LAKSHAN CHANDRA NASKAR Vs. RAMDAS MANDAL

JUDGEMENT

(1.) The plaintiff in 1909 obtained a money decree against the defendant and his brother for Rs. 27-8-0. After much contest it has been found by the lower appellate Court that in 1913 the defendant and his brother transferred to the plaintiff 10 cottahs of land in satisfaction of all debts on whatever account due to the plaintiff and that thus the decretal amount was discharged. It is clear, however, that this adjustment of the decree was not certified by the plaintiff under Order 21, Rule 2 and that the judgment-debtors failed to apply to the Court within the ninety days prescribed by Art. 174, Schedule 1, Lim. Act 1908, to have the adjustment recorded. Clause 3 of the rule took effect accordingly; the adjustment "shall not be recognized by any Court executing the decree." In this state of things the plaintiff in 1914 sought to have execution of the decree; the defendant set up the adjustment as an objection in the execution case: but this objection being clearly unsustainable it was not persisted in and was dismissed for default on 23 November 1914. The land in suit was sold in execution and purchased by the plaintiff in 1915 and in 1916 delivery of possession was given to the plaintiff under Order 21, Rule 95. The lower appellate Court has come to no specific findings on the matter but the plaintiff's averment was that he had peaceable possession until 1919 when the defendant committed various acts of trespass and soon thereafter dispossessed the plaintiff. Whether the possession given to the plaintiff in 1916 was effective and complete or so ineffective and incomplete as to deserve the adjective "symbolical" is of no importance in the present suit which was instituted in 1925. The only question is as to the plaintiff's title there being no room for objection to the claim on the ground of limitation. The plaintiff put in evidence the sale certificate dated 22 May, 1915. The defendant contends that the decree having been satisfied in 1913 the proceedings of 1914-16 were had in fraud of the defendant and that this is a defence which the Court in the present suit must entertain as it goes to the validity of the plaintiff's title.

(2.) This raises an important question and the reference to this Full Bench states the question in this form: Whether an objection to an execution sale on the ground that the decree in execution of which the sale took place was satisfied prior to the sale might be pleaded by way of defence in a suit by the purchaser for possession of the property sold in execution of the decree although such objection was raised in execution proceedings but was not determined on account of the laches of the judgment- debtor in allowing the objection case to be dismissed for default?

(3.) Now I think that for the purposes of the present case the circumstance that the objection was raised before the executing Court and the circumstance that the objection was before that Court abandoned are devoid of all importance. The defendant was forbidden by Clause 3, Rule 2, Order 21, to raise before any Court executing the decree the plea that the decree had been satisfied and it may safely be supposed that his failure to persist in that plea is explained by the fact that it could not be entertained. He is no worse off and no better off for having thought of raising it. As he could neither bring a suit nor apply under Section 47 there is no question of the defendant having lost by laches his right to impeach the sale. Thus the present case is altogether free of any complication such as may arise when the objection taken to defeat an auction-purchaser's suit in ejectment is of a kind which might and should have been taken and decided in the executing Court. If for example the objection be that the judgment- debtor's interest in the property was of a kind that was not saleable in execution, a question may arise whether the objection comes too late, whether the defendant having (for example) suffered an order for sale or an order confirming the sale can take the objection at a late stage and dispute the previous orders. This question may arise upon the judgment-debtor's application under Section 47 to set aside the sale as in Durga Charan V/s. Kali Prasanna [1899] 26 Cal. 727. If it be true that Section 47 permits the defendant in a subsequent ejectment suit to assert by his defence the invalidity of the sale it may be that the same question can arise in a suit. It was thought to arise and it was dealt with in Murullah V/s. Sh. Burullah [1905] 9 C.W.N. 972 and Dwarkanath Pal V/s. Tarini Sankar Roy [1907] 34 Cal.199.