Francis vs Joseph Scaria

G.H. Guttal, J.—The question for consideration in this petition is whether a defendant against whom no relief is claimed, or granted by a decree, is a "party" to the suit within the meaning of subsection Andru v. Moidu, 1965 K. L. T. 51, of Section 47 of the Code of Civil Procedure. The question arises out of the facts stated in paragraph No. 2 below. The petitioner, Francis, was defendant No. 3 in O. S. No. 73 of 1982 instituted by Joseph Scaria, the plaintiff - respondent. A decree for specific performance of contract of sale dated 16-2-1976, was made on 2212-1984. The decree was only against the defendant No. 1, a sister of the plaintiff. The defendant No. 2 was sued as an agent of the defendant No. 1. The decree directed the defendant No. 1 to execute conveyance of the suit property upon the plaintiff depositing the consideration.

In his written statement, Defendant No. 3 made no claim to the property in suit and alleged that he was unnecessarily joined as defendant. The plaintiff alleged that the defendant Nos. 2 and 3 were committing waste at the instigation of the defendant No. 1.

The decree was executed and the land measuring 1 acre 5 cents delivered to the plaintiff on 22-9-1990.

The petitioner herein filed two Execution Applications. E. A. No. 1354 of 1990 was for setting aside delivery of the property to the plaintiff. E. A. No. 1300 of 1990 was for measuring and demarcating the property with the help of a surveyor. The substance of his case is that his property, which was not subject matter of the suit, was taken possession of in execution of the decree. The learned Principal Sub Judge, Kottayam, dismissed both applications by a common order dated 4th January, 1991. In his view, the applications were not competent u/s 47 of the CPC as the property delivered in execution, was not subject matter of the suit and that the petitioner should file a separate suit. The petitioner impugns this order.

Under sub section Andru v. Moidu, 1965 K. L. T. 51, of Section 47 of the CPC (hereinafter referred to as the Code) all questions arising between "the parties to the suit in which the decree was passed" 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. Two essential ingredients of sub section Andru v. Moidu, 1965 K. L. T. 51, of Section 47 of the Code are: (i) the question, like the one raised in this petition, is a question relating to the execution discharge or satisfaction of the decree and (ii) the question has arisen between the parties to the suit in which the decree was made

This is a case in which the defendant No. 3 complains that the property in excess of what was decreed by the court has been taken possession of in execution of the decree. It is well established that where judgment creditor, in execution of the decree, takes possession of property in excess of what is granted by the decree, the question, is one relating to execution, discharge or satisfaction of the decree, Andru v. Moidu, 1965 K. L. T. 51, Merla Ramanna Vs. Nallaparaju and Others, and Gopalakrishna Kamath v. Bhaskar Rao, 1988 (2) K. L. T. 352

There is thus no doubt that the question about the correctness of delivery of possession of the property of the defendant No. 3 which was not subject matter of the suit and decree, relates to execution, discharge or satisfaction of the decree. But in order to fall under subsection Andru v. Moidu, 1965 K. L. T. 51, of Section 47 of the Code and exclude the right to file a suit, the question must be shown to arise "between the parties to the suit in which the decree was made." In other words, the defendant No. 3 must be shown to have been a party to the suit in which the decree was made. This is what the Supreme Court laid down in Ramanna v. Nallaparaju. Ramanna v. Nallaparaju, A. I. R. 1956 S. C. 87 The question then is as to the meaning of "party" to a suit. There are proper parties, necessary parties, formal parties, or misjoined parties. Is every person joined and described as a defendant, a "party" for the purpose of Section 47? Or is it necessary that his presence in the array of the litigants should be significant to the suit? What is it that makes a person named in the array of persons, a "party" within the meaning of sub section Merla Ramanna Vs. Nallaparaju and Others, , of Section 47 of the Code Bathai Bagyalakshmi Ammal v. Thoppai Bappu Aiyar and Others, A.I.R 1946 Madras 90.

