Citation Codes

Equivalent Citations

citation codes

Case Number

First Appeal No. 92 of 1932 (with First Appeal No. 293 of 1934)

Attorney(S)

P.N Nijsure, for the appellant.
W.B Pradhan, for the respondents.
G.S Gupte, for respondent No. 1.

Judges

Mr. Broomfield
Mr. N.J Wadia, JJ.

Acts

JUDICIAL OFFICERS PROTECTION ACT
section 258 of the Code of Civil Procedure (Order XXI, rule 2),
Order XXI, rule 2, of the Civil Procedure Code;
section 70, clause (2), of the Code,
Order XXI, rule 2,

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Smart Summary

Summary of Opinion — Broomfield, J. (with N.J. Wadia, J. concurring)

Factual and Procedural Background

The plaintiff-appellant obtained two decrees against the defendants (judgment-debtors):

Suit No. 102 of 1924: decree for Rs. 10,000 payable by annual instalments of Rs. 1,000. A darkhast (No. 1606 of 1927) was filed on 17 December 1927 to recover Rs. 3,217-9-0 and was transferred to the Collector for execution.
Suit No. 254 of 1923: decree for Rs. 14,500 payable by annual instalments of Rs. 2,000. A darkhast was filed on 17 August 1928 to recover Rs. 9,570 by sale of mortgaged property.

While execution proceedings on the first darkhast were pending before the Collector's subordinate, the parties allegedly agreed on an adjustment on 24 January 1929 (attended by the Mahalkari and the Sub-Registrar). The stated terms (as alleged by the respondents) were:

Defendants to convey two fields (survey Nos. 135 and 136) to the plaintiff for Rs. 14,500;
Rs. 1,500 to be applied towards darkhast No. 1606 of 1927 and Rs. 13,000 towards the second darkhast;
The remaining balance (including a separate Chalisgaon decree not yet in execution) to be paid by annual instalments of Rs. 1,000 commencing January 1930;
Defendants to pay off mortgages on the two fields and obtain possession from tenants.

The plaintiff disputes having consented to these terms. The plaintiff had been permitted to bid at an auction fixed for 22 March 1929. On 20 March 1929 defendant No. 1 executed a sale-deed (exhibit 57) selling another field to a third person, which deed recited the alleged adjustment. The defendants say the plaintiff initially accepted the arrangement but repudiated it late on 20 March; defendants then applied to the Subordinate Judge on 21 March 1929 alleging the adjustment. The Subordinate Judge conducted an inquiry, found that the adjustment had taken place, and passed orders in accordance with the adjustment. These orders gave rise to the present companion appeals.

Legal Issues Presented

Whether, after execution proceedings had been transferred to the Collector, the civil Court (here the Subordinate Judge) had jurisdiction to entertain the defendants' application, record an adjustment of decrees and stay the sale.
Whether the alleged agreement amounted to an "adjustment" within the meaning of Order XXI, Rule 2 of the Civil Procedure Code.
Whether the alleged agreement was proved.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

The Subordinate Court had no jurisdiction to entertain the defendants' application or to record any adjustment or stay the sale because execution proceedings had been transferred to the Collector.
The alleged agreement does not amount to an adjustment within the meaning of Order XXI, Rule 2 of the Civil Procedure Code.
The alleged agreement has not been proved.

Respondents' (Judgment‑Debtors') Position (as described in the opinion)

