When decree passed against husband can be executed against wife?

IN THE HIGH COURT OF BOMBAY(Goa)

W.P. No. 533 of 2009 and Civil Appln. No. 188 of 2009

Decided On: 01.07.2010

Appellants: Mary Martinha De Monte Furtado W/o Osler A. Jose De Monte Furtado
Vs.
Respondent: Bosco Largos Cotta S/o Late Lucio Largos Cotta (Advocate) and Ors.

Hon'ble Judges/Coram:
N.A. Britto, J.

Citation: 2010(4)BomCR487, 2011(1)MhLj611,2010(5)ALLMR 84,2010(4)AIR BOM R653 .

Property - Execution of sale deed - Writ petition challenging the order by which objections taken by the Petitioner to execution of decree dismissed - Held, it was not the case of the Petitioner at any time that there was a fraud between the Plaintiff /decree holder and her husband in not bringing her on record - Her interest in the estate was sufficiently represented by her husband and therefore the decree passed in the suit was binding on her and she could had no objection to the said execution on the specious ground that she was not made a party to the suit or execution proceedings - Hence, writ petition dismissed.

2. This Writ Petition is directed against Order dated 18-2-2009 of the learned Civil Judge, Senior Division, Margao by which objections taken by the Petitioner to the execution of the Judgment/Decree in Special Civil Suit No. 272/96/A, have been dismissed. Heard Shri S.M.S. Usgaonkar, learned Counsel on behalf of the Petitioner and Shri A.F. Diniz, learned Counsel on behalf of the Respondents.

3. The Petitioner is the wife of Osier A. Jose De Monte Furtado, one of the judgment debtors in the said execution proceedings, and, who is Respondent No. 6 herein, and who is the son of one Antonio Oscar and his wife. According to the Respondent No. 1/Decree Holder, there was an agreement of sale dated 30-4-1984 between the said decree holder and four siblings, namely, Antonio Oscar and his wife, Antonio Blasco and his wife, Antonio Sergio and his wife and Helena and her husband. The said Helena and her husband have already executed the sale deed in favour of the decree holder. The suit against them was then withdrawn. The said Osier Furtado/Respondent No. 6 herein was brought on record upon the death of the said Antonio Oscar and his wife as their legal representatives but his wife the Petitioner herein was not brought on record. The Defendants i.e. Respondent Nos. 2 to 14 did not contest the suit and as such, the suit was decreed on 28-4-2000. Some of the other Defendants in the said suit have conveyed their undivided share in the suit property to the decree holder (Respondent No. 1) and thereafter they were deleted from the suit.

4. The above facts stated on behalf of the Decree Holder, have not been disputed on behalf of the Petitioner.

5. The Petitioner contending that she is the lawful wedded wife of Respondent No. 6/Osler Furtado and married to him under the regime of communion of assets, and further contending that the decree passed against her husband was not binding on her as per the provisions of Articles 1108 and 1119 of the Civil Code, 1867, in force in this State of Goa, the Petitioner filed the said application which came to be dismissed by the impugned Order.

6. Shri Sudin Usgaonkar, the learned Counsel appearing on behalf of the Petitioner, would submit that the Petitioner in spite of having been a lawful wedded wife of Defendant No. 6, the said Osier Monte De Furtado was not made a party to the suit nor a judgment debtor in the execution proceedings though as a moiety holder and co-sharer of the suit property, was required to be made a party. Learned Counsel, therefore, submits that the decree as against her is not executable, and, further submits that the application filed by the Petitioner ought to have been considered by the learned Executing Court under Section 151, Code of Civil Procedure and in this context has placed reliance on a judgment of the Supreme Court in the case of Moolchand and Ors. v. Fatima Sultana Begum and Ors., MANU/SC/0841/1995 : (1995) 6 SCC 742 wherein the Apex Court has held that interests of justice are the primary consideration in granting or not granting prayers in a petition under Section 151, Code of Civil Procedure. No rule or procedure can curtail that power of the Court.

