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Shibbi v. Hardhian Singh
Factual and Procedural Background
The opinion concerns Musammat Shibbi's proceedings arising from execution proceedings and a prior suit (referred to as the suit of 1917). Musammat Shibbi applied under Order XXI, Rule 100 of the Code of Civil Procedure on the ground that she had actually lost possession in execution proceedings. The execution court dismissed her application on the ground that she had not lost possession. In the present proceedings she advanced an alternative plea: either she remains in possession and is entitled to a declaration, or she lost possession subsequent to the execution-court's order dismissing her Rule 100 application.
The appellants sought a decision on whether the present suit is barred by Section 47 of the Code of Civil Procedure (CPC) because of prior proceedings in which the plaintiff in the mortgage suit (Hardhian Singh) obtained a decree that, as regards Musammat Shibbi, denied relief to the plaintiff and awarded her costs. The lower appellate court had entered a decree which the present court has set aside and remanded for disposal on the merits.
Legal Issues Presented
- Whether Section 47 of the Code of Civil Procedure bars the present suit by Musammat Shibbi (i.e., whether the question now raised must be litigated in execution proceedings because it relates to the execution, discharge or satisfaction of the earlier decree).
- Whether the exemption of a party from a prior suit (or a dismissal as against that party) renders that party one against whom a fresh suit is barred under Section 47.
- Whether questions of title or other matters left open by the prior decree may be decided only in execution proceedings, or may be the subject of a fresh suit for a new decree.
Arguments of the Parties
Appellant's Arguments
- Musammat Shibbi asserted in her Rule 100 application that she had lost possession in execution proceedings; the execution court found otherwise. Her current plea is framed alternatively (either she still possesses and seeks a declaration, or she lost possession subsequent to the execution court's ruling).
- It was argued (by or on behalf of the appellant) that Section 47 does not bar the present suit and that precedents such as Krishnappa Mudaly v. Periaswamy Mudaly support the position that a person exempted or exonerated from a suit may not remain a party for the purposes of Section 47 when their claim was not adjudicated in the original suit; such claims can fall under Order XXI, Rule 100.
- The decision in Data Din v. Nanku was cited by the opposing side as authority for a broader proposition that Section 47 bars fresh suits where a remedy has been denied against a defendant by exemption or dismissal; the appellant sought to distinguish that authority (and other authorities) as not controlling for the present question.
The opinion does not contain a detailed account of specific arguments advanced by the respondent(s) in this excerpt.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Data Din v. Nanku | Cited as authority for the proposition that where a remedy has been denied to a plaintiff as against one defendant by reason of exemption or dismissal, Section 47 may bar a fresh suit against that defendant; and that questions relating to the decree should be litigated in the execution department. | The court considered and distinguished this decision. The judgment here explains that Data Din does not support the broader proposition that every second suit to obtain a new decree is barred by Section 47. In Data Din the facts involved an attempt to enforce an existing decree against persons who had been exempted, and the court held the matter belonged in execution (and was also barred by Section 11 in those facts). The present court found the precedent inapplicable to the present question. |
| Krishnappa Mudaly v. Periaswamy Mudaly | Holds that where a party to a mortgage suit who set up an adverse title was exonerated from the suit on the ground of misjoinder and his claim was not adjudicated, he does not remain a party for purposes of Section 47; and related petitions in respect of properties delivered in execution fall under Order XXI, Rule 100. | The court noted that the principle of Krishnappa Mudaly would partially support the appellant's case, but held that the ruling is not on all fours with the facts before the court and therefore it was unnecessary to rely upon it decisively in this case. |
Court's Reasoning and Analysis
The court's analysis is articulated by two judges whose opinions are reported in the excerpt.
Ashworth, J.:
- Observed that the present question does not concern the execution, discharge, or satisfaction of the decree obtained by Hardhian Singh in the mortgage suit; therefore Section 47 would not be a bar even if the prior order exempting the plaintiff amounted in effect to a dismissal of the suit as against her.
