- Bookmark
- Share
- CaseIQ
Amiya Probha Das v. Jyoti Prokash Ghosh .
Judgment Summary (Sharpe, J.; Mukherjea, J. concurring)
Factual and Procedural Background
These appeals arise from execution proceedings of a decree obtained by the Respondent against Sarat Chandra Das (the judgment-debtor) and others on 30 May 1941 (Suit No. 1840 of 1940, Original Side). The underlying claim was founded on a hand-note executed by Sarat Das and others in Mymensingh; the instrument was assigned to the Respondent in Calcutta. The decree was transferred to the District of Mymensingh for execution in March 1943, where the decree-holder sought attachment and sale of eleven lots of property.
Sarat Das objected to execution under section 47, Civil Procedure Code (C.P.C.), alleging the decree was made without jurisdiction. The Appellant, Amiya Probha (Amiya) Das, claimed certain lots under Order XXI, rule 58, C.P.C. (Lot No. 4 — holding in village Dhamsur with structures described separately as Lot No. 8; and Lot No. 6 — holding in village Mallikbari with structures described separately as Lot No. 7). Miscellaneous proceedings were instituted on account of the objection and claim. Sarat Das died during the proceedings and Amiya, as his only heir, was brought on record as his representative.
The Subordinate Judge heard the objection and claim together and dismissed both. The Subordinate Judge found nothing on the record to show want of jurisdiction for the decree, and on the evidence concluded that the Mallikbari and Dhamsur properties (and the structures where applicable) belonged to Sarat Das and were in his possession up to his death. Amiya appealed these decisions.
Legal Issues Presented
- Whether Miscellaneous Appeal No. 4 (challenging rejection of the appellant's claim under Or. 21, r. 58, C.P.C.) is competent in view of Order XXI, rule 63 (i.e., whether an appeal lies against rejection of such a claim), particularly where the claimant had become the representative of the judgment-debtor at the time of the decision.
- On the merits, whether the Appellant (Amiya Das) established title to:
- the Mallikbari holding (Lots Nos. 6 and 7) — including whether the transaction was a benami sale or a valid settlement and whether the Appellant paid the nazar and built the structures at her cost;
- the Dhamsur holding (Lots Nos. 4 and 8) — including whether an oral (korsha) settlement in favour of the Appellant was proved and whether she financed the erection of the buildings.
- Whether the High Court (Original Side) had jurisdiction to try the original suit (relevant to Miscellaneous Appeal No. 5), given that the hand-note was executed and consideration paid in Mymensingh and the defendants were residents outside Calcutta — and relatedly, whether the judgment-debtor's failure earlier to seek revocation of any leave to sue in the Original Side precludes raising the jurisdiction point in execution proceedings.
Arguments of the Parties
Appellant's (Amiya Probha Das) Arguments
- The Mallikbari holding was settled in her name by the landlord after it had been sold in auction for arrears of rent and purchased by the landlord; she paid Rs. 210 as nazar for that settlement and produced witnesses (including P.W.s 1, 2 and 7) to prove the settlement and payment.
- She claimed the structures on the Mallikbari holding were erected at her cost (evidence from herself and P.W.s 1, 2 and 5) and she had means to pay the amounts stated (Rs. 300–500).
- She asserted that the Dhamsur holding was settled with her in korsha right by her husband and that she paid for the buildings there (approx. Rs. 4,000) from sale of ornaments, money from mother and mother-in-law, and “Asirbad” money (~Rs. 800), part of which was said to have been invested by her uncle-in-law and realized for construction.
- On jurisdiction, the appellant challenged the execution decree by implication through contesting the execution and the claim to the properties.
Respondent's Arguments
- Mr. De (for the Respondent) objected preliminarily to the competency of Miscellaneous Appeal No. 4, relying on Order XXI, rule 63, contending no appeal lies against the order rejecting a claim under that rule; he relied on distinctions between the present facts and the Full Bench decision cited by the Appellant but accepted the Court's application of principle.
- With respect to the Mallikbari and Dhamsur properties, the Respondent contended the transactions were benami or otherwise not proved in favour of the Appellant, and pointed to inferences from the judgment-debtor's conduct (allowing sale for arrears at a time of difficulty) to support benami character.
