Sub-section (3) of Section 47 of the CPC is absolutely clear and unambiguous. In terms of the said provision, if a dispute arises as to whether a person is or is not the representative of party, such a question has to be decided under the said provision.
23. Thus on a plain reading of Section 47 CPC in my opinion, it is absolutely clear that a purchaser of a property from the decree holder either prior to or after the decree is passed may be considered to be his representative for the purpose of the said provision.1
Patna High Court
Meena Jayaswal And Anr. vs Rajkumar Jain And Anr. on 1 August, 1991
Equivalent citations: 1991 (39) BLJR 1124
1. These two applications involving common question of fact and law were taken up for hearing together and are being disposed of by this common judgment.
2. These applications arise out of an order dated 16-2-1989 passed by Sri K. Ram, Munsif, Khunti in Execution Case Nos. 3 and 4 of 1987 whereby and whereunder the said learned court rejected the objections filed by the petitioners of the revision applications purported to be under Section 47 of the Code of Civil Procedure.
3. The fact of the matter lies in a very narrow compass.
One Chamra Bhagat instituted two suits for eviction as against the judgment debtor-opposite party No. 1 of each case on the ground of default in payment of rent which were registered as Title (Eviction) Suit No. 9 of 1984, which is the subject-matter of C.R. No. 159 of 1989 (R) and Title (Eviction) Suit No. 7 of 1989, which is the subject-matter of C.R. No. 160 of 1989 (R).
4. Allegedly, during pendency of the said suit, the aforementioned Chamra Bhagat executed a registered, deed of sale dated 3-10-1986, which is contained in Annexure-1 to the Civil Revision application, whereby and where-under he transferred his right, title and interest in respect of the subject-matter of both the aforementioned suits in favour of the petitioners, who are mother and son.
5. The said title suits continued in the name of Chamra Bhagat despite execution of the said deed of sale and were ultimately decreed on 21-6-1987 and respectively.
6. Admittedly, neither in the said suits nor in the said execution cases, the petitioners get themselves impleaded as parties. The aforementioned Chamra Bhagat died on 2-8-1988 and after his death, the opposite party No. 2 filed the aforementioned execution cases against the opposite party No. 1.
7. In the said execution cases, the judgment-debtors filed an objections under Section 47 of the Code of Civil Procedure but the said objections have not yet been disposed of.
8. It appears that the petitioners also filed applications in the aforementioned cases purported to be under Section 47 read with Section 151 of the Code of Civil Procedure alleging inter alia therein that there had been an adjustment of decree by and between the petitioners and the judgment-debtor-opposite party No. 1 of each case, as a result whereof, they delivered possession of the tenanted premises to the petitioners.
9. Rejoinders to each of the said objections were filed on behalf of the opposite party No. 2 wherein, it was inter alia, alleged that Chamra Bhagat had no right to sell the suit property without the consent of the other members of the joint family.
10. It was further contended that if any deed of sale was executed by the Chamra Bhagat, the same is a false and fabricated document. It was further alleged that in Partition Suit No. 36 of 1949, wherein a written statement was filed by the aforementioned Chamra Bhagat on 7-6-1959, it was contended that all the properties were joint family properties.
Allegedly, Dr. Arvind Kumar Jayaswal father of Anup Kumar Jayaswal and husband of Meeua Jayaswal (petitioners) had also admitted in his written statement that all properties are in joint possession of the all members of the joint family. In short, the decree holder, inter alia, contended that the purported deed of sale dated 3-10-1986 is void and thereby the petitioners did not derive any right, title and interest.
11. The learned court below, by reason of the impugned order, held that the said objections filed by the petitioners purported to be under Section 47 of the Code of Civil Procedure were not maintainable.
12. Mr. N.K. Prasad, the learned Counsel appearing on behalf of the petitioners submitted that although, the petitioners did not get themselves substituted in the suit in terms of Order XXII, Rule 16 of the Code of Civil Procedure, the decrees passed in the suits their favour enured to for the benefit, and as such they were competent to file an execution petition for exciting the said decree passed in the name of Chamra Bhagat.
According to the learned Counsel, therefore, as the petitioners were entitled in law to execute the said decrees in terms of the deed of sale dated 3-10-1986, as contained in Annexure-1 to the civil revision application they were also entitled to enter into an arrangement with the judgment debtors resulting in satisfaction of the decree passed in the aforementioned eviction suits.
13. The learned Counsel in this connection has drawn my attention to Section 149 and Order XXI, Rule 16 of the CPC and particularly, the explianation appended thereto and submitted that in terms of the said provision which was inserted by Code of Civil Procedure (Amendment) Act, 1976, it is no longer necessary to obtain assignment of the decree in order to maintain an application for execution.
The learned Counsel, in this connection has placed strong reliance upon in Jugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376, Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Anr. ; Satyanarayan v. Sindhu Bai Sharma
14. The learned Counsel further submitted that in this view of the matter, it was also open to the petitioners to file an application for adjustment of decree which comes within the purview of Section 47 read with Order XXI, Rule 2 of the Code of Civil Procedure.
The learned Counsel, in this connection has relied upon in M.P. Srivastava v. Mrs. Veena
15. It was also submitted that an assignee being a representative of the decree holder, he has a right to adjust the decree and pray for recording the same before the executing court.
Mr. Prasad, in this connection has relied upon in Mohammad Akhtar Ali v. Badruddin and Ors. and in Smt. Hira Devi and Anr. v.B. Aodhia Nath Tandon and Anr. AIR 1948 Outh 299.
16. Mr. M.Y. Eqbal, the learned Counsel appearing on behalf of the decree-holder-opposite party, on the other hand submitted that the petitioners being not parties to the execution proceedings had no locus standi to file objection under Section 4 of the Code of Civil Procedure.
17. According to the learned Counsel, as at no point of time any dispute arose as to whether the petitioners are legal representative of the decree holder Chamra Bhagat or not the question of the petitioners claiming themselves to be the representative of decree holder does not arise.
18. According to the learned Counsel, from a perusal of the provisions contained in Section 47 of the Code of Civil Procedure itself, it would appear that a purchaser other than auction purchaser is not a legal representative for the purpose of the aforementioned provision. The learned Counsel further submitted that before any action can be taken by any person who is not a sparty to the execution proceedings, he must take steps to bring himself on records of the execution proceedings and must be recognised as a representative of the decree-holder.
In this connection, reliance has been placed on Arvapalli Ramrao and Ors. v. Kanumaripudi Ranganayakulu and Ors. .
The learned Counsel, in this connection has also taken me through the rejoinder filed by the decree-holder apposite party as contained in Annexure-2 to C.R. Not 159 of 1989 (R) and submitted that from a perusal thereof, it would appear that a complicated question with regard to the title of the petitioners having been raised therein, the learned court below must be held to nave rightly decided that the application filed by the petitioners before the court below was not maintainable.
19. In this case, therefore, the interpretation of the provisions contained in Section 47, Section 146, Order XXI, Rule 2 and Order XI, Rule 16 of the Code of Civil Procedure is involved.
20. From a bare reading of provisions contained in Section 47 of the CPC there cannot be any doubt that the same is of wide import. It not only takes within its sweep all questions arising between the decree holder and the judgment debtor relating to execution, discharge or satisfaction of the decree but also takes within its sweep any dispute which may arise in between the decree holders of the judgment debtors inter se as to whether a person is not the representative of a party.
21. The contention of Mr. Eqbal, to the effect that in view of explanation 2 appended to Sub-section (3) of Section 3 of Section 47 of the Act, a purchaser of a property in suit will not be a representative of the decree-holder within the meaning of the said provision inasmuch as, the Parliament has merely recognised a purchaser of the property at an auction sale held in execution of a decree to be a party to the suit; cannot be accepted for the simple reason that by reason of the said explanation, a legal fiction has been created whereby a purchaser in an auction sale will be deemed to be a party to the suit in which the decree is passed. The said legal fiction has a limited operation and does not debar a purchaser from being the representative of the decree holder.
