Jai Krishna and another vs Musammat Soghra and others

Das, J.—On 23rd of February 1915, one Jai Krishna, who was cited as defendant No. 3 in the suit out of which this appeal arises, and who is the appellant before us, obtained a money decree for Rs. 9,373-3-0 against Musammat Noorjahan Begum. On the 9th of June 1915, Jai Krishna started proceedings to enforce the decree of the 23rd of February 1915 and he attached a house belonging to Musammat Noorjahan Begum. We are concerned in this appeal mainly with the question whether Musammat Noorjahan Begum had any title to execute a mortgage in respect of this house subsequent to the attachment of the 9th of June 1915. On the 20th of July 1915 the Court directed the house to be sold in execution of Jai Krishna''s decree and fixed the 20th of September 1915 for the sale of the property. On the 11th of September 1915, the following order was passed by the Court: "Judgment-debtor files petition stating that she has paid. Rs. 250 to the decree-holder and prays for four months'' time. Decree-holder consents to the time given. Ordered, dismissal on part satisfaction." On the 29th of November 1915 Musammat Noorjahan Begum and Musammat Nasiran Bibi joined in executing a. mortgage of the house, with which we are mainly concerned in this appeal, and another property in favour of Musammat Bibi Soghra. The important question which we have to determine in this appeal is, did the attachment cease because the execution case was dismissed on part satisfaction on the 11th of September 1915? Musammat Bibi Soghra was the plaintiff in the action and her suit was a suit to enforce the mortgage executed in her favour on the 29th of November 1915. The appellant resisted the suit on three grounds; first, on the ground that the mortgage executed by Musammat Noorjahan Begum and Musammat Bibi Nasiran on the 29th of November 1915 was subject to the attachment of the property effected in the previous suit and that, accordingly the title of Musammat Bibi Soghra to the mortgaged property is subject to the claim of the appellants as against Musammat Noorjahan Begum; secondly, on the ground that the mortgage conveyed no interest in the house to Musammat Bibi Soghra; and, lastly, on the ground that the transaction of the 29th, of November 1915, was a collusive and a fraudulent transaction for the purpose of defeating the claims of the creditor of Musammat Noorjahan Begum. The learned Subordinate Judge has answered all these questions in favour of the plaintiff.

So far as the first point is concerned, the position is this: On the 11th of September 1915, Musammat Noorjahan Begum seems to have paid Rs. 250 to the appellants and to have asked for four months'' time. The decree-holders consented to give time whereupon the Court dismissed the execution case on part satisfaction. O. XXI, r. 57, Civil Procedure Code, runs as follows: "Where any property has been attached in execution of a decree but by reason of the decree-holder''s default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease." It has been pointed out that the object of the rule is to put an end to the doubts which have arisen from time to time as to the continuance of an attachment by reason of the practice of "striking off proceedings" or "removing proceedings" from the file for which there was no justification under any of the earlier Codes. The provision contained in O. XXI, r. 57, Civil Procedure Code, is a new provision and it appears to me that the dismissal of an application for execution involves this result that the attachment comes to an end by reason of such dismissal. No doubt the Court has no power to dismiss the application for execution unless there is default on the part of the decree-holder, but as has been held more than once, default means a failure to do what one is legally bound to do. The position is this: On the 11th of September 1915, the degree-holder put it out of his power to proceed with his execution. There was, in my opinion, a default on his part and the learned Subordinate Judge was entitled to dismiss the application on the ground that there was a default on the part of the decree-holder. That being so, the attachment came to an end. Mr. Sushil Madhab Mullick, appearing on behalf of the appellants, strongly relies upon the case of Valiakath Puthiah v. Manakkal Parameswaran (1915) 2 L.W. 601: 35 I.C. 240. In that case after the respondents had got the property attached the sale was stayed by an appeal preferred by the judgment-debtors. Thereupon the District Munsif dismissed the application. Clearly, that was not a case where there was any default on the part of. the decree-holders, for they in no way consented to the order staying the sale They had not put it out of their power to proceed with the execution case and accordingly the Madras High Court came to the conclusion that the order of dismissal did not involve the removal of the attachment. Now, in this case as I have already said, the facts are entirely different, the Order of the 11th of September 1915, passed by the learned Subordinate Judge being a consent Order. The decree-holder was not bound to consent to the application made on behalf of the judgment-debtor. By consenting to that application he put it entirely out of his power to proceed with the execution of his decree. That being so, the learned Subordinate Judge was right in dismissing the application for default; and, if he was right in dismissing an application for default, there is no doubt that upon such dismissal the attachment ceased. Mr. Sushil Mahadeo Mullick argues before us that it is impossible to understand the Order of the 11th of September 1915, unless we have the petition upon which the order was made before us, and he tendered the petition in evidence before us. This document was not filed in the Court below, and, under the decision of the Judicial Committee in the case of Kessowji Issur v. Great Indian Peninsula Railway Company (1907) 31 Bom. 381: 34 I.A. 115: 9 Bom. L.R. 671: 11 C.W.N. 721: 6 C.L.J. 5: 4 A.L.J. 461: 17 M.L J. 347 (P.C.), there is no jurisdiction in the Appellate Court to admit additional evidence unless on examining the evidence as it stands some inherent lacuna or defect becomes apparent. Now, there is no inherent lacuna or defect apparent in the evidence. That being so, it is impossible to receive the document tendered by Mr. Mullick in evidence in this Court. The document is accordingly rejected.

It was next argued that the mortgage executed by Mt. Noorjahan Begum and Mt. Bibi Nasiran conveyed no interest in the house to Mt. Bibi Soghra. The point arises in this way. By a deed of sale executed on the 14th of October 1912, Mt. Noorjahan Begum conveyed this house to Mt. Bibi Nasiran. Upon the attachment of the house by the appellants in execution of their decree against Mt. Noorjahan Begum, Mt. Bibi Nasiran put in a claim to the house. That claim was disallowed. Mt. Bibi Nasiran thereupon brought a title suit, being Suit No. 133 of 1917, and it appears that her suit has been dismissed not only by the Court of first instance but by this Court. Upon these facts Mr. Sushil Madhab Mullick argues that Mt. Bibi Nasiran had no title to the house which she purported to mortgage in favour of Mt. Bibi Soghra. Now, in my opinion, it is not open to the appellants to raise this point at all. In the mortgage bond of the 29th of November 1915, Mt. Noorjahan Begum makes an admission that the house belongs to Bibi Nasiran. Now, that admission may be true admission or a false admission; but, unless the appellants have some title or interest in the house itself by virtue of some transaction to which Noorjahan Begum is a party, there is clearly no right in them to object to any statement that might have been made by Mt Bibi Nasiran and Mt. Noorjahan Begum in the mortgage-deed. The whole question is: is the attachment effected by the Court in the appellants'' execution proceedings a subsisting attachment? If that attachment still subsists, no doubt it is open to the appellants to argue that this Court ought not to rely upon the admission made by Mt. Noorjahan Begum in the mortgage-deed. But if the attachment has ceased, then clearly it is of no importance to the appellants whether Mt. Bibi Nasiran or Mt. Noorjahan Begum mortgages the property. But apart from any other consideration it seems to me that the point does not arise. The critical passage in the bond is as follows: "As security for the said loan, principal and interest and compound interest, we have mortgaged and hypothecated the whole and entire 16 annas of the house, rooms and two storied pacca katra consisting of several kitas of houses together with all materials appertaining to the house and land situate at Mahalla Gazai appertaining to Thana Khajekallan, one of the quarters of Patna City, belonging to and occupied by me, the executant No. 1 as my dwelling house and constituting my purchased property under a registered deed of absolute sale, dated the 14th October 1912, executed by me, Musammat Noorjahan Begum executant No. 2, and which is owned and possessed by me, the executant No. 1 without the co-partnership and interference on the part of any other individual." Now, the mortgage is undoubtedly by the two ladies, although Bibi Nasiran states that she alone has a title to the house and Musammat Noorjahan Begum agrees with that statement. The argument of Mr. S.M. Mullick is that the mortgage is only by Bibi Nasiran who had no title to the house and accordingly the mortgage executed by her conveyed no title whatever in the house to Musammat Bibi Soghra. In my opinion, this argument is not correct, for the document shows that the mortgage was both by Musammat Bibi Nasiran and by Musammat Noorjahan Begum. I must accordingly overrule the argument on this point by Mr. Mullick.