- Mr. Bakshi (for the Respondent in Misc. Appeal No. 5) argued the High Court Original Side had no jurisdiction to try the suit because the hand-note was executed and consideration paid outside Calcutta and defendants were residents outside Calcutta; therefore the decree was without jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Punchanun Bundopadhya v. Rabia Bibi (Full Bench decision) | Principle that a decision regarding a claimant who is the representative of the judgment-debtor may be a decision under section 47, C.P.C., affecting competence of appeal despite Order XXI, r. 63 | The Court relied on this Full Bench authority to hold that the decision on Amiya's claim (rendered after she became representative of the judgment-debtor) was effectively a decision under section 47, and therefore the Miscellaneous Appeal No. 4 was competent. |
| Kalooram v. Jonishta | Related principle that where leave to sue in the Original Side has been granted, the proper course if challenged is to apply at the earliest opportunity for revocation of the grant | Cited in support of the proposition that absence of jurisdiction is not presumed and that a defendant who does not promptly seek revocation cannot later raise want of jurisdiction in execution proceedings. |
| Daulatram v. Maharajlal | Same line of authority referenced about revocation of leave and contesting jurisdiction | Referred to in the context of affirming settled practice that jurisdictional objections (to leave granted) should be raised early and not in execution. |
| Harnathrai v. Sew Prasad | Authority on the propriety of leave and the remedy where its grant is questioned | Referred to as part of the body of decisions supporting the view that the defendant must seek revocation promptly and cannot sit on rights and later raise jurisdiction in execution proceedings. |
| Radhika Mohan v. Bhobani | Authority on procedure concerning leave to sue in Original Side and challenges to such leave | Referred to for the same proposition: that the proper course when propriety of leave is challenged is early revocation proceedings, and failure to do so precludes raising the point in execution. |
Court's Reasoning and Analysis
The Court proceeded in distinct stages: first resolving the preliminary competency objection to Miscellaneous Appeal No. 4, then addressing the merits of the Appellant's claims to the two properties (Mallikbari and Dhamsur), and finally considering the jurisdictional point raised in Miscellaneous Appeal No. 5.
Competency of Appeal (Misc. Appeal No. 4)
The Respondent contended that Order XXI, rule 63 precludes appeal against rejection of a claim made under Order XXI, r. 58. The Court relied on the Full Bench decision in Punchanun Bundopadhya v. Rabia Bibi to conclude that the decision in the present case — rendered after Amiya had, by virtue of her husband's death, become his representative — was a decision under section 47, C.P.C., i.e., a decision “arising between the parties to the suit ... or their representatives, and relating to the execution, discharge or satisfaction of the decree.” The Court therefore held the appeal to be competent despite the preliminary objection.
Merits — Mallikbari Property (Lots Nos. 6 and 7)
Facts accepted by the Court: the Mallikbari holding had been sold in auction for arrears of rent, purchased by the landlord, and settled in the name of Amiya Das; Amiya and witnesses (P.W.s 1, 2 and 7) gave evidence that she paid Rs. 210 as nazar. Given these facts, the Court placed the onus on the decree-holder to prove the transaction was benami. The decree-holder produced no evidence on that point. The Subordinate Judge had inferred benami character from circumstantial facts (judgment-debtor's financial difficulty and exposure to attachment/sale), but the High Court found such inferences insufficient in the absence of direct evidence, and in light of positive, uncontradicted testimony (notably P.W.7). The Court found nothing inherently improbable in the judgment-debtor being unable to pay arrears or in the landlord purchasing and then settling the holding in the Appellant's name, and found no evidence of collusion or inability to pay the nazar by the Appellant. Accordingly, the Court concluded the Appellant established her title to the Mallikbari holding.
Merits — Structures on Mallikbari
Amiya and her witnesses (P.W.s 1, 2 and 5) testified the structures were erected at her cost (Rs. 300–500) and she had means to pay. There was no evidence to rebut this testimony. It was common ground that original buildings on Mallikbari had been dismantled and materials removed, making it plausible that new buildings were erected by the Appellant. Considering the evidence as a whole, the Court held the Appellant proved her claim to the structures on Mallikbari.
Merits — Dhamsur Property (Lots Nos. 4 and 8)
The Appellant claimed an oral korsha settlement effected by her husband, supported only by three dakhilas that were neither signed by Sarat Das nor proved by the officer who purported to grant them. The documentary and oral evidence was described by the Court as suspicious. Witness testimony in support was limited to close associates (P.W.s 1–4), some of whom had potential bias or gave contradictory statements; others were friends of the judgment-debtor or of the family and likely to support the Appellant. The reason given for the korsha settlement was unsatisfactory and the narrative of an oral settlement improbable.
Regarding structures at Dhamsur, the Appellant claimed expenditure of about Rs. 4,000 funded by sale of ornaments and various small amounts and an Rs. 800 “Asirbad” sum alleged to have been invested by her uncle-in-law. Documentary or satisfactory corroborative proof for these sources was largely absent; only P.W.8 (Hriday Sarkar) corroborated a Rs. 500 receipt from sale of ornaments. The Court found no adequate proof the Appellant had sufficient means to construct the buildings. It was also admitted that the Mallikbari buildings were dismantled and, in the absence of evidence about disposal of materials, the Court considered it probable that materials were reused in constructing the Dhamsur buildings. P.W.5 admitted that all sheets used for the Dhamsur house were used materials. On the whole, the High Court agreed with the Subordinate Judge that the Appellant's account of a korsha settlement and construction from her own funds could not be accepted, and therefore her claim to Dhamsur failed.
Jurisdictional Point (Misc. Appeal No. 5)
The Respondent (Mr. Bakshi) argued absence of jurisdiction of the High Court Original Side because the hand-note was executed and consideration paid outside Calcutta and defendants were residents outside Calcutta. The Court observed that the assignment of the decree in Calcutta formed part of the cause of action and that if leave to sue in the Original Side had been obtained, absence of jurisdiction would not be apparent on the face of the record. The Court noted a clear admission in the judgment-debtor's written objection that he was aware of the suit in the Original Side and that he did not seek revocation of any leave. Citing settled practice (and citing authorities), the Court emphasized that where leave has been granted, a defendant who challenges the propriety of grant should apply at the earliest opportunity for revocation; failing to do so, the defendant cannot later raise the jurisdictional objection in execution proceedings. Finding no indication that leave had not been obtained or that revocation had been sought promptly, the Court affirmed the Subordinate Judge's view and dismissed the appeal on this ground.
Holding and Implications
CORE RULING: The Court allowed Miscellaneous Appeal No. 4 in part (in respect of the Mallikbari property) and dismissed the appeal in respect of the Dhamsur property; Miscellaneous Appeal No. 5 (jurisdictional challenge) was dismissed.
Consequences of the decision:
- The Appellant's claim to the Mallikbari holding (Lots Nos. 6 and 7 of the execution petition) and the structures thereon was held to be established; the execution case shall not proceed against that property and those lots are to be released from attachment forthwith.
- The Appellant's claim to the Dhamsur holding (Lots Nos. 4 and 8) was rejected, so execution may proceed in respect of those lots as previously ordered.
- The Appellant's jurisdictional challenge to the original suit (Misc. Appeal No. 5) failed; the Subordinate Judge's conclusion that no absence of jurisdiction was apparent on the record was upheld.
- No order was made as to the costs of these appeals.
No broader or novel legal precedent was announced by the Court beyond application of existing authorities to the facts; the decision turned primarily on evaluation of the evidence and application of settled procedural principles concerning appeals in execution and the timely raising of jurisdictional objections.
Judgment delivered by Sharpe, J.; Mukherjea, J. agreed.
Sharpe, J.:— These two appeals arise out of proceedings in execution of a decree obtained by the Respondent against Sarat Chandra Das, husband of the Appellant, Amiya Probha Das, and others, on 30th May, 1941, in Suit No. 1840 of 1940 in the Original Side of this Court. The claim in that suit was based on a hand-note executed by Sarat Das and others in favour of the lather of the Respondent, in Mymensingh. It was subsequently assigned to his son, the present Respondent, in Calcutta. The decree was transferred to the District of Mymensingh for execution in March, 1943, and the decree-holder prayed for attachment and sale of eleven lots of property. The judgment-debtor, Sarat Das, preferred an objection under sec. 47, C.P.C, to the execution on the ground that the decree was made without jurisdiction. The Appellant, Amiya Das, preferred a claim under the provisions of Or. 21, r. 58, C.P.C, to Lot No. 4, a holding in village Dhamsur with the structures thereon described separately as Lot. No. 8, and to Lot No. 6, a holding in village Mallikbari with the structures thereon described separately as Lot No. 7.
2. Miscellaneous cases were started on account of this objection and claim. Judgment-debtor, Sarat Das, died during the pendency of these cases and the Appellant Amiya Das, who was his only heir, was brought on the record as his representative.
