Maharaj Bahadur Singh v. Inder Chand Bothra

1. This is an appeal from the judgment of Mr. Justice Chitty, whereby he allowed the application of Inder Chandra Bothra to be at liberty to proceed with the sale of premises No. 58 Burtolla Street in the town of Calcutta, attached in execution of the decree in question. In order to state the point it is necessary to examine the facts. It appears that on the 19th of June 1896 one Kapoor Ghand Kharar obtained a decree against Maharaj Bahadur Dhunput Singh for Rs. 13,150. The application in this case was made by the holder of the assignment from the sons of the original creditor and the opposite parties are the sons of the original debtor. On the 18th of May 1907, an application was made by the son of the decree-holder for transmission of the decree to the District Court of Murshidabad for the purpose of having the decree executed. On the 28th of August 1907, an order for transmission was made by Mr. Justice Harington. The matter came before Mr. Justice Harington in this way. It appears that the matter having come before the Registrar, an objection was taken that no succession certificate had been produced by the applicant, and the Registrar consequently referred the matter to Court, and Mr. Justice Harington was the learned Judge who disposed of it. The facts are stated by Mr. Justice Chitty in his judgment. Having stated that notice was duly served and that a question arose as to whether Surajmull required a succession certificate before he could be allowed to execute the decree, he says:

"The matter was referred to the Judge in Chambers by consent of both parties and on the 23rd of August 1907 Mr. Justice Harington passed an order under Section 248 against Maharaj Bahadur Dhunpat Singh as the legal representative of the deceased judgment-debtor."

That decree was not transmitted, and, on the 4th of September 1907 an application was made by the same parties for the attachment and sale of certain premises in Calcutta, namely, No. 58 Burtolla Street. In the application it was stated that the property was inherited by Maharaj Bahadur Singh as the sole heir under the Mitakshara Law from the deceased defendant Rai Dhunput Singh Bahadur. In respect of that application no notice was issued to the representatives of the deceased judgment-debtor, the Registrar in his order expressing the view that no notice was necessary either under Section 232, Civil Procedure Code, or under Section 248(a),Civil Procedure Code, the decree having been transferred to the applicants by operation of law and the Court having in a previous application ordered execution against the same person as legal representative of the deceased judgment debtor. On the 17th of September an attachment was made of the property in Calcutta, and on the 29th of July 1908 an order for sale was made. Both these orders, as I understand, were made without notice to the representatives of the deceased judgment-debtor. After that, apparently, the holders of the decree changed their mind; they did not proceed with the order for sale, but another application was made for transmission of the decree, and that was made on the 25th of August 1908. The Master, dealing with this application in the ordinary course, made an order that the decree should be transmitted. On the 17th of May 1909 the learned District Judge of Berhampur returned the decree to the High Court with a note that the matter had been dismissed for want of prosecution. Then on the 12th of March 1910 the holder of the decree applied to proceed with the order of 29th of July 1908 which, it will be remembered, was the order for the sale of the premises in Calcutta Then on the 21st of April 1910 the Master made an order for the sale of the premises, and it will be noted that that order was made when the Master was acting under the old rules of the Code, the new rules, as pointed out by the learned Advocate General, not having come into force until the 15th of April 1914. I might incidentally mention here---although I do not think it is necessary for my judgment in this case as at present advised---that that order of the Master would be without jurisdiction.

2. The property was advertised for sale and a date was finally fixed for the sale of the property on the 25th of August 1914. Then the representative of the judgment-debtor came upon the scene again and applied to have the attachment of September 1917 set aside on the ground that the property was trust property: and---as (sic) understand---the application was made in his capacity as trustee. Then the holder of the decree came upon the scene again, and upon his application the sale was adjourned sine die. That was in August 1914. Nothing happened then until two years later, when on the 29th of August 1916 the present applicant, Inder Chand Bothra, having obtained an assignment of the decree from the sons of the decree-holder made this application to the Court, and, as I have already stated that was an application for leave that he might be allowed to proceed with the sale of the said attached property in terms of the order of the 29th July 1914. Now, those are all the facts---which I think necessary to state for the purpose of my judgment. The matter really is within a narrow compass.

