Whether delay in delivering judgment ipso facto would be enough to vitiate the same ?
69. The next unsuccessful attempt on the part of learned Counsel for plaintiffs was regarding delay in delivering judgment in first appeals. Learned Counsel would submit that arguments in first appeals were lastly heard on 21/7/1994 and matters were closed for judgment on that date, but the common judgment was delivered on 9/3/1995. A grievance is made that because of delay, important points were missed. Appellate Court did not consider main objection of plaintiffs that decree obtained from the Hon'ble Supreme Court was collusive and not binding on the parties. He also pointed out that judgment of Full Bench of Andhra Pradesh High Court on necessary party was ignored and this could happen due to delay. According to learned Counsel, as material points were missed, serious prejudice has been caused to appellants and on this ground itself, judgment of the appellate Court gets vitiated. On the effect of delay in delivering judgment under Order XX Rule 1 of the Code, Shri Khapre relied upon:
"(i) R.C. Sharma v. Union of India and others (MANU/SC/0447/1976 : AIR 1976 SC 2037),(ii) Bhagwandas Fatechand Daswani and others v. H.P.A. International and others (MANU/SC/0028/2000 : AIR 2000 SC 775),(iii) Anil Rai v. State of Bihar (MANU/SC/1586/2001 : AIR 2001 SC 3173),(iv) Kanhaiyalal and others v. Anupkumar and others (MANU/SC/1112/2002 : AIR 2003 SC 689(1),(v) M/s. Telestar Travels Pvt. Ltd. And others v. Special Director of Enforcement (MANU/SC/0154/2013 : AIR 2013 SC (Supp) 1041,"
70. On going through the above authorities, it can be seen that mere unexplained delay in delivering judgment is not fatal and guidelines given by the Hon'ble Supreme Court in paragraph 21 of the judgment in the case of Anil Rai (supra) regarding pronouncement of judgments need to be strictly followed being mandate of the Hon'ble Supreme Court. These guidelines are:
"(i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause title date of reserving the judgment and date of pronouncing it be separately mentioned by the Court Officer concerned.(ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.(iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months, the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.(iv) Where a judgment is not pronounced within three months from the date of reserving it, any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concernedwithin two days excluding the intervening holidays.(v) If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances."
71. In the present case, no grievance was ever made by the parties regarding alleged delay in delivering judgment. The facts of the case would show that while reversing the judgment and decree passed by the trial Court, learned Single Judge has come to his own independent conclusion based on material placed on record. Moreover, it is too late for the plaintiffs to get up and say that delay has caused prejudice to them. In what way prejudice is caused is not explained. Order XX Rule 1 of the Code nowhere mentions that delay vitiates the judgment. In this backdrop, we do not find force in the submission of learned Counsel for plaintiffs that delay is fatal and judgment in first appeals gets vitiated.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Letters Patent Appeal No. 77 of 1995 in First Appeal No. 22 of 1980,
Decided On: 30.08.2016
Prabhatai Vs. Chimote & Sons and Ors.
Hon'ble Judges/Coram:B.P. Dharmadhikari and Indira Jain, JJ.
Citation: 2017(2) MHLJ 83 Bom
1. These letters patent appeals take an exception to the judgment and order dated 9/3/1995 passed by the learned Single Judge of this Court in First Appeal Nos. 22/1980, 23/1980, 328/1989, 329/1989, 330/1989 and 331/1989. The First Appeals arose against the common judgment and decree in Special Civil Suit No. 20/1972 and Regular Civil Suit Nos. 174/1969, 361/1969, 371/1969, 374/1969 and 375/1969 delivered by the learned Civil Judge, Senior Division, Amravati on 25/1/1979.
2. The case of appellants and certain disputed facts relevant for the purpose of deciding these appeals may be stated, in brief, as under:
"Balkrishna Bodhankar, resident of Amravati was a Lawyer by profession. He died in the year 1918 leaving behind him son Shankarrao and widow Durgabai. Durgabai is step mother of Shankarrao. It is advantageous to reproduce genealogical tree of family of Balkrishna here to understand the controversy between the parties:
3. In the year 1918, when Balkrishna died, Shankarrao was aged about 3 years. During his life time, Balkrishna earned certain properties. So far as disputed agricultural lands are concerned, matters have been amicably settled between the parties. The controversy is now limited to a double storeyed house situated at Ambadevi Road, Amravati. Till Shankarrao attained majority in 1935, property was in possession and management of the Guardian appointed by the Court. In 1940, Shankarrao started legal practice at Amravati. In 1944-45, in partnership with B.H. Sabnis, Shankarrao entered into grain business under Government Control Scheme. He also entered in the business of distribution of cinema films in partnership with others and was dealing in American futures.
4. There was no positive response to the businesses started by Shankarrao and his partners and as they suffered losses, Shankarrao borrowed loans from Krishnarao Keole of Amravati, Govindrao and Narayanrao Shingore of Deulwada, Taluka Achalpur, Wasudeo Chimote of Amravati, People's Cooperative Bank, Amravati and others. The creditors were required to institute suits against Shankarrao as he could not repay the debts. The following decrees were passed against Shankarrao and his partners:
"(i) Civil Suit No. 31/B of 1947, dated 8th August 1947, Krishnarao Keole v. Shankarrao (alone) for Rs. 7000 costs and future interest in Amravati Court.(ii) Civil Suit No. 3-A of 1947, Dhapubai Bhoot v. Shankarrao and others in the Court of Civil Judge, Wardha.(iii) Civil Suit No. 65/1949, The Province of C.P. and Berar v. S.B. Bodhankar and B.H. Sabnis dated 16th January 1951 for Rs. 883.15 p. and costs in the Court of Civil Judge, Amravati.(iv) An award for about Rs. 4000 and costs in favour of People's Cooperative Bank v. V.K. Painthankar and S.D. Bodhankar, as his surety."
5. In the suit instituted by Dhapubai Bhoot, decree was put to execution. Krishnarao Keole also filed execution proceedings and property was to be auctioned in these proceedings. On 24/1/1951, to pay Rs. 2000/- to Krishnarao Keole, Shankarrao executed an agreement of sale of the house in question in favour of Wasudeo Chimote, took Rs. 2000/- from him and paid the said amount to Krishnarao Keole. In May and June 1946, Shankarrao had borrowed loans from Wasudeo Chimote for business purpose. On 9/7/1951, after Dhapubai put the decree to execution, Shankarrao executed Sale Deed of the house in favour of Ramchandra Wasudeo Chimote, who paid Rs. 6200/- to Krishnarao Keole for and on behalf of Shankarrao in full and final satisfaction of the decree passed in the suit instituted by Krishnarao Keole. The Sale Deed was for a total consideration of Rs. 25,000/-.
6. In 1951, house in dispute was attached in execution proceedings taken out by Dhapubai Bhoot against Shankarrao. It was put to Court auction. Ramchandra Chimote claiming to be owner of the house raised objection to attachment of house under Order XXI Rule 58 of the Code of Civil Procedure (hereinafter referred to as "the Code"). On hearing the parties, executing Court rejected objection on 12/12/1953.
7. Thereafter Ramchandra and his father Wasudeo Chimote filed Civil Suit No. 3-A/1953 under Order XXI Rule 63 of the Code The suit was renumbered as 1-A of 1954. It was decreed by the learned 1st Additional District Judge, Amravati on 30/11/1956. First Appeal No. 15/1957 filed by Dhapubai Bhoot against Ramchandra Chimote and others was allowed on 19/7/1962 and it was held that Sale Deed dated 9/7/1951 of the house executed by Shankarrao in favour of Ramchandra was not binding on Dhapubai. Wasudeo Chimote then died.
8. The decision in first appeal was challenged by Ramchandra Chimote and his two brothers before the Hon'ble Supreme Court. Civil Appeal No. 862/1964 was allowed by the Hon'ble Supreme Court on 8/2/1967 and the judgment and decree passed by the High Court was set aside and the decree passed by the lower Court was restored. The Hon'ble Supreme Court held that Sale Deed dated 9/7/1951 was valid. Shankarrao was a party to the litigation throughout.
9. With these basic facts, it would be essential to advert to the claim of plaintiffs in the suits referred above. Deodatta, plaintiff in Special Civil Suit No. 20/1972, is son of Shankarrao. He raised a contention that income of Shankarrao from house rent and agricultural produce was more than sufficient to maintain their family. According to him, Shankarrao had no previous experience or training in the businesses started by him. The loans borrowed by him from time to time for grain business, cinema films distribution and American futures were not for maintaining the family, but for satisfying his speculative nature and vice in dealing in American futures. Shankarrao entered into various businesses because of his reckless actions and the businesses in different fields were absolutely new to the family.