3. Both cases were heard together and were dismissed. The learned Subordinate Judge held that the objection under sec. 47, C.P.C, could not be sustained since there was nothing on the face of the record to show that the decree was made without jurisdiction, and after consideration of the evidence he came to the conclusion that Lots Nos. 4 and 8 of village Phamsur and Lots Nos. 6 and 7 of village Mallikbari belonged to the judgment-debtor, Sarat Das, and were in his possession up to the time of his death. Amiya Das has now appealed against these decisions.
4. A preliminary objection was taken by Mr. De for the Respondent with regard to the competency of Miscellaneous Appeal No. 4, which is directed against the decision in respect of the Appellant's claim made originally under Or. 21, r. 58, C.P.C His contention is that by reason of the provisions of Or. 21, r. 63 no appeal lies against the order rejecting the claim. Having regard, however, to the principles laid down in the Full Bench decision, Punchanun Bundopadhya v. Rabia Bibi(1), we are of opinion that the decision regarding the claim of Amiya Das which was made at a time when she had by the death of her husband become the representative of the judgment-debtor, was a decision under sec. 47 of the Code of Civil Procedure. It is true, as pointed out by Mr. De, that some distinction may be made between the facts of the case which led to the Full Bench decision referred to above and the present one, in which the wife of the judgment-debtor preferred her claim before she became his representative, but we think that fact makes no difference in principle and we are satisfied that the decision against which Miscellaneous Appeal No. 4 has been preferred is clearly on a question “arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree.” In our opinion therefore, the appeal is competent.
5. On the merits, we think the Appellant is entitled to succeed so far as the Mallikbari property is concerned. Amiya Das claimed that property by virtue of a settlement from the landlord on payment of Rs. 210 as Nazar, after the holding had been sold in auction in execution of a decree for arrears of rent and purchased by the landlord. That the holding was sold for arrears of rent, purchased by the landlord and settled in the name of Amiya Das is not disputed. The onus was therefore on the decree-holder to prove that this was a benami transaction. No evidence was, however, adduced in support of such a contention. On the other hand, evidence of settlement with the Appellant has been given by the Appellant herself and by her witnesses Nos. 1, 2 and 7. These witnesses have given evidence also of payment by her of the Nazar of Rs. 210. P.Ws 1 and 2 may have some reason for deposing in the Appellant's favour but we can find no reason to distrust the evidence of P.W 7.
6. The learned Subordinate Judge based his decision regarding the benami nature of the transaction mainly on inferences drawn from the fact that the judgment-debtor allowed this property to be sold for arrears of rent at a time when he was in financial difficulties and when the attachment and sale of his property in execution of decree was not unlikely. In the absence of any evidence for the decree-holder and in view of the positive evidence on the side of the Appellant, we do not think such inferences were at all sufficient to justify the conclusion that the transaction was a benami one. There was nothing inherently improbable in the judgment-debtor being unable to pay the arrears of rent, and there could certainly have been no guarantee that the property if put up to sale would be purchased by the landlord and settled with the judgment-debtor's wife. There is absolutely no evidence of any collusion between the landlord and the Appellant in this matter or of the inability of the Appellant to pay the sum of Rs. 210 as Nazar. We have no hesitation therefore in holding that her claim to the Mallikbari holding has been established.
7. With regard to the structures on the Mallikbari property, Amiya Das and her witnesses 1, 2 and 5 have deposed that these were erected at her cost and that she was in a position to pay such a sum; and there is no evidence to rebut the testimony of the Appellant and her witnesses on these points. The amount said to have been spent on these structures is between Rs. 300 to Rs. 500, and in the absence of any evidence to the contrary, we cannot say that the Appellant had not the means to pay this amount. It is, moreover, common ground that the original buildings on the Mallikbari property were dismantled and the materials removed, and in view of the settlement of the Mallikbari with Amiya Das, there seems to us nothing improbable in the erection of the new buildings on that property at her cost. In consideration of the evidence and facts as a whole, we are of opinion that her claim to these structures has also been established.