For a comprehension of the true meaning of "party" a journey back to the meaning of some words used in the Code will be rewarding. Since I am dealing with execution of a decree and a question arising in execution, the meaning of "decree", the "judgment debtor" and "judgment creditor" may be first understood. "Decree" is the formal expression of an adjudication which successfully determines the rights of parties with regard to all or any of the matters in controversy in the suit.3 Therefore, a formal adjudication of rights of "the parties" is of importance. In order that a person becomes a party to a decree or a part of the scheme of the suit and the decree, there must be an adjudication of his right in respect of the subject matter of the suit. Unless the rights of a party are determined, there is no decree. It follows that unless a person''s right has been involved in the adjudicatory process there cannot be a determination of such right and in the absence of such determination there cannot be a decree against him or in his favour. Being a party to a suit or proceedings is therefore, connected with the adjudication of his right in the suit. The making of a decree brings into existence the relationship of the decree holder and the judgment-debtor. Decree holder is the person in whose favour a decree has been passed or an order4 capable of execution is made. "Judgment debtor" is the person against whom a decree has been passed or an order capable of execution made 5 This relationship of judgment creditor and judgment debtor brings into being a person who can enforce and a person who suffers enforcement of the decree. This relationship does not comprehend persons against whom no decree is made. It is therefore, of the essence of executability and execution that there must be a person against whom the rights adjudicated by a decree are enforceable. This is important because this relationship excludes from the scheme of execution, formal parties or parties against whom nothing is claimed or granted.

Against this background of the meaning of "decree", "judgment creditor" and "judgment debtor," a brief reference to the joinder of parties to the suit may be made. "Parties to suits" is the caption of Order I of the Code. It lays down who may be joined as parties. All persons in whom a right to relief exists may be joined as plaintiffs.8 In regard to joinder of defendants the test is that any right to relief in respect of or arising out of an act or transaction is alleged to exist.7 In other words, defendant is that person against whom plaintiff claims right to relief. It follows therefore, by implication, that if the plaintiff claims no right to relief in respect of a subject matter against a person, such person is not defendant as conceived by the Code. The fundamental principle in regard to the meaning of "party" is that a plaintiff must have a cause for relief and defendant must be a person against whom such cause is sought to be adjudicated. If no such claim is made or arises, the person even if he is joined in the array of parties may not be a party to the suit. It is not necessary that in order to be "parties" they must be arrayed on opposite sides.8 For instance, in a partition suit the defendants arrayed on the same side may have a conflict of interest as to their shares or about any other matter. Therefore on what side they are arrayed is not determinative of their status as parties Existence of a conflict makes them parties for the purpose of subsection Andru v. Moidu, 1965 K. L. T. 51, of Section 47 of the Code.9

A number of judicial authorities have been cited by counsel, the lessons of which may now be considered. In Katragadda China Ramayya10, in a suit on promissory note executed by the defendant No. 1; the latter''s son was joined as defendant No. 2. The defendant No. 2 "exonerated" from the suit on the ground that he could not be made liable on the promissory note'' executed by his father. Therefore decree was passed only against the father, the defendant No. 1. In execution, the proper y of the son, defendant No. 2, was sought to be attached and sold. The property had fallen to the son''s share in a partition made before the suit. The Madras High Court, inter alia, considered the argument that the sons were liable for the prepartition debt of the father because they "were made parties to the suit but later on were exonerated." The Court held that there was no difference between cases "where the son was made a party to the suit but subsequently exonerated and where he was not made a party at all." Therefore, a case where a person is not joined as a defendant at all, is the same as where he is joined but no decree made against him. The Court went ahead and held that a decree made against a defendant after exonerating other defendants, is in content and character, a decree made on the basis that the exonerated defendants were not parties to the suit.

The rationale of the decision is: In one case, a person is joined as defendant but he is exonerated or suit dismissed against him. In another case the person is not joined as party at all. The status of the exonerated person or the party who is not joined at all has the same character in relation to the suit and the decree. The position is that neither of them shall be considered to be party to the suit. The reasoning in Katragadda China Ramayya11 can be extended to this case. The defendant No. 3 though remaining on the record was nonexistent so far as the reliefs in the suit were concerned. Upon the reasoning of the Full Bench of the Madras High Court the omission to make a claim against defendant No. 3 and the consequent absence of decree against him, takes away from him the character of a "party" to the suit.