3. The learned Advocate-General argued first of all that inasmuch as there was no notice of the application dated the 4th of September 1907, which was for the attachment of the premises in Calcutta, served upon the representatives of the judgment-debtor, the subsequent proceedings in respect of that application, namely, the attachment of the 17th of September 1907, and the order for sale of the 29th of July 1908, were both invalid, inasmuch as they were made without jurisdiction. That depends upon Section 248 of the Civil Procedure Code which was then in force That Section says as follows:

4. "The Court shall issue a notice to the party against whom execution is applied for, requiring him to show cause, within a period to be fixed by the Court, why the decree should not be executed against him (a) if more than one year has elapsed between the date of the decree and the application for its execution, or (b) if the enforcement of the decree be applied for against the legal representative of a party to the suit in which the decree was made." (b) certainly applies to this case; (a) also applies to this case. There is a proviso to the Section which runs as follows: "Provided that no such notice shall be necessary in consequence of more than one year having-elapsed between the date of the decree and the application for execution, if the application be made within one year from the date of any decree passed on appeal from the decree sought to be executed, or of the last order against the party against whom execution is applied for, passed on any previous, application for execution." If the order for transmission which was made by Mr. Justice Harington on the 23rd of August 907, was an order passed on a previous application for execution, then no notice under the proviso to the Section would be necessary in respect of the application of the 4th of September 1907. On the other hand, if the order o£ the 23rd of August 1907 of Mr. Justice Harington was not an order passed on a previous application for execution, then notice in respect of the application of the 4th of September 1907 ought to have been given, and if such notice was necessary and if it was not in fact given, then the attachment and the order for sale were made without jurisdiction. Therefore, the question to be considered is whether the order made by Mr. Justice Harington was passed on a previous application for execution. In my judgment it was not such an order. Having regard to the decision of a Full Bench of this Court in Chutterput Singh v. Sait Sumari Mal 36 Ind. Cas. 602 : 43 C. 903 : 23 C. L. J. 645 : 20 C. W. N. 889. it is necessary for us to look at the substance of the application and the order that was made on it. There is no doubt that the application was merely an application that the decree should be transmitted by this Court to the District Court of Murshidabad, and whatever form may have been used in the course of the proceedings, the learned Judge in effect was deciding that the order asked for, namely, that the decree should be transmitted to the District Court, should be made. Having regard to the Full Bench decision, that was rot an order passed on a previous application for execution, and, consequently I am of opinion that notice of the application of the 4th of September 1907 was necessary under Section 248 of the Civil Procedure Code then in force, and inasmuch as no notice was in fact given the attachment and the order for sale of the 29th July 1908 were made without jurisdiction, as it was made ex parte. Therefore, when the applicant in this case, Inder Chand Bothra, comes to the Court and asks for leave to carry out the order of the 29th of July 1908, he is asking this Court to carry out an order which was made without jurisdiction. That application, therefore, ought to be refused.

5. There is one other matter which I may mention. I say nothing as to whether the application of the 4th of September 1907 still is one, of which the applicant in this case can avail himself. It may be that he can avail himself of the proceedings which ware started by that application, or it may be that he cannot avail himself of the proceedings started by that application; and, I say nothing to intimate what view ought to be taken by a Court, supposing any further application were to be made by the applicant in this case in respect of such proceedings.

6. For these, reasons I think the appeal ought to be allowed and the learned Judge's order set aside and the application dismissed with costs both in the Court of Appeal and the Court of first instance.

Mookerjee, J.

7. I agree that the order of Mr. Justice Chitty cannot be supported.

8. On the 1st September 1914 the respondent took assignment, from the representatives of Kapur Chand Kharar, of a decree for money made on the 19th June 1896 on the Original Side of this Court against Rai Dhanpat Singh Bahadur, the predecessor-in-interest of the appellant. On the 29th August 1916, the respondent, as such assignee, applied to this Court to carry out an order for sale of immoveable property made so ling ago as the 29th July 1908 after attachment had been effected ex parte on the 17th September 1907, on the basis of an application for execution dated the 4th September 1907. Mr. Justice Chitty has granted this prayer, and the question for determination is, whether this order can be supported.