The last point argued before us is, that the transaction by which Mt. Bibi Nasiran and Musammt Bibi Noorjahan Begum mortgaged the house to Musammat Bibi Soghra is a frudulent and a collusive transaction did not operate to convey any interest in that house to Musammat Bibi Soghra. The mortgage was undoubtedly executed by the two ladies in favour of Musammat Bibi Soghra. There was accordingly an apparent transaction by which a title has been created in favour of Musammat Bibi Soghra, and we must assume that the apparent transaction was the real transaction until the contrary is established by the appellants. Now, the mortgage document shows that the ladies borrowed Rs. 6,000 from Musammat Bibi Soghra in order to pay Rs. 3,777 to Mahanth Ram Kishun Das, who was a creditor of the ladies and Rs. 1,000 to Shah Gopi Saran Saheb who appears to have had a decree against Musammat Noorjahan Begum. Noorjahan Begum appears to have taken before the execution of the document Rs. 500 for the expenses of the Mohurrum and Rs. 723 appears to have been paid to her in cash on the date of the execution of the mortgage. What happened was that Rs. 3,777 was paid to Mahanth Ram Kishun Das by Musammat Bibi Soghra and Mahanth Ram Kishun Das remitted Rs. 300 which accordingly was paid to Musammat Noorjahan Begum. The evidence of Adit Prasad is that after remission he got Rs. 3,400 from Hyder Khan. Hyder Khan, it may be mentioned, is the husband of Musammat Bibi Soghra, and Muhammad Hyder giving evidence says that Rs. 3,777 was given to Mahanth Ram Kishun Das on account of mortgage-debt of which Rs. 3,000 was principal and that the Mahanth remitted Rs. 300. Exhibit 2 is an entry in the account book of Mahanth Ram Kishun Das. The entry runs as follows:-

Credited to Noor Jahan Begum, widow of Syed Mohammad Hassan Khan alias Mohammad Nawab deceased, and Bibi Nasiran, daughter of Sheikh Amir Jan, deceased, resident of Goodri Masoom Khan, on account of bond, through Soghra and Haider Ali Khan, husband of Musammat returned the bond and the deed of sale ... ... ... Rs. 3,000.

This is an entry of Rs. 3,000 and then there is an item of Rs. 400 which appears to have been entered in the book as payment on account of interest after deduction of remission. The entry, Exhibit 2, strongly supports the case of the plaintiff and establishes conclusively that Rs. 3,777 was in fact paid by Musammat Bibi Soghra to Mahanth Ram Kishun Das. As regards the payment of Rs. 1,000 to Gopi Saran Shah, the petition of satisfaction filed in Shah Gopi Saran''s execution case appears to me to be conclusive on this point. That petition after stating that it was necessary for the judgment-debtor to pay Rs. 1,000 that day goes on to say as follows:-

So on receipt of Rs. 1,000 in notes as per details given below from Muhammad Haider Khan, husband of Musammat Bibi Soghra, your petitioner judgment-debtor, paid it to the decree-holder, the receipt of which is acknowledged by the decree-holder on the back of this petition. It is, therefore, prayed that the entry of payment of the said sum of Rs. 1,000 may be made; and it may be ordered. in terms of the said petition that your petitioner-judgment-debtor''s property will be sold on the sale day in January for the highest bid including the bid of the decree-holder.

