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(Kunwar) Jang Bahadur v. Bank Of Upper India, Ltd., Lucknow, In Liquidation
Factual and Procedural Background
The respondents obtained a decree absolute for sale on a mortgage against Raja Durga Prasad (since deceased) in the Court of the Subordinate Judge of Lucknow. Because the property was situated in the district of Hardoi, the Lucknow Court sent the decree for execution to the Subordinate Judge of Hardoi under section 39, Civil Procedure Code, 1908. The respondents commenced execution proceeding No. 175 of 1916 in the Hardoi Court.
The judgment-debtor died on 23 April 1920. On 25 May 1920 the respondents petitioned the Hardoi Court to substitute Raja Durga Prasad's eldest son, Kunwar Jang Bahadur (the appellant), as the legal representative and to proceed against him. The Subordinate Judge of Hardoi issued notice and, on 4 August 1920, ordered substitution of the appellant on the record of the execution proceeding. On 10 August 1920 an order was made directing amendment of the execution application and transmission of papers to the Sale Officer at Hardoi for sale proceedings.
During the sale proceedings the appellant repeatedly objected and obtained postponements (e.g., 21 February 1921 and 20 January 1923) on terms including a promise not to raise certain objections later. On 10 April 1924 the appellant, for the first time after three years of proceedings, petitioned the Sale Officer that the sale proceedings were illegal and without jurisdiction because his name had not been entered in the decree by the Lucknow Court in accordance with section 50, Civil P. C. The Sale Officer referred the question to the Subordinate Judge of Hardoi, who on 22 April 1924 rejected the application for further postponement and to discontinue execution. An appeal to the Court of the Judicial Commissioner of Oudh was dismissed, and the present appeal challenges that dismissal.
Legal Issues Presented
- Whether, under section 50, Civil Procedure Code, 1908, the application to substitute the legal representative of a deceased judgment-debtor must be made exclusively to the Court which passed the decree (Lucknow) rather than to the Court to which the decree was sent for execution (Hardoi).
- Whether the order of 4 August 1920 substituting the appellant in the Hardoi Court was a nullity such that subsequent proceedings in Hardoi were coram non judice and void.
Arguments of the Parties
Appellant's Arguments
- The application to substitute the appellant as legal representative should have been made to the Lucknow Court which passed the decree, in accordance with section 50, Civil P. C., 1908; the Hardoi Court lacked jurisdiction to make the substitution.
- The substitution order dated 4 August 1920 was therefore a nullity and all subsequent proceedings in the Hardoi Court were coram non judice and void.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sham Lal Pal v. Madhu Sudan Sircar [1895] 22 Cal. 558 | Application under the corresponding provision (S. 234 of Code of 1882, now S. 50) regarded as a mere matter of form or procedure. | The court cited this decision to support the view that the requirement to apply to the Court which passed the decree is procedural (form) rather than conferring exclusive jurisdiction. |
| Amar Chandra v. Guruprosonno [1900] 27 Cal. 488 (493 | Explanation (by Banerjee, J.) that the substitution provision is procedural in character. | Used as authority explaining the procedural nature of the substitution requirement and to reconcile differing decisions. |
| Swami Nath Ayyar v. Vaidya Nath Sastri [1905] 28 Mad. 466 : 15 M.L.J. 116 (F.B | Held that an irregular order of substitution by the Court to which the decree had been sent for execution could not be cured by S. 578 of the then Code where objection was taken (no waiver existed). | The court relied on this to explain that procedural defects may not be cured where there has been a timely and specific objection; conversely, absence of objection and acquiescence can amount to waiver. |
Court's Reasoning and Analysis
The court examined the wording of section 50, Civil P. C., 1908 ("Where a judgment-debtor dies before the decree has been fully satisfied the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased") and traced the insertion of the words "which passed it" into earlier codes. The critical question was whether those words confer exclusive jurisdiction on the Court which passed the decree or merely prescribe the procedure as to which Court an application for substitution should be made to.
The court analyzed the statutory scheme governing transfer of decrees for execution (section 39, and the role of the Court of transfer under section 41). It observed that when a decree is transferred for execution the Court of transfer obtains jurisdiction to deal with that particular execution proceeding and retains such jurisdiction until it certifies to the Court which passed the decree that the decree has been executed or sets out the circumstances of failure to execute.
