KARAMAT ALI Vs. SOGRA

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff alleged that in the year 1929 her husband Sheikh Rahim Bux, seemed settlement of 10 kathas of land, bearing Municipal holding No. 102/1 of Purnea Municipality. In the same year he transferred the land to the plaintiff in lieu of her dower debt fixed at Rs. 99/- and put her in possession of the same. Later on defendant No. 1 filed a certificate case against Rahim Bux and in execution of the certificate defendant No. 1 purchased the and for a sum of Rs. 17/-, The plaintiff alleges that she was not impleaded as a party in the certificate proceeding. Defendant No. 1 also filed a title suit, being Title Suit Wo. 84 of 1945, against Rahim Bux and obtained an ex parte decree against him for his eviction from the land in dispute. It appears that while the decree for ejectment was being executed by defendant No. 1, Rahim Bux died and in his place the plaintiff was substituted as the legal representative of her husband. The plaintiff has brought the present suit for a declaration of her title and recovery of possession over the disputed land. The case of the plaintiff is that the certificate proceeding was collusive and that the decree was obtained in the title suit by Sheikh Karamat AM in a fraudulent and collusive manner and so her title was not affected either by the certificate case or by the decree obtained by defendant No. 1 in the title suit. The trial court and also the lower appellate court held that the case of the plaintiff was true and that the land was given to her in fieu of her dower debt and her title was not affected by the certificate proceeding or by the ex parte decree obtained by defendant No. 1 in the title suit. The lower courts accordingly granted a decree to the plaintiff. When the matter came up in second appeal it was argued before the learned Single Judge that the suit was barred under Section 47 of the Code of Civil Procedure. The argument was rejected by the learned Single Judge and the second appeal was dismissed.

(2.) On behalf of the defendants, who have preferred this appeal under the Letters Patent, the argument put for-Ward by learned counsel is that the suit of the plaintiff was barred by the provisions of Section 47 of the Code of Civil Procedure, it was submitted that, after the plaintiff was substituted as the legal representative of her husband Rahim Bux in the execution proceeding, the plaintiff teught to have iaised objection with regard to her, title to the land and, since there was default on her part, the suit is barred by the principle of Section 47 of the Code of Civil Procedure. In support of this argument reference was made to the decision of a Full Bench of the Calcutta High Court in Punchanun Bundopadhya v. Rabia Bibi, ILR 17 Cal 711, and a subsequent decision of the Calcutta High Court, following the Full Bench case, in Naida Bashi v. Rajendra Chandra, 48 Cal LJ 551. in our opinion there is no merit in the argument advanced by learned counsel for the appellants. The decision of the Full Bench in ILR 17 Cal 711, must be distinguished on the ground that in that case the court dealt with the execution of money decree and not a decree for possession of specific items of immovable property. That is the vital distinction between the line of authorities represented by ILR 17 Cal 711 (FB), and another line of authorities exemplified by Jatru Pahan v. Ambihajit Prasad, AIR 1946 Pat 214 and Hitendra Singh v. Rameshwar Singh Bahadur, ILR 4 Pat 510 : (AIR 1925 Pat 625). It is now settled by the latter line of authorities that the court executing a mortgage decree which directs the sale of a specific property, can-not allow the judgment-debtor or his legal representatives to object that such a decree is not capable of execution either because the judgment-debtor had no right originally to execute the mortgage bond upon the basis of which the decree has been passed, or that since the date of the mortgage decree owing to the death of the judgment-debtor for otherwise, the judgment-debtor had no longer any interest in the property. The matter has been put very clearly by Das, J. in ILR 4 Pat 510 at pages 530-31 : (AIR 1925 Pat 625 at pp. 639-640), as follows: But there is a more serious objection to the argument. It will be remembered that the decree was a mort-'gage decree, and there is abundant authority for the view that where a decree directs the sale of specific property, the court executing the decree has no power to go behind the decree and say, I will not sell the property because the interest of the judgment-debtor has come to an end'. The exact point has been decided in cases far too numerous to mention. In Liladhar v. Chaturbhuj, ILR 21 All 277, there was a decree for sale of certain mortgaged properties against Musammat Jhuno. Musammat Jhuno died on the 29th October, 1895, and on the 13th June, 1896 an application was made for execution of the decree which was dated the 28th June, 1893. The plaintiffs who were entitled on their case to succeed to the property on the death of Musammat Jhuno were made parties to the execution proceedings as the legal representatives of Musammat Jhuno. They raised several objections in regard to the application for execution, the first of which was to the effect that the decree was a decree for the sale of the life interest of Musammat Jhuno and that the estate having determined on her death the decree was no longer capable of execution. They also contended that Musammat Jhuno was not competent to effect a mortgage of the property to enure beyond her life-time and that there was no justifying necessity for such a mortgage. The court executing the decree overruled the objections and directed the sale of the mortgaged properties. Thereupon a suit was instituted by the plaintiffs and they sought a declaration that the decree of the 28th June, 1893, which was obtained by the defendants against Musammat Jhuno became void and inoperative at her death and that the property mentioned in the plaint which was in the possession of the plaintiffs and which the defendants caused to be advertised for sale was not liable to be sold in the events which had happened. It was contended on behalf of the defendants that section 244 operated as a bar to the suit. The learned Judges deciding the case conceded that if the matter in controversy between the parties in the suit could be decided under Section 244 then there could be no doubt that the suit was not maintainable. But they came to the conclusion that the court executing the decree could not consider the question of the validity of the decree. In delivering the judgment, the learned Judges said as follows;, 'A court executing a decree is bound to give effect to it as it finds it, and it is not in the province of that court to consider whether the decree was or was not rightly passed. The decree in this case was a decree for the sale of the property. The plaintiffs who were parties to the execution proceedings in the character of legal representatives of Musaammat Jhuno Kunwar, could only raise objections relating to the execution, discharge, or satisfaction of the decree, or to the stay of execution thereof starting with the assumption that the decree was a valid one. The view expressed by Das, J. was approved by Dawson 'Miller, C. J. who stated at pages 600-601 as follows:

(3.) For these reasons we hold that there is no merit in this appeal under the Letters Patent. We accordingly dismiss the appeal with costs.