- Critically examined Data Din v. Nanku and concluded that although that decision was correctly decided on its facts, it did not support the broader proposition that a second suit to obtain a new decree would be barred by Section 47. In Data Din the subsequent suit was barred by Section 47 in the factual matrix, and the court noted that a second suit for a new decree in those circumstances would, in any event, have been barred by Section 11.
- For these reasons, Ashworth, J. would allow the appeal with costs.
Mukerji, J.:
- Expressly held that the present suit is not barred by Section 47 of the CPC. He conceded (without deciding) that the exemption of the present plaintiff from the 1917 suit could be treated as tantamount to dismissal against her, but emphasised the textual limit of Section 47: it applies only to questions "relating to the execution, discharge or satisfaction of the decree."
- Analysed the 1917 decree as to its content vis-à-vis Musammat Shibbi: the decree, so far as she was concerned, denied relief to the plaintiff (Hardhian Singh) and awarded her costs. She was not seeking to recover those costs in the present suit; rather she sought a decision on a question of title that had been left open in the 1917 suit. That title question could not be decided in the execution of the decree, given the nature and scope of that decree.
- Distinguished Data Din on the ground that in Data Din the subsequent litigation was directly about executing the old decree against persons who had been exempted and therefore belonged in the execution department; Data Din's facts also made Section 11 relevant. By contrast, the present question is not alleged to be based on a fresh cause of action that arises out of execution of the old decree.
- Considered but found Krishnappa Mudaly not directly on point: while it supports the appellant partially, the case was not on all fours and did not need further discussion for the decision reached.
- On these bases Mukerji, J. would allow the appeal, set aside the decree of the court below and remand the appeal to the lower appellate court for disposal on the merits.
Holding and Implications
Holding: THE APPEAL IS ALLOWED; THE DECREE OF THE LOWER APPELLATE COURT IS SET ASIDE; THE CASE IS REMANDED TO THE LOWER APPELLATE COURT FOR DISPOSAL ON THE MERITS.
Implications and immediate consequences:
- The lower appellate court's decree has been vacated and the matter is remitted for consideration on the merits (i.e., the merits of the appellant's claim must be decided by the lower appellate court on remand).
- Costs "here and hitherto" will abide the result (the opinion so directs).
- The court's reasoning clarifies the limited scope of Section 47 of the CPC as applying only to questions "relating to the execution, discharge or satisfaction of the decree." The decision distinguishes cases where issues are properly litigable only in execution proceedings (as in the facts of Data Din) from cases where a fresh remedy or adjudication on a matter left open by the prior decree may be sought in separate proceedings.
- No broader new principle of law purporting to expand Section 47 was asserted by the court in this excerpt; instead, the court applied and distinguished existing authority to the facts before it and remitted the dispute for adjudication on the merits.
Appeal allowed.
Ashworth, J.:— After stating the facts as above, thus continued:—
It is to be noted that Musammat Shibbi's application under rule 100 was based on her allegation that she had actually lost possession in execution proceedings. The execution court then dismissed her application on the ground that she had not lost possession. Her present plea is an alternative one. Either she is still in possession and is entitled, to a declaration or she has lost possession subsequent to the order of the execution court dismissing her application under rule 100 on the ground that she was still in possession. In my opinion the present question is not one that related to the execution, discharge or satisfaction of the decree obtained by Hardhian Singh in the mortgage suit and consequently section 47 will be no bar even if we consider that the order of the court exempting the plaintiff was in effect an order dismissing the suit against her.
The decision of a two Judge Bench of this Court, Data Din v. Nanku, has been cited to us as authority for holding that where in a previous suit a remedy has been denied to a plaintiff as against one defendant, by reason of the exemption of the latter or the dismissal of the suit against the latter, the plaintiff is barred by section 47 of the Code of Civil Procedure from bringing a fresh suit against the same defendant to obtain the remedy. The decision referred to, though in my opinion a correct decision, does not appear to me to be authority for this proposition. It was not held that a defendant exempted is a person against whom a suit is dismissed, but merely that the Judge had misused the term “exempted” in that particular decree. Again, in that case the plaintiff, after getting a decree and failing to execute it entirely by sale of the father's interest in the joint family property, applied to execute it against the sons (who had been exempted in the suit) for the balance. His application was rejected in the execution department. He then brought a suit for a declaration that he was entitled so to execute it. His application was held barred by section 47 of the Code and I think rightly so. It was not held that a second suit to obtain a new decree, like the present one, could be so barred. Obviously, in the circumstances of the case cited, such a second suit would have been barred by section 11, but it would not have been barred by section 47.
