Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • McNair, J.
Acts
  • Article 167, Limitation Act. Article 167
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • McNair, J.
Acts
  • Article 167, Limitation Act. Article 167
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The applicant is Kedarnath Bothra, an infant represented by his mother Tiju, seeking an order directing Mt. Kesar Bai to permit the Sheriff of Calcutta to give possession of a portion of No. 48, Nolini Sett Road in accordance with an earlier order dated 3rd August 1937 (and a consequential order dated 19th November 1938).

Relevant facts and procedural history as stated in the opinion:

  • In May 1925 the applicant brought a suit for partition of joint family properties belonging to his father Hiralal and uncle Johurmull.
  • A 1927 partition decree by consent declared Hiralal and Johurmull each had one-half share. In May 1931 a sale was ordered; Johurmull purchased No. 48, Nolini Sett Road subject to executing a mortgage securing the purchase money and covenanting to pay within three years.
  • Johurmull failed to execute the mortgage; the Registrar executed the mortgage on his behalf on 11th August 1933 for Rs. 51,975 (admitted to be the value of the half-share).
  • Johurmull died on 16th June 1935, leaving two sons Baijnath and Srinath.
  • On 4th September 1935 the petitioner instituted a suit to enforce the mortgage. On 18th June 1936 Johurmull's sons filed a suit to cancel the mortgage. On 26th June 1936 there was a consent decree in the petitioner's suit but with a stay of execution pending the sons' suit to set aside the mortgage.
  • On 6th August 1936 the petitioner obtained an order appointing a receiver of No. 48; the defendants were allowed to reside there on payment of rent to the receiver. The defendants resisted and appealed — the appeal was dismissed on 15th March 1937.
  • The defendants refused to pay rent; on 3rd August 1937 this Court ordered them to vacate within one week and to pay rent (Rs. 35/month) dating from 6th August 1936 for the portion they occupied.
  • The defendants appealed and obtained a stay of ejectment pending appeal but were ordered to pay rent; the appeal was ultimately dismissed on 22nd December 1937.
  • On 28th January 1938 the petitioner applied for execution of the 3rd August 1937 decree and the Sheriff was directed to deliver possession to the receiver. When the Sheriff attempted execution on 10th February 1938 he was obstructed by Mt. Kesar Bai (mother of the sons).
  • Further proceedings followed; on 19th November 1938 the petitioner again moved for execution and the Sheriff attempted execution on 17th January 1939 and was again obstructed by Kesar Bai.
  • Thereafter the present application (to summon Kesar Bai to show cause why she should not give possession) was filed; Kesar Bai has opposed by affidavit and counsel (Dr. Roy) appeared for her.

Legal Issues Presented

  1. Whether the present application for enforcement of possession against a resisting occupant is maintainable under Order XXI, Rule 97 of the Code of Civil Procedure (i.e., whether the petitioner — not being the decree-holder in the strict sense but acting on behalf of the receiver and pursuant to an order for possession — may invoke that rule).
  2. Whether the application is barred by limitation under Article 167 of the Limitation Act because the first obstruction occurred on 10th February 1938 (i.e., whether a fresh obstruction giving rise to a fresh 30-day period is required or whether the period ran from the first obstruction).
  3. Whether Mt. Kesar Bai is a person entitled to protection under Order XXI, Rules 98–99 as (a) not acting at the instance of the judgment-debtor and (b) claiming in good faith a right to possession (i.e., whether she is a bona fide claimant whose resistance should lead to dismissal of the application under R.99 rather than forcible dispossession under R.98).

Arguments of the Parties

Respondent (Mt. Kesar Bai) — Arguments presented by Dr. Roy

  • Primary contention: The application does not lie under Order XXI, Rule 97 because that rule confines relief to the holder of a decree for possession or a purchaser; the present petitioner is not the holder of a decree for possession but only has a preliminary decree in a mortgage suit which is not a decree for possession.
  • Mt. Kesar Bai was not a party to the mortgage suit until the preliminary decree; she claims rights individually (as a widow) distinct from other joint-family members and therefore cannot be bound by the mortgage decree.
  • Limitation objection: Article 167 of the Limitation Act provides 30 days from the date of resistance or obstruction; the initial obstruction occurred on 10th February 1938, hence the present application (brought after 30 days from that date) is out of time.
  • Substantive defence under R.98/R.99: Kesar Bai is neither acting at the instigation of the judgment-debtor nor obstructing on his behalf; she claims in good faith a right to possession (residence and maintenance) and therefore the application should be dismissed under Rule 99.