8. The position with regard to the Dhamsur property is, however, different. It is the case for the Appellant that this holding was settled with her in korsha right by her husband. No lease was granted and the only documentary evidence in support of the alleged settlement consists of three dakhilas which have neither been signed by Sarat Das nor proved by his officer Chandi Kumar Nandi by whom they purport to have been granted. The transaction is certainly suspicious in nature, and the onus was clearly on the Appellant to prove the settlement and the erection of the structures at her cost. Apart from her own statement, evidence of the korsha settlement has been given only by her uncle-in-law, Rajendra Sarkar, P.W 1 and by Aftabuddin Choudhury P.W 2, Rajendra Chakravarty, P.W 3 and Rajani Kanta Sarkar, P.W 4. Aftabuddin Choudhury and Rajendra Chakravarty were close friends of Sarat Das or his father, and so likely to support the Appellant, whilst Rajani Kant's admission that he did not know that Sarat Das had any right in the Dhamsur property, and his contradictory statements about the year and place of the alleged settlement indicate that he is not a witness on whom reliance can be placed. The reason given for the korsha settlement seems to us far from satisfactory, and the whole story of an oral settlement appears most improbable.
9. As regards the structures in the Dhamsur property, the case for the Appellant is that these were erected at her cost for about Rs. 4,000. The source of the money is said to have been the sale of ornaments, receipt of various small sums from her mother and mother-in-law and “Asirbad” money given at the time of her marriage. According to the Appellant, the main source was the “Asirbad” money amounting to Rs. 800. This, it is said, was kept with her uncle-in-law Rajendra Sarkar, who invested it on her behalf, but the Appellant could not say what amount was realised by this investment. Rajendra Sarkar makes no mention of the receipt or investment of this sum by him, and except for a vague statement of Rajendra Chakravarty who admits that he was not present when any money was given to Rajendra Sarkar, there is no corroboration of this part of the Appellant's evidence, or of her claim to have received money from her mother or mother-in-law. Hriday Sarkar, P.W 8, alone corroborates the evidence of the Appellant that she received Rs. 500 by the sale of her ornaments but even if that evidence be accepted, we think there is no adequate proof that she had sufficient means to construct the buildings on the Dhamsur property. It is admitted that the buildings on the Mallikbari property were dismantled and in the absence of any satisfactory evidence as to the disposal of the materials, we think it most probable that these were used for the construction of the new home at Dhamsur. Lalit Mohan Mistri, P.W 5, admits that all the sheets used for the Dhamsur house were used materials, though he says of course that they were not brought from the Mallikbari house. However that may be, on consideration of the evidence as a whole we agree with the view of the learned Subordinate Judge that the story of the Appellant's taking korsha settlement and erection of the buildings; on the Dhamsur property with her own money cannot be accepted. We think therefore that her claim to that property was rightly rejected.
10. With regard to Miscellaneous Appeal No. 5, Mr. Bakshi has contended that as the hand-note was executed, the consideration paid, and the Defendants are residents outside Calcutta, the High Court in the Original Side had no jurisdiction to try the suit in which the decree sought to be executed was passed. It is, however, not disputed that the assignment of the decree in Calcutta will constitute a part of the cause of action and it is conceded that there would be no want of jurisdiction if leave to sue in the Original Side was obtained. We must assume, prima facie, that the Court had jurisdiction unless absence of jurisdiction is apparent on the face of the record, and we agree with the learned Subordinate Judge in holding that no absence of jurisdiction is apparent. Moreover we find a clear admission in the written objection of the judgment-debtor that he was aware of the institution in the Original Side of this Court for recovery of the amount claimed on the hand-note. The suit, it is said, was not contested because of an assurance given by the decree-holder's father that the decretal amount would be realised from other judgment-debtors. There is no reason to suppose that the necessary leave was not obtained in accordance with sec. 12 of the Letters Patent, and it is well-settled that where leave has been granted and where the propriety of the grant is challenged, the proper course is for the Defendant to apply at the earliest opportunity for revocation of the grant. The decisions in Kalooram v. Jonishta(2), Daulatram v.Maharajlal(3), Harnathrai v. Sew Prasad(4) and Radhika Mohan v. Bhobani(5) may be referred to in this connection. Although the Defendant judgment-debtor was aware of the suit, he took no steps to revoke the lease or to set aside the decree and we agree that he cannot now be permitted in the course of execution proceedings to claim that the decree was without jurisdiction on this ground. We think this matter was decided correctly by the learned Subordinate Judge, and this appeal must therefore be dismissed.
11. In view of the conclusions reached above, we allow Miscellaneous Appeal No. 4 in so far as it relates to the Appellant's claim to the Mallikbari property, and we direct that the execution case shall not proceed against that property, i.e Lots Nos. 6 and 7 of the execution petition and that such property shall be released from attachment forthwith. The appeal in regard to the Dhamsur property, Lots Nos. 4 and 8 of the execution petition is dismissed. We make no order as to costs of these appeals.
Mukherjea, J.:— I agree.
Alert