If the judgment-debtor dies before such certification, the Court of transfer does not lose jurisdiction over the execution proceeding, and the execution does not abate. However, before execution can proceed against the legal representative the decree-holder must obtain an order for substitution from the Court which passed the decree — this requirement is procedural, not a matter of substantive jurisdiction. The court emphasized that jurisdiction over the subject-matter continues in the Court of transfer but that a particular procedure is prescribed for exercising that jurisdiction.
The court further held that non-compliance with the prescribed procedure may be waived. A party who has acquiesced in the Court of transfer exercising jurisdiction in a certain way cannot later challenge the legality of those proceedings. Applying these principles to the present facts, the court noted that the appellant did not dispute his status as legal representative, had repeatedly engaged with and obtained postponements from the Hardoi Court and Sale Officer, and had thus acquiesced for a considerable period. Consequently, he could not invoke the procedural defect belatedly when the property was about to be sold.
Holding and Implications
APPEAL DISMISSED (with costs, as advised to His Majesty).
Implications:
- The Hardoi Court lawfully retained jurisdiction to deal with the execution proceeding transferred to it; the requirement in section 50 to apply to the Court which passed the decree is a procedural rule rather than a grant of exclusive substantive jurisdiction.
- A failure to follow the procedural prescription (application to the Court which passed the decree) may be waived by acquiescence; where the judgment-debtor's representative has submitted to the Court of transfer for a considerable time, he cannot later challenge the proceedings as void.
- The decision reconciles differing authorities by treating substitution as procedural and recognizing that timely objection may prevent waiver, whereas prolonged acquiescence will bar later challenge. The direct effect is that the execution in Hardoi was properly continued against the appellant and the appeal was dismissed; the opinion does not purport to establish a new expansive precedent beyond this interpretation and application of the existing authorities cited.
Sir Lancelot Sanderson. -
This is an appeal from an order of the Court of the Judicial Commissioner of Oudh, which confirmed an order of the Subordinate Jude of Hardoi, dismissing the appellant's application that the proceedings in execution of the respondents' decree against him should be discontinued.
The facts are simple. The respondents obtained a decree absolute for sale on a mortgage against Raja Durga Prasad (since deceased) the father of the appellant, in the Court of the Subordinate Judge of Lucknow. As the property which the decree-holder sought to sell under that decree was situate in the district of Hardoi, the Subordinate Judge of Lucknow, who passed the decree, sent it for execution to the Court of the Sub-Judge of Hardoi under S. 39, Civil P. C., 1908, and the respondents in due course started an execution' proceeding No. 175 of 1916 in the Hardoi Court.
The judgment-debtor then died on 23rd April 1920. On 25th May following the respondents filed a petition in the Hardoi Court, stating therein the fact of the death of Raja Durga Prasad, and praying that in the place of Raja Durga Prasad (deceased) the name of his eldest son, Kunwar Jang Bahadur, be brought on the record as his representative, and that execution proceedings be taken against the said representative. The Subordinate Judge do Hardoi entertained the application and issued a notice to the appellant. No cause being shown, an order was made on 4th August 1920, substituting the appellant in the place of his deceased father upon the record of the execution proceeding.
On 10th August 1920, the Sub-Judge of Hardoi made the following order :
In this case, Kunwar Jang Bahadur's name having been substituted for that of Raja Durga Prasad, the deceased judgment-debtor, an amendment be made in the execution application and the Register, and papers be sent to the Court of the Sale Officer; Hardoi, for sale proceedings.
During the sale proceedings the appellant made various objections from time to time both in the Court of the Subordinate Judge and of the Sale Officer (the Collector of the District). Amongst others on 21st February 1921, he obtained a postponement of the sale for two months on the allegation that he wanted to effect a private sale of the property, and promised through his pleader not to put forth any objections relating to the proclamation or any other objection on the next date. The sale was postponed as the decree-holder's pleader accepted the terms offered. A postponement on similar terms was also obtained on 20th January 1923,
After the proceedings had been pending for 3 years, the appellant for the first time put in a petition before the Sale Officer on 10th April 1924, that the sale proceedings were illegal and without jurisdiction, inasmuch as the decree-holder did not get the name of the appellant entered in the decree of the Court executing the same, in accordance with the provisions of S. 50, Civil P. C. The Sale Officer referred the matter to the Civil Court, i. e., the Subordinate Judge of the Court of Hardoi, where the same petition was repeated. On 22nd April 1924, the Subordinate Judge rejected the application for further postponement of the sale and to discontinue the execution proceeding. Against that order there was an appeal to the Court of the Judicial Commissioner, which confirmed the order of the Sub-Judge and the present appeal is against the last order.
