MAHARAJ BAHADUR SINGH Vs. INDER CHAND BOTHRA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Chitty, whereby he allowed the application of Inder Chandra Bothra to be at liberty to proceed with the sale of premises No. 58 Burtolla Street in the town of Calcutta, attached in execution of the decree in question. In order to state the point it is necessary to examine the facts. It appears that on the 19th of June 1896 one Kapoor Ghand Kharar obtained a decree against Maharaj Bahadur Dhunput Singh for Rs. 13,150. The application in this case was made by the holder of the assignment from the sons of the original creditor and the opposite parties are the sons of the original debtor. On the 18th of May 1907, an application was made by the son of the decree-holder for transmission of the decree to the District Court of Murshidabad for the purpose of having the decree executed. On the 28th of August 1907, an order for transmission was made by Mr. Justice Harington. The matter came before Mr. Justice Harington in this way. It appears that the matter having come before the Registrar, an objection was taken that no succession certificate had been produced by the applicant, and the Registrar consequently referred the matter to Court, and Mr. Justice Harington was the learned Judge who disposed of it. The facts are stated by Mr. Justice Chitty in his judgment. Having stated that notice was duly served and that a question arose as to whether Surajmull required a succession certificate before he could be allowed to execute the decree, he says: "The matter was referred to the Judge in Chambers by consent of both parties and on the 23rd of August 1907 Mr. Justice Harington passed an order under Section 248 against Maharaj Bahadur Dhunpat Singh as the legal representative of the deceased judgment-debtor." That decree was not transmitted, and, on the 4th of September 1907 an application was made by the same parties for the attachment and sale of certain premises in Calcutta, namely, No. 58 Burtolla Street. In the application it was stated that the property was inherited by Maharaj Bahadur Singh as the sole heir under the Mitakshara Law from the deceased defendant Rai Dhunput Singh Bahadur. In respect of that application no notice was issued to the representatives of the deceased judgment-debtor, the Registrar in his order expressing the view that no notice was necessary either under Section 232, Civil Procedure Code, or under Section 248(a),Civil Procedure Code, the decree having been transferred to the applicants by operation of law and the Court having in a previous application ordered execution against the same person as legal representative of the deceased judgment debtor. On the 17th of September an attachment was made of the property in Calcutta, and on the 29th of July 1908 an order for sale was made. Both these orders, as I understand, were made without notice to the representatives of the deceased judgment-debtor. After that, apparently, the holders of the decree changed their mind; they did not proceed with the order for sale, but another application was made for transmission of the decree, and that was made on the 25th of August 1908. The Master, dealing with this application in the ordinary course, made an order that the decree should be transmitted. On the 17th of May 1909 the learned District Judge of Berhampur returned the decree to the High Court with a note that the matter had been dismissed for want of prosecution. Then on the 12th of March 1910 the holder of the decree applied to proceed with the order of 29th of July 1908 which, it will be remembered, was the order for the sale of the premises in Calcutta Then on the 21st of April 1910 the Master made an order for the sale of the premises, and it will be noted that that order was made when the Master was acting under the old rules of the Code, the new rules, as pointed out by the learned Advocate General, not having come into force until the 15th of April 1914. I might incidentally mention here---although I do not think it is necessary for my judgment in this case as at present advised---that that order of the Master would be without jurisdiction.

(2.) The property was advertised for sale and a date was finally fixed for the sale of the property on the 25th of August 1914. Then the representative of the judgment-debtor came upon the scene again and applied to have the attachment of September 1917 set aside on the ground that the property was trust property: and---as (sic) understand---the application was made in his capacity as trustee. Then the holder of the decree came upon the scene again, and upon his application the sale was adjourned sine die. That was in August 1914. Nothing happened then until two years later, when on the 29th of August 1916 the present applicant, Inder Chand Bothra, having obtained an assignment of the decree from the sons of the decree-holder made this application to the Court, and, as I have already stated that was an application for leave that he might be allowed to proceed with the sale of the said attached property in terms of the order of the 29th July 1914. Now, those are all the facts---which I think necessary to state for the purpose of my judgment. The matter really is within a narrow compass.

(3.) The learned Advocate-General argued first of all that inasmuch as there was no notice of the application dated the 4th of September 1907, which was for the attachment of the premises in Calcutta, served upon the representatives of the judgment-debtor, the subsequent proceedings in respect of that application, namely, the attachment of the 17th of September 1907, and the order for sale of the 29th of July 1908, were both invalid, inasmuch as they were made without jurisdiction. That depends upon Section 248 of the Civil Procedure Code which was then in force That Section says as follows: