Sefalibala Dasi vs Birendra Nath Das

P.N. Mookerjee, J.—This appeal mainly raises a short point of law.

In Title Execution Case No. 40 of 1946, of the 3rd Munsiff''s Court at Howrah, the decree-holder Bijolibala was reported to have died on March 26, 1950. On August 6, 1950, the present Appellant Sefalibala applied for substitution in place of the deceased decree-holder Bijolibala upon the allegation that she was the said deceased decree-holder''s daughter.

The Respondent-judgment-debtor opposed the above prayer for substitution alleging inter alia, that there was no proof of Bijolibala''s death and further that the applicant Sefalibala was not her daughter.

The learned Munsif overruled these objections and allowed Shefalibala''s prayer to be brought on the record in place of the original decree-holder. His findings were that Bijolibala was dead and that the applicant Shefalibala was her daughter and legal hair.

On appeal, however, that decision was reversed by the learned Subordinate Judge, who found as a fact that there was no legal proof either of Bijolibala''s death or of the applicant''s allegation that she, the applicant, was Bijolibala''s daughter. He, accordingly, dismissed Shefalibala''s application for substitution. He held further that the learned Munsif should consider whether sanction proceedings u/s 476 of the Code of Criminal Procedure should not be drawn up against the applicant Shefalibala for making false verification and for filing a false vakalatnama in Court as major while she was really a minor. The applicant Shefalibala has now come up on appeal to this Court.

The learned advocate for the applicant has contended that the learned Munsif''s order was not appealable in law and, accordingly, no appeal lay to the lower appellate court. He, however, fairly conceded that, if the appeal before the lower appellate court was maintainable in law, he would not be justified in asking for reversal of the learned Subordinate Judge''s order, refusing substitution, as that conclusion would obviously follow from the findings of fact, made by the learned Subordinate Judge which were not challengeable in second appeal.

The principal question, thus arising, relates to the competency of the appeal before the lower appellate court. On this point, the Appellant argues that the learned Munsif''s order was really one deciding a question as to heirship for purposes of substitution and coming directly under Order XXII, Rule 5 of the Code which not being one of the provisions mentioned in Section 104, read with Order XLIII, Rule 1, of the Code of Civil Procedure, cannot be held to be appealable under the law.

I am unable to accept the Appellant''s argument. The substitution was prayed for in execution proceedings. To such proceedings Order XXII, Rules 3 and 4 of the Code do not apply (vide Order XXII, Rule 12) and, Rules 3 and 4 not applying, Rule 5 of that Order also becomes necessarily excluded. This appears almost on the face of the statute, as Rule 5 which immediately follows Rules 3 and 4 deals with the question of determination of "the legal representative of a deceased Plaintiff or of a deceased "Defendant" in relation to substitution and it has thus obvious reference to the said immediately preceding Rules 3 and 4 which finally deal with such substitution. This is also confirmed by the fact that, for determination of the legal representative of a deceased party in execution proceedings, the Code makes express provision in Section 47(3), which is obviously intended to be the corresponding provision to Order XXII, Rule 5, when the question arises in execution proceedings. Clearly, therefore, the question, arising in the present case, falls u/s 47(3) of the Code whether we look upon Sephalibala''s application as one for substitution in execution proceedings or for leave to continue the same either under Order XXI, Rule 16, read with Section 146, of the Code or u/s 151 (vide Venkatachalam Chetti v. Ramaswamy Servai I.L.R(1931) Mad. 352. F.B; Annacharya Sitaramacharya Jahagirdar v. Narayan Pandurangrao ILR (1933) Bom. 616 ; F.A. McNaught v. Saraswati Thakurain ILR 13 Pat. 777 : AIR (1935) Pat. 117; Annada Prasad Mitra Vs. Sushil Kumar Mandal, : AIR (1942) Cal. 390; Manmotha Nath Mitter and Others Vs. Rakhal Chandra Tewary and Others ) or, as a fresh application for execution (vide Akhoy Kumar Talukdar v. Surendra Lal Pal 30 C.W.N. 735: Baij Nath and Another Vs. Ram Bharos ). Whatever, however, be the nature of the application-and I am not troubled here by the apparent conflict, arising upon the above judicial decisions,-the dispute between the parties or the question for determination in the present case is obviously one u/s 47(3) of the Code even within the meaning of Rama Maruti Chaugule Vs. Mallappa Krishna Chaugule, , which clearly supports my point of view as the parties here are admittedly arrayed on opposite sides in the execution proceedings, one being the judgment-debtor and the other, claiming to be the legal representative of the deceased decree-holder. The determination of the dispute, therefore, would obviously come under the second part of the definition of "decree" in Section 2(2) of the Code which includes "the determination "of any question u/s 47" and it would thus be appealable as a decree. The analogy of an order under Order XXI, Rule 16 of the Code which is admittedly appealable as a decree is, to my mind, very appropriate in this connection and supports the above point of view. Incidentally, also, reference may well be made to the decision of R.C. Mitter, J. in the case of Jnanendra Nath Sanyal v. Girish Chandra Lahiri (1934) 39 C.W.N. 313. I do not, therefore, feel any doubt as to the competency of the appeal which the Respondent took to the lower appellate court. The principal point, urged in support of the present appeal, must accordingly, fail.

I do not think, however, that the learned Subordinate Judge was justified in directing the learned Munsif to consider the desirability of drawing up proceedings u/s 476 of the Code of Criminal Procedure against the applicant Shefalibala. On his own finding, Shefalibala was a minor when she filed the offending vakalatnama or made the offending verification. In my view this is certainly not a case where drastic steps, as proposed by the learned Judge, should be taken.

I, accordingly, set aside this part of the learned Subordinate Judge''s order and, while dismissing the appeal against the rejection of Shefalibala''s application, I set aside the learned Judge''s direction regarding drawing up of proceedings against the applicant Shefalibala u/s 476 of the Code of Criminal Procedure.

Subject as above, this appeal fails and it is dismissed.

There will be no order for costs in this Court.

No order is necessary on the alternative application filed in this Court.

Leave to appeal under Clause 15 of the Letters Patent is asked for and it is refused.