10. It is the case of Deodatta that Wasudeo Chimote was their family friend. He was aware of the speculative habits of Shankarrao. With an intention to grab the house, Wasudeo took disadvantage of the situation and insisted Shankarrao to execute a nominal Sale Deed of the house at Ambadevi Road, Amravati. He assured Shankarrao that Sale Deed would be nominal and would not be acted upon. He submitted that the house was worth Rs. 60,000/- in 1951. The consideration of Rs. 25,000/- was inadequate and since Sale Deed was nominal, Ramchandra Chimote and his brothers are not entitled to claim title on the strength of nominal Sale Deed. The possession of house remained with Shankarrao and his family.
11. Another contention raised by Deodatta is that sale of house was not for legal necessity. It would not bind the interest of coparceners of Shankarrao's family. Ramchandra Chimote attempted to disturb possession of Shankarrao's family in the year 1967 and on 11/8/1967 forcibly took possession of four rooms of the house. The rest of the house is in possession of plaintiff.
12. The next submission raised by plaintiff in Special Civil Suit No. 20/1972 is that decree passed in first round of litigation between Dhapubai and Shankarrao would not operate as res judicata as he was minor at the relevant time, Shankarrao was party to the proceedings throughout and the decree was obtained by Shankarrao and Chimote in collusion to defeat the claim of Dhapubai. On the basis of legal necessity, collusion and res judicata, Deodatta claims that Sale Deed in question is not binding on him and he claimed partition, possession and his share in the house. No declaratory relief has been sought by him in respect of Sale Deed.
13. The facts in Regular Civil Suit Nos. 174/1969, 361/1969, 373/1969, 374/1969 and 375/1969 are almost identical. It can be revealed from the plaints that Chimote and sons was a registered partnership firm of Wasudeo and his three sons - Ramchandra Chimote, Vinayak Chimote and Suresh Chimote. Initially it was a joint Hindu family shop styled as "Vitthal Shrikrishna Chimote". The joint family was consisting of Wasudeo Chimote and his three sons named above. On 20/7/1963, assets of the shop were partitioned and each received 1/4th share. On 21/7/1963, partnership firm Chimote and sons came into existence. Each partner had 1/4th share in the firm. On 22/9/1963, Wasudeo Chimote died. A day before, i.e. on 21/9/1963 Wasudeo Chimote executed a Will and bequeathed all his properties to his sons. By virtue of Will, on the death of Wasudeo, Ramchandra and his two brothers - Vinayak and Suresh acquired interest in the property by survivorship. According to Chimotes, Sale Deed dated 9/7/1951 was executed by Shankarrao in the name of Ramchandra, who was one of the Kartas of joint family and its shop Vitthal Shrikrishna Chimote. The consideration of Rs. 25,000/- was paid from the assets of joint Hindu family shop. In view of the Sale Deed, they became owners of the house. At the time of Sale Deed, Shankarrao agreed to pay advance rent of Rs. 3000/- for one year and remained in possession as tenant. The part of the house remained in possession of Shankarrao and possession of another portion was received by Chimotes. Thereafter in 1965, Shankarrao started asserting his ownership over the suit house in collusion with other tenants. Rent Control proceedings were taken up by Chimote and sons. Notice was issued for forfeiture of tenancy. The above 5 suits were filed by Chimote and sons for ejectment, possession and arrears of rent against Shankarrao and all other tenants. Shankarrao was defendant No. 1 in all the five suits.
14. The defence raised by Shankarrao in the suits was of denial. He submitted that though he executed agreement of Sale on 24/1/1951 and nominal Sale Deed on 9/7/1951, it was due to hard pressing need for money as he incurred huge loss in the businesses. He came with a case that at the time of execution of Sale Deed, it was agreed that document was not to be acted upon as it was nominal. In the suit of Dhapubai, Shankarrao remained absent throughout. Wasudeo and Ramchandra prosecuted the suit. It was a collusive decree obtained by Chimotes and Shankarrao to protect the house from auction and to defeat the claim of Dhapubai in execution proceedings. The decree being collusive in nature, title did not pass to Chimotes and Shankarrao remained owner of the house. The plea of estoppel raised by Chimotes from challenging the Sale Deed was denied by Shankarrao and others in five suits.
15. According to defendants in suits instituted by Chimotes, previous suit was under Order XXI Rule 63 of the Code and it was not a suit for declaration of title. The scope of Order XXI Rule 63 of the Code was limited to lift the attachment of the house or to continue with the attachment. It was not open to the Executing Court to go beyond the scope of Order XXI Rule 63 of the Code and even if the decree passed in the previous suit under Order XXI Rule 63 of the Code is confirmed by the Hon'ble Supreme Court, it would not operate as res judicata as it was not a decree passed by the regular Court.
16. The sum and substance of discussion and the order passed by the learned Civil Judge, Senior Division in the suits mentioned above is reflected in paragraph 61 of the judgment, which reads as under:
"(i) Chimote and Sons fail to prove that it is the genuine sale deed Exh. 203 dated 9th July 1951 and they are the owners and landlords of the suit house.(ii) the previous litigation between Ramchandra Chimote and Dhapubai being a collusive affair between Shankarrao and Chimote, judgment Exh. 231 is not res judicata in this suit.(iii) Plaintiff Deodatta fails to prove that his right, title and interest in the suit lands was not sold at the said Court auction sale, dt. 27th July 1959 and hence, he has got a right of redemption of mortgage dt. 12th November 1951.With the various findings on crucial issues going in favour of either of the parties, it is desirable that the parties to both the litigations do bear their own costs incurred so far. With the aforesaid discussion, this is the final order being passed in these suits.OrderIn Special Civil Suit No. 20 of 1972, it is declared that the suit house situated on Nazul Plot No. 67/C, sheet No. 5/2 of Amravati, still belongs to the joint family of the plaintiff and defendant Nos. 1 to 4.In Special Civil Suit No. 20 of 1972, rest of the claim of plaintiff is rejected.Regular Civil Suit Nos. 174/69, 361/69, 373/69, 374/69 and 375/69 are dismissed.Parties to these litigations do bear their own costs."
17. Being dissatisfied with the judgment and decree passed by the learned trial Court, first appeals were filed by the unsuccessful parties. The main questions considered by the learned Single Judge in first appeals were:
"I) Whether findings in former suit bearing No. 13-A/1953 operate as res judicata ?II) Whether Sale Deed dated 9/7/1951 was executed in collusion between Shankarrao and Chimotes with intent to defeat and delay the debts due from the creditors ?III) Plea of estoppel raised by Chimotes."
18. After considering the submissions advanced at length, following order came to be passed in the first appeals:
"18) In the result, First Appeal No. 22 of 1980 is allowed. Decree passed in Civil Suit No. 20 of 1972 granting declaration that the suit house at Amravati still belongs to the joint family of the plaintiff and defendant No. 2 is hereby set aside. The claim to that extent is dismissed.First Appeal No. 23 of 1980 is dismissed. Decree dismissing the rest of the claim in Civil Suit No. 20 of 1972 relating to partition, possession and redemption is hereby confirmed.First Appeal Nos. 328, 329, 330 and 331 of 1969 are partly allowed. Dismissal of the suits since in view of the declaration in Civil Suit No. 20 of 1972 are hereby set aside, the matters are remitted back to the Civil Court to decide the suit claim for possession and damage afresh in the light of the findings recorded by this Court."
This common order in first appeals is the subject matter of letters patent appeals before us.