The said explanation, therefore, has absolutely no bearing in respect of the question which arises for consideration as to whether a person is or is not the representative of a party.
22. Sub-section (3) of Section 47 of the CPC is absolutely clear and unambiguous. In terms of the said provision, if a dispute arises as to whether a person is or is not the representative of party, such a question has to be decided under the said provision.
23. Thus on a plain reading of Section 47 CPC in my opinion, it is absolutely clear that a purchaser of a property from the decree holder either prior to or after the decree is passed may be considered to be his representative for the purpose of the said provision.
24. At this juncture, the other submissions of Mr. Eqbal, to the effect that before a person can be allowed to take part in the execution proceeding, he must be recognised as such by the Court may be noticed.
25. It is true that in Arvapalli Ramrao v. Kanumariapudi Ranganayakulu and Ors. , a Full Bench of the Andhra Pradesh High Court has held that such a recognition is necessary.
It appears that similar view had been taken by other High Courts also in Mithan Lal v. Thana and Ors. and in Chet Ram and Anr. v. Amin Lal and Ors. AIR 198(sic) Punjab & Haryana, 50.
26. However, from a combined reading of Section 146 read with Order XXI Rule 16 of the CPC in my opinion, it is evident that in law, it is not necessary that before an assignee of the subject matter of the suit or the decree is permitted to levy the execution of the decree, he must be recognised as an assignee by the Court.
27. In terms of Section 146 read with Order XXI Rule 16 of the CPC do not preclude a person, who claims to be entitled to the benefit of a decree-holder but does not answer the description of being the transferee of the decree by assignment in writing or by operation of law, from making an application for execution which the person from whom he claims could have made.
(See: AIR 1955 SC 376--Jugalkishore Saraf v. Raw Cotton Co. Ltd.)
28. In Jugalkishore Saraf's case (supra), the Supreme Court held that the position of a transferor vis-a-vis the transferee (when the transferor is allowed to continue the suit) was nothing more than that of a 'benamdar' of the transferee, but despite the same, it was held that as a real owner, the transferee is entitled to file execution petition.
29. In Sm. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi AIR 1958 SC 394, it was held that the object of Section 146 of the CPC is to facilitate the exercise of rights by person in whom they come to be vested by devaluation or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense.
30. The matter, however, has been set at rest by the Supreme Court in Dhani Ram Gupta and Ors. v. Lal Sri Ram and Ors. The Supreme Court in that case considered various decisions of the High Court including the full Bench decision of the Andhra Pradesh High Court, and held that:
We are unable to read Order XXI, Rule 16 as furnishing any foundation for the basic assumption of the learned Counsel for the respondent that property in a decree does not pass to the transferee under the assignment until the transfer is recognised by the court. Property in a decree must pass to the transferee under a deed of assignment when the parties to the deed of assignment intend such property to pass. It does not depend on the Court's recognition of the transfer. Order XXI, Rule 16 neither expressly nor implication provides that assignment of a decree does not take effect until recognised by the court. It is true that while Order XXI, Rule 16 enables a transferee to apply for execution of the decree, the first proviso to Order XXI. Rule 16 enjoins that notice of such application shall be given to the transferor and the judgment-debtor and that the decree shall not be executed until the Court has heard their objections, if any, to its execution It is one thing to say that the decree may not be executed. It is one thing to say that the decree may not be executed by the transferee until the objections of the transferor and the judgment debtor are heard, it is an altogether different thing to say that assignment is of no consequence until the objections are heard and decided. The transfer as between the original decree holder and the transferee is effected by the deed of assignment. If the judgment-debtor has notice of the transfer, he cannot be permitted to defeat the rights of the transferee by entering into an adjustment with the transferor. If the judgment-debtor has notice of the transfer and enters into an adjustment with the transferor before the transferee serves him with notice under Order XXI Rule 16, the judgment-debtor is protected. This in our view is no more than plain good sense
31. The Supreme Court approved the decision of the Calcutta High Court in Dwar Buksh Sirkar v. Fatik Jali (1899) ILR 26 Cal. 250. The Supreme Court in that decision did not agree with the High Court of Allahabad (which was the subject-matter of the appeal) when it held that the adjustment of the decree between the judgment-debtor and transferor even after the notice of the application under Order XXI, Rule 16 had been served on the transferor and the judgment-debtor barred execution of the decree by the transferee.
