Ram Dial And Others v. Ram Das And Another

[183] Stuart, C.J:— A preliminary objection is taken by the pleader for the respondents that this appeal does not lie, on the ground that the order complained of is one relating to the execution of a decree as provided by Ss. 363 and 364 of the Code, which limit appeals from orders passed in execution of a decree to the parties to the suit in which the decree was passed, and that the defaulting purchaser, by the enforcement of S. 254, is not a “party” within the meaning of S. 11 of Act XXIII of 1861. But this is an objection which, in my opinion, cannot be maintained. S. 254 applies to the case of default by a purchaser within the prescribed time, and it provides that— “If the proceeds of the sale which is eventually consummated be less than the price bid by such defaulting purchaser, the difference shall be leviable from him under the rules for enforcing the payment of money in satisfaction of a decree of Court;” and several rulings of the Calcutta High Court were referred to in support of the contention that a defaulting purchaser was, under S. 254, placed in the position of a judgment-debtor, and therefore a “party” within the meaning of S. 11, Act XXIII of 1861. Our attention was, among others, particularly directed to a ruling to this effect by Mr. Justice Loch and Mr. Justice Macpherson (1), and such ruling I approve. The question, however, does not appear to have been finally determined in Calcutta, for in a case (2) decided there so late as August 1873, before a Full Bench on appeal from a Division Bench, the Chief Justice, after disposing of the case, observed that “This decision must not be understood as in any way deciding that an appeal will lie in such a case as this. It has not been necessary for us to determine that.” I should be glad to be instructed by the High Court of Calcutta [184] when it finally and advisedly delivers its mind on this question; but meanwhile I am not relieved of the duty of forming and expressing my own opinion, which is in accordance with the judgment of Mr. Justice Macpherson. And meanwhile I may observe that, in the above case, and notwithstanding the remark of Sir Richard Couch, the appeal was entertained, and apparently without objection. Even if was mere doubtful than I am on the subject, the reasonableness and convenience of procedure by appeal in such a case as the present appears to me to be so great as to afford a presumption in its favour, and I feel bound to decide in favour of its competency, and that the order therefore of the Subordinate Judge is open to appeal. [After considering the appeal on its merits and expressing his opinion that the decision of the Court of first instance was erroneous, the learned Chief Justice proceeded as follows:—] The appeal must therefore be allowed, and the order of the Subordinate Judge reversed with costs against the respondents in both Courts.

Spankie, J.:— This is a case in which action was taken under S. 254 of Act VIII of 1859, under the following circumstances:— The holders of a decree against Shaikh Iradatullah, judgment-debtor, took out execution of the same, and caused the rights and interests of their debtor in Tal Ratwi, amongst other properties, to be sold on the 21st July 1873. Four persons, Champa Ram, Ram Dial, Bundhu Ram, and Kaidar Ram, purchased the rights in Tal Ratwi through their agent for Rs. 9,600. They paid the earnest-money, but failed to deposit the balance within the prescribed time. The property was re-sold and was purchased on the 21st November of the same year for Rs. 1,000. The second purchaser also failed to make the necessary deposits. The property was again put up for sale and was bought on the 20th May, 1874, by Shaikh Muzhur Ali for Rs. 1,000, and the sale was confirmed. The decree-holders now claim that the difference, Rs. 8,600, between the sale eventually consummated and the price bid by the defaulting purchasers, shall be levied from them under the rules for enforcing the payment of money in satisfaction of a decree of Court. (S. 254, Act VIII of 1859).

The Subordinate Judge held that the difference would be claimable from the first auction-purchaser who defaulted; but in [185] this case he was of opinion that there was not sufficient proof that Kali Charan had authority from Champa Ram, Sec, to purchase for them the rights and interests in Tal Ratwi. He therefore rejected the application of the decree-holders as against these persons.

An appeal is filed by the decree-holders, which is met by a preliminary objection on the part of the respondents that no appeal lies, the other auction-purchasers on the first sale being no parties to the suit, so as to bring them under the provisions of S. 11, Act XXIII of 1861.