7. On the other hand, Shri A.F. Diniz, the learned Counsel appearing on behalf of the Respondent No. 1/Decree Holder submits that the estate of Antonio Oscar and his wife was sufficiently represented by the Petitioners' husband, the said Osier Monte De Furtado/Respondent No. 6 herein, and, therefore the decree is binding on the estate. Learned Counsel submits that the estate was sufficiently represented by the said Defendant Shri Osier Monte De Furtado. Learned Counsel further submits that the Executing Court could deny the execution or refuse to execute the decree only in case it is a nullity and not otherwise and which is not the case at hand. Learned Counsel further submits that it is not the case of the Petitioner that she was not joined in the suit or execution proceedings because of any fraud or collusion between the parties to the said suit and in support of his submissions, Shri Diniz, learned Counsel has placed reliance on the case of Harihar Prasad Singh and Anr. v. Balmiki Prasad Singh and Ors., MANU/SC/0008/1974 : (1975)1 SCC 212.

7A. Article 1108 of the Civil Code, 1867 does provide that the marriage as per custom of the country consists in the communion between the spouses of all their properties, present and future, not excluded by law. Likewise, Article 1119 of the same Code provides that the immovable, properties, whether common or exclusive of either spouse, shall not be alienated or charged in any manner without the consent and agreement of both. It also provides that in case of dissent or unfounded opposition, the consent of the dissenting spouse may be made good by the order of the Court, Admittedly, the Petitioner is the wife of Defendant No. 6, the said Osier Monte De Furtado and still they are living together as husband and wife. It is not the case of the Petitioner that she was unaware of the suit filed by the Plaintiff /decree holder against her husband, being the legal representative of Antonio Oscar and his wife. It is also not her case that she was not impleaded because there was fraud or collusion. It is good to keep in mind that there are other provisions in the Code of 1867 which confer the right of administration of properties of the couple, on the husband, whose duty is also to protect the person and properties of his wife.

8. The Apex Court in Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors. (supra) with reference to Order 22, Rule 4, Code of Civil Procedure referred to Daya Ram v. Shyam Sundari, MANU/SC/0298/1964 : AIR 1965 SC 1049 and observed that it is almost universal consensus of opinion of all the High Courts, that where a Plaintiff or an Appellant after diligent and bona fide inquiry ascertains who the legal representatives of a deceased Defendant or Respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those not impleaded but the entire estate including those not brought on record.

9. In Daya Ram v. Shyam Sundari (supra) it was stated that in a case where the person brought on record is a legal representative it should be considered that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such legal representative is sufficient to prevent the suit or the appeal from abating. The Apex Court noted that it must be made clear that the fraud or collusion mentioned must be a fraud or collusion between the Appellant on the one hand and the representative of the deceased Respondent who is brought on record on the other hand and vice versa. Referring to the facts of the case, the Apex Court held that failure to bring Ghia Devi, daughter of Manmohini, on record cannot be said to be a fraud on the part of her brother Raktoo Singh in collusion with the Respondents nor he can deprive Ghia Devi of her rights by not impleading her as the legal representative of their deceased mother. The fraud contemplated is a fraud or collusion between the parties on record to the detriment to the legal representative who has not been brought on record.

10. There are similar provisions in Article 1427 of the Code of Civil Procedure, 1939, in force in this State.

11. The submission of Shri Usgaonkar that the said observations would not apply to the parties herein because of the specific provisions of the Code of 1867 cannot be accepted. Defendant No. 6, the said Osier Monte De Furtado, the husband of the Petitioner in terms of law was required to administer the properties and protect them, belonging to the couple and he was brought on record as the legal representative of the said Antonio Oscar and his wife. It was not the case of the Petitioner at any time that there was a fraud between the Plaintiff /decree holder and her husband in not bringing her on record. Her interest in the estate was sufficiently represented by her husband and therefore the decree passed in the suit is binding on her and she can have no objection to the said execution on the specious ground that she was not made a party to the suit or execution proceedings.

12. I, therefore, find that there is no merit in this petition, and consequently the same is hereby dismissed. Rule discharged.

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