JAGARNATH PRASAD BHAGAT Vs. SHARDA DEVI

JUDGEMENT

(1.) This appeal is brought on behalf of the judgment-debtors against the order of the District Judge of Hazaribagh, dated the 28th November, 1959, rejecting an objection filed by them in the Execution Case No. 118 or 1956 in the Court of the Munsif of Hazaribagh. It appears that the decree-holder respondent had obtained a decree in Jaunpur Court against Haridas Bhagat, the husband of the respondent. The decree was obtained by the respondent on the 6th August, 1952. The decree was transferred to the Court of Hazaribagh later on and the decree-holder filed the present execution case against Harldas Bhagat. Haridas Bhagat died on the 28th June, 1957, during the pendency of the execution case. Thereafter the decree-holder applied for substitution of the appellants as the legal representatives of Haridas Bhagat, It was objected on behalf of the appellants that they were not liable to pay the decretal amount awarded to the decree-holder against Haridas Bhagat. This objection was sustained by the Munsif of Hazaribagh on the ground that the transferee Court cannot substitute the representatives of the deceased judgment-debtor. The order of the Munsif has been set aside by the District Judge of Hazaribagh, who took the view that the transferee Court can order substitution of the representatives of the deceased judgment-debtor in the execution case and it was a more irregularity which cannot be interfered with in appeal.

(2.) On behalf of the appellants it was submitted by learned Counsel in the first place that the transferee Court had no jurisdiction to order substitution of the appellants in place of the judgment-debtor in the execution proceeding. In support of this argument learned Counsel referred to the decision of this High Court in Official Trustee of Bengal v. Basdeo Bhagat, AIR 1937 Pat 239. But the ratio of that case is not applicable to the present case. On a perusal of the objection petition filed by the appellants we find that there was no objection taken by the appellants in the execution case that the transferee Court had no jurisdiction to substitute the legal representatives of the judgment-debtor. It is, therefore, manifest that there was a waiver on the part of the appellants and in this situation the principle laid down by the Privy Council in Jang Bahadur v. Bank of Upper India Ltd., AIR 1928 PC 162 applies to the present case. It was held by the Judicial Committee in this case that the decree-holder must get an order for substitution of the heirs of the deceased judgment-debtor under Section 50 of the Code of Civil Procedure from the Court which passed the decree, but it was observed by the Judicial Committee that the matter was not one of jurisdiction but of procedure, and in the case that was before them the objection with regard to this defect in procedure had been waived by acquiescence. In our opinion the present case falls within the principle laid down by the Judicial Committee in AIR 1928 PC 162. We further consider that the argument of the appellants on this point must also be rejected on the ground that the irregularity, if any, has not caused any prejudice to the appellants and the merits of the case have not been affected by this alleged irregularity. The provisions of Section 99 of the Code of Civil Procedure will apply to a matter of this description and in view of that section it is clear that an appellate court cannot interfere with the order of the trial court when the merits of the case are not affected by the alleged irregularity. That is the view expressed by a Division Bench of this Court in Debendra Nath v. G. A. Aratoon, AIR 1941 Pat 139. It was pointed out by the learned Judges of that case that when the Court to which a decree has been transferred for execution makes an order for substitution under Section 50, it is a matter of procedure and not of jurisdiction. Consequently, an appellate Court cannot, by season of Section 99 of the Corle of Civil Procedure, interfere with that order where the merits of the case are not affected by the irregularity. In view of the principle laid down in these decisions we are of opinion that the argument of the appellants on this point must be overruled.

(3.) It was next submitted on behalf of the appellants that the appellants are not liable to satisfy the decree because the doctrine of pious obligation is not applicable and the debt incurred by Haridas Bhagat was an avyawabarika debt. The argument put forward on behalf of the appellants was that the respondent-decree holder was not the married wife of Haridas Bhagat but was a concubine and so the amount of maintenance awarded to the decree-holder was in the nature of avyawaharika debt. The question has been examined by the lower appellate court and it was found that the decree holder was the legally married wife of the deceased judgment-debtor, and in view of that finding it is obvious that the argument of the appellants that they are not under any pious obligation to pay the decretal amount must be rejected.