DOMI LAL SAHU Vs. BIJOY PRASAD SINGH

JUDGEMENT

(1.) A preliminary point was raised on behalf of the respondents that one of these appeals (Appeal No. 12 of 1932) is barred by limitation. It appears that the appellate order against which these appeals are directed was passed by the Court below on 1 August 1931.

(2.) Two appeals were filed in this Court against this order on 2 November, 1931, but only one copy of the order appealed against was filed and that copy was filed by the appellants in Appeal No. 9 of 1932. On the report of the Stamp Reporter that another copy of the order should have been filed in Appeal No. 12 an order was made directing the appellants concerned to file a copy and it was filed on 12th January 1932. It is contended by the respondents that as the copy of the order appealed against was filed on 12 January 1932 the appeal must be taken to have been duly presented on that date and not on 2 November, 1931 on which date the memorandum of appeal was filed. Technically that would be so, but in my opinion, this is a fit case in which the period of limitation should be extended under Section 5, Lim. Act. Passing now to the merits of the case a few facts may be briefly stated.

(3.) On 29 October 1918 the appellants obtained a mortgage decree as well as a decree for costs against one Domi Lal Sahu, a namesake of one of the appellants. The mortgage decree was satisfied by the sale of the mortgaged properties and in 1926 the appellants applied for execution of the decree for costs. It appears that Domi Lal Sahu, the judgment-debtor, had taken out execution against the predecessors-in-interest of the respondents in respect of a money decree which he held against them. This decree was sold in execution of the appellants decree and was purchased by the appellants with the result that the execution case in the course of which this decree was purchased was dismissed in 1927. Subsequently in 1929 the appellants started a fresh execution ease and in the course of this execution they purchased certain properties belonging to the respondents. It may be mentioned here that on 13 January 1930, three days before the sale, certain objections were raised by the respondents to the execution proceedings but they were dismissed for default on 16 January, 1930. On that day the properties in question belonging to the respondents were sold and purchased by the appellants. The respondents then preferred certain objections against the sale both under Section 47. and under Order 21, Rule 90, Civil P.C. One of these objections was that the money decree which Domi Lal Sahu, the judgment-debtor of the appellants had obtained against the respondents could not be sold in execution of the appellants decree and that the appellants should have followed the procedure laid down in Order 21, Rule 53, Civil P.C., to realize their decree. Another objection was that one Narendra Prasad Singh one of the judgment-debtors against whom Domi Lal Sahu sought to execute his decree and who also represented the other minor judgment-debtors had died before the passing of the decree and so the decree obtained by Domi Lal Sahu was a nullity and incapable of execution. The third objection was that the processes in the execution proceedings were not served at all and in fact could not have been served because they were directed against a dead person, amongst others. The executing Court before which these objections were preferred held that the sale of the money decree was illegal and that the decree- holders not having proceeded under Order 21, Rule 53 the sale of the properties of the respondents could not be upheld. It also came to the conclusion on certain oral and documentary evidence adduced on behalf of the respondents that Narendra Prasad Singh had died before the passing of the decree in favour of Domi Lal Sahu, the respondents original judgment-debtor. The sale having been set aside, the appellants appealed to the District Judge of Monghyr who also upheld the contention of the respondents that the sale of the money decree was not provided for under the Code and that the procedure followed by the appellants was not in accordance with law. The learned District Judge however did not record a finding on the question as to whether Narendra Prasad Singh had died before the passing of the decree or not. The main question argued before us is whether the view taken by the Courts below that the money decree could not be sold is correct. Mr. Sarjoo Prasad who appears for the appellants contends that Order 21, Rule 53 being only one among the many sections of the Civil Procedure Code which provide for the various modes in which various kinds of properties are to be attached in execution of a decree cannot override Order 21, Rule 64 which provides that the Court executing a decree may order that any property attached by it and liable to sale may be sold by the executing Court and the proceeds of such sale paid to the party entitled to receive the same. It is urged that the words of Rule 64 are wide enough to include a money decree and that there is no express provision either in Order 21, Rule 53 or any where else in the Code prohibiting the sale of a money decree by the executing Court. The argument is not without substance and receives some support from the language used in Order 21 Rule 16 where it deals with a case in which a decree