19. We have heard the learned Counsel for the respective parties in extenso.
20. Shri Khapre, learned Counsel for tenants in Regular Civil Suit Nos. 174/1969, 361/1969, 371/1969, 374/1969 and 375/1969 made manifold submissions as under:
"(i) Evidence adduced by the parties ought to have been discussed and reappreciated while deciding first appeals and since evidence has not been discussed, judgment and decree gets vitiated.(ii) Arguments in first appeals were closed on 22/7/1994 and judgment was delivered on 9/3/1995. Submission is that for want of reasons to be recorded under Order XX Rule 1, second proviso of the Code for not delivering judgment in time, it needs to be set aside.(iii) (a) The decision of the Hon'ble Supreme Court dated 8/2/1967 would not amount to res judicata as decree in suit under Order XXI Rule 63 of the Code was obtained in collusion between Wasudeo and Shakarrao Bodhankar with a view to save the property anyhow from the attachment in execution proceedings initiated by Dhapubai.(b) According to learned Counsel, it would not be a judgment in rem, which binds for all the purposes and it is conclusive only to the extent of attachment of the house in the execution proceedings taken up by Dhapubai qua right of objector, judgment debtor and decree holder. Ramchandra was objector and in suit under Order XXI Rule 63 of the Code of Civil Procedure, Shankarrao was not a necessary party as Ramchandra Chimote stepped into the shoes of Shankarrao. If Shankarrao was not a necessary party or he was a proforma defendant, in that case, submission is that decree in previous suit would not bind either Shankarrao or his legal heirs. It is submitted that in previous litigation, there was no real dispute between Shankarrao and Chimote. Shankarrao was not going to loose anything even otherwise. A distinction is tried to be made by referring the word "conclusive" in Order XXI Rule 63 and the absence of the same in Section 11 of the Code. Pointing out such difference, it is tried to be contended that by using word "conclusive", intention of the Legislature is clear that suit under Order XXI Rule 63 is qua attachment and decree under Order XXI Rule 63 is final and conclusive qua attachment, but not title.(c) The learned Counsel submits that Order XXI Rule 63 is a special law whereas Section 11 is a general law, which is excluded by special law. Executing Court was not concerned with title of the property attached, but it had a limited scope to the execution of decree in accordance with Order XXI of the Code.(iv) (a) Sale Deed dated 9/7/1951 was a nominal, sham and bogus document and never intended to be acted upon. The main issue in the previous litigation was whether attachment was to be lifted or to be continued. Issues whether Sale Deed was for consideration or not, was bogus or genuine, was in collusion or not were not the relevant issues in the suit between Chimote and Dhapubai. In this background, decree in previous suit is not binding on legal heirs of Shankarrao and in no case, such decree would amount to res judicata under Section 11 of the Code.(b) Prior to Amending Act 104 of 1976, suit under Order XXI Rule 63 of the Code was qua attachment and not title. All rights and liabilities prior to 1976 were protected and so Section 11 Explanation VIII of the Code would not apply in such situation.(c) Shankarrao had not filed an appeal against the judgment and decree passed under Order XXI Rule 63 of the Code and proceedings had not attained finality so far as Shankarrao is concerned. It is urged that in that circumstance, judgment passed by the Hon'ble Supreme Court would not amount to res judicata against the legal representatives of Shankarrao.(d) To sum up his submissions, learned Counsel states that issue in the previous litigation was not directly and substantially in issue and so decree in the previous litigation would not come in the way of Shankarrao and his family members.(e) The next submission is that once bar under Section 11 of the Code is removed, exclusive burden lies on Chimotes to prove their title. In this connection, learned Counsel submits that derivative title from Ramchandra Chimote to partnership firm is not proved. In the absence of evidence regarding derivative title from Ramchandra to partnership firm, submission is that title to the disputed house is not established and the sale deed would not help Chimotes to establish that they are the owners.(v) Referring to the family history of Balkrishna and Shankarrao Bodhankar, an attempt was made to show that family had no background in trade or businesses. Shankarrao borrowed loans from various creditors just to satisfy his needs and desires and the liability created on account of non payment of such loans cannot be fastened on the legal heirs. As debts were Avyawaharik, sons were not under pious obligation to pay Avyawaharik debts. In this situation, alienation of the house in question would not bind other coparceners in the joint family.(vi) From Aadhava maintained by Vitthal Shrikrishna Chimote and sons, entry of Rs. 25,000/- is shown. House property is not shown in Aadhava. This crucial document was not properly considered and from this Aadhava, it is clear that parties had not intended to act upon sale deed. It further indicates that even Ramchandra had treated Shankarrao as owner of the house and not treated himself as owner of the property in dispute.(vii) On sale deed in question, it is urged that rent fixed at the rate of Rs. 250/- per month and interest at the rate of 12% per annum clearly demonstrate that the transaction was not of sale and sale deed was nominal. Further Rs. 3000/- shown to have been deducted on account of one year rent would make it clear that sale was bogus and not to be acted upon as in the year 1952 custom prevailing in the area was not to pay advance rent of one year. The averments in the sale deed were thus contrary to the practice of deducting advance rent and advance interest.(viii) Consideration of Rs. 25,000/- was grossly inadequate as in the year 1951, disputed house could fetch value of Rs. 60,000/-. The witnesses were examined to show the valuation of house at the relevant time, but their evidence was totally ignored in the first appeals. The grossly inadequate consideration is another factor to show that transaction was not of sale as contended by Chimotes."
21. Shri Deshpande, learned Counsel for appellant in Letters Patent Appeal No. 78/1995, adopts the submissions of Shri Khapre. In addition, he mentions that issue of legal necessity is the main issue. It is pointed out that evidence of Shankarrao, P.W.4 Dattatraya Tayde, P.W.5 Anant Khaparde and other witnesses examined was not legally appreciated. There was no effective cross-examination of these witnesses on the material facts concerning various businesses started by Shankarrao. They went in losses and debts were Avyawaharik, which would not render minor's interest in the property liable for Avyawaharik debts incurred for the businesses by father as Karta of the family. It is submitted that businesses started by Shankarrao cannot be said to be ancestral as it was his exclusive decision and to satisfy his needs, he started various businesses and incurred losses for which Shankarrao alone was responsible. The learned Counsel referring to the pleadings of the parties submits that in the impugned judgment it is observed that there were no pleadings in this respect whereas plaintiff has specifically pleaded about legal necessity. According to learned Counsel, impugned judgment is contrary to the pleadings and evidence on record. It is submitted that Shankarrao was carrying on business on the licence of Sabnis is totally ignored. There is no specific discussion on American Futures and other businesses started by Shankarrao.
22. Learned Counsel then submits that evidence of Shankarao has gone unchallenged on the part of Chimotes and there was no reason to discard his evidence and the evidence of other witnesses clearly indicating that Avyawaharik debts incurred by father would not bind minors. It is submitted that theory of pious obligation cannot be accepted in the facts of the present case.
23. On the point of res judicata, learned Counsel states that in the previous suit, defence of collusiveness was raised. Here plaintiff challenged alienation on the ground of legal necessity. It is not necessary for him to seek declaration of setting aside sale as the property is ancestral and being one of the coparceners, on attaining majority, he has a statutory right to challenge the alienation on the ground of legal necessity to get his share on partition.
24. Learned Counsel Shri Deshpande also submits that pleadings and evidence were sufficient to hold that alienation was not for legal necessity and so judgment and decree passed by the trial Court was not to be interfered with in the first appeal.
25. Per contra, learned Senior Counsel Shri Dharmadhikari on behalf of Chimotes raises three propositions in his extensive arguments:
"(i) Nature of the suit under Order XXI Rule 63 of the Code of Civil Procedure is not limited to the enquiry under Order XXI Rule 58 of the Code and it is a complete suit in itself.(ii) Having sold the property, Shankarrao was not concerned with the same and with the suit instituted by Ramchandra under Order XXI Rule 63 of the Code of Civil Procedure. Alleged collusion between Shankarrao and Chimotes came to an end when appeal was preferred before the Hon'ble Supreme Court. Shankarrao was aware that Chimotes were about to grab the property, still he did not appear before the Hon'ble Supreme Court and so principle of estoppel would intervene.(iii) The decision in previous litigation would operate as res judicata even against the legal heirs of Shankarrao."
26. Based on these submissions, learned Senior Counsel Shri Dharmadhikari submits that allowing claim of Deodatta would mean to allow Shankarrao to defeat all debts and retain the house. He points out that the law does not permit this and vehemently opposes letters patent appeals.
27. In view of rival contentions and submissions urged on behalf of parties, factual evidence on record and the circumstances of the case, we have broadly framed the following points, which require our attention and consideration:
"(i) What is the nature of suit under Order XXI Rule 63 of the Code ? Is it a complete suit in itself or limited to an enquiry under Order XXI Rule 58 of the Code ?(ii) Whether the decision in former suit between Dhapubai and Chimote would operate as res judicata ?(iii) Whether the decree obtained in suit under Order XXI Rule 63 of the Code was a collusive decree not binding on the legal heirs of Shankarrao ?(iv) Whether Shankarrao sold the house in dispute for legal necessity ?(v) Whether principle of estoppel would be attracted against Shankarrao and his legal representatives ?(vi) Whether sale deed in question is hit by Section 44 of the Evidence Act ? and(vii) Whether delay in delivering judgment ipso facto would be enough to vitiate the same ?"
28. Before we proceed to consider the above points, contention raised by appellants regarding extent of powers of the Court in letters patent appeal needs to be looked into. Shri Khapre, learned Counsel submits that generally letters patent Bench would be slow in disturbing the concurrent findings of facts of two Courts below, but in an appropriate case, even findings of facts will have to be looked into by letters patent Bench. He submitted that in the case on hand, first appellate Court was required in law to reappreciate the evidence of witnesses and to arrive at its own independent conclusion, but the evidence of witnesses particularly on valuation of the house, businesses taken up by Shankarrao and American Futures was not at all considered, which resulted into findings contrary to the evidence on record. On the powers of letters patent Bench, Shri Khapre placed reliance on:
"(i) Smt. Asha Devi v. Dukhi Sao and another (MANU/SC/0019/1974 : AIR 1974 SC 2048 (1), and(ii) Ishwarlal Sarabhai Parikh v. Prabhawati Ishwarlal Parikh (Smt.) and another (MANU/MH/0407/1987 : 1988 (1) Bom. C.R. 464)."