The defendants allege that on 24 January 1929 the parties agreed the adjustment detailed above and that the contract was formally completed.
They relied on the recital of the adjustment in exhibit 57 (a sale-deed executed by defendant No. 1 on 20 March 1929) as evidence of the adjustment and say the plaintiff accepted the arrangement until he repudiated it late on 20 March 1929.
They applied to the Subordinate Judge on 21 March 1929 to record the adjustment; the Court held an inquiry and found an adjustment had been made and passed orders in accordance with it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhagwan Das Marwari v. Suraj Prasad Singh	Held that the Collector is not a Court whose duty it is to execute a decree.	Used to support the proposition that the Collector is not the civil Court empowered to record adjustments under Order XXI, Rule 2, and thus the civil Court retains jurisdiction over powers not conferred on the Collector.
Balkrishnadas v. Malakajappa	Also held that the Collector is not a Court executing a decree.	Relied on to show precedent against the view that the Collector is a "Court whose duty it is to execute the decree."
Pita v. Chunilal (Sir Lawrence Jenkins)	Principle that powers not conferred on the Collector are exercisable by the civil Court.	Applied to conclude prima facie that the judgment-debtors' application to the civil Court was competent and that the Court had jurisdiction to record adjustments.
Muhammad Said Khan v. Payag Sahu	Held (per Burkitt, J.) that a joint application stating a decree had been adjusted was properly made to the Collector as being "the Court whose duty it is to execute the decree."	Discussed as an earlier conflicting authority; the opinion notes the decision's criticisms and distinguishes taking notice of an admitted adjustment from inquiring into a disputed one.
Reait-un-nissa v. Haji Muhammad Ismail Khan	Expressed an opposite opinion to Muhammad Said Khan (cited as a contrary view by another Judge of Allahabad High Court).	Referenced to show there exists contrary authority to Muhammad Said Khan.
Arjuna Bin Raghu v. Krishnaji	Referenced Muhammad Said Khan and observed underlying principle that there cannot be two Courts executing the same decree simultaneously.	Used to explain reasoning in Muhammad Said Khan and highlight difficulty reconciling conflicting authorities.
Bhurchand Hansraj v. Vira Champa	Held that the Collector has sole authority over the machinery for satisfaction of a decree, but does not have jurisdiction to determine whether a decree has been satisfied; that is for the civil Court.	Cited with approval to support the limit on the Collector's powers and to show that the civil Court alone can judicially determine whether a decree has been satisfied (i.e., whether an adjustment has extinguished execution). The opinion treats this as inconsistent with holding the Collector can recognise adjustments conclusively.
Khushalchand v. Nandram Sahebram	Approved Muhammad Said Khan and held that intimation of an adjustment to the Collector could amount to due certifying under section 258 (Order XXI, Rule 2); also observed that if a decree is satisfied, the Collector's powers cease.	Discussed to show an authoritative view that a Collector may be notified of an adjustment (especially when not disputed) but not as authority that the Collector may inquire into and determine disputed adjustments.
Abdul Shakur v. Muhammad Matin (Allahabad High Court)	Held that when a decree is transferred to the Collector, the Collector has absolute jurisdiction to choose the best method of raising money to satisfy the decree, but not to decide how much is due or how much of the decree has been satisfied.	Adopted to reinforce the limitation on the Collector's powers: the Collector may implement execution methods but cannot decide disputed questions about the quantum or satisfaction of the decree; this supports the Court's conclusion that the Subordinate Judge did not act without jurisdiction.

Court's Reasoning and Analysis

The opinion concentrates primarily on the first (jurisdictional) point raised by the appellant. The Court's analysis proceeded in these steps:

