SIDDESWAR GHOSE Vs. PANCHANAN BANGAL

JUDGEMENT

(1.) This matter comes before us as an appeal under the provisions of Clause 15, Letters Patent of this Court. The matter came before Mukherjea J. on 22 April, 1937, and he then allowed an appeal against the decision of the Subordinate Judge, third Court, 24 Parganas dated 23 March 1936. That decision itself was given in appeal against an order of the Munsif, first Court, Barasat, dated 19 December 1935, described as having been given in Miscellaneous Case No. 250 of 1935. This ease has a long history. It started by a suit instituted in the year 1925 brought to recover a sum of money said to be due by way of rent in respect of a certain holding. The amount claimed was very considerably less than the sum of Rs. 500. We are told that it was in the neighbourhood of Rs. 150 only. Litigation has been proceeding in respect of that small sum of money over a course of a dozen years or more. A decree in favour of the plaintiff in the suit was made on 22 March, 1926. The decree-holder who is the landlord started execution proceedings for the enforcement of that decree on 22nd March 1929, that is to say, on the last possible moment of the period of limitation prescribed for the enforcement of decrees of that character by the provisions of Art. 6 of Schedule 3, Ben. Ten. Act. The matter with which we are now immediately concerned came before the Court in this way. There was an application by the present appellants (who were usufructuary mortgagees) made under Section 47, Civil P.C. on 2 November, 1935. By that application they objected to the order which had been made by the learned Munsif restoring the execution matter which had originally been instituted, as I have stated, on 22 March, 1929. The order was objected to on the ground that at the time when it was made, the execution proceedings had come to an end and that the decree-holder who sought to have those proceedings revived was barred by the provisions of the Art. to which I have referred.

(2.) In order to elucidate the points adjudicated upon by Mukherjea J., it is necessary to refer to one or two further dates. The holding in respect of which rent was claimed in the original suit was put up to sale on 10 July 1929. The sale was confirmed on 11 January 1930, and thereupon an order was recorded by the Court to the effect that the execution case was dismissed on satisfaction . The term dismissed as used in this connection is perhaps somewhat unfortunate. Dismissal of an application generally implies that an application or other proceedings has failed, whereas at that stage the execution proceedings instituted by the decree-holder had been entirely successful. The holding had been sold, it had been purchased by the decree-holder and the amount due to him under the decree of 22 March, 1926 had been satisfied. It would have therefore been more correct and subsequent difficulties might have been avoided, if the Munsif instead of saying dismissed on satisfaction had used some such expression as disposed of. The next event was that on 24 July 1934, nearly four years after the sale had been confirmed, an application was made by the mortgagees, the present appellants, for an order that the sale should be set aside. Presumably that application was of the common-form-kind with which we are so familiar in this Court. The sale was in fact set aside by an order made on 30 March 1935, that date is very material for our present purposes. There was an appeal against that order setting aside the sale. That appeal was dismissed on 17 June 1935. Accordingly from that time onward, at any rate, the position was that the decree-holder was back in the position in which he was before the sale ever took place.

(3.) Now, one would have thought that in those circumstances the decree-holder would immediately have taken steps to safeguard his rights to carry on the execution proceedings and so to obtain satisfaction of his decree. But, in fact, nothing was done on the part of the decree-holder for a space of more than a month from the time when the order for setting aside the sale was confirmed on appeal, and the step which the decree-holder eventually took was in the form of an application which purported to be made under Section 151, Civil P.C. That application was made on 26 July 1935, and it was for the revival or restoration of the execution proceeding which nominally at any rate had been put an end to by the order of 11th January 1930. The question which we have to determine is whether Mukherjea J. was right in coming to the conclusion that the learned Subordinate Judge ought not to have allowed the original appeal against the decision of the Munsif. The contention of the mortgagees throughout has been that the application which purported to be made under Section 151 of the Code was barred by the provisions of the Articles of Schedule 3 to the Ben. Ten. Act, to which I have already referred. One other point which had to be dealt with by the learned Judge and he disposed of it was the question of whether the objectors were representatives of the judgment-debtor within the meaning of that expression as used in Section 47, Civil P.C. I think that the learned Judge was of opinion that "the present objectors who purport to be mortgagees under the judgment-debtor are not competent to challenge this order".