Shaikh Kamaruddin Mandal and Others vs Raja Thakur Barham and Others

Mullick, J.—This is an appeal against an original order made by the Subordinate Judge of Godda in an execution proceeding in enforcement of a mortgage decree obtained by Jeeban Ram Marwari and others against Raja Thakur Barham, who is described in these proceedings as the original judgment-debtor. In execution of that decree a sale was held, on the 27th of July 1904, of a certain six-annas share of Tappa Patasanda, That sale was confirmed on the 18th November 1904 and a sale certificate was issued on the 21st December 1904, and possession was delivered on the 26th December 1904.

It seems to be admitted that although a six-annas encumbered share of Tappa Patasanda was sold on the 22nd July 1904, possession was in fact given to the auction purchaser of a six-anna unencumbered share. The judgment-debtors thereupon appealed first to the High Court of Calcutta and then to the Privy Council, who, by their judgment, dated the 25th November 1913, held that the order of the Subordinate Judge confirming the sale and granting a certificate in respect of the six-anna unencumbered share must be set aside, as well as all subsequent proceedings on the part of the auction-purchasers based thereon. The decree of the Privy Council was transmitted by the High Court of Calcutta to the Subordinate Judge in May 1914 and is now under execution.

In the course of the proceedings relating to that execution the heirs of the Barham, judgment-debtor, have, u/s 144, Civil Procedure Code, asked for restitution of the six-anna unencumbered share of which delivery of possession was given to the auction-purchaser. After leave had been obtained and while the appeal to the Privy Council was pending, the original judgment-debtor, Raja Thakur Barham, sold three annas three pies of the unencumbered share to certain persons, who are described in these proceedings as the Mandals and who were added as co-appellants in the appeal before their Lordships.

Before the Subordinate Judge they claimed that they had a right to be joined with the Barhams in their application for restitution. The Barhams resisted on the plea that the sale to the Mandals was without consideration or with inadequate consideration and that the vendor had no authority to transfer the shares of certain minors who were unrepresented. The Subordinate Judge without going into the merits held that an assignee could not come in u/s 144, Civil Procedure Code.

It is against this order that the present appeal has been presented.

Now, the question is, what is, the meaning of the word ''parties'' in Section 144.

Mr. Das on behalf of the respondents before us contends that ''parties'' must be read as ''parties'' only, and that it cannot include legal representatives whether by assignment or devolution.

On the other hand it is contended on behalf of the appellants that Section 144, Civil Procedure Code, must be read with Section 47 and that ''parties'' include legal representatives.

Clearly the respondents'' contention, if pushed to its logical extreme, would exclude heirs, and I have not been furnished with any answer as to how this conclusion is to be avoided if Section 47, Civil Procedure Code, is not to be read with Section 141.

On the other hand, Jamini Nath Roy v. Dharma Das Sur 33 C. 857 : 4 C.L.J. 192 is clear authority for the proposition that when an assignment has taken place even after the appellate decree, which is the basis of the claim for restitution, the assignee is entitled to the benefits of Section 144, Civil Procedure Code.

Mr. Das contends that the learned Judges in this case strained the law, but he is unable to show any authority which has dissented from this decision. In the absence of any authority to the contrary, I think, we must follow Jamini Nath Roy''s case 33 C. 857 : 4 C.L.J. 192 and reject the contention that restitution can only be obtained by persons who were impleaded as parties at the time of the decree of the trial Court. Convenience would certainly seem to suggest that the view of their Lordships of the Calcutta High Court should be followed.

More than this we are not asked to decide at present. The learned Counsel for the appellants admits that if we decide in his favour in this appeal, he will have to prove the validity of his conveyance and his right to restitution after proper investigation. I see no hardship in allowing these matters to be investigated by the executing Court and indeed the law enacts that a separate suit will not lie for such investigation.

The result, therefore, is that the appeal is decreed with costs and the case is remanded for disposal according to law. The order of the Subordinate Judge will be set aside and it will be declared that the appellants will be entitled to restitution u/s 144, Civil Procedure Code, if they succeed in proving their assignment and if they are not otherwise debarred under the law.

Thornhill, J.

Sections 47 and 144 of the CPC must be read together, Jamini Nath Roy v. Dharma Das Sur 33 C. 857 : 4 C.L.J. 192. Representative does not mean only a party''s legal representative, but it means his representative-in-interest, and includes a purchaser of his interest, who so far as such interest is concerned is bound by the decree, Ishan Chunder Sirkar v. Beni Madhub Sirkar 24 C. 62 : 1 C.W.N. 36 : 12 Ind. Dec. 707. There is no doubt but that the Mandals were bound by the decree at the time they became purchasers of three anna odd share. They also took the precaution of becoming parties by having their names added as party appellants. In Maganlal v. Doshi Mulji 25 B. 631 : 3 Bom. L.R. 255 it was held that the section did not cover a question between a party to a suit and his representative, but in the present case the Mandals, representatives of three-anna odd share, have become parties to the suit and both they and the judgment-debtors claim possession of the six-anna unencumbered share as against the auction-purchasers. It has been repeatedly held that a wide and liberal construction should be placed on the section so as not to drive parties to an independent suit, unless the case be clearly outside the scope and purview of the section, so that all questions which can possibly be determined in the execution proceedings should be so determined.

Under the circumstances I agree with the order proposed by my learned brother.