Applicant (Kedarnath Bothra/the petitioner) — Arguments presented by Mr. Sett (as reported)

  • The relief under O.21, R.97 applies not only to a decree-holder strictly speaking but also to orders: by virtue of Section 36 of the CPC provisions relative to execution of decrees apply, so far as applicable, to execution of orders; thus an order for appointment of a receiver to obtain possession is, for execution purposes, equivalent to a decree for possession.
  • The application is properly brought on behalf of the receiver by the person having carriage of the proceedings (consistent with the practice referred to in Ker on Receivers) even though not brought in the receiver's personal name.
  • Limitation: Each act of obstruction (where a fresh writ has been issued) gives rise to a distinct right to complain and starts a fresh 30-day period under Article 167; reliance was placed on a reported case in 13 CWN 7241 (judgment at p.728) for the proposition that the month runs from the time of the particular resistance or obstruction in respect of which complaint is made.
  • On facts: the petitioner's position is that the obstructing conduct and prior conduct of the sons demonstrate that Kesar Bai was not a bona fide independent claimant and that her asserted rights of residence/maintenance are subordinate to the mortgage encumbrance.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
13 CWN 7241 (reported judgment at p.728) That when the Court issues a fresh writ in favour of a decree-holder, the period of limitation (the month under the relevant provision) runs from the time of the particular resistance or obstruction to that specific writ — i.e., each act of obstruction in respect of a fresh writ gives rise to a fresh running of time. The Court agreed with the reasoning in that report and held that the 30-day period under Article 167 runs from the date of the particular obstruction complained of (here, 17th January 1939), thereby finding the present application to be within time.

Court's Reasoning and Analysis

The Court addressed the three main objections in turn and applied statutory provisions, established practice and the reported authority quoted by the parties. The court's reasoning as set out in the opinion is summarized below in the order in which issues were considered:

  1. Maintainability under O.21, R.97:
    • The Court accepted the petitioner's submission that Rule 97 (which provides a procedure for a decree-holder or purchaser resisted in obtaining possession) applies to orders as well as decrees by virtue of Section 36 of the CPC, which makes provisions relative to execution of decrees applicable, so far as practicable, to execution of orders.
    • The Court reasoned that Order XXI deals entirely with execution and that Rule 97 would apply equally to a person entitled to an order for possession (such as the receiver appointed to obtain possession) in the same way as it applies to a holder of a decree for possession.
    • The Court also accepted the practical point that applications on behalf of a receiver are normally made by the person having carriage of the proceedings (citing Ker on Receivers practice), so the petitioner's application brought on behalf of the receiver was in order.
    • Conclusion on this issue: the application is maintainable under O.21, R.97.
  2. Limitation under Article 167, Limitation Act:
    • Article 167 provides 30 days for relief of this nature, the period running from the date of resistance or obstruction.
    • Dr. Roy argued the initial obstruction on 10th February 1938 barred the present application; the petitioner relied on a later obstruction (17th January 1939) and the reported authority in 13 CWN 7241.
    • The Court adopted the reasoning of the reported authority, holding that where a fresh writ has been issued a separate right arises on each occasion of obstruction, and the period runs from the time of the particular resistance or obstruction complained of. Applying that principle, the Court concluded that the relevant date for limitation was 17th January 1939 and that the application (filed two days later) was within time.
  3. Bona fide claim / acting at judgment-debtor's instigation (R.98/R.99):
    • The Court examined the affidavit and facts to determine whether Kesar Bai was acting in good faith on her own account or at the instigation/on behalf of the judgment-debtor (the sons).
    • Findings from the affidavit and the Sheriff's report (as recounted): the mother and her sons had been living together; the sons repeatedly endeavoured to avoid giving up possession and to avoid paying rent; when the Sheriff sought to take possession in January 1939 she obstructed and stated a High Court suit was pending and that she had a half share; she refused to leave a portion until the High Court suit was decided.
    • The Court noted that the suit she referred to (Suit No. 1076 of 1936, brought by her sons to cancel the mortgage) had been the same plea relied upon when the receiver was appointed in 1936, and that despite that plea the receiver had been appointed and ordered to take possession then. The same plea had been repeatedly used by the sons to resist possession.
    • On the claim of residence and maintenance by the widow: the Court held (as stated in the opinion) that a Hindu widow's right of residence and maintenance is subordinate to an encumbrance on the property; once the encumbrance is made, her rights are subject to it.
    • The Court observed that although in February 1938 she stated she was about to file a suit to determine her rights, no such suit had been filed and the excuse of ill health was unsubstantiated.
    • Conclusion on this issue: the Court was not satisfied that Kesar Bai was acting in good faith as an independent bona fide claimant or that she was not acting at the instigation of the judgment-debtor. It found that the resistance was occasioned without just cause by a person acting at the instigation and on behalf of the judgment-debtor.