The Court identified the relevant statutory provisions: Order XXI, Rule 2 (relating to payment or adjustment of money payable under a decree and certification to the Court charged with execution), section 71 (which deems the Collector and his subordinates to be acting judicially when executing a decree transferred under section 68), and section 70(2) (stating that certain powers conferred on the Collector shall not be exercisable by the Court).
The Court observed that, although the Collector is "deemed" to be acting judicially for protection purposes, the Collector is not itself a civil Court whose duty it is to execute a decree; this conclusion is supported by authority (e.g., Bhagwan Das Marwari v. Suraj Prasad Singh and Balkrishnadas v. Malakajappa).
The Court relied on the principle in Pita v. Chunilal that powers not conferred on the Collector are exercisable by the civil Court. Because the power to record adjustments under Order XXI, Rule 2 is not conferred by rules on the Collector, it follows prima facie that the civil Court retains competence to entertain an application to record an adjustment.
The Court examined conflicting authorities. It acknowledged Muhammad Said Khan v. Payag Sahu and Khushalchand v. Nandram Sahebram, decisions which, in different contexts, supported the Collector receiving intimation of adjustments or recognizing them when admitted. The Court noted, however, that such authorities do not establish that the Collector can inquire into and finally determine a disputed adjustment.
The Court emphasized the distinction between (a) the Collector taking notice of an admitted adjustment and ceasing execution because the decree is satisfied (functus officio), and (b) the Collector or his officers deciding contested questions about whether an adjustment was in fact made. The latter remains within the province of the civil Court.
The Court further relied on Abdul Shakur v. Muhammad Matin (and Bhurchand Hansraj v. Vira Champa cited with approval) to reinforce that the Collector's jurisdiction, when a decree is transferred to him, is to select the best lawful method of raising funds to satisfy the decree, not to determine how much is due or whether the decree has been satisfied by agreement.
On this basis the Court concluded there were no grounds to hold that the learned Subordinate Judge acted without jurisdiction in entertaining the defendants' application to record an adjustment; consequently, the first (jurisdictional) ground of appeal failed.

The opinion records that "The rest of the Judgment is not material for the purposes of this report."

Holding and Implications

Holding:

APPEALS DISMISSED.

Implications:

The civil Court (here the First Class Subordinate Judge) was held to have been competent to entertain the defendants' application and to record the alleged adjustment because the power to record adjustments under Order XXI, Rule 2 was not a power conferred on the Collector by rules; therefore, where the fact of adjustment is disputed, the civil Court retains jurisdiction to inquire and decide.
The direct effect on the parties is that the orders made by the Subordinate Judge in accordance with the adjustment were upheld and the appeals were dismissed.
The opinion resolves the immediate jurisdictional dispute between the Collector's execution machinery and the civil Court by applying and distinguishing existing authorities; it does not purport to lay down a new broad precedent beyond the conclusions expressly stated. The Court confined itself to applying existing case law to the facts and concluded there was no ground to hold the subordinate Court acted without jurisdiction.

"Appeals dismissed." — per the reported opinion; N.J. Wadia, J. agreed.

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Shankar Atmaram Wani (Original Decree-Holder), v. Keshav Govind Tambulkar And Others (Original Judgment-Debtors),

Broomfield, J.:—

These are companion appeals in execution proceedings from the orders of the First Class Subordinate Judge at Jalgaon disposing of two darkhasts in accordance with an adjustment set up by the respondents—judgment-debtors. The facts of the case are somewhat complicated and must be set out at some little length.

The plaintiff-appellant got a decree in suit No. 102 of 1924 for Rs. 10,000 to be paid by annual instalments of Rs. 1,000. He filed a darkhast on December 17, 1927, to recover Rs. 3,217-9-0, the amount then due, by sale of the mortgaged property. This darkhast was No. 1606 of 1927 and it was transferred to the Collector for execution. The plaintiff had another decree in suit No. 254 of 1923 against the defendants. This was for the amount of Rs. 14,500 payable by annual instalments of Rs. 2,000. The darkhast for the execution of this decree was filed on August 17, 1928, to recover Rs. 9,570 by sale of the mortgaged property. The first of these darkhasts is the subject of First Appeal No. 92 and the second is the subject of the companion appeal. While the proceedings in the first darkhast were going on before the Collector's subordinate, it is alleged that there was an adjustment of these two decrees and also of a third decree obtained by the plaintiff against the defendants in the Chalisgaon Court, the execution of which had not been commenced at the time of the alleged adjustment. Originally January 4, 1929, was fixed for the sale of the property, but the plaintiff had made various applications for fresh panchnamas in connection with the valuation of the property. Finally he requested the Mahalkari, who was acting for the Collector, personally to inspect the property to be sold. Accordingly on January 24, 1929, the Mahalkari went to the defendants' house and saw the property to be sold. The Sub-Registrar was also present at the invitation of the defendants and, as I say, it is alleged that on that day the parties came to terms adjusting for three decrees. The alleged terms were that the defendants were to convey two fields (survey Nos. 135 and 136) to the plaintiff for the sum of Rs. 14,500. Out of this, Rs. 1,500 were to be taken in part payment of the amount due in darkhast No. 1606 of 1927, and Rs. 13,000 were to be taken in part payment of the amount due under the second darkhast. The balance remaining in respect of these two decrees and also the amount due under the decree of the Chalisgaon Court were to be paid by yearly instalments of Rs. 1,000 each, commencing from January, 1930. It was also agreed that the defendants were to pay off the mortgages on the two fields transferred to the plaintiff and were to obtain possession from the tenants who were in occupation.