Referring to these authorities, he adds that letters patent appeal is not equivalent to second appeal under Section 100 of the Code and, therefore, such appeal would lie not only on question of law, but also on question of facts. He contended that oral evidence is admissible to show that document executed was never intended to be acted upon. He placed reliance on the judgment in Tyagaraja Mudaliyar and another v. Vedathanni (MANU/PR/0014/1935 : AIR 1936 Privy Council 70) to substantiate his contention.
29. According to Shri Khapre, burden to prove correctness of contents of sale deed in question was on Chimote and since contents of sale deed were not duly proved with cogent evidence, it was not possible for the first appellate Court to come to the conclusion that execution of sale deed is proved. In support, he relied upon the judgment in Shalinibai Trimbakrao Begde and others v. Narayan Harnaji Bhalme and others MANU/MH/0918/2006 : (2007 (Supp.) Bom. C.R. 721).
30. In Ishwarlal Sarabhai Parikh's case (supra), decision in the case of Smt. Asha Devi referred above has been relied upon and it was observed:
"We will, therefore, first examine the correctness of the findings of fact reached by the learned Single Judge. There was some debate on the extent of the powers of this Court in a Letters Patent Appeal to examine the correctness of these findings. This question need not detain us for long. The Supreme Court has Ruled in MANU/SC/0019/1974 : A.I.R. 1974 S.C. 2048 (Smt. Asha Devi v. Dukhi Sao), that the power of Division Bench hearing a Letters Patent Appeal from the judgment of a Single Judge in First Appeal is not limited only to the questions of law under section 100 C.P.C., but that it has the same power which the Single Judge himself had as a first Appellate Court in respect of both questions of fact and of law. The constraints imposed by Section 100 C.P.C. in the case of a second appeal are not applicable to a Division Bench hearing a Letters Patent Appeal. This is because, a second appeal is from the decision of Subordinate Court, while, a Single Judge is not subordinate to the High Court. It follows who have all the powers of a Single Judge to reach our own findings on questions of fact."
Keeping in view the powers of letters patent Bench, we now proceed to consider the above questions in their chronological order.
(I) What is the nature of suit under Order XXI Rule 63 of the Code ? Is it a complete suit in itself or limited to an enquiry under Order XXI Rule 58 of the Code ?
31. According to learned Counsel Shri Khapre, provisions of Order XXI Rule 63 of the Code are qua attachment/execution and not qua title. He urged that judgment in such a suit is not judgment in rem, which would bind all for all the purposes, but it is a judgment in personam qua right of objector, judgment debtor or decree holder. He submitted that suit under Order XXI Rule 63 of the Code cannot be decided beyond the question involved under Order XXI Rule 58 of the Code. In support thereof, learned Counsel placed strong reliance on:
"(i) M. Chimpiramma and another v. Pabbisetti Subramanyam and others (MANU/AP/0160/1956 : AIR 1957 Andhra Pradesh 61),(ii) Sangapu Vishwanadham and others v. Kanneganti Basavayya and others (MANU/AP/0134/1959 : AIR 1959 Andhra Pradesh 180),(iii) Mangru Mahto and others v. Thakur Taraknathji Tarkeshwar and others (MANU/SC/0277/1967 : AIR 1967 SC 1390),(iv) Tharu Cheru and another v. Mary and others (MANU/KE/0041/1973 : AIR 1973 Kerala 125)."
32. Per contra, learned Senior Counsel Shri Dharmadhikari submitted that suit under XXI Rule 63 of the Code is not limited to enquiry under Order XXI Rule 58 of the Code, but it is a complete suit in itself. He pointed out that while deciding suit under Order XXI Rule63 of the Code, Court exercises its regular jurisdiction and not only relief of declaration, but also consequential relief can be claimed. To substantiate his contention, learned Senior Counsel placed reliance on the decisions of the Hon'ble Apex Court and High Courts in:
"(i) Kavouri Basivireddi and others v. Nidumoori Rammayya and another (AIR 1917 Madras 393)(ii) Ganpati Uka Koshti and others v. Yadao Shrawan and another (MANU/NA/0012/1941 : AIR (29) 1942 Nagpur 61)(iii) Sawai Singhai Nirmal Chand v. The Union of India (MANU/SC/0016/1965 : AIR 1966 SC 1068),(iv) in Civil Appeal No. 862/1964 (Ramchandra Vasudeo Chimote and others v. Dhapubai w/o Mahadeo Bhut and others)"
33. Order XXI Rule 63 of the Code as was then prevailing reads as under:
"63) Saving of suits to establish right to attached property - Where a claim or an objection is preferred, the party against whom an order is made, may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive."
This Rule gave a statutory right of suit to the party against whom an order was passed in the claim proceedings. A suit contemplated by the Rule was to be filed within one yearfrom the date of order as prescribed by Article 11 of the Limitation Act. If under Order XXI Rule 63 of the Code suit is not filed, order under Order XXI Rule 58 of the Code becomes final.
34. In Mangru Mahto's case (supra), the Hon'ble Supreme Court considered two inconsistent decisions of the Madras High Court and while approving decision of the Full Bench in Kandadai Narsimhachariar v. Raghava Padayachi and others (MANU/TN/0120/1945 : AIR 1945 Madras 333) overruled the decision in Subbier v. Moideen Fitchai and others (AIR 1923 Madras 562). It was observed:
"A claim proceeding under O.21, Rule 58 is not a suit or a proceeding analogous to suit. An order in the claim proceedings does not operate as res judicata. It is because of R. 63 that the order becomes conclusive. The effect of R.63 is that unless a suit is brought as provided by the rule, the party against whom the order in the claim proceeding is made or any person claiming through him cannot re-agitate in any other suit or proceeding against the other party or any person claiming through him the question whether the property was or was not liable to attachment and sale in execution of the decree out of which the claim proceeding arose, but the bar of Rule 63 extends no further. AIR 1923 Mad 562 Overruled: MANU/TN/0120/1945 : AIR 1945 Mad 333(FB), Approved; MANU/PR/0105/1922 : AIR 1922 PC 341, Overruled on point of appealability of order under R.58.Held that in view of orders passed against the plaintiff in the claim proceedings and his failure to institute suits under O.21, R.63, the plaintiff was precluded from claiming that he had the right to attach the suit lands in execution of his money decree, but that did not preclude him from claiming that he had the right to sell the lands in execution of his mortgage decree."
35. The decision of the Hon'ble Supreme Court in Mangru Mahto's case was referred by Kerala High Court in Tharu Cheru's case (supra) in which it has been held:
"7. The learned District Judge seems to think that, as the present suit, O.S. No. 269 of 1959, is not brought within one year after the date on which the claim was allowed this suit is not maintainable. I do not think that this view of the learned District Judge is correct. No doubt, a suit under Order XXI, Rule 63, Civil P.C., has to be brought within one year from the date on which the order on the claim petition is passed. It is precisely for that reason that the suit O.S. No. 387 of 1957 was dismissed, as the suit was brought only on 4-12-1957 whereas the order on the claim petition was passed on 24-11-1956. That suit was under Order XXI, Rule 63 of the Civil P.C., for setting aside the order on the claim petition. The ground alleged was that Exhibit P-1 sale deed dated 5-1-1951 executed by the second defendant in favour of his wife, the first defendant, was a sham document. That suit, however, was not a creditor's suit under Section 53 of the Transfer of Property Act. The question then is whether the decision in O.S. No. 387 of 1957 as confirmed by the decree in A.S. No. 241 of 1958, is a bar to the institution of the present suit, O.S. No. 269 of 1959. The suit O.S. No. 387 of 1957 was merely a suit for setting aside the order on the claim petition on the ground that Exhibit P-1 sale deed by the husband in favour of the wife was a sham document not intended to be acted upon. The decision in that suit can bind the decree-holder only with respect to the execution of the decree for the realisation of which the property was attached. This is the view that was taken in the Full Bench decision of the Madras High Court in Narasimhachariar v. Raghava Padayachi (MANU/TN/0120/1945 : AIR 1945 Mad 333):A Full Bench of the Andhra Pradesh High Court also has taken a similar view in Chimpiramma v. Subramanyam MANU/AP/0160/1956 : (AIR 1957 Andh Pra 61 (F.B.)."