For the above reasons I would allow the appeal with costs.
Mukerji, J.:— [after stating the facts]:—
I am clearly of opinion that the suit is not barred by the provisions of section 47 of the Code of Civil Procedure. I am prepared to concede without deciding the point that the exemption of the present plaintiff from the suit of 1917 was tantamount to the dismissal of the suit as against her. But it is clear to me that the question now raised is not a question contemplated by section 47 of the Code of Civil Procedure. Section 47 does not apply to all sorts of questions that may arise between people who had once been parties to a decree. It applies only to questions that arise “relating to the execution, discharge or satisfaction of the decree,” to which the litigants are parties. Now let us consider what was the decree that was passed in the suit of 1917. It was to the effect that, the property was to be sold so far as Ramjas was concerned, the suit was to be dismissed and Musammat Shibbi was to get her costs. So far, therefore, as Musammat Shibbi was concerned with the decree it related only to a denial of relief to the plaintiff Hardhian Singh and an award of costs of Musammat Shibbi. Musammat Shibbi is not attempting to recover the costs by the present suit. She wants a decision on the question of title that was left open in the suit of 1917. That question must be decided. But it cannot be decided in the execution of the decree, the nature and the scope of which I have already described.
The case of Data Din v. Nanku has been cited before us as an authority for the proposition that the present question must be decided in the execution department. The facts of the case were briefly these. A mortgagor who had obtained a mortgage from a father of a joint Hindu family brought a suit against the executant of the mortgage and his sons for recovery of the money lent by sale of the property. The sons claimed that there was no legal necessity for the loan and urged that they were not liable to pay. In the result the sons were “exempted” and a simple money decree was passed against the father in his personal capacity. After the decree-holder had exhausted his remedy against the father, that is to say, sold the share of the father in the family property in execution of the decree, he sought to realize by execution the balance of the decree from the sons on the ground that the sons were liable to pay the balance on account of their pious obligation to pay their father's debt. The sons successfully objected, and then a suit was filed against them to obtain a declaration that they were liable under the decree already passed, and their property was liable to be taken in execution. Two learned Judges of this Court held that the question must be decided in the execution department and, therefore, the suit was dismissed. The question could be litigated only in the execution department. The question that was raised was not alleged to be based on a fresh cause of action and it had everything to do with the decree that was already passed. The case of the decree-holder was that there was a balance of debt left and the sons were bound to pay that. Further, it was his case that he could execute the old decree itself against the sons, because of their pious obligation. The suit was barred not only by section 47 of the Code of Civil Procedure but also by section 11 of the same Code. If the sons were liable to pay their father's debt on account of their pious obligation that was a plea which might and ought to have been taken by the plaintiff in the very suit which failed against the sons. This case has, therefore, no application.
The case of Krishnappa Mudaly v. Periaswamy Mudaly, lays down that to where a party to a mortgage suit who sets up a title adverse to both the mortgagor and the mortgagee has been exonerated from the suit on the ground of misjoinder and his claim has not been adjudicated upon in the suit, he does not remain a party to the suit for the purposes of section 47 of the Code of Civil Procedure and his claim petition in respect of properties delivered in execution of the decree to the decree-holder falls under order XXI, rule 100, of the Code.” This ruling is relied upon by the learned counsel for the appellant. Although partially the principle of the ruling would support the appellant's case it is not necessary to discuss it because it is not on all fours with the case before us.
For reasons given above I would allow the appeal, set aside the decree of the court below and rem rind the appeal to the lower appellate court for disposal on the merits.
By the Court.—We allow the appeal, set aside the decree of the lower appellate court under order XLI, rule 23, of the Code of Civil Procedure and remand the case to it for disposal on the merits. Costs here and hitherto will abide the result.
Appeal allowed.
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