It is agreed by both parties that there was a discussion about a compromise on these lines on January 24, 1929. The plaintiff says that he never consented to the terms but the defendants allege that he did consent and the contract was formally completed. Prior to this, the plaintiff had applied to the Collector for permission to bid at the auction sale. After some inquiry this permission was granted and the sale of the property was fixed for March 22, 1929. On March 20, 1929, two days before the date fixed for the sale, defendant No. 1 sold another field of his to one Dodhu by a sale-deed (exhibit 57). His case is that this was done in order to pay off the mortgages on the two fields which were agreed to be transferred to the plaintiff. The sale-deed—exhibit 57—contains a recital of the alleged adjustment of the plaintiff's decrees against the defendants. The defendants' case is that up till this time the plaintiff had accepted the arrangement which had been agreed to on January 24, 1929; but late on the evening of this day (viz. March 20), he suddenly changed his mind and repudiated the agreement. The defendants then made an application to the Subordinate Judge on March 21, 1929, alleging the adjustment of the decrees. The Court proceeded to hold an inquiry and held, after taking evidence, that the adjustment alleged by the defendants did actually take place. He thereupon passed orders in accordance with the adjustment, which have given rise to the present appeals.

The learned advocate who appears for the appellant-plaintiff has taken the following points: first, that as the execution proceedings had been transferred to the Collector, the Court had no jurisdiction to entertain the defendants' application or to record the adjustment of the decrees or to stay the sale; secondly, that the alleged agreement does not amount to an adjustment within the meaning of Order XXI, rule 2, of the Civil Procedure Code; and thirdly, that the alleged agreement has not been proved. The first point, which is the only one which had caused us any serious difficulty, was not taken in the lower Court nor does it find a place in the memorandum of appeal. Under Order XXI, rule 2, any payment of money payable under a decree out of Court, and any adjustment of the decree in whole or in part, has to be certified to the Court whose duty it is to execute the decree. section 71 of the code provides that in executing a decree transferred for execution under section 68 the Collector and his subordinates shall be deemed to be acting judicially. But the Collector is not a Court; if he were a Court it would not be necessary to make any such provision, the object of which is that the Collector and his subordinates may be entitled to the benefit of the provisions of the Judicial Officers Protection Act, XVIII of 1850. That the Collector is not a Court whose duty it is to execute a decree has been held in Bhagwan Das Marwari v. Suraj Prasad Singh and Balkrishnadas v. Malakajappa. In section 70, clause (2), of the Code, it is provided that the power conferred by rules on the Collector shall not be exercisable by the Court, but it is conceded that the power to record adjustments under Order XXI, rule 2, is not conferred by rules on the Collector. Powers which are not conferred on the Collector are exercisable by the Court, as held by Sir Lawrence Jenkins in Pita v. Chunilal. Prima facie, therefore, the judgment-debtors' application to the Court was competent and the Court had jurisdiction to make the orders appealed against.