36. In this case, Andhra Pradesh High Court distinguished on conclusiveness of the suit under Order XXI Rule 63 of the Code in two contingencies:
"(i) where judgment debtor is not made a party and(ii) where judgment debtor is made a party
and observed as under:
"12. The scope of the decision on a claim order has been correctly stated in cases where the judgment-debtor is not made a party. But where the Judgment-debtor is made a party, I would prefer the Madras view and hold that the order against the Judgment-debtor cannot be questioned unless he gets it vacated within the time prescribed. It may therefore be taken as settled law, and also consistent with practice, that a judgment-debtor need not be made a party to claim proceedings in which case, the Court decides only the right of the decree-holder to bring the property to sale against the claim of the claimant's right to have the property released.Such an order would not obviously bar the Judgment-debtor who was not a party to the proceedings. It is equally settled that a judgment-debtor can also be made a party to such a proceeding, and in that event it would be binding on him and preclude him from setting up his claim unless he gets the said order set aside in a suit filed under Order XXI Rule 63 C.P.C. within the time prescribed. Subject to the operation of the doctrine of Res Judicata, an order on a claim petition filed under Order XXI rule 58 of the Code of Civil Procedure, or a decree in a suit filed under Rule 63 of that order, does not extend beyond the execution of the decree which has given rise to these proceedings. SeeNarasimhachariar v. Raghava Padayachi, MANU/TN/0120/1945 : ILR (1946) Mad 79 : (AIR 1945 Mad 333) (FB) (K). So far, the legal position is clear.""13......... All these complications and unjust consequences can be avoided if the well-settled principles are adhered to without stretching them to meet a hard case. The fundamental principle is that an order binds only the parties to that order or the persons claiming under them. If the judgment-debtor is made a party to the claim proceedings, the order therein will bind the auction-purchaser as he claims only under the judgment-debtor. If he is not made a party, the order is an order of limited scope confined to the right of the decree-holder to bring the property to sale as against the claim of the judgment-debtor to the property.If the claim is dismissed it becomes conclusive against the claimant not because of any principles of Res Judicata, but because of the express provisions of the C.P.C. Under Order XXI Rule 63 C.P.C., where a claim or an objection is preferred, the order against the party to the proceeding becomes conclusive unless the statutory suit is filed within the time prescribed. The order, therefore, against the claimant is conclusive in regard to the execution of the decree which has given rise to the claim proceedings.On the other hand, if the claim is allowed and the claimant chooses not to make the judgment-debtor a party, the order cannot be an order against the judgment-debtor, and therefore, in the terms of Order XXI Rule 63, it is not conclusive against him, and therefore, not conclusive on persons claiming under him. In that event, the purchaser gets the right, title and interest of the judgment-debtor. The aforesaid legal position ordinarily will not cause any prejudice to any of the parties. If the claim is dismissed the claimant can get that order, if wrong, set aside in a properly constituted suit."
The view of Andhra Pradesh High Court in Sangapu Vishwanadham's case (supra) was that an order passed under Order XXI Rule 58 or Order XXI Rule 63 of the Code does not extend beyond execution of decree giving rise to those proceedings.
37. In Sawai Singhai Nirmal Chand's case referred above, a short question of law arose before the Hon'ble Supreme Court - whether a suit filed in pursuance of Order XXI Rule63 of the Code attracts the provisions of Section 80 of the Code. In paragraphs 5 and 9, it is observed thus:
"5) Let us begin by referring to the provisions of O. 21 Rules 58 and 63. O. 21 R. 58 deals with the investigation of claims to, and objections to attachment of, attached properties. It is under this rule that a person whose property is wrongfully attached in execution of a decree passed against another, is entitled to object to the said attachment. On such an application being made, a summary enquiry follows and the attachment is either raised or is not raised and the objection to attachment is allowed or is not allowed according as the Court trying the application is satisfied that the objector is or is not justified in objecting to the attachment. After the final order is passed one way or the other as a result of the investigation made in such proceedings, R. 63 comes into operation. It provides that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive. It is thus plain that where an order is passed in objection proceedings commencing with R58, it would be final subject to the result of the suit which a party aggrieved by such order may institute, and that means that if a party is aggrieved by an order passed in these proceedings, he can have the said order set aside or reversed by bringing a suit as provided by R.63 itself and such a suit has to be filed within one year from the date of the impugned order. That is the nature of the suit which the appellant has brought in the present case.6).....7).....8).....9) In this connection, we ought to bear in mind that the scope of the enquiry under O. 21, R. 58 is very limited and is confined to question of possession as therein indicated while suit brought under O. 21 R. 63 would be concerned not only with the question of possession, but also with the question of title. Thus, the scope of the suit is very different from and wider than that of the investigation under O. 21 R.58. In fact, it is the order made in the said investigation that is the cause of action of the suit under O. 21 R.63. Therefore, it would be impossible to hold that such a suit is outside the purview of S. 80 of the Code."
38. It appears from the above decisions that there was divergence of judicial opinion regarding nature and scope of suit under Order XXI Rule 63 of the Code. As can be seen from the plain language of Order XXI Rule 63 of the Code, establishment of right to property comprises in the order involving grant of all prayers relating to the property. It nowhere restricts the scope of suit to the enquiry under Order XXI Rule 58 of the Code. In this situation, a second suit under Order II Rule 2 of the Code, in our view, would be unnecessary. True, under Order XXI Rule 63 of the Code, the Legislature contemplated different period of limitation for reliefs claimed. If shorter period of limitation is applied, that would not mean that the suit under Order XXI Rule 63 of the Code would be limited to an enquiry under Order XXI Rule 58 of the Code. The shorter period prescribed under Order XXI Rule 63 of the Code is only to expedite the execution proceedings.
39. Reverting to the facts of present case as indicated above, Shankarrao had borrowed loans from various creditors. Dhapubai was one of them. A civil suit was filed in which decree was passed and Dhapubai put the said decree to execution. In the execution proceedings by filing miscellaneous judicial case, objection was raised by Ramchandra Chimote under Order XXI Rule 58 of the Code contending therein that the house in question was not liable to attachment, attachment needs to be lifted and sale of the property was required to be postponed. Executing Court after hearing the decree holder and objector dismissed the contention of objector on 12/12/1953.
40. On 17/12/1953 Ramchandra filed a suit before the Civil Judge, Amravati for declaration that property belongs to him. On 18/1/1954, plaint was returned for presentation to proper Court. On 21/1/1954 plaint was presented to proper Court. Suit was registered. On 6/8/1955 Wasudeo, father of plaintiff Ramchandra, was joined as co-plaintiff in the suit and declaration was sought in respect of the house by both the plaintiffs. During pendency of suit, property was sold and purchased by Natthu. The suit was then decreed by Additional District Judge, Amravati. In appeal, decree was set aside by this Court and the suit was dismissed. The order was carried to the Hon'ble Supreme Court and vide order dated 8/2/1967, the Hon'ble Supreme Court reversed the judgment of High Court and restored judgment and decree passed by the trial Court.
41. All these chronological events would indicate that question of title raised by Ramchandra Chimote and his father in suit under Order XXI Rule 63 of the Code adjudicated by the trial Court was confirmed by the Hon'ble Supreme Court. In our view, adjudication of title in a suit under Order XXI Rule 63 of the Code was not limited to an enquiry under Order XXI Rule 58, but it was a complete suit in itself before the Court of regular jurisdiction.
(II) Whether the decision in former suit between Dhapubai and Chimote would operate as res judicata ?
42. To this question, parties have addressed at length and placed reliance on various Authorities. The learned Counsel for plaintiffs submitted that in a former suit, Shankarrao was not a necessary party as the dispute regarding attachment was between Dhapubai and Ramchandra Chimote. According to the learned Counsel, after 1976 amendment, Explanation VIII has been incorporated to Section 11 of the Code and all rights and liabilities prior to 1976 have been protected. It is contended that Ramchandra Chimote sought relief against decree holder Dhapubai and since Chimote entered into the shoe of Shankarrao, it was not necessary to join Shankarrao as a party as he was not going to lose anything. An attempt was made to demonstrate that Section 11 of the Code was not attracted at all. Under Order XXI Rule 63 of the Code, word "conclusive" was used though Section 11 was very much on the statute book. He submitted that by using the word "conclusive" in Order XXI Rule 63 of the Code, intention of the Legislature was clear that it was qua attachment/execution and not title. It is also submitted that Order XXI Rule 63being special law and Section 11 being general law, special law would prevail over general law. Learned Counsel submitted that Executing Court was not concerned with the title as it had limited jurisdiction to execute the decree. Executing Court was required to decide the objection under Order XXI Rule 58 and if objection failed, suit under Order XXI Rule 63 pertaining to an enquiry under Order XXI Rule 58 was to be instituted.