It is argued that, though the execution proceeding was pending before the Hardoi Court, when the judgment-debtor. Rajah Durga Prasad died, the application to substitute the appellant in his place as his representative could only be made to the Lucknow Court which passed the decree; and that the Hardoi Court had no jurisdiction to make that order.
Obviously, there are no merits in this appeal. It was not suggested at any stage that the appellant was not the legal representative of the deceased judgment-debtor nor was it denied that by the various applications he made to the Hardoi Court he had acquiesced in its jurisdiction until the last moment when the property was being actually put up for sale.
But it is argued that the order of 4th August 1920. substituting the appellant in place of his father was a nullity and that all proceedings subsequent thereto in the Hardoi Court were Coram non judice and as such void.
Section 50, Civil P. C., 1908, is relied upon in support of the argument that the Lucknow Court alone was competent to make the order for substitution.
There is an apparent divergence of opinion among the different High Courts in India on this question. It has been held by the High Courts of Bombay, Allahabad and Madras that the application for execution in such a case should be made to the Court which passed the decree, and that the Court to which the decree is sent for execution is not competent to entertain the application and make an order of execution against the legal representative. On the other hand it has been held by the High Court of Calcutta that an application for substitution if made in such a case to the Court to which the decree is sent for execution, is nothing more than an irregularity which would be cured by the provisions of S. 578 of the Code of 1882
The question turns upon the construction of S. 50, 'Civil P. C. 1908, Cl.(1), which is as follows:
Where a judgment-debtor dies before the decree has been fully satisfied the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
Now, the words "which passed it" were not in the corresponding section (viz., S. 208, Civil P. C., 1859, but were inserted in S. 232 of the Code of 1877 and have been since continued in S. 232 of the Code of 1882 and S. 50 of the Code of 1908.
The question is, was the effect of the introduction of those words to confer an exclusive jurisdiction on the Court which passed the decree in the matter of substitution or merely to lay down a rule of procedure as to, to which of the two Courts an application for substitution should be made?
In order to decide that question, it is necessary to examine the provisions of the Code as to execution when a decree is transferred. Under Cl. (C) of S. 39, of the Code of 1908, a decree, directing the sale of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, may be transferred for purposed of execution to the Court within whose jurisdiction the property is situated. On such transfer the former Court does not altogether lose season of the decree. But the Court of transfer obtains jurisdiction to deal with that particular execution proceeding and retains such jurisdiction until such execution is withdrawn or stayed or until it certifies to the Court which pa sed the decree either that the decree has been executed or if it fails to execute the decree, the circumstances attending such failure (S. 41).
If the judgment-debtor dies, before any such certificate is issued, the Court of transfer does not lose its jurisdiction over the execution proceeding, which does not abato by reason of the death. But before execution can proceed against the legal representative of the deceased judgment-debtor, the decree-holder must get an order for substitution from the Court which passed the decree. This is matter of procedure and not of jurisdiction. The jurisdiction, over the subject matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived; and the party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings.
Looked at from this point of view there does not appear to be any real conflict between the different decisions in India. In the case of Sham Lal Pal v. Madhu Sudan Sircar [1895] 22 Cal. 558, the application under S. 234 of the Code of 1882 (now S. 50) was regarded as mere matter of form, i. e , of procedure, as explained by Banerjee, J., in Amar Chandra v. Guruprosonno [1900] 27 Cal. 488 (493). Similarly in the case of Swami Nath Ayyar v. Vaidya Nath Sastri [1905] 28 Mad. 466 : 15 M.L.J. 116 (F.B.), when the case came on for final hearing, after the decision of the point referred to the Pull Bench, Sir Arnold White, C. J. and Subramania Ayyar, J., held that the irregularity involved in the order for substitution having been made by the Court to which the decree had been sent for execution could not be cured by virtue of S. 578, of the then Code "as objection was taken by the appellants to the application being entertained by the Court." In other words, there had been no such waiver as would cure a defect in procedure, though no waiver could confer jurisdiction where none existed.
After consideration of all the circumstances of the case under appeal, their Lordships come to the conclusion that the Hardoi Court had jurisdiction to deal with the matter of the execution transferred to it; that the exercise of such jurisdiction as against the appellant, though irregular in the first instance, was submitted to for a considerable time by him. He cannot now be heard to object to the exercise of such jurisdiction and it would be to permit a gross abuse of procedure if he was allowed to do so.
Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.
Appeal Dismissed.
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