There is no reason to doubt that at any rate Rs. 4,777 was paid by Musammat Bibi Soghra on behalf of Musammat Bibi Nasiran and Musammat Noor Jahan Begam to Mahanth Ram Kishun Das and to Gopi Saran Shah in satisfaction of their debts to them. There then remains the question of balance, viz., Rs. 773. With regard to this amount we have only the oral evidence, but there is no reason to doubt the evidence, specially as we accept the evidence adduced on behalf of the plaintiff that Rs. 3,777 was paid to Mahanth Ram Kishun Das and Rs. 1,000 was paid to Gopi Saran Shah. The plaintiff has, then, established that the mortgage upon which the suit has been brought was a real transaction and not a collusive transaction. The appellants, on the other hand, have given evidence to show that the transaction was not a real one and that Musammat Bibi Soghra did not pay the consideration for the bond and that it was purely a fraudulent device in order to defeat the creditors. But the witnesses upon whom Mr. S.M. Mullick relies are themselves witnesses to the transaction and their case is that they signed this document in order to save the house which belonged to Musammat Noor Jahan Begum. In my opinion, it is quite impossible to place any reliance upon the testimony of these witnesses. When we are considering a question such as this, the important point is, did Musammat Bibi Soghra have any fund out of which she could have lent Rs. 6,000 to Musammat Bibi Nasiran and Musammat. Noor Jahan Begum. Now, Exhibit 5 is a sale-deed excuted by Musammat Bibi Soghra in favour of Babu Matukdhari Singh. This document shows that Musammat Bibi Soghra acquired the property sold under a Tamliknamah executed by her mother in her favour and that by sale of the property she received Rs. 15,000 in cash from Babu Matukdhari Singh and a mortgage-bond for Rs. 5,000. The evidence is that out of this money she lent Rs. 6,000 to Musammat Bibi Nasiran and Musammat Noor Jahan Begum. Now, there is no reason to doubt that Musammat Bibi Soghra did in fact have a property which she sold and there is no reason to doubt that she got Rs. 15,000 in cash by the sale of this property. This transaction took place on the 25th of February 1915 and the mortgage in suit was executed on the 29th of November 1915. In my opinion, it has been established that Musammat Bibi Soghra had a fund out of which she could have advanced Rs. 6 000 to Musammat Bibi Nasiran and Musammat Noor Jahan Begum.

The decree passed by the learned Subordinate Judge is right and ought to be affirmed. I would accordingly dismiss this appeal with costs.

Bucknill, J.

I agree. I consider it was perhaps rather unfortunate that the order of the 11th September, 1915, was passed. I am inclined to think that if I had been the Subordinate Judge I should probably have adjourned the case. But one cannot say that, as it stands, it is a wrong order or illegal in any way or one which the Subordinate Judge had no jurisdiction to make. It is quite clear what it means The petition for execution was dismissed on part satisfaction. No objection was taken by the decree-holder to this order. There is indeed evidence that he started fresh execution proceedings in 1917. If he had thought that the old execution proceeding was alive he would presumably have proceeded under that. In this order it is stated that the judgment-debtor is said to have prayed for four months'' time and to have paid Rs. 250 and that the decree-holder agreed to the time being granted. But nothing was done at the end of four months so far as we know. If the decree-holder wished to object to the the plain terms of the order of the 11th of September 1915, he should and could have done so in that proceeding, but he did not. It is difficult to say how in this collateral matter the decree-holder could object to the terms of that order; but, it is argued, whilst not actually objecting to its terms, that order must be construed properly as keeping the attachment alive not with standing that the petition is stated to be dismissed; as a dismissal, unless under the provisions of O. XXI, r. 57, Civil Procedure Code, does not, it is argued, release the attachment. But even if one can properly enquire into the intention of the order (which seems doubtful here) there is nothing whatever to show that there was the least intention in the minds of the Judge or parties that the order meant to keep the attachment alive. On the contrary, everything points to the opposite conclusion and the fact remains that the decree-holder consented not to proceed with his execution at that time but prayed for time. Having done so, he naturally takes his risk. He was in no way bound to agree to the judgment-debtor''s application and his agreement to waive his right to proceed is, one cannot but think, in a sense a failure within the meaning of the language used in the provisions of O. XXI, r. 57, Civil Procedure Code. Then, subsequently, as against the mortgage, he is, with his decree, in no strong position and his claim is presumably subject to the mortgage. It was further suggested that the mortgage was fraudulent, but there is no satisfactory proof of any such allegation. The Subordinate Judge does not believe the evidence which, certainly flimsy, was brought forward in the endeavour to support the suggestion. Considering it myself, I can see no ground for differing from the conclusion at which he arrived.