Holding and Implications

Core Ruling: The Court allowed the application and directed that the applicant be put into possession of the portion of No. 48, Nolini Sett Road which was being resisted. Specifically, the Court ordered that Mt. Kesar Bai vacate the premises within one week; the Sheriff may proceed to execute the order without waiting for the order to be drawn up and the drawing up will be expedited. The petitioner was awarded the costs of the application.

Implications and direct effects:

  • The immediate practical consequence is the directed delivery of possession to the receiver (and thus to the petitioner) and the removal of Kesar Bai from the occupied portion within the specified week.
  • The Sheriff is authorised to proceed with execution without delay, and the costs of the application are payable to the petitioner.
  • The Court applied established procedural principles (Section 36 CPC read with Order XXI) and an existing reported authority (13 CWN 7241) on limitation; the opinion resolves the particular application rather than announcing a new legal principle beyond accepting and applying those authorities.

Certification: The opinion records the order and directs compliance; it concludes "Order accordingly" and records that the judgment/certification was for counsel.

Show full summary ...

    Kedar Nath Bothra v. Baijnath Bothra

    JUDGMENT

    1. This is an application by Kedarnath Bothra, an infant, represented by his mother, Mt. Tiju, calling upon Mt. Kesar Bai to appear and answer as to why the Sheriff of Calcutta should not give possession a portion of No. 48, Nolini Sett Road in terms of the order to that effect dated 19th November 1938. In May 1925 the present applicant brought a suit, for partition of the joint properties of his father, Hiralal, and his uncle, Johurmull. The lady who is now resisting possession, which the Sheriff seeks to take, is the widow of Johurmull who died on 16th June 1935. In 1927 there was a partition decree by consent in which it was declared that Hiralal and Johurmull each had a half share, and an order made in May 1931 directed a sale of the premises among the parties. At that sale Johurmull bought No. 48, Nolini Sett Road subject to the condition that he would execute a mortgage in respect of the entirety of the property sold to secure the purchase money and he covenanted that he would pay the amount of the mortgage within three years from date. He failed however to execute the mortgage and after an order directing him to execute it within a fortnight the mortgage was executed by the Registrar on his behalf on 11th August 1933. The mortgage money was Rs. 51,975 which was admittedly the value of the half share of the premises. Johurmull died on 16th June 1935 leaving two sons, Baijnath and Srinath. On 4th September 1935 the present suit was instituted by the petitioner to enforce the mortgage. The defendants to that mortgage suit, Johurmull's sons, Baijnath and Srinath, on 18th June 1936 filed a suit for cancellation of the mortgage on the ground that it was not binding upon them. On 26th June 1936 there was a consent decree in the present suit, but without prejudice to the contentions raised by the defendants in their suit and there was a stay of execution of the sale until the disposal of that suit to set aside the mortgage. On 6th August 1936, the petitioner obtained an order for the appointment of a receiver of the premises No. 48, Nolini Sett Road but the defendants were allowed to reside there on payment of rent to the receiver. That application was opposed by Baijnath and Srinath and they then raised again the contentions which they had been putting forward in their own interests with regard to the validity of the mortgage and with regard to the validity of the title of Hiralal. When the receiver was appointed they appealed from the order of payment and that appeal was dismissed with costs on 15th March 1937. Baijnath and Srinath however still refused to pay any rent and on 3rd August there was an order by this Court directing them to vacate the premises within one week and to pay rent to the receiver in respect of a portion of the premises at the rate of Rs. 35 per month, dating back from 6th August 1936.