9. On behalf of the judgment-debtor appellant, the Advocate-General has argued that the order for sale, as also the antecedent order for attachment, were made without jurisdiction and no further proceedings can be taken on the basis thereof. The reason assigned for this contention is that the attachment and the consequent order for sale were made without the requisite notice to the judgment-debtor under clauses (a) and (b) of Section 248 of the Civil Procedure Code of 1882, then in force. The argument in substance is that if a notice was requisite the order for execution made without notice must be deemed to be a (sic)nulli'y, as is shown by the decision of the Judicial Committee in Raghunath Das v. Sundar Das, Khetri 24 Ind. Cas. 304 : 42 C. 72 : 20 C. L. J. 555 : 41 I. A. 251 : 18 C. W. N. 1058 : 1 L. W. 567 : 27 M. L. J. 150 : 16 M. L. T. 353 : (1914) M. W. N. 147 : 16 Bom : L. R. 814 : 13 A. L. J. 154 (P. C). which confirms the view taken in a long series of cases in India reviewed in Desoo Venkatesa v. Srinivasa Banga Row 4 Ind. Cas. 306 : 33 M. 187 : 7 M. L. T. 32. and Syam Mandal v. Sati Nath Banerjee 38 Ind. Cas. 493 : 24 C. L. J. 523 : 21 C. W. N. 776. The question consequently arises, Whether notice under Section 248 was requisite in the circumstances of this case. The decree-holder was dead: so also was the judgment-debtor; and more than one year had elapsed from the date of the decree when the application for execution was made on the 4th September 1907. Consequently, prima facie, notice under Section 248 was requisite; but no such notice would be essential, if the requisite notice had been given upon a previous application for execution. The only previous notice to which reference has been made was a notice given upon an application made on the 18th May 1907 for transmission of the decree, and granted by Mr. Justice Harington on the 23rd August 1907. This, however, is plainly not a notice as, contemplated by Section 248, Civil Procedure Code. The fundamental distinction between an application for transmission of a decree and an application for execution of a decree was fully analysed and examined in the case of Sripati Charn v. Belchambers 8 Ind. Cas. 22 : 15 C. L. J. 123 : 15 C. W. N. 661., and was also incidentally explained by the Full Bench in Chutterput Singh v. Sait Sumari Mai 36 Ind. Cas. 602 : 43 C. 903 : 23 C. L. J. 645 : 20 C. W. N. 889. That view has now been confirmed by the decision of the Judicial Committee in Maharajah of Bobbili v. Narasaraju Peda Baliara 36 Ind. Cas. 682 : 21 C. W. N. 162 : 24 C. L. J. 478 : 31 M. L. J. 300 : 39 M. 640 : 18 Bom. L. R. 909 : 14 A. L. J. 1129 : 20 M. L. T. 472 : 4 L. W. 558 : (1916) 2 M. W. N. 541 : 1 P. L. W. 26 (P. C.). Consequently, the notice given to the representatives of the judgment-debtor of the application for transmission of the decree cannot rightly he treated as notice given upon a previous application for execution within the meaning of Section 248 of the Code of 1882. The true position then is that notice under Section 243 was requisite upon the application of the 4th September 1907, that such notice admittedly was not given, that the orders of the 7th September 1907 and the 29th July 1908 were made without jurisdiction, and that consequently, no legal proceedings can be taken on the basis thereof.

10. It has been argued, however, that this contention is not open to the appellant by reason of certain proceedings which took place in 1910, and may be briefly described. On the 12th March 1910 the decree-holder made an application for sale. The usual order was made by the Master on the 21st April 1910. No further action appears to have been taken on the basis of this application. But on the 27th August 1914, the appellant in his character as trustee of the estate of his grandfather appeared in Court and contended that the property sought to be sold was trust property and was not liable to be seized in execution of a decree obtained against his father. Mr. Justice Chitty on the 27th August 1914 overruled this objection. The contention of the respondent is that this order attracts the operation of the Rule laid down by the Judicial Committee in Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 8 L. A. 123 : 11 C. L. R. 113 : 4 Sar P. C. J. 249 : 4 Ind. Dec. (N. S.) 32. That case, however, can have no possible application to the circumstances of the present litigation, for there was no determination by, Mr. Justice Chitty, directly or by implication, on the 27th August 1914, that the order for attachment made on the 27th September 1907 and the order for sale made on the 29th July 1908 were valid and legal orders. In my opinion the point taken by the appellant is open to him and really concludes the matter. In these circumstances I need not express an opinion upon the question whether the application for execution made on the 4th September 1907 may be deemed as still pending and whether an application to revive it arid to carry on proceedings on the basis thereof may still be entertained by this Court on the principle recognized by the Judicial Committee in Qamar-ud-din Ahmad v. Jawahir Lal 32 I. A 102 : 27 A. 334 : 1 C. L. J. 381 : 2 A. L. 397 : 9 C. W. N. 601: 15. M. L. J. 258 : 7 Bom. L. R. 433 : 8 Sar. P. C. J. 810 (P. C.). or is liable to be refused as an abuse of the process of the Court. I agree that this appeal must be allowed and the application dismissed with coots throughout.