The Supreme Court is that case observed that such question as to whether there was any transfer under the deed of assignment or not has to be decided by the High Court and thus the matter was remitted to the High Court itself.
32. In view of the aforementioned decision of the Supreme Court, it is, therefore, clear that it is not necessary for levying an execution by an assignee to be recognised by the Court. The Supreme Court further held that if the judgment debtor has notice of the transfer, he cannot be permitted to defeat the rights of the transferee by entering into an adjustment with the transferor. If the judgment debtor has no notice of the transfer before the transferee serves him with notice under Order XXI, Rule 16, the judgment debtor is protected.
33. In this case, however, the position is a somewhat different.
The petitioners, who claimed themselves assignees from the plaintiff-decree holder did not get themselves impleaded in the suit. They also did not file any application for execution of the decree, if they had filed an application for execution of the decree, it was incumbent upon the Court to serve notices upon the transferor as also the judgment-debtor in terms of the proviso appended to Order XXI, Rule 16 CPC
34. It is now well settled that a notice upon the judgment-debtor and the transferor is imperative inasmuch as only when such a notice is served, a judgment-debtor or the transferor may raise his objection with regard to the maintainability of the execution petition at the instance of the assignee.
When the assignment itself is in question, the same as had been held by the Supreme Court inJugalkishore Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC 376, can be decided in a suit. However, the position appears to have been changed in view of the amendment made in Section 47 of the Code of Civil Procedure under Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), On as now question can be decided by the executing court.
35. The question, therefore, which squarely falls for consideration by the Executing court is as to whether the petitioners have derived any right, title and interest in terms of the deed of the sale dated 3-10-1986 executed by Chamra Bhagat (father of the opposite party No. 2) in their favour or not.
36. The validity of the said deed of sale has been questioned by the opposite party No. 2 in his rejoinder on various grounds. In my opinion, therefore, it was not permissible for the petitioners to file any objections with regard to the maintainability of the execution case filed by the opposite party No. 2 unless and until his claim as representative of the decree holder so as to enable him to enter into a settlement resulting in adjustment orsatisiaction of the decree is itself established. Such a question can inter alia be gone into when an execution petition is filed by the assignee in terms of Order XXI, Rule 16 of the Code of Civil Procedure.
37. In Mohammad Akhtar Ali v. Badruddin and Ors. , a Division Bench of this Court after taking into consideration various decisions clearly held that such a question can be decided in terms of Sub-section (3) of Section 47 of the Code of Civil Procedure.
38. In that view of the matter, in my opinion, the learned court below must be held to have rejected the application filed by the petitioners rightly, inasmuch as such a question of adjustment and/or satisfaction of the decree between the assignee and the judgment-debtor can be, determined only after the executing court holds that the petitioners are representatives of late Chaman Bhagat.
At the cost of the repetition, it is reiterated that such a question can be determined only if a suitable application is filed by the assignee before the executing court so that it may decide the question as to whether the petitioners have derived any valid right, title and interest in relation to the property in suit by reason of the alleged deed of sale dated 3-10-1986 or not.
39. Till such a question is decided, the learned court below, evidently had no jurisdiction to dismiss the execution case filed by the opposite party No. 2.
40. In this view of the matter, these applications are dismissed with the aforementioned observations, but in the facts and circumstances of the case, there will be no order as to costs.
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