Raja Braja Sundar Deb vs Sivaranjan Dei and Another

Raja Brajasundar Deb is the appellant in both the Miscellaneous Appeals Nos. 12 and 13 of 1919. He is the present proprietor of Killa Aul. Surna Manjari Dei, respondent in Appeal No. 12, is the widow and Sarat Kumari Dei, respondent in Appeal No. 13, is the minor daughter of Pitambar Deo, the late proprietor of Killa Aul. The widow and the daughter obtained separate decrees for maintenance against the appellant on the 25th October 1911. The decrees were to some extent modified by the High Court of Calcutta in March 1914 and appeals against the decrees of the High Court to His Majesty in Council were dismissed on the 16th November 1917. Several executions of the decrees from the year 1912 proved infructuous.

The present applications for execution of both the decrees were registered on the 25th July 1918. The execution case of the widow Surna Manjari Dei was numbered 786 of 1918 and that of the daughter, Sarat Kumari Dei, numbered 787 of 1918. The widow claimed Rs. 56,220.4.5 and the daughter Rs. 18,288.3.6, as due under their respective decrees.

3.Two annas of touzi No. 23 of Killa Aul was advertised for sale in the execution of the widow and one anna of the Same property in that of the daughter. The date fixed for sale in bath the executions was 15th July.

On the 13th June the judgment-debtor filed petitions in both the executions, objecting to the execution being proceeded with and the property being sold. The grounds urged were the same in both the objections, which were heard together and were disposed of by one order of the Court, dated the 5th July 1919, whereby the objections were disallowed and the two executions were directed to proceed. Against this order the judgment-debtor filed two appeals to this Court, one in each execution, and prayed for stay of the sale of the property which was fixed for the 15th July. The respondents objected to the stay of the execution by their sworn petition, dated the 14th July. The sale was, however, stayed under the order of this Court on the appellant having deposited the amount of the decrees in cash as security.

The present two appeals have been heard together. There has been one argument in respect of both, They may therefore, be disposed of by one judgment of this Court.

The two executions proceeded simultaneously: the steps taken, the several petitions filed and the orders passed in both the executions were similar, and hence reference to one of the executions, say for instance, that of the widow in Appeal No. 12, is sufficient for the purpose of this judgment.

The facts briefly stated are as follows: February the 22nd, 1919, was originally fixed for the sale of the property, but on the objection of the judgment-debtor it was held that the writ of attachment was not duly served, and, therefore, a fresh writ of attachment was ordered to be issued. As the property to be attached was village Aul, the" Headquarters of the Raja, the Court directed that this writ be served with the help of Police, which was accordingly done on the 19th March 1919.

On the 28th Marsh the Court directed notice under Order XXI, Rule 66 of the CPC to issue, returnable on the 17th April

On the 24th April the Court passed the following order:

Postal notice is received. Judgment debtor''s agent did not accept it. Decree-holder paid talbana. Order: put up on 28th April 1919 for orders, Decree-holder to file affidavit by that date.

On the 28th April the decree-holders filed valuation affidavit and the Court made the following order:

No objection is made. Ordered: Issue sale proclamation fixing 16th June. The decree-holder to get the sale advertised in the Bihar and Orissa Gazette.

The sale proclamation was, however, re turned by the peon unserved, alleging that he could not serve it on account of his illness. The peon was suspected of having deliberately declined to serve the sale proclamation. The sale date was extended to the 15th July and the sale proclamation was ordered to be served with the help of Police. It was accordingly served on the spot and on the kachehri of the Raja on the 13th June 1919 and was hung up in the Court-house on the 14th June.

The objection of the Raja was filed on the 27th June. The date fixed for the disposal of objection was the 5th July in view of the fast that the date fixed for the sale was the 15th July.

On the 2nd July the Raja filed a list of his witnesses, praying for summonses to issue upon them. These witnesses were probably to prove the allegations of facts alleged in the petition of objection, notably that the proclamation was not affixed on a conspicuous part of the property sought to be sold and that there was material irregularity in the service thereof. The Court passed the following order:

Issue summons at the risk of the petitioner for 5th July. The date cannot be changed. The petitioner ought to have moved for summons on the very day he filed the present objection.