I am aware that there are decisions bearing on the point in the Calcutta High Court, two of them being cited from the 6 and 7 W.R In the latter case, the view taken would appear to be that the terms of the section (254) bring any one proceeded against under it amongst the parties of the suit. I am not, however, satisfied that this is so. The section certainly does not say so. The section recites that the difference shall be leviable from the defaulting purchaser under the rules for enforcing the payment of money in satisfaction of a decree of Court, that is to say, by an application for execution against him by arrest, or by attachment of his property. But the section does not go on to say that when any application has been made against such defaulting purchaser, he is to be regarded as one of the parties to the original suit in which execution was taken out. On the other hand, S. 364 recites that no appeal shall lie from any order passed after decree and relating to the execution thereof, except as is hereinbefore expressly provided. The appeal is not expressly provided for in S. 254. It is provided for in S. 257. So S. 283 provides for an appeal. But that section has been repealed by S. 11, Act XXIII of 1861, and this section, though it greatly enlarges the matter of which the Court executing a decree may take cognizance, inasmuch as, after expressly stating what it may do specifically, it includes any other question arising between the parties to the suit in which the decree was passed and relating to the execution of the decree, does not meet the difficulty. The question before us certainly relates to the execution of the decree, but is it one between the decree-holder and the judgment-debtor? It might be convenient to hold so, as giving the defaulting purchaser, [186] the decree-holder, and the judgment-debtor an opportunity of being heard by the appellate Court. On the other hand, it may have been intended not to give a defaulting purchaser the benefit of an appeal on the summary side. There could be no doubt of his default, where, in consequence of it, re-sale has been rendered necessary; and there can be no doubt as to the injury such default may do both to the decree-holder and judgment-debtor. The defaulting purchaser appears to me to be in the position of a man who has allowed judgment to go against him by default. He has nothing to say for himself, and execution follows against him as a matter of course. But then, if there be an appeal, it would lie because he was the judgment-debtor in another suit between the original decree-holder and himself, or the judgment-debtor and himself. I do not find that the Presidency High Court's decisions already referred to have been accepted as conclusively settling the point. On the contrary, I find an appeal in a case very similar to the one before us, wherein it was held that the party purchasing at an execution-sale under the Civil Procedure Code in the character of an agent cannot be made liable as a principal, and a proceeding upon the contract under S. 254 of the Act in such a case must be taken against the principal. This was an appeal under cl. 15 of the Letters Patent from a Divisional Bench, and the Full Bench decided which of the two judgments before it was to be followed; but the Chief Justice added at the close of the judgment that “this decision must not be understood as in any way deciding that an appeal will lie in such a case as this. It has not been necessary for us to determine that.” From this I conclude that the point was not held to be definitely determined by the High Court of the Lower Provinces. It has not, to my knowledge, been determined by this Court.

I think that it would be better that we should take the opinion of the Full Bench before disposing of the appeal on its merits. At the same time, if the learned Chief Justice should hold that there is an appeal, his judgment would prevail, and I should have no hesitation in concurring with his decision on the merits, as we were both satisfied at the hearing that all the evidence was in favour of the appellants.

The respondents appealed to the Full Court against the judgment of the learned Chief Justice, under cl. 10 of the Letters Patent of the High Court.

JUDGMENT OF THE FULL COURT

[187] Pearson, Turner and Oldfield, JJ.:— We proceed to consider in the first place the issue on which the learned and honourable Judges differed.

The provisions of S. 254, Civil Procedure Code, declare that, if the purchaser of immoveable property at an auction-sale held in execution of a decree, after payment of the deposit, fails to make good the full amount of the purchase-money before sunset of the [188] fifteenth day from that on which the sale took place, * * * the deposit after defraying the expenses of the sale shall be forfeited to Government, and the property shall be resold, and that, if the proceeds of the sale which is eventually consummated be less than the price bid by such defaulting purchaser, the difference, shall be leviable from him under the rules for enforcing the payment of money in satisfaction of a decree of Court.

