BADRIDAS AGARWALA Vs. CHAIRMAN, DHANBAD MUNICIPALITY

JUDGEMENT

(1.) This miscellaneous second appeal arises out of an objection taken by the judgment-debtor under Section 47, Civil P.C., in an execution proceeding. The Chairman of the Dhanbad Municipality brought a suit against the judgment-debtor- appellant. The suit was decreed on admission and then the decree was sought to be executed. The point that succeeded before First Court was that the Chairman of the Municipality had no right to sue; but the lower appellate Court has held that he was entitled to sue and therefore he has dismissed the objection.

(2.) The case has been argued very fully by both the parties, and the point that has been agitated by the learned advocate for the appellant is that as the suit was filed by the Chairman, Dhanbad Municipality, the decree obtained therein was a nullity and, therefore, incapable of execution. In order to appreciate the point of law urged we sent for the original plaint to see what the position actually was, and we find that the plaintiff described therein is "the Chairman, Dhanbad Municipality, Dhanbad." The facts out of which this suit arose, which have not been questioned before us, appear from the plaint. The defendant took settlement of some municipal stalls in Dhanbad Bazar at Rs. 660 for one year from 1 September 1937 to 31 August 1938. Out of this a sum of Rs. 165 was paid, but Rs. 495 was still due. The plaintiff, therefore, filed the suit for a sum of Rs. 502. As I have noted before, the judgment, debtor admitted his liability and a decree was passed. The decree was for Rupees 502 as principal, and Rs. 67-2-0 as costs. It was payable in monthly instalments of Rs. 8 payable from 28 February 1939. Out of this amount the decree-holder admitted that he had received Rs. 248 and in the present execution proceedings the prayer was for recovery of Rs. 320 odd and costs.

(3.) In support of the contention raised on behalf of the appellant, the learned advocate has strongly relied upon two decisions of this Court. The first case on which he relies is reported in Kali Prasad V/s. Badri Narain A.I.R. 1939 Pat. 236, where after referring to the provisions of Section 12, Bihar and Orissa Municipal Act, Wort J. observed as follows: But the real point is that by the Section the Commissioners become a legal entity which legal entity is not represented by the Chairman; although reference is made to the Chairman from time to time in the Act, he is a person who apart from such reference is unknown to the law, is not a legal entity but is merely a person. If the chairman is sued the plaintiff is entitled to relief only against him and that is clearly not the plaintiff's case here. In no sense of the word could he be held to be the representative for the purpose of the proceedings of the Municipal Commissioners and there is no justification on principle or on authority or under the Act itself to entitle a party to seek his relief against the Commissioners by bringing an action against the Chairman. In my judgment it is not merely a mistake of form but it goes to the very root of the action.