43. The next contention raised is that issue in the suit between Dhapubai and Chimote, was not directly and substantially in issue in the suit instituted by Deodatta. It is submitted that suit by Deodatta was for partition and separate possession. Shankarrao challenged the Sale Deed on various grounds including the plea that it was a sham and bogus document, not to be acted upon. Shankarrao not being a necessary party to suit in a former suit, decree under Order XXI Rule 63 passed by the trial Court and confirmed by the Hon'ble Supreme Court would not amount to res judicata against Shankarrao.
44. Referring to the various decisions of the Hon'ble Supreme Court and High Courts, learned Counsel urged that Section 11 is not attracted and the decree in former suit would not operate as res judicata in the subsequent suit. To substantiate his contentions, he relied upon the decisions in:
"(i) Official Assignee, Bombay v. Madholal Sindhu (MANU/MH/0052/1946 : AIR 1947 Bombay 217),(ii) Bhola Singh v. Teja Singh and another (MANU/PH/0105/1950 : AIR 1951 Punjab 363),(iii) Shashibhushan Prasad Misra (dead) and another v. Babuaji Rai (dead) by his legal representatives and others (MANU/SC/0304/1968 : AIR 1970 SC 809(1)(iv) Smt. Gangabai v. Smt. Chhabubai (MANU/SC/0385/1981 : AIR 1982 SC 20),(v) Haleem Khan (deceased by L.Rs.) and others v. Mukhteshwar Rai and others (MANU/UP/0594/1982 : AIR 1983 Allahabad 207).(vi) M. Kunhirama Kurup and others v. Mayyarath Krishnan Kurup and others (MANU/KE/0005/1987 : AIR 1987 Kerala 13).(vii) Life Insurance Corporation of India v. M/s. India Automobiles and Co. and others (MANU/SC/0199/1991 : AIR 1991 SC 884),(viii) Williams v. Lourdusamy and another (MANU/SC/1864/2008 : AIR 2008 SC 2212).(ix) Ramji Gupta and another v. Gopi Krishan Agrawal (D) and others (MANU/SC/0365/2013 : AIR 2013 SC 3099).(x) Commercial Tax Officer, Rajasthan v. M/s. Binani Cements Ltd. and another (MANU/SC/0121/2014 : AIR 2014 SC (Supp) 1926)."
45. Shri Deshpande, learned Counsel for plaintiff Deodatta, also placed reliance on the following Authorities in support of his submission that principle of res judicata would not be attracted in the instant case:
"(i) (Kintali) Chandramani Prushti v. Jambeswara Rayagaru and others (MANU/TN/0236/1930 : AIR 1931 Madras 550),(ii) Mt. Munni Bibi and another v. Tirloki Nath and others (MANU/PR/0031/1931 : AIR 1931 Privy Council 114),(iii) Kedar Nath Goenka v. Munshi Ram Narain Lal and others (MANU/PR/0082/1935 : AIR 1935 Privy Council 139),(iv) Ch. Mohammad Afzal and others v. Ch. Din Mohammad and others (AIR (34) 1947 Lahore 117 (C.N. 25),(v) Amrit Sagar Gupta and others v. Sudesh Behari Lal and others (MANU/SC/0484/1969 : AIR 1970 SC 5)."
46. In reply, learned Senior Counsel Shri Dharmadhikari submitted that alleged collusion between Shankarrao and Chimote came to an end way back in 1967 when the appeal was pending before the Supreme Court and assuming that there was collusion, it did not affect the decisions in previous round of litigation. He mentioned that findings none-the-less would operate as res judicata.
47. Learned Senior Counsel submitted that Shankarrao was a party to the litigation in former suit throughout and as such, decision in former suit would operate as res judicata not only against Shankarrao, but also against plaintiff Deodatta and other legal heirs of Shankarrao.
48. Needless to state that Section 11 embodies the doctrine of conclusiveness of the judgment as to the points decided, in every subsequent suit between the same parties. It is based on the need of giving finality to the judicial decisions. The principle is founded on equity, justice and good conscience and based on maxim nemo debet bis vexari pro una et eadem causa, which means no man should be vexed twice for the same cause. On going through the Authorities referred by the learned Counsel for the parties, it is apparent that they reiterate well settled proposition of law.
49. Condition precedent to attract applicability of principle of res judicata lies in the requirements enumerated under Section 11 of the Code. These conditions are:
"i) Matter directly and substantially in issue in the former suit must be directly and substantially in issue in the subsequent suit also.ii) Both the suits should be between the same parties or between parties under whom they or any of them claim litigating under the same title.iii) Former suit should have been decided by a Court competent to try such subsequent suit.iv) Any matter, which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
50. With these requirements of law, prime question before us is whether issue involved in suit under Order XXI Rule 63 between Ramchandra Chimote and Dhapubai was directly and substantially in issue in a suit instituted by Deodatta and whether both these suits were between the same parties or between the parties under whom they claimed litigating under the same title. So far as competency of Court is concerned, it is not in a serious dispute that the former suit was decided by the Court of competent jurisdiction. Issue Nos. 2 and 3 in the former suit were:
"2) Whether the Sale Deed dated 9/7/1951 was executed by the defendant No. 2 in favour of plaintiff for a consideration as alleged by the plaintiff ?3) Whether the above transfer is bogus and was made in collusion between plaintiff and defendant No. 2 with an intent to defeat and delay the debts due from defendant No. 2 to defendant No. 1 ?
We find that issue Nos. 10 and 20 framed by the trial Court in Special Civil Suit No. 20/1972 are on the same lines. They are:
"10) Does plaintiff prove that the said sale of the suit house by his father Shankarrao was a nominal one and was not to be acted upon ?20) Do defendant Nos. 6 to 11 prove that this is a collusive suit got filed by defendant No. 1, through his son, the plaintiff ?"
51. It is an undisputed fact that Shankarrao was Karta of joint family and suit house was property of joint family. In the former suit, Shankarrao was impleaded as defendant No. 1. Plaintiff Deodatta is a member of coparcenary. He is thus litigating under the same title and in our view, issues involved in both the suits were between the same parties as under Order XXI Rule 63 of the Code, Dhapubai attached the suit house being of judgment debtor Shankarrao. On the strength of sale deed executed by Shankarrao in favour of Chimote, declaration was sought by Ramchandra Chimote that house belonged to them and they are owners thereof. It clearly indicates that relief claimed by Ramchandra Chimote in former suit was specifically against Shankarrao not merely as he was a judgment debtor, but also a predecessor in title of Chimotes. In this situation, Shankarrao was a necessary party in the former suit and the submission made by learned Counsel for plaintiffs that he was a formal party is unsustainable in law.
52. Once it is found that Shankarrao was a necessary party in the former suit, then the issues involved in the former suit and the suit instituted later on by Deodatta as can be seen from the issues reproduced above, were directly and substantially in issue in the subsequent suit.
53. It is pertinent to note that Shankarrao was aware at least when appeal was pending before the Hon'ble Supreme Court that Chimote was bent upon to claim the property. If the theory put up by Shankarrao that decree in former suit was obtained in collusion with Chimote so as to save the property from execution taken out by Dhapubai is to be believed, Shankarrao would not have remained silent and as a prudent man, he would have appeared before the Hon'ble Supreme Court and contested the litigation. It is a matter of record that Shankarrao did not contest. It is only after decision went against him, he in collusion with his son Deodatta brought Special Civil Suit No. 20/1972. Shankarrao and Deodatta litigate under the same title, if the sale deed in favour of Ramchandra Chimote is found to be for legal necessity. In view of these facts established on record, particularly when every thing pertaining to Sale Deed in question was pointed out to the Hon'ble Supreme Court and the Hon'ble Supreme Court refused to interfere with the Sale Deed and the issue of said Sale Deed being involved in the subsequent suit, we are of the opinion that provisions of Section 11 of the Code are squarely applicable in the present case and the decision in previous litigation would amount to res judicata between the parties.
(III) Whether the decree obtained in suit under Order XXI Rule 63 of the Code was a collusive decree not binding on the legal heirs of Shankarrao ?
54. It is the case of plaintiff Deodatta that the decree obtained in previous suit was in collusion as anyhow Shankarrao and Chimote wanted to frustrate the execution of decree passed in favour of Dhapubai. According to plaintiff Deodatta, decree being collusive has no force of law and it would not be binding on the members of joint family. Trial Court in paragraph 30 of its judgment referred certain instances and drew an inference of collusion between Shankarrao and Wasudeo Chimote. It is pertinent to note that Shankarrao never challenged the decree in previous suit confirmed by the Hon'ble Supreme Court. He did not make any attempt to get it set aside on the ground of collusion. Except bare version of Shankarrao, nothing is on the record to show that to protract execution proceedings filed by Dhupabai, sale deed was executed. Shankarrao was father of Deodatta. Therefore, with a design to render support to the claim of his son, he introduced the plea of collusion. Having not challenged the decree confirmed by the Hon'ble Supreme Court, Shankarrao could not have been allowed to turn around and take advantage on the ground of collusion.
