TARNI PRASAD SINHA Vs. LACHUMAN SAHU

JUDGEMENT

(1.) The decree-holder, who was defendant No. 1 in Title Suit No. 149 of 1951 in the Court of the Subordinate Judge. Darbhanga, has come up in a miscellaneous second appeal to this Court. The present miscellaneous appeal arises out of Miscellaneous Case No. 7 of 1962 of the Court of the 3rd Additional Subordinate Judge, Darbhanga, which had been started on an objection filed by one Lachuman Sahu, who is a son of one of the defendants in the aforesaid title suit. Such an objection had been filed in the execution levied by the present appellant in Execution Case No. 31 of 1961/ 1 of 1962. The learned Subordinate Judge who was the Court of first instance rejected the objection filed by the aforesaid Lachuman Sahu and held the execution case to be maintainable. The learned Additional District Judge who was the Court of first appeal reversed the order of the trial Judge and held that the objection raised by the so-called judgment-debtor must prevail.

(2.) The short facts relevant for the disposal of this appeal may he stated thus. In a certain proceeding for realisation of dues of Income-tax Tarni Prasad Sinha, the decree-holder, appellant in this Court, purchased in a Court auction sale the house of one Ram Charan Sahu, father of Lacbuman Sahu aforesaid for a sum of Rs. 20,000.00. One Gujjar Sahu, who was the sister's husband of Ram Charar. Sahu aforesaid, filed Title Suit No. 149 of 1.951 in the Court of the Subordinate Judge. Darbhanga. praying for a declaration that the house in question which had been the subject-matter of the auction sale belonged not to Ram Charan Sahu but to Gujjar Sahu himself. A consequential relief by way of decree for confirmation of possession or, in the alternative, recovery of possession was also prayed for. Gujjar Sahu aforesaid claimed in the suit to have purchased the properties from Ram Charan for a sum of Rs. 8090.00 only by a sale deed dated 10th of September, 1949. In that title suit Tarni Prasad Sinha, the appellant here, was defendant first party and Ram Charan Sahu, father of Lachuman Sahu, respondent No, 1 here, was defendant second party. Tarni Prasad alone contested the suit, and it was dismissed with costs pay-able to defendant No. 1 alone, namely, the present appellant. In that suit it was held by the trial Court that the alleged sale by Ram Charan to Guijar was really a sham and collusive transaction and con-veyed no title to Guiiar Sahu. Against this decision. Gujjar preferred an appeal which was heard by the learned District Judge who upheld the trial Court's decision In appeal. Thereafter. Gujjar Sahu filed a second appeal before this Court which was registered as Second Appeal No. 663 of 1956. In that appeal filed in this Court it was detected by the office that the properties had been purchased for Rs. 20,000.00 in Court auction sale but the suit had been valued at only Rupees 8,000.00, and accordingly an order was passed by this Court directing the learned Subordinate Judge to fix the valuation of the properties. The properties in the aforesaid Title Suit No. 149 of 1951 were ultimately found to be the value of Rupees 20,000.00. Having recorded such a finding the learned Subordinate Judge sent the file to this Court. Thereafter this Court directed Guijar Sahu aforesaid to pay the deficit court-fee on the valuation of the suit properties at Rs. 20,000.00 for the trial Court, the lower appellate Court and this Court within the peremptory time granted by this Court. The deficit court-fee was not paid and as such Guiiar Sahu's appeal stood dismissed on the 3rd of June 1959.

(3.) The bone of contention in the present appeal is the execution of the decree for costs alone passed in the aforesaid Title Suit No. 149 of 1951 right up to the stage of the appeal, and the question which falls for consideration in this appeal can be briefly summed up as --whether in execution of the decree for costs passed against Gujjar the decree-holder, namely, the present appellant, can proceed to attach and pursue the properties belonging not to Gujjar but to Ram Charan who was the defendant second party in the aforesaid title suit. For a decision of this question, some more facts have to be stated. As already stated, the decree for costs in the suit filed by Guiiar was in favour of Tarni Prasad Singh, the present appellant. Such a decree was against Gujjar alone. The present appellant levied Execution Case No. 31 of 1961 in the Court of the Additional Subordinate Judge, Darbhanga, for realisation of the costs alone. This execution case, on transfer to the Court of the 3rd Additional Subordinate Judge, was renumbered as Execution Case No. 1 of 1962. In the meantime, both Guiiar and Ram Charan had died and their heirs have since been impleaded as parties to the proceedings in the execution case. Three miscellaneous cases were filed in the aforesaid execution case by four sons of Ram Charan on the ground that since the decree for costs of Title Suit No. 149 of 1951 was against Guijar alone and not against their father Ram Charan. their properties could not be proceeded against for realisation of the costs. One of such petitions was filed by Asarfi Sahu. one of the sons of Ram Charan. It was numbered as Miscellaneous case 10 of 1962. Jagat Narain Sahu and Ram Prasad Sahu, two of the other sons of Ram Charan. filed similar objection in Miscellaneous Case No. 11 of 1962. The present respondent No. 1. Lachuman Sahu, who is the fourth son of Ram Charan, filed an objection which was registered as Miscellaneous Case No. 12/3 of 1962. In all these three miscellaneous cases the four sons of Ram Charan Sahu had prayed for release of the properties belonging to Ram Charan which had devolved on them on Ram Charan's death from attachment and sale in execution of the decree for costs against Guiiar. Miscellaneous Case No. 12/3 of 1962 was dismissed for default on the 14th of July 1962. The other two Miscellaneous Cases 10 and 11 of 1962 were allowed in part, but substantial objections were disallowed by the learned Subordinate Judge by an order dated the 16th of July 1962, therein it was held that since Ram Charan was not liable to pay the costs awarded by the decree the properties of his three sons, who were applicants in the two Miscellaneous Cases 10 and 11 of 1962, could not be sold and the properties against which the decree-holder had proceeded in the execution case were not the subiect-matter of the title suit, and as such any decision in that suit could not affect the title of Ram Charan or his heirs to the properties. It was, therefore, held that the decree-holder could proceed in execution against such of the properties of Gujjar alone as were described in the Schedules of the Miscellaneous petitions of both these miscellaneous cases. On the same date, however, that is. 16-7-1962, the present respondent No. 1, Lachuman Sahu, whose application had been dismissed for default previously on 14-7-1962, filed a fresh miscellaneous case, which was numbered as Miscellaneous Case 7 of 1962. This case was, however, registered under Order 21, Rule 58 of Civil P. C, It is, however, admitted at the Bar, as was done in course of the proceedings in the Courts below, that in reality and in substance the application was not under the provisions of Order 21. Rule 58 of the Code but under Section 47 of the Code. The decree-holder, the present applicant, contested this case. The miscellaneous case was eventually dismissed by the Additional Subordinate Judge by en order dated 19-2-1963 as being not maintainable in view of the fact that the dismissal for default of the previous application on the 14th of July, 1962, was a bar to the maintainability of the subsequent application. He invoked the principle of res judicata in putting such a bar to its maintainability. Against the decision in the three miscellaneous cases, viz., Miscellaneous Cases 10 and 11 of 1962 and Miscellaneous Case No. 7 of 1962, three Miscellaneous Appeals arose.