Mr. Nijsure relies on Muhammad Said Khan v. Payag Sahu. There it was held by Mr. Justice Burkitt sitting alone that a joint application by a decree-holder and & judgment-debtor, stating that a decree had been adjusted, was properly made to the Collector as being, within the meaning of section 258 of the Code of Civil Procedure (Order XXI, rule 2), “the Court whose duty it is to execute the decree”. This decision was in 1894 and I may point out that in 1891 another Judge of the Allahabad High Court (Mr. Justice Mahmood) had expressed a directly opposite opinion—Reait-un-nissa v. Haji Muhammad Ismail Khan. Muhammad Said Khan v. Payag Sahu was discussed in Bhagwan Das Marwari v. Suraj Prasad Singh, and Mr. Justice Mukerji observed at page 224 that “all that was held by Burkitt, J., was that it was the duty of the Collector to execute the decree and he was, therefore, properly seized of the application for adjustment”. The view that the Collector is a Court for the purposes of section 258 was dissented from by both the learned Judges who decided this later case. Balkrisknadas v. Malakajappa is also a decision of a bench of this Court against the view. Muhammad Said Khan v. Payag Sahu has also been referred to in Arjuna Bin Raghu v. Krishnaji, where Mr. Justice Beaman said that the principle underlying Burkitt, J.'s decision appears to have been that there cannot be two Courts executing the same decree at the same time. Another Bombay decision which has been referred to is Bhurchand Hansraj v. Vira Champa, where it was held that the Collector is the sole authority so far as the machinery necessary for the satisfaction of the decree is concerned. In that respect the discretion is his and no civil Court can interfere with it. But that discretion does not extend to any jurisdiction in the Collector to determine whether the decree itself has been satisfied or not. That jurisdiction is the civil Court's. It is that Court alone which is competent to determine the question judicially. These observations are hardly consistent with the view that the Collector can recognise an adjustment under Order XXI, rule 2, of the Code.

On the other hand, Muhammad Said Khan v. Payag Sahu was approved of in Khushalchand v. Nandram Sahebram, where it was held on the authority of this case that the intimation of an adjustment to the Collector, who was in charge of the execution, amounted to a due certifying of the adjustment of the decree, which satisfied the conditions of section 258. It is by no-means easy to reconcile this case with Balkrishnadas v. Malakajappa, where it has been held that the Collector is not a Court executing a decree. But, even if we assume that the view taken in Muhammad Said Khan v. Payag Sahu and Khushalchand v. Nandram Sahebram is correct, it is one thing to hold that the Collector can take notice of an admitted adjustment but quite another to hold that he has power or that the Court has no power to inquire into the question as to whether there has been adjustment, if the fact is disputed. The Collector's powers are confined to the execution of a decree transferred to him. If the decree is adjusted, he is functus officio. That was one of the grounds for holding in Khushalchand v. Nandram Sahebram that the fact of an adjustment may be reported to the Collector. Mr. Justice Chandavarkar says at page 522 that:—

“When a decree-holder intimates to the Collector that his decree has been satisfied, and that the necessity for its execution by the Collector has ceased to exist, the Collector's powers under sections 322 to 325 also cease, because the very foundation of them, consisting in the fact of a decree which is alive and capable of execution, has disappeared.”

But Muhammad Said Khan v. Payag Sahu, whatever authority it may have in view of the criticisms of it in later in cases, is no authority nor is Khushalchand v. Nandram Sahebram any authority, for the view that the Collector can inquire into and determine whether a decree has been adjusted or not. In that connection I may refer to one other decision of the Allahabad High Court in Abdul Shakur v. Muhammad Matin. It was held there that when a decree of a civil Court is transferred to a Collector for execution, the Collector has to find out the best way of raising money in order to satisfy the decree. He has absolute jurisdiction to choose the best method allowed to him by the law. But beyond this it is not within his province to decide how much money is due to the decree-holder and how much of the decree has been satisfied. The case of Bhurchand Hansraj v. Vira Champa was cited with approval. It appears, therefore, that there are no grounds for holding that the learned Subordinate Judge acted without jurisdiction in entertaining this application. On the first point the appeal fails.

[The rest of the Judgment is not material for the purposes of this report.]

N.J Wadia, J.:—I agree.

Appeals dismissed.

J.G.R

Shankar Atmaram Wani... v. Keshav Govind Tambul...