Had the law simply declared the liability of the defaulting purchaser without going on to declare how that liability should be enforced, the proceeding must have been by suit. To avoid the circuity of the proceeding by suit, the Legislature has given to the decree-holder and judgment-debtor a more speedy remedy, and the defaulting purchaser is placed in a position which is very similar to that which he would have filled had a suit been brought against him. It is true there is this difference, that in a proceeding by suit the question now in issue between the parties would have been determined prior to and not subsequently to decree. In other respects his position is assimilated to that of a judgment-debtor and the rules for enforcing a decree against the judgment-debtor are made available to enforce the demand arising out of his default against the defaulting purchaser. Among these rules is the rule ordained by S. 11, Act XXIII of 1861, which gives a right of appeal to the parties to a suit on all questions arising in the execution of the decree and relating to the execution thereof. There seems no difficulty in applying this rule mutatis mutandis to the proceeding taken against the defaulting purchaser. The judgment-debtor and (if his claim be not satisfied out of the proceeds of the re-sale) the original decree-holder stand in the position of decree-holders who have obtained judgment against the defaulting purchaser for damages occasioned by his default; the defaulting purchaser stands in the position of a judgment-debtor against whom a decree for such damages has passed. They are parties to the proceeding which is substituted for the suit, and inasmuch as S. 254 declares without exception that the difference in price, which is the amount of the damages, shall be leviable under the rules for enforcing payment of a money-decree, the rule relating to appeals must be applied mutatis mutandis equally with any other of those rules.

[189] Having disposed of this plea, the appellants contend the Court is bound to go on to consider the appeal on the merits. The respondents, on the other hand, argue that only the appeal must be confined to the point on which the Judges constituting the Division Bench differed, and in support of their argument they refer to the ruling of the High Court of Bengal in Roy Nandipat Mahata v. Urquhart

This ruling came before the Privy Council, but no question arose upon it, and the Right Honourable Committee, while alluding to it, expressed neither dissent from nor assent to it.

The 10th clause of the Letters Patent constituting this Court declares that an appeal shall lie to the Court from the judgment of one Judge of the said Court or of one Judge of any Division Court, pursuant to S. 13 of the High Courts' Act, and that an appeal shall also lie to the Court from the judgment of two or more Judges of the Court or of such Division Court wherever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the Court.

Now there can be no question that, on the hearing of an appeal from the judgment of a single Judge, the whole case may come before the Court in appeal, and it is competent to the Court to entertain objections to any part of the judgment, and it is a fair argument that the word judgment must be read in the same sense whenever it occurs in the same section, and that it must be held to mean the whole judgment in the second paragraph as it does admittedly in the first paragraph, unless its sense is restrained by the context. The question then must turn on the construction to be put on the word “wherever.” Does it mean “on any point on which,” or does it mean “in any case in which.” Let us substitute these different meanings for the doubtful term and read them with the rest of the sentence. Adopting the former, the passage will then run “on any point on which such Judges are equally divided in opinion, and do not amount in number to the majority of the whole of the Judges.” This construction would, it is clear, accord with the first clause of the sentence, but not with the latter. Adopting [190] the other construction, the passage would run “in any case in which the Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges.” This construction accords with both clauses of the section. Ordinarily where an appeal is given it must be taken to be a general appeal, and express language should be used to restrict it. For this reason, because the construction of the doubtful term which appears to accord best with the context ought to be accepted, it must be held that the appeal given to the Full Court is not confined to the point on which the Judges of the Division Bench differed in opinion. We have then to consider the objection taken to the judgment of the Division Bench on the merits .