On the 5th July the Raja filed a petition stating that the summonses were not served and that, consequently, the witnesses were not willing to appear, and prayed for an adjournment of the ease, This was refused by the Court for the reason that there was "no satisfactory ground for delay."

It is urged in this appeal that the Court ought to have granted the prayer of the Raja and should have enforced the attendance of witnesses and granted sufficient adjournment. We think that the Court rightly exercised its discretion in rejecting the petition of the Raja. It is not stated in the petition that the sale proclamation was not actually served. It was served on the 13th of Jane. There is no reason why the petition of objection was filed so late as the 27th, nor why the application for summons was not made until the 2nd July. The object was simply to prevent the sale taking place on the 15th of July, This contention is, therefore, overruled.

The next contention is that the application filed on behalf of the decree holders for an order for sale was not signed and verified according to law; and hence the proceedings following the sale application were incompetent and void, and the property of the judgment-debtor could not be sold: (grounds (a) and (6) in the petition of objection). This contention is based on the petition of the decree-holders, dated the 28th March 1919, wherein it is stated that the decree-holders came to know from their Karpardaz, Hara Krishna Mahanty, who had made thorough inquiries about the matter, that the property of the judgment debtor under attachment was not mortgaged, sold, or in any way transferred elsewhere, and that it was in the possession of the judgment-debtor. This statement in the petition has been verified by Hara Krishna Mahanty describing himself as the karpardaz on behalf of the decree-holders and being acquainted with the facts verified by him. The Court acted upon this petition and directed the notice prayed for to be issued upon the judgment-debtor (vide Order No. 25, dated the 28th Marsh 1919). The Court was, therefore, satisfied that Hara Krishna Mahanty was acquainted with the facts stated in the petition and was competent to verify it. Under Order XXI, Rule 66 (3) the petition was to be verified in the manner prescribed for the verification of pleadings by Order VI, Rule 15. This rule says that every pleading shall be verified either by the party himself or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is not disputed that Hara Krishna Mahanty was acquainted with the facts of the case as stated by him in the verification and the subsequent affidavit of the 28th April. The verification made by, him was, therefore, proper and legal and the Court was right in accepting it.

It is then contended that the petition in question was not properly signed inasmuch as it ought to have been signed by the decree holders themselves or by a person duly authorised by them to sign it as required by Order VI, Rule 14. The petition was signed by Hara Krishna Mahanty and the affidavit of the 28th April states that he was the agent appointed by the decree holders and was acting as such. It is said that there is nothing to show that Hara Krishna Mahanty was duly authorized to sign the petition. The objection that the petition was not duly signed was not pressed in the Court below, as is apparent from the order dated 5th July wherein only the objection as to verification appears to have been urged. The ground was, however, taken in the petition of objection. It is not, therefore, open to the judgment-debtor to press this point in appeal, for had it been taken in the Court below the defect, if any, would have been cured by an amendment under Order VI, Rule 17 (new) which allows amendment to be made at any stage, unlike the old Section 55(6)(1) of the Code of 1882 under which amendment of the signature and the verification could be made only before the settlement of issues.

