JAGAT NARAYAN SINGH Vs. KHARTAR SAH

JUDGEMENT

(1.) The appellant is the legal representative of one Madhusudan Singh, deceased. The appeal, which is brought in forma pauperis, arises out of proceedings to enforce a money decree dated 23 March 1926, obtained against Madhusudan's brother Shyam Lal by one Soshi Bhusan in the Court of the Subordinate Judge at Jamtara in the Sontal Parganas. The execution case which has given rise to this appeal was brought in the same Court on 15 September 1930, by respondents 1 and 2 who had in 1929 purchased the rights of Soshi Bhusan in the decree. It is numbered Money Execution Case No.14 of 1930. It was the second case brought to enforce the judgment of 1926, the first (Money Execution Case No. 12 of 1928) having been brought in the same Court by the original decree holder Soshi Bhusan on 22 May, 1928. The main question raised before the Board is as to the effect to be given in the second case to certain orders passed against Madhusudan in the first. Shyam Lal was the owner of an impartible estate known as the Jamtara estate and being involved in debt, he assigned his immovables to Madhusudan by deed dated 10 January 1923, reserving only a maintenance allowance to himself.

(2.) The deed recited Shyam Lal's indebtedness and that he was ill and made it clear enough that the purpose of the assignment was to enable the debts to be paid off by proper management of the estate. Shyam Lal having failed to give Madhusudan possession according to the deed, Madhusudan in 1924 sued Shyam Lal in the Court of the Subordinate Judge at Asansol to enforce the deed. This suit was compromised in 1927. By the compromise decree dated 17 March 1927, Madhusudan was declared to be the owner of the estate and a receiver was appointed to manage it, Shyam Lal being declared entitled to a monthly maintenance allowance. Madhusudan got himself recorded as proprietor. A considerable fortification was thus erected against any attack by Shyam Lal's creditors upon the Jamtara properties. Though the exact position of Madhusudan in relation to his brother is not quite clear their Lordships will not assume that he was a mere agent, trustee or benamidar.

(3.) When the first execution application was made on 22 March, 1928, the names of Madhusudan and the receiver were added thereto as "judgment-debtors", though it does not appear from anything on the record submitted to the Board that Soshi Bhusan had at any time obtained judgment against Madhusudan. Certain portions of the Jamtara estate having been attached in execution Madhusudan on 18 September 1928, applied under R.58 of O. 21 of the Code that they be released from attachment. Not content, however, with this step he followed it up on 8 October 1928, with an application to the like effect made under S. 47 of the Code. In both proceedings his objections were that he was not a party to the decree and that there was no charge upon the Jamtara estate for the decretal debt of Shyam Lal. The learned Subordinate Judge having correctly observed that the two applications were inconsistent -the first being upon the footing that Madhusudan was a stranger to the suit in which the decree had been passed and the second on the footing that he was a 'representative" of the judgment- debtor-dismissed both of them. By his order dated 29th November 1928, he held that Madhusudan was a "representative" of Shyam Lal within the meaning of S. 47 of the Code and that by virtue of S.146 the decree could be executed against him and against the receiver as representing him. The terms of S.146 are as follows: Save as otherwise provided by this Code or by any law for the time being in force where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.