Rameshwar Prasad Singh and Another vs Basdeo Singh and Others

Wort, J.—The appeal and the application arise out of the order of Mr. Shearer, the District Judge, made by him on 7th March of this year against the order of the Munsif in certain execution proceedings. It would appear from the order of the Munsif that the matter came before him for decision from what stage should certain execution proceedings which had been revived by an order of review vacating the previous order dismissing the execution for want of prosecution, be taken. Shortly stated the effect of the order of the Munsif was that the revival of the execution case did not result in the revival of the attachment which had taken place in the execution. The learned District Judge, however, has come to a contrary conclusion on the footing that the Judge who dismissed the original application in execution for want of prosecution, had made an order which was a nullity and which, therefore, had no effect. The statement of the learned Judge in the Court below was that the order was a nullity as there was in fact no default. The executing Court had made an order on 18th September 1929, on being informed by the relatives of one Gopi Singh, the judgment-debtor, that Gopi was dead and the decree-holder should take steps by a certain date to be fixed by him then. The effect of the order of the District Judge, as I have indicated, was that as no steps could possibly be taken, it was unnecessary to join the nephews of Gopi Singh as judgment-debtors and, therefore, the order dismissing the execution case for want of prosecution was, as I have already stated, a nullity.

Two points arise before me: first, whether an appeal lay to the District Judge, and secondly the merits of the case. The case has got into a tangle of litigation having gone on since 10th December 1927, and this is the third time the matter has-been before this Court in one form or another. The short facts, which it is necessary to state for the purpose of deciding this appeal, are these. In execution case No. 181 of 1929 the undivided interest of Gopi Singh was attached in execution on 3rd July. In May 1929 Gopi Singh died. A large number of applications, including an application to certify satisfaction, were before the Court, and in the course of litigation two other execution proceedings were taken out; with the mass of details relating to these executions it is quite unnecessary to deal. I have already stated that in September 1929 the first execution case, which is the one with which we have to deal, was dismissed for want of prosecution. That case eventually came up before this Court, and in 1931 by a judgment to which I was a party, it was held that the result of the dismissal of the execution for want of prosecution was that the attachment ceased. In the same month as the order of this Court was made, the decree-holder made an application to the executing Court for review of its order dismissing the case for want of prosecution. In the result the learned Judge allowed the petition restoring execution case No. 181 of 1929. Now the matter in another form with regard to another part of another execution case, came up before this Court and was dealt with by my learned brother Macpherson on 7th April 1934. With the greater part of the order made on that occasion we are not concerned. The learned Judge in the course of his order stated that it was open to the petitioner to proceed with the restoration of the execution case No. 181 of 1929 from the position at which it stood when the order of satisfaction on 16th December was passed, etc. It was in pursuance of that order of this Court that the application was made to the Munsif. An appeal was preferred to Mr. Shearer, the District Judge, from the order of the Munsif in that case and it is the District Judge''s order which is under appeal before me. An application in revision has also been filed against that order.

The first question that arises is by way of preliminary objection. The appellants are Rameshwar and Ramnandan, the nephews of Gopi Singh, and it is contended by the learned Advocate on their behalf that they are not judgment-debtors within the meaning of Section 47, Civil P.C. and therefore the matter decided by the Munsif was not a matter between the decree-holder and the judgment-debtor or parties to the suit. Consequently as they did not come u/s 47 of the Code, no appeal lay to the District Judge and his order therefore is without jurisdiction. Mr. Baldeo Sahay on behalf of the decree-holder contends, however, that the appellants are the representatives of Gopi Singh within the meaning of the Code and refers me to Sub-section (11), Section 2 which provides:

Legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased.

It is contended in this case that the appellants are inter meddling with the estate of the deceased and therefore are-representatives within the meaning of Section 47 of the Code. Consequently appeal lay to the District Judge and to this Court. Now it is admitted by both parties that on attachment and in the event of Gopi Singh the judgment-debtor dying during that attachment, the property is prevented (if I may use the expression) from being taken by the nephews by survivorship. To put it in plain language; the property remains the property of the deceased judgment-debtor Gopi Singh. It-is contended therefore that in the circumstances of this case the nephews were intermeddling with the estate. Now that depends to some extent upon the view of the argument which is presented to me by the learned advocate for the appellants.

It is contended in this case that when the attachment ceased, as it undoubtedly; did when the order was made by the Munsif dismissing the execution case for want of prosecution, the nephews then took the property by survivorship, and the argument proceeds to this extent, that any subsequent order setting aside; the order of dismissal will not result in the attachment reviving. During the course of this part of the case; the decision of the Calcutta High Court in Patringa Koer v. Madhava Nand Ram 16 CWN 332 was relied upon. That was a case however where on, 13th: November of one year an execution case was dismissed for default. On 12th of the next month the judgment-debtor transferred the properties to a third person; then in the following month a review order was obtained by which the order for dismissal was set aside. The learned Judges of the High Court decided that the reversal of the judicial order did not affect the rights of bona fide purchasers who had acquired a title on the assumption that the original order was valid in law. But that is not this case. In my judgment quite clearly, on this limited part of the ease, the effect of the order setting aside the order of dismissal for want of prosecution resulted in the revival of the attachment. The nephews who are the survivors of the family are in possession. Their possession of property which by reason of the attachment reviving was not their property and therefore in my judgment they are intermeddling with the estate and therefore are representatives within the meaning of Section 47, Civil P.C. I therefore overrule the objection and hold that there was an appeal to the District Judge and an appeal lies to this Court.

The observation just made incidentally decides the only question as regards the merits of the case, whether the result of the order setting aside the dismissal for want of prosecution is the revival of the attachment which I think quite clearly is the result. The learned Judge in the Court below has decided the case on other grounds which I must say do not appeal to me. But for the reasons which I have stated I come to the conclusion that the order of the Court below is correct although its reasoning may not, as I have said, be so. The result therefore is that the appeal is dismissed with costs. The civil revision application also is dismissed. Leave to appeal under the Letters Patent is refused.