In Chittirala Mahalakshmamma12 suit was instituted against the widow of the executor of the promissory note. The widow was the defendant No. 1. The defendant No. 2 was a lady by name Mahalakshmammat Decree was made only against defendant No. 1. The suit against the defendant No. 2 was dismissed as she was exonerated. But in execution, the property of the defendant No. 2 was attached. She made a claim in execution, u/s 48 and Order 21 Rule 58 of the Code. The test applied by the Madras High Court, when applied to this case would present this picture: Suppose the claim made by the defendant 3 herein were raised in the suit. Could the court, trying suit for specific performance of contract, have adjudicated upon the claim now made by the defendant No. 3 in execution ? The issue whether the land referred to in this case belongs to the defendants No. 3 and therefore not subject matter of the plaintiff''s claim in suit No. 73 of 1982 could not have been decided in the suit between the plaintiff and defendant No. 1. If that is so, such an issue cannot be a question "between parties to the suit". Another aspect emphasised by the Madras High Court is this: If a plaintiff were allowed to join improperly as defendants persons against whom no issues arise for decision, absurd results and abuse will follow. Merely by joining such "parties", the plaintiff and such "parties'''', ''will be permitted to pursue remedies in execution u/s 47 of the Code.

A judgment of the Lahore High Court which apparently took a contrary view was cited, Shiv Ram13 is a case in which the question was whether in execution of a decree an auction purchaser is a representative of the decree holder or judgment debtor. The plaintiff in the suit was a formal defendant as a cosharer, in the previous suit in which decree against another defendant was made. The Lahore High Court observed :

The learned counsel for the appellant has urged that the plaintiff should not be considered to be a party to the previous suit as he was merely joined as a proforma defendant, but section 47 of the CPC does not seem to make any such distinction.

This judgment has no application because clause (a) of Explanation II to subsection (3) of Section 47 of the Code introduced by the CPC (Amendment) Act, 1976 deems the auction purchaser, to be a party to the suit in which the decree was passed. In a sense, therefore, the judgment of the Lahore High Court is obsolete, in so far as its view about the status of auction purchaser is concerned.

Now Section 47 of the Code does not refer to the status of parties with reference to whether relief is claimed against them, whether they are pro-forma parties, whether they are necessary parties or proper parties, but the word used is "the parties". As I have already stated, in order to be parties to a suit the persons concerned must possess certain character in relation to the opposite party and also the subject matter of the suit. The defendant must be exposed to the adjudicatory process. Without this character a person cannot be a party to the suit. Whether a person is a party has to be considered on the basis of his relevance to the suit. A person who is in no way concerned with the subject matter does not become a party just because he is named in the title of the plaint. The reasoning of the two judgments of the Madras High Court, is consistent with the scheme of the Code of Civil Procedure.

What clothes a person with the status of a party to the suit has been considered in the foregoing paragraphs. I summarise below my conclusions on this question :

i) The existence of a right to relief in favour or against, determine the status as plaintiff or defendant respectively. Parties to suit are either plaintiff or defendant. Therefore, the person who answers these tests alone can be parties.14

ii) The legal relationship of "Judgment Creditor" and "judgment debtor" also suggests that "parties" are persons who are exposed to the adjudicatory process - by reason of their claim or defence15

iii) Being arrayed in the title of the suit on one or the other side, does not clothe a person with the character of "a party". Existence of a relationship with the subject matter of the suit is of the essence of the status as a party. In Katragadda China Ramoyya v. Chiruyella Venkanaraju (AIR 1954 Madras 864) the Full Bench of the Madras High Court, took into account the fact that in view of the partition the defendant No. 1, father had no power to sell the property of his son, the defendant No. 2. Therefore, the liability of the ''exonerated'' defendant was considered relevant to his status a "party".

iv) Nor is it necessary that for being "parties", persons should be arrayed on opposite sides.17 What is of importance is the existence of a conflict of interest,18 which calls for adjudication.

v) A person- who is named as a defendant without a claim for relief against him or a person whose name is struck off, is not a party to the suit. The status of such person is the same as that of a person who was never joined in the suit.19

(vi) In Katragadda China Ramayya20 the right or liability was applied as a test to determine the status as a party. In Chittirata Maholakshmamma21 - a single judge of the Madras High Court applied another test If the issue raised by "a party" in execution could not have been raised in the suit, the issue cannot be a question between ''''parties" to the suit.

In view of my conclusions I hold that for the purpose of Section 47 of the CPC the petitioner- defendant No. 3 is not a party to the suit in which decree was made. Consequently this petition will have to be dismissed. Accordingly the petition is dismissed with costs.