    2. The defendants again appealed from that order and applied for stay of execution. The Court of Appeal ordered the defendant to pay the rent as directed. It further directed that there should be a stay of the order of ejectment until the final disposal of the appeal. On 22nd December 1937 the appeal was dismissed with costs. On 28th January 1938 the petitioner applied for execution of the decree which had been made on 3rd August 1937 and the Sheriff was directed to deliver possession to the receiver of that portion of the premises which was in the occupation of the defendant. On 10th February 1938, the Sheriff's officer went to carry out the order and to obtain possession but he was obstructed by Mt. Kesar Bai, the mother of the defendants Baijnath and Srinath. There were various proceedings thereafter, to which it is not necessary now to refer, but again on 19th November 1938 the petitioner applied for an order directing the Sheriff to execute the order of 3rd August 1937 and to give delivery of the premises to the receiver. The Sheriff went on 17th January 1939 to execute the order and was again obstructed by Mt. Kesar Bai, whereupon the present application was made by the petitioner and a summons has been issued to Kesar Bai to show cause why she should not give possession. She has now filed an affidavit in opposition and has been represented by counsel on this application.

    3. Dr. Roy on behalf of Kesar Bai has confined his opposition to three main points. He argues first that the application does not lie. He says that there must be an application under O. 21, R. 97 of the CPC, and that Rule provides that where the holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of property, he may make an application to the Court complaining of such resistance or obstruction and the Court shall fix a date for investigating the matter and summon the party obstructing to appear. R. 98 provides that where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf it shall direct that the applicant be put into possession of the property. The Court may also in certain circumstances detain the person so obstructing in prison for 30 days. R. 99 refers to the resistance or obstruction by a bona fide claimant, and provides that where the Court is satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

    4. Dr. Roy bases his contention that the application is not maintainable on the words of R. 97. R. 97, he argues, confines the relief to a decree-holder or to the purchaser and he argues that the present petitioner is not the holder of a decree, for all that he has obtained is a preliminary decree in a mortgage suit which is not a decree for possession. He further points out that Mt. Kesar Bai was not a party to that suit until the preliminary decree was passed and that she is claiming in her individual right as without from the rights of the other members of the joint family, and that being no party to the mortgage suit she cannot be bound by the mortgage decree.

    5. For the applicant however it is contended that the relief is granted to the holder of a decree for possession of immovable property and reference is made to Section 36 of the CPC, which provides that the provision of this Code relative to the execution of decrees shall, so far as they are applicable, be deemed to apply to execution of orders. O. 21 deals entirely with execution and R. 97, O. 21 would apply equally to a person who was entitled to an order for possession in the same way as it in terms applies to the holder of a decree for possession. An order which has been made for a receiver to obtain possession is in effect and for the purpose of execution the same as a decree for possession. He further points out that although the application is not made by the receiver in person it has been made on behalf of the receiver according to the usual practice and he refers to a statement of the practice by Ker on Receivers where it is pointed out that all applications on behalf of a receiver should be made by the person having carriage of the proceedings. In my opinion the contention on behalf of the petitioner is sound and he has the right to apply under O. 21, R. 97 for the relief which is sought.

