It was held that the payment did not operate as satisfaction wholly or in part of decree or of the share of that particular member in the decree. In that case also, the question as to the effect of the adjustment between some of the decree-holders and the judgment-debtor under which the interest of those decree-holders in the decree vested in the judgment-debtor was not under consideration.

20. These cases, therefore, have no application to the present case, the facts of which are materially different from these of these cases. The contention raised on behalf of the appellant in this regard, therefore, must be overruled.

21. The contention raised on behalf of the learned/Counsel for the respondent that, in view of the adjustment referred to above, the decree became entirely in executable has also not been substantiated. No authority has been cited in support of this contention, nor has our attention been drawn to any principle of law under which the execution can be refused altogether. The above contention, therefore, also fails.

22. Learned Counsel for the respondent has, however, taken the stand of supporting the judgment and order of the lower Appellate Court and has submitted an argument that the adjustment between some of the decree-holders and the judgment-debtor whereby the judgment-debtor steps into the shoes of those decree-holders should legally be taken as satisfaction pro tanto of the decree and the appellant in this case could execute the decree for eviction with respect to her share only in the lease-hold property. In support of this argument, he has relied on the cases of Hurrish Chunder v. Kali Sundari, 10 Ind App 4 (PC) Kudhai v. Sheo Dayal, ILR 10 All 570 and Periasami v. Krishna Ayyan, ILR 25 Madras 431.

23. In the Privy Council case, 10 Ind App 4 (PC), each of the two plaintiffs was entitled to recover a moiety of certain estate in possession of the defendant and the defendant purchased the share of one of the plaintiffs. It was held that the decree could be executed in part by the co-plaintiff according to the extent of her interest in the estate under the decree. In connection therewith their Lordships made the following observation:

“They are unable to subscribe to the doctrine that a decree can only be executed as a whole and not partly by one of the plaintiffs—a doctrine which, as pointed out by the High Court, would lead to the consequence that a Defendant could prevent the execution of a decree by buying the interest of one of the plaintiffs”.

24. The above observation applies on all fours to the facts of the present case where the judgment-debtor has stepped into the shoes of some of the decree-holders having acquired their interest in the joint decree.

25. In the Allahabad case, (ILR 10 All 570), it was held by Mahmood, J. that where subsequent to a decree a portion of the rights to which the decree relates devolves either by inheritance or otherwise upon the judgment-debtor, or is acquired by him under a valid transfer the decree does not become incapable of execution, but is extinguished only pro tanto. It was further held that this rule of law is sufficiently general to comprehend alike cases in which the decree is for money only and where it is for immoveable property. The appreciation of the above principle of law was illustrated by his Lordship in the following words:

“……….where A and B obtain a decree for possession of a house or other immoveable property against C, and C purchases or inherits the rights and interests of A in such property, the decree is extinguished pro tanto, though the remaining decree-holder B can, of course, execute the decree in respect of his own share”.

26. The same principle was accepted in the Madras case, (ILR 25 Mad 431 (FB)), which is a Full Bench decision. It was observed in that case that a joint decree may, no doubt, sometimes become divisible and executable in part, to the extent of such severance, when by operation of law or by act of parties, the judgment-debtor as acquired the interest of one or some of the joint decree-holders in the decree, and thus a partial satisfaction or extinguishment of the decree takes place.

27. In view of these decisions, even the learned Counsel for the appellant had to concede that the appellant was entitled to execute the decree for her share only which, as already observed, was represented by block E in the leasehold building. The judgment and order of the lower Appellate Court with respect to this matter is, therefore perfectly correct and justified and has to be maintained.

28. The next point taken by learned Counsel for the appellant is with respect to the order of the lower Appellate Court requiring the appellant to pay to the respondent the cost of improvement made by him as a condition precedent to her right to execute the decree as against block E. It has been submitted that, though an objection in this regard was taken by the respondent in his objection petition under Section 47 of the CPC, it was not pressed in the Court of first Instance and even in appeal before the lower Appellate Court no ground was taken in this regard. It has been contended, therefore, that the Appellate Court committed an error in passing such an order. In this connection he has also referred to the right and liabilities of a lessee under Section 108 of the Transfer of Property Act. Clause (h) of that section provides that the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth: provided he leaves the property in the state in which he received it.

29. Clause (m) lays down that the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left. In a Full Bench decision of this Court, in Bastacolla Colliery Co. Ltd. v. Bandhu Beldar, 1960 BLJR 245 : (AIR 1960 Pat 344), it was pointed out that Section 51 of the Transfer of Property Act provides for payment of compensation in case of eviction of a person who makes improvements on a property while believing in good faith that he is absolutely entitled to it but is subsequently evicted from it by a person who has a better title. A lessee can newer believe in good faith that he is absolutely entitled to the lease-hold property. It was held in that case that the defendants were not entitled to any compensation, but were entitled to remove their structures and materials. In my opinion, the submission put 1 forward by the learned Counsel for the appellant with respect to the matter of compensation is well-founded and must prevail. The order of the lower Appellate Court with respect to payment of compensation, therefore, has to be set aside.

30. Learned counsel for the decree-holders respondents 3 and 5 has taken a point that the appeal abated as a whole inasmuch as decree holder respondent No. 2, Phanindra Nath Dey, had died on the 22nd July, 1963, leaving certain heirs, but they were not brought on the record by substitution. Admittedly, by this time, the interest of all the joint decree-holders in the decree for eviction, except the appellant, has vested in the judgment-debtor who has stepped into their shoes. The decree-holder respondent No. 2 had, therefore, no interest left in the decree under execution. He was not, therefore, even a necessary party in the appeal. The appeal has not, therefore, abated.

31. The cross-objection, as already observed, has been filed by the respondent with respect to certain observations made by the lower Appellate Court in the judgment as well as with respect to the order of the lower Appellate Court allowing the appellant to proceed in execution against block E of the building in question. No argument has been pressed with respect to any observation. The order regarding execution as against block E has not also been questioned in view of the stand taken by the counsel for the respondent in the appeal supporting the judgment of the lower Appellate Court on that point. The cross-objection, therefore, has to be dismissed.

32. For the reasons given above, I hold that the Judgment and order of the lower Appellate Court directing the appellant to proceed in execution against block E is a correct and justified order and must be maintained. The order of the lower Appellate Court regarding the working out of equities with respect to the payment of cost of improvement is not maintainable and is set aside. In other words, the appellant will be entitled to proceed in execution against block E of ‘Navin Kutir’ without being liable to pay any cost for the improvements made in the leasehold building by the respondent. The result, therefore, is that the appeal is allowed in part and the judgment and order of the lower appellate Court is modified to the extent indicated above. The cross-objection is dismissed. In the circumstances of the case, there will be no order as to costs.

Ramaswami, C.J:— I agree.

DH/VSB/D.V.C

33. Appeal allowed in part.