LAWS(PVC)-1926-4-79

MOHAN SINGH CHOWDHURI Vs. PANCHANAN SADHUKHAN

Decided On April 01, 1926
MOHAN SINGH CHOWDHURI Appellant
V/S
PANCHANAN SADHUKHAN Respondents

JUDGEMENT

(1.) This appeal raises an interesting question of practice. The plaintiffs-appellants are members of a Hindu family governed by the Mitakshara law. Earn Singh Chowdhuri died some time before 1888, leaving him surviving a widow Rup Kumari and an only son Mohan Singh Chowdhuri, since deceased. The male plaintiffs are the adult sons of Mohan Singh, and the two minor sons are represented by the plaintiff Rani Kumari their mother and natural guardian. In 1888 as the result of a partition suit a certain tank which is the subject matter of these proceedings remained the joint property of the members of the family, but was divided into specified shares of which the plaintiffs received a 4/5 share and Rup Kumari 1/5 share. In 1898 Sib Gopal Banerji obtained a personal decree for money lent against Rup Kumari. In 1904 Rup Kumari died. In 1905 proceedings in execution of this decree were taken by Sib Gopal, the decree-holder, and in the course of these proceeding's the plaintiffs were brought on the record as the legal representatives of Rup Kumari. On the 14 February 1906 Rup Kumari's 1/5 share of the tank was sold in execution of the decree, and was purchased by Gokul Das Khetry, who is a defendant-respondent in the present appeal. The other defendants-respondents are the heirs and legal representatives of Rasik Lai Sadhukhan who was the tenant of the tank. On the 10 July 1906 Rani Kumari applied under Order 21, Rule 90, for an order setting aside the sale on the ground of irregularity in publishing the sale proclamation, but the application was rejected, and an appeal from the order was dismissed. <JGN>Page</JGN> 2 of 4

(2.) On the 14 May 1919 the present suit was instituted, and the plaintiffs prayed for a declaration that Gokul Das Khetry did not obtain any interest in the tank by purchasing Rup Kumarj's 1/5 share therein at the execution sale inasmuch as Rup Kumari possessed only a life interest in the tank, and that at the time of the sale that interest had come to an end. As against the other defendants the plaintiffs claimed arrears of rent. The trial Court dismissed the suit in its entirety, but the lower appellate Court allowed the plaintiffs claim to the extent of 4/5ths of the rent in arrear, and in other respects dismissed the appeal. As regards the plaintiffs prayer for & declaration that no estate or interest in the said tank passed to defendant Gokul Das Khetry on the sale it was urged on behalf of the defendants-respondents that this cause of action is res judicata, and is also barred by reason of Section 47 of the Civil P.C. In my opinion the claim is not barred by res judicata as it was not necessary or material for the determination of the previous suit that the Court should have decided the question in issue in the present suit. I am clearly of opinion, however, that the plaintiffs cause of action except in respect of the claim for rent in arrear is barred by reason of Section 47 of the Code. Under Section 47(1) it is provided that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

(3.) Now it is not open to doubt or controversy that the plaintiffs who were brought upon the record after the decree was passed as the heirs and legal representatives of Rup Kumari were the representatives of Rup Kumari within Section 47, or that the question whether any interest in the tank passed on the sale was a question relating to the execution, discharge or satisfaction of the decree. Kailash Chandra Tarapdar V/s. Gopal Chandra Poddar A.I.R. 1926 Cal. 798 (F.B.). It is equally clear that the plaintiffs had an opportunity of raising this question in the execution proceedings, but refrained from so doing. In these circumstances, I am of opinion that the plaintiffs suit except as to the claim for arrears of rent is barred by reason of Section 47 of the Code. I respectfully agree with the Full Bench of the Allababad High Court in thinking that: If there are questions of this nature, and which properly arise between the parties or their representatives they must be determined by order of the Court executing the decree, and not by separate suit; and the provision disallowing a separate suit to determine these questions applies not only to prohibit a suit between parties and their representatives but also a suit by a party or his representatives against an auction-purchaser in execution of the decree, the object of which is to determine a question which properly arises between parties or their representatives and relates to the execution, discharge or satisfaction of the decree. If the question be of this nature it is one which by Section 244 (now Section 47) must be determined by order of the Court executing the decree and not by separate suit; and it is immaterial whether the party did or did not raise it <JGN>Page</JGN> 3 of 4 prior to the auction sale at the time of execution. If he did not, he lost the remedy which the Legislature has provided.