    6. It is then objected that the application is out of time and barred under Article 167, Limitation Act. Article 167 provides a period of 30 days for relief of this nature, the, period commencing from the date of resistance or obstruction. The obstruction, it is contended, took place on 10th February 1938 and any application for relief would be barred 30 days after that date. It is clear however that there was a further obstruction on 17th January 1939 and the present application was brought only two days later, so that if the petitioner has a right to apply on every occasion on which there is an obstruction, the application is within time. The second application was made on 19th November 1938 and a fresh writ was issued to the Sheriff to take possession. In support of the contention that a separate right arises on each occasion when there is obstruction provided a fresh writ has been issued, Mr. Sett for the petitioner relies on the case in 13 CWN 7241 and in particular to the following paragraph in the judgment reported at page 728:

    In this particular case the Court issued a second, (if not, a third) writ in favour of the decree-holder. It cannot be said that it had no jurisdiction to do so, and if the decree-holder was given this fresh writ, there seems to be no good reason for depriving him of the remedy which the law allows in the case of resistance to that writ. There is nothing in the Code which confines the decree-holder to one writ under S. 318, while the words of S. 328 ‘such resistance or obstruction’ clearly indicate that the month is to run from the time of the particular resistance or obstruction in respect of which the decree-holder is complaining.

    7. With the greatest deference I entirely agree with the reasoning of the learned Judges as set out in that report, and in my opinion in this case, the month would run from the time of the particular resistance or obstruction in respect of which the decree-holder is complaining, namely the obstruction of 17th January 1939. The application therefore in my opinion is within time. The third ground on which Dr. Roy opposes this application is based on Rr. 98 and 99 of O. 21, viz. that Kesar Bai is not the judgment-debtor nor is she a person obstructing at his instigation or on his behalf, within the meaning of R. 98. He contends further that she is a person claiming in good faith to have a right to be in possession of the property within the meaning of R. 99.

    8. In order to decide whether she is acting in good faith and in pursuance of her own right, we must look to the facts as set out in the affidavit and the inferences which can be drawn from them. It is alleged that the mother and her sons have been living together in this property. It is further quite clear that the sons have endeavoured throughout to avoid giving up possession and to avoid payment of any rent while they are in possession. When the Sheriff sought to take possession in January 1939 he was obstructed by Kesar Bai and from his report it appears that she stated that a High Court suit is pending and that she has a half share in the whole of the property No. 48 Nalini Sett Road. She further stated that until and unless the High Court suit was decided she refused to leave a portion of the third floor of the premises. Now the suit to which she must have been referring was Suit No. 1076 of 1936 which was the suit filed by her sons in 1936 for cancellation of the mortgage. But that plea of the pendency of the suit was taken ab the time when the application for receiver was made and in spite of that plea the receiver was appointed and was ordered to take possession. It was therefore exactly the same plea which was taken by the sons on their own account in August 1936. Again, in para. 10 of her affidavit in opposition she says that she has been occupying five rooms in the third floor and a staircase room on the second floor ever since her husband Johurmull died in June 1935. But these are the five rooms which have been occupied by the sons and they have been obstructing possession on the ground that they are in possession. Kesar Bai, again, is now trying to set up a right of residence and a right of maintenance, which is the right that she claims as an individual, apart from her sons. But I have no doubt that the widow of a Hindu cannot claim the right of residence or of maintenance in derogation of an encumbrance on the property. Once the encumbrance has been made, her right of residence and of maintenance are subordinate to it. In February 1938, when this lady obstructed the Sheriff, she stated that she was on the point of filing a suit to have her rights determined but no such suit has yet been filed. Her excuse for her failure to file the suit is ill health, an excuse which is only too often made in these Courts without being substantiated. I am satisfied therefore on the facts which have been placed before me that the resistance and obstruction was occasioned without any just cause by a person acting at the instigation and on behalf of the judgment-debtor and I direct that the applicant be put into possession of the property. I am not satisfied of the good faith of Kesar Bai, nor am I satisfied that she has a bona fide claim to possession of the property on her own account. Kesar Bai must vacate the premises within a week. The Sheriff may proceed without the order being drawn up. The drawing up of the order will be expedited. The petitioner will have the costs of this application. Certified for counsel.

    D.S/R.K

    9. Order accordingly.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Kedar Nath Bothra v. Baijnath Bothra
    (Mar 23, 1939)