is transferred by operation of law. But on the other hand almost all the High Courts in this country seem to have taken the view that a money decree cannot be sold in execution and once such a decree is attached the procedure indicated in Order 21 Rule 53 should be followed: see Tiruvengada Chari V/s. Vythilinga Pillai [1883] 6 Mad. 418; Jotindra Nath Chowdhry V/s. Dwarka Nath Dey [1893] 20 Cal. 111; Sultan Koer V/s. Galzari Lall [1878] 2 All. 290; Vithaldas Prabhu V/s. Subraya Manjappa A.I.R. 1921 Bom. 127; Maung Lun Bye V/s. Maung Po Nyun A.I.R. 1924 Rang, 21; Lachman Ojha V/s. Chariter Ojha [1919] 4 Pat. L.J. 336. It appears to me on a careful consideration of these decisions that the view which has been expressed in them must be adhered to and it is now too late to question its correctness. Upon an examination of the various provisions with regard to the attachment of properties it would appear that in no other rule is there any provision corresponding to Sub- Clause 2, Order 21, Rule 53 that clause runs as follows: (2) Where a Court makes an order under Clause (a), Sub-Rule (1) or receives an application under subhead (2) of Clause (b) of the said sub- rule it shall on the application of the creditor who has attached the decree or his judgment debtor proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. The sub-rule thus provides that the attaching creditor may at once proceed to execute the attached decree as if he is the respresentative of the holder of that decree. It is clear that if this mode is adopted no sale of the attached decree would be necessary and it appears to me to be permissible to argue that if the framers of the Cods contemplated the sale of the attached decree it was unnecessary for them to make this provision. It further appears to me that this provision has been inserted in the Code not only to avoid multiplicity of execution proceedings but also to safeguard the interests of the holder of the attached decree. If the procedure indicated by Sub-Rule (2),Order. 21, Rule 53, is followed the surplus if any which might be left after satisfying the decree of the attaching creditor will become available for the benefit of the holder of the attached decree but if the decree was liable to be sold in execution this result may not always follow. In the other provisions which relate to the mode of executing and attaching varying kinds of property no express provision is made as to the mode in which the decree is to be realized and it may therefore be inferred that in those cases the attachment must be followed by the sale of the property attached. The reference in Order 21, Rule 16 to those cases where the decree is transferred by operation of law is capable of explanation inasmuch as sub-Rule (2), Order 21, Rule 53, applies only to a decree for money and for sale in enforcement of a mortgage or charge and some provision had to be made in respect of other kinds of decrees. I am therefore of opinion that the Courts below were correct in holding that the sale of Domi Lal Sahu's money decree was not warranted by law and the question now is whether the appellant could proceed to sell the properties of the respondents in their capacity as purchasers of that decree. It was contended by Mr. Sarjoo Prasad that the sale of the money decree should in the circumstances of the case be regarded as a merely redundant step and therefore liable to be ignored and it should be held that the appellants have substantially complied with the requirements of Order 21, Rule 53 in this case, The difficulty however in the way of the appellants seems to be this. When they proceeded to get the money decree sold and purchased it their decree against Domi Lal Sahu was satisfied and their execution case was dismissed. Under Order 21. Rule 57, upon the dismissal of an application for execution the attachment must be deemed to cease. It follows that the attachment ceased on 9 May, 1927 upon which date the execution case was dismissed. The present execution case was started by the appellants two years later in the year 1929 and the steps which they took in this proceeding could be deemed to have been taken under Order 21, Rule 53, only if it was shown that the property was still under attachment under that provision but as I have already stated the attachment had ceased to exist and in the present execution proceeding the appellants have proceeded in a new capacity, that is to say, in the capacity of persons who have purchased the money decree obtained by Domi Lal Sahu against the respondents. The procedure which was therefore adopted was not really the procedure which is contemplated in Order 21 Rule 53, and it appears to me that the Courts below rightly held that the sale of the properties of the judgment-debtor in those circumstances could not be upheld. The respondents have further urged that Narendra Prasad being dead before the decree was passed the decree of Domi Lal Sahu was a nullity. This is no doubt a substantial point and it appears that the respondents have adduced both oral and documentary evidence in support of their allegation but unfortunately the lower appellate Court has not gone into the question as it should have done and in view of the fact that the appeals fail on the first point it is not necessary to deal with the matter any further. These appeals must be dismissed with costs. Terrell, C.J.