55. There is another reason to discard the plea of collusion. On perusal of sale deed dated 9/7/1951, it can be seen that Krishna Keole had obtained money decree against Shankarrao and attached property in execution of the decree. The sale in execution of decree was due to be held on 24/1/1951. On 24/1/1951 Shankarrao executed an agreement to sell in favour of Chimote and received Rs. 2000/-. On receipt of Rs. 2000/-, Shankarrao paid the sum to Krishna Keole, who agreed to postpone the sale. On 9/7/1951, plaintiff paid a sum of Rs. 6200/- to Krishna Keole in full satisfaction of the decree and got the property released from attachment in the execution filed by Krishna Keole. In these circumstances, contention of plaintiff that to frustrate execution of decree filed by Dhapubai, Shankarrao executed sale deed in favour of Chimote holds no water.
(IV) Whether Shankarrao sold the house in dispute for legal necessity ?
(V) Whether principle of estoppel would be attracted against Shankarrao and his legal representatives ?
56. Another contention of plaintiff Deodatta is that there was no legal necessity for his father Shankarrao to execute the sale deed. In this connection, plaintiff submits that Shankarrao embarked upon new ventures without any experience in different trades and suffered losses. He submits that family of Shankarrao was not a trading family. The income from agricultural land and other sources was enough to maintain the joint family, but to satisfy his desires and needs, he, on his own, recklessly entered into grain business, distribution of films and American futures. According to him, the sale was not independent, but correlated to earlier Aywarharik debts and since it was not for antecedent debts, sale was not binding on the plaintiff. Shri Deshpande, learned Counsel placed reliance on the following authorities in support of this challenge:
"(i) The Benares Bank Ltd. v. Hari Narain and others (MANU/PR/0021/1932 : AIR 1932 Privy Council 182).(ii) Sabhachand Navalchand v. Sambhoo Gyanoba Bhoj (MANU/MH/0123/1936 : ACJ 1936 Bombay Law Reporter 118).(iii) Ganesh Prasad Singh and another v. Sheogobind Sahu and others (MANU/BH/0195/1937 : AIR 1938 Patna 40).(iv) Sankaranarayanan and another v. The Official Receiver, Tirunelveli and others (MANU/TN/0297/1977 : AIR 1977 Madras 171)."
57. In reply, learned Senior Counsel for respondent Chimotes placed strong reliance on the decision in Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni and others (MANU/SC/0409/1978 : AIR 1978 SC 1791) and would submit that house sold by Shankarrao was for legal necessity and it is equally binding on his legal heirs too.
58. From the evidence brought on record, it can be seen that suit house was ancestral. In 1936, after Shankarrao attained majority, house came to his management. In 1949, he entered into business of cinema and grain shop. It further appears from the evidence that Shankarrao was also dealing in business of American futures. It is also apparent that Shankarrao was required to borrow loan from time to time as he was unsuccessful in businesses. The question is whether loans borrowed by Shankarrao were for the joint family as a Karta or in his individual capacity to satisfy his own desires ? Here it would be relevant to look into the debts with which sale deed is actually concerned. As stated above, agreement to sell was executed on 24/1/1951 when the house was attached in execution of decree filed by Krishna Keole. To get the sale postponed, Shankarrao executed agreement to sell of house in favour of Wasudeo and Ramchandra Chimote. Accordingly, he received Rs. 2000/- from Chimotes, paid the same to Krishna Keole and got the sale postponed. On 9/7/1951 he paid remaining amount of Rs. 6200/- to Krishna Keole in full satisfaction of the decree. He executed sale deed on that day in favour of Chimotes, received Rs. 6200/- and paid to Krishna Keole. Thus, from the sale deed, it is clear that to satisfy the debts received from Krishna Keole, Shankarrao being in need of money was required to sell the house so as to satisfy the decree in favour of Krishna Keole.
59. In this background, evidence of Krishna Keole is most important. The evidence of Krishna Keole was considered by the Hon'ble Supreme Court in Civil Appeal No. 862/1994. The Hon'ble Supreme Court at the bottom of page 7 observed as under:
"The High Court held that the agreement for sale dated January 24, 1951 was ante dated and was not in fact executed on January 24, 1951. We are unable to agree with this finding. In arriving at this finding, the High Court overlooked the evidence of Krishna Kewle. Krishna Kewle swore that on January 24, 1951, plaintiff No. 1 and Shankar came to his house and told him that the plaintiffs had entered into a bargain for the purchase of the property from Shankar for Rs. 25000/- and Shankar had received an earnest money of Rs. 2000. It is because Shankar had received the earnest money that he was able to pay a sum of Rs. 2000 to Krishna Kewle and was able to obtain a postponement of the sale due to be held on January 24, 1951. Krishna Kewle is an independent witness and we see no reason to disbelieve him. His evidence strongly corroborated the case of the plaintiffs that the agreement for sale was entered into on January 24, 1951. There can also be no doubt that on January 24, 1951, the plaintiffs had paid a sum of Rs. 2000 to Shankar. It was argued that it was somewhat curious that on January 24, 1951 Shankar had gone to the plaintiffs with a stamped paper before the bargain was struck, but the evidence only shows that the bargain was struck at one and the same sitting. Plaintiff No. 2 stated that Shankar had brought the stamped paper, but he did not say that he did so before the bargain was struck. We are satisfied that on January 24, 1951 Shankar duly agreed to sell the property to the plaintiffs for Rs. 25000/-. The agreement for sale was executed in favour of plaintiff No. 2 acting on behalf of both the plaintiffs. The sale deed dated July 9, 1951 was executed in favour of plaintiff No. 1 acting on behalf of both the plaintiffs. On this finding it is not disputed that the intermediate attachment of the property by defendant No. 1 Dhapubai on March 14, 1951 cannot prevail against the claim of the plaintiffs. The attachment of the right, title and interest of Shankar in the property on March 14, 1951 was subject to the obligation of Shankar to sell the property under the agreement dated January 24, 1951."
In view of above observations and on going through the entire evidence of Krishna Keole, we do not find that debts incurred by Shankarrao in view of loans borrowed from Krishna Keole were Avyawaharik or for some other immoral purpose. In this background, it was not necessary for Chimote to lead evidence on legal necessity. Shankarrao being a Karta alienated the house on behalf of joint family and represented the coparcenary. Plaintiff Deodatta is a member of coparcenary and in absence of any evidence to show that loans borrowed by Shankarrao were for immoral, illegal or individual purposes, submission of plaintiff Deodatta cannot be accepted that the sale transaction was not for legal necessity. Trial Court in paragraphs 46 to 51 of its judgment while recording reasons for answering the issue on legal necessity in the affirmative elaborately dealt with this aspect. In paragraph 51, trial Court culled out its conclusion and introducing principle of pious obligation held that plaintiff Deodatta failed to prove that debts were tainted with immorality or illegality. Therefore, Deodatta cannot plead collusion between Shankarrao and Ramchandra Chimote and fraud on Court. Even otherwise, successful auction purchaser Nathu or Dhapubai, who attached property, ought to have been joined as necessary parties as alleged fraud was on them.
60. One of the grounds to challenge the sale deed in question is that it was nominal and not to be acted upon. In this connection, learned Counsel for plaintiff Deodatta submitted that Shankarrrao, Ramchandra and Wasudeorao were acquainted with the true nature of transaction, viz. sale deed (Exh. 203). He stated that Shankarrao was in need of money to get the house released from attachment in the execution proceedings filed by Dhapubai and so a show was made that house was sold, but in fact it was not a transaction of out and out sale. It was just to frustrate execution of decree and particularly sale of house in the execution proceedings taken out by Dhapubai. In view of a secret arrangement between Shankarrao and Chimote, learned Counsel submits that there can be no estoppel between them. The decision of Lahore High Court in Ch. Mohammad Afzal and others (supra) is pressed into service to support the contention.
61. Under Section 115 of the Evidence Act, principle of estoppel means a person shall not be allowed to show one thing at one time and opposite of it at another time. The rule is based on principles of equity and good conscience. In the present case, as indicated above, decree passed under Order XXI Rule 63 of the Code was carried till Hon'ble Supreme Court and the Hon'ble Supreme Court restored the decree passed by the trial Court vide judgment dated 8/2/1967. Everything pertaining to sale deed was pointed out to the Hon'ble Supreme Court and the Hon'ble Supreme Court refused to interfere with the sale deed. This includes the contention of plaintiff that consideration of Rs. 25,000/- was grossly inadequate indicating the nature of sale deed as not to be acted upon. On adequacy of Rs. 25,000/- as consideration, Hon'ble Supreme Court accepts price as fair by holding it as "hard bargain". In view of the decision of the Hon'ble Supreme Court in Civil Appeal No. 862/1964, we are not inclined to go into the contention of plaintiff that transaction of sale was not the real and true transaction, but it was a nominal one.