Spankie, J.:— After fuller consideration of the question, I now am of opinion that; when the decree-holder or judgment-debtor proceeds against a defaulting purchaser under S. 254, Act VIII of 1859, the latter must at any rate be regarded as a party to a suit as between himself and the person insisting on the enforcement of the provisions of the section, and therefore, as the proceedings are in execution, there is an appeal under S. 11, Act XXIII of 1861. Another question, however, has been, raised during the bearing of the appeal. Is the Court at liberty to go into the; merits of this case, or should it have confined itself to the point regarding, which the Judges of the Division Bench have differed?

The appeal permitted by cl. 10 of the Letters Patent is from the judgment of two or more Judges or of a Division Court, wherever such Judges are equally divided in opinion. It will be observed that the word whenever is not used, but wherever, and cl. 27 provides that: when the Judges of a Division Court are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of [191] the Judges, and if the Judges be equally divided, then, the opinion of the senior Judge shall prevail. When this happens, the door is opened for an appeal. If the difference of the Division Court has been on a particular point, and on such point the decision of the senior Judge has prevailed, it would seem to follow that the appeal to the Court at large would be confined to that point of difference alone. Then no violence is done to cl. 10, which provides for an appeal from the judgment of one Judge, or from the judgment of two or more Judges, or of the Division Court, wherever such Judges are equally divided in opinion. This seems to refer to the particular point upon which they are equally divided in opinion, and so far cls. 10 and 27 are consistent.

“Wherever” also would appear to indicate the point of difference respecting which the Court at large is to pronounce an opinion. When the difference of opinion goes to the entire case, the Court at large in appeal would of course deal with all the questions raised before the Division Bench. When the opinion of the senior Judge has prevailed on any point, the Court on appeal would confine itself to that point alone.

I am fortified in this opinion by the precedents cited in the margin. In the first case it was observed by the learned Chief Justice— “In deciding upon the point which the two Judges considered to be the only one before them for decision, there was a difference of opinion. The judgment of the senior Judge, that of Mr. Justice Kemp, therefore prevailed. An appeal lies to us, because the Judges have differed, and I think that on this appeal it is not now open to the parties to go into the whole of the case and to raise before us points which were not raised before the Judges of the Division Bench”Shahhzadi Hajra Begam v. Khaja Hossein Ali Khan (3). In the second case the judgment just cited was quoted in support of the ruling that in appeal under the Letters Patent no point can be argued except a point on which the two Judges of the Division Bench have differed [192] in opinion. The Officiating Chief Justice remarked— “The 36th clause of the Charter of 1865 provides ‘that if the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, but if the Judges shall be equally divided, then the opinion of the senior Judge shall prevail.’ The point on which the learned Judges differed was whether the appellant proved that there had been any material injury by reason of the irregularity. The 15th section gives an appeal from the judgment of two Judges, wherever such Judges are equally divided in opinion. In the case of Shahzadi Hajra Begam v. Khaja Hossein Ali Khan, which has already come before the Chief Justice and two Judges, on the construction of S. 15, it has been determined that an appeal only lies in respect of that part of the judgment upon which the two Judges differ” Roy Nandipat Mahata v. Urquhart .

The third case was before Mr. Justice Macpherson on the petition of the Court of Wards on behalf of the Rajah of Darbanga. I cite it to show that learned Judge, who was a party to the first judgment quoted, had not changed his opinion. His remarks that “it is most desirable and fit that, under the peculiar circumstances of this case, the appeal should now lie to the Privy Council, and not to the High Court. The Division Court decided to a certain extent in favour of the present petitioner; and to that extent the Judges were not divided in opinion. There being no appeal under cl. 15 from that portion of the decree, Rajah Lilanand Singh has appealed to the Privy Council, as he has an undoubted right to do” (4). Accepting the decisions quoted as authority on the point, and also for the reasons assigned by me, I am of opinion that the Court was not at liberty to go into the merits of this case, but should have confined itself to the point of difference between the two Judges of the Division Bench.

Entertaining this opinion, I do not think it necessary to go into the evidence. I would merely remark that I am of the same opinion as I was at the hearing of the appeal, that the evidence was in favour of the appellants.