The case of Baroda Prosad Boss v. Oirijanath Boy Chowdhury 2 C.L.J. 11, where a plaint not properly signed and verified u/s 51 was directed to be removed from the file of registered suits, has no application to the present case. The decision proceeded upon the fact that under the old Code the defeat could not be removed by amendment after the settlement of issues, Geidt, J., one of the Judges to the decision doubted the correctness of the order, That ruling, in the first place, is not an authority for the present law in the new Code. The weight of decision seems to be that the mere fact that a plaint was not duly- signed as required by Order VI, Rule 14, will not necessarily make it absolutely void : Bardeo V. John Smidt 28 A. 55 : A.W.N. (1899) 172 : 9 Ind. Dec. (N. Section) 1068 and Heydorn & Co. v. Muhammad Shafi 14 Ind. Cas. 507 : 34 A. 348 : 9 A.L.J.294. It was pointed out by Lord Maonaghten in the case of Mohini Mohun Das v. Bungsi Buddan Saha Bat 17 C. 580 (P. C) : 5 Sar. P.C.J. 498 : 8 Ind. Deo. (N. SECTION) 926 that there is no rule providing that a person named as a plaintiff is not to be treated as such unless he signs and verifies the plaint. Assuming, therefore, that the petition in question was not duly signed it is not open to this Court to reverse the order of the Court below merely on that account, as it was a defect only in the proceedings in execution and did not affect the merits of the case or the jurisdiction of the Court. Section 99 of the Code prohibits our interference in a case of this kind.

Again, it is undisputed that the application for execution of the two decrees registered on the 25th of July were duly signed and verified by the decree-holders themselves. In those petitions there was a prayer for the sale of the property and all the particulars required by Order XXI, Rule 66, namely, the property to be sold, the revenue assessed thereon and the valuation thereof, were duly stated. The subsequent petition of the 28th March 1919 which is impugned as not properly signed and verified simply stated that the property sought to be sold was not mortgaged, sold or in any way transferred elsewhere. In order words, there was no encumbrance to be specified under Sub-rule 2(c) of Rule 66, in the sale-proclamation. The defeat in the verification and signature of this petition will not, in our opinion, vitiate the sale proclamation issued by the Court for the sale of the property.

Further, the appeal of the judgment-debtor against the order of the Court passed under Order XXI, Rule 66, is incompetent. Order XLIII of the Code does not provide for an appeal against such an order, nor is the order a decree within the definition of ''decree'' in the present Code.

The judgment-debtor ought to have raised his objection within the time fixed by the notice served upon him under Order XXI, Rule 66. His agent refused, with the usual attitude of the judgment-debtor to avoid and delay the execution of the decrees, to except the notice and, after the term fixed by the notice, on the 24th April the Court directed the decree-holder to file valuation affidavit. This being done and no objection having been taken, the Court had no option but to issue the sale proclamation. The orders of the Court of the 24th and the 28th April 1919 are, therefore, conclusive. The judgment-debtor cannot be permitted to re open the same.

The last objection of the judgment debtor is that the property cannot be sold by reason of the interpretation put on the decrees by the Hon''ble High Court (paragraph (e) of the objection petition.) There is no sub-stance in this contention. The decrees in both these executions directed that the decree-holders do get from the defendant-judgment debtor maintenance allowance of a sum specified therein per month with a certain sum on account of the arrears of maintenance, with further order that the allowance decreed would be a charge on the property mentioned in the plaint, namely, Killa Aul, which is sought to be sold in execution of these decrees. In a previous execution, the judgment-debtor resisted the execution of the decrees on the ground that the property could not be attached and sold in execution of the decrees and that separate suits for the sale of the property in enforcement of the charge u/s 67 of the Transfer of Property Act were necessary. The matter was concluded by the decision of this Court (Sharfuddin and Chapman, JJ.) in Brajasunder Deb v. Shrat Kumari 38 Ind. Cas. 791 : 2 P.L.J. 55 : (1917) Pat. 67 : 3 P.L.W. 202 and it was held that the properties in dispute should be brought to sale in execution of the decrees and that there was no necessity of any separate suit for sale. There is no force in the contention that the property could not be fold in execution of the decrees or that the only course open to the decree-holders was (o have the decrees realised from the profits of the property by an appointment of a Receiver. Neither the decrees nor the interpretation upon them by this Court lend support to such a contention. The decrees were personal, and it is open to the decree-holders to realise the amounts due thereunder in any way in which a decree for money is enforceable. This contention is, therefore, overruled.

The result is that all the objections of the judgment-debtor are disallowed and both the appeals are accordingly dismissed with costs. From the history of the litigation, it is obvious that the judgment-debtor has been trying at every stage to frustrate the decree-holders from realising the fruits of their decrees.