62. The significant factor to be noted in the instant case is conduct of Shankarrao throughout. He was a party to the execution proceedings filed by Dhapubai. He was also a party to the execution proceedings taken out by Krishna Keole. In a suit under Order XXI Rule 63 of the Code filed by Chimotes, Shankarrao was a necessary party. The decision was challenged before this Court and also before the Hon'ble Supreme Court. Throughout Shankarrao refrained himself from contesting the proceedings. His conduct is consistent. It was convenient for him not to participate. Subsequently, with the aid of his son, he got up and raised the plea that the transaction in question was nominal and parties intended not to act upon the same. In this situation, he is estopped in law by his conduct and cannot be allowed to approbate and reprobate as rightly observed by the learned Single Judge. Shankarrao and Ramchandra Chimote cannot be permitted to take such stands as they choose or at such time, when they choose or after it, to defeat finality to Court decree. Such "finality" is the vital base/foundation of justice administration. In the facts established on record, we find that principle of estoppel is squarely applicable and the same goes against the plaintiffs.
(VI) Whether sale deed in question is hit by Section 44 of the Evidence Act ?
63. The next contention of learned Counsel for plaintiffs is that it is always open to any party to a suit to show that judgment was obtained by fraud or collusion. Reference is made to Section 44 of the Evidence Act and an attempt is made to show that where son of Hindu father is challenging the decision in previous suit on the ground that it was a collusive suit, then Section 44 allows party to set up the fraud to defeat the effect of judicial order. It is submitted that in such a situation, though judgment stands unreversed, language of Section 44 is wide enough to allow the party to show that it was obtained by fraud or collusion. In support thereof, reliance is placed on:
"(i) Mt. Parbati v. Gajraj Singh (MANU/UP/0013/1936 : AIR 1937 Allahabad 28),(ii) Bhondu Mal v. Thomas Skinner (MANU/UP/0014/1936 : AIR 1937 Allahabad 29)(iii) Bishunath Tewari and others v. Mst. Mirchi {(S) MANU/BH/0006/1955 : AIR 1955 Patna 66 (Vol. 42, C.N.6)},(iv) Immami Appa Rao and others v. Gollapalli Ramalingamurthi and others (MANU/SC/0051/1961 : AIR 1962 SC 370).(v) Gram Panchayat of Village Naulakha v. Ujagar Singh and others {(MANU/SC/0628/2000 : AIR 2000 SC 3272(1)}."
64. In response to the submissions of the learned Counsel for plaintiffs, Shri Dharmadhikari, learned Senior Counsel submits that to avoid a plea of res judicata, a judgment or order or decree under Section 44 of the Evidence Act can be shown to be obtained by fraud or collusion and there cannot be any dispute over the settled principles. He submitted that scope of Section 44 is limited only to the cases in which a decree is treated as relevant under Sections 40, 41 and 42 of the Evidence Act. He points out that by implication in the present case, application of Section 44 does not arise as Shankarrao was not debarred from exercising his substantive right in the present matters and also in the previous suit under Order XXI Rule 63 of the Code.
65. So far as decree allegedly obtained by fraud or collusion is concerned, principle of public policy requires that this Court will not lend its aid to a man, who found his cause of action upon an immoral or illegal act. It is well known that no polluted hand shall touch the pure fountain of justice. We refrain ourselves from further commenting upon it.
66. In the judgment of the Hon'ble Supreme Court in Civil Appeal No. 862/1964, the Hon'ble Supreme Court considering all the circumstances observed that the Court was unable to see that sale deed was a sham transaction and was not intended to be acted upon. The Hon'ble Supreme Court further observed that Shankarrao might have intended to prefer one creditor, but the sale deed cannot be pronounced to be void on the ground that it was executed with intent to defeat or delay any creditor of Shankarrao. In this background, decree passed by the trial Court was restored by the Hon'ble Supreme Court. This question will, therefore, no longer detain us further in view of the clear dictum of the Hon'ble Supreme Court on the sale deed in question.
67. Learned Counsel Shri Khapre then submits that tenancy of Shankarrao relating to suit house was terminated on 7/7/1952. Even thereafter Shankarrao continued in possession in his own right. His possession was adverse to the interest of true owners and so even after sale, title of Shankarrao was perfected by adverse possession. To substantiate his submission, learned Counsel placed reliance on:
"i) Application dated 28/2/1952 (Exh. 270) filed by Shankarrao to postpone auction sale in which he asserted his title even after sale deed in favour of Chimotes.ii) Pleadings in the suits by Chimotes.iii) Finding in Special Civil Suit No. 7/1965 vide judgment dated 16/8/1966 that sale deed was nominal and fictitious.iv) Deposition of Wasudeo Chimote in former suit stating that besides Rs. 3000/-, he did not receive anything by way of rent,v) Property shown in the name of Bodhankar in Exh. 428, an extract of account of rent."
68. In Civil Suit No. 7/1965, subject matter was for recovery of amount based on pro-note. Issue of title was not directly or substantially involved. Even otherwise, in view of finding in former suit, issue was not open. The plea of adverse possession raised was not properly pleaded and proved before the trial Court. So far as rent of Rs. 3,000/- is concerned, at the most it can be said that Shankarrao was in arrears of rent and it was a case of termination of tenancy against him. This by itself would not vest title of suit house in Shankarrao. It can be seen from the rent receipts dated 18/4/1959 and 3/6/1959 (Exhs. 200 and 201) that Shankarrao had paid the rent. Till 1959, Shankarrao did not assert title in himself. An extract of account of rent of Shankarrao (Exh. 428) and rent receipts in respect of other tenants were also brought on record. All these important facts would negative the claim of adverse possession raised in regular civil suits by tenants. The plea of adverse possession, in our view, therefore, does not sustain.
(VII) Whether delay in delivering judgment ipso facto would be enough to vitiate the same ?
69. The next unsuccessful attempt on the part of learned Counsel for plaintiffs was regarding delay in delivering judgment in first appeals. Learned Counsel would submit that arguments in first appeals were lastly heard on 21/7/1994 and matters were closed for judgment on that date, but the common judgment was delivered on 9/3/1995. A grievance is made that because of delay, important points were missed. Appellate Court did not consider main objection of plaintiffs that decree obtained from the Hon'ble Supreme Court was collusive and not binding on the parties. He also pointed out that judgment of Full Bench of Andhra Pradesh High Court on necessary party was ignored and this could happen due to delay. According to learned Counsel, as material points were missed, serious prejudice has been caused to appellants and on this ground itself, judgment of the appellate Court gets vitiated. On the effect of delay in delivering judgment under Order XX Rule 1 of the Code, Shri Khapre relied upon:
"(i) R.C. Sharma v. Union of India and others (MANU/SC/0447/1976 : AIR 1976 SC 2037),(ii) Bhagwandas Fatechand Daswani and others v. H.P.A. International and others (MANU/SC/0028/2000 : AIR 2000 SC 775),(iii) Anil Rai v. State of Bihar (MANU/SC/1586/2001 : AIR 2001 SC 3173),(iv) Kanhaiyalal and others v. Anupkumar and others (MANU/SC/1112/2002 : AIR 2003 SC 689(1),(v) M/s. Telestar Travels Pvt. Ltd. And others v. Special Director of Enforcement (MANU/SC/0154/2013 : AIR 2013 SC (Supp) 1041,"
70. On going through the above authorities, it can be seen that mere unexplained delay in delivering judgment is not fatal and guidelines given by the Hon'ble Supreme Court in paragraph 21 of the judgment in the case of Anil Rai (supra) regarding pronouncement of judgments need to be strictly followed being mandate of the Hon'ble Supreme Court. These guidelines are:
"(i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause title date of reserving the judgment and date of pronouncing it be separately mentioned by the Court Officer concerned.(ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.(iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months, the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.(iv) Where a judgment is not pronounced within three months from the date of reserving it, any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concernedwithin two days excluding the intervening holidays.(v) If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances."
71. In the present case, no grievance was ever made by the parties regarding alleged delay in delivering judgment. The facts of the case would show that while reversing the judgment and decree passed by the trial Court, learned Single Judge has come to his own independent conclusion based on material placed on record. Moreover, it is too late for the plaintiffs to get up and say that delay has caused prejudice to them. In what way prejudice is caused is not explained. Order XX Rule 1 of the Code nowhere mentions that delay vitiates the judgment. In this backdrop, we do not find force in the submission of learned Counsel for plaintiffs that delay is fatal and judgment in first appeals gets vitiated.
72. As a result of above discussion, we do not find any merit in any of the contentions raised before us by appellants. The letters patent appeals are, therefore, dismissed with no order as to costs.
No comments:
Post a Comment