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Bombay High Court
Kashinath Moreshwar Vaidya vs Baji Pandurang Vaidya on 2 March, 1909
Equivalent citations: 3 Ind Cas 763
Author: Chandavarkar
Bench: Chandavarkar, Heaton


Chandavarkar, J.

1. The facts which have been found by the Courts below and as to which there has been no dispute are shortly these. Defendant No. 1, brought a suit for a, money decree against one Vinayak. Vinayak having died during the pendency of the suit, these sons (under whom the present appellants claim) were brought on the record as his legal representatives and the suit passed into a decree in favour of respondent No. 1. In execution thereof the property now in dispute having been attached by the said respondent was purchased by respondent No. 2 at a Court sale. Subsequently respondent No. 2, sold the property to respondent No. 1. The present suit was brought by the appellants to recover possession of the property on the ground that it was the self-acquisition of their assignors, the sons of Vinayak. The defence was that the decree in the previous suit and the purchase consequent upon it bound the appellants’ assignors, and Section 244 of the Code of Civil Procedure of 1882, which was in force when the suit was brought, barred it. Both the Courts below have allowed this defence. Before us it has been urged that Section 224 has no application to the facts, because (it is said) the appellants’ assignors were parties to the decree in their representative, not in their own personal capacity, and as such were not bound to plead that the property was theirs, not their father’s; and that the question arising in this suit is not one between parties to the decree, because the auction-purchaser was not a party thereto.

2. The decree in the previous suit having been against the appellants’ assignors, as sons of deceased father Vinayak the original defendant in the suit, it was a decree against them in respect of a debt of their father. Under the Hindu law it was their pious duty to pay it, unless it had been contracted for an illegal or immoral purpose. When the assignors were brought on the record as their father’s representatives they were in their own as much as in their representative capacity. It has been held in Timed Hathising v. Goman Bhaiji 20 B. 385 that where a Hindu father dies after a money decree has been obtained against him only, the decree may be executed against his sons as if they were parties to the decree and that Section 244 applies to such a case. That principle ought to apply with greater force to a case like the present where the father dying during the pendency of the suit the sons were brought on the record as his legal representatives. The appellants’ assignors must, therefore, be held to have been parties to the decree.

3. But it is said that Section 244 is no bar to the present suit because the auction-purchaser was not a party to the decree. That circumstance, however, does not prevent the bar as has been well established by the decision of the Judicial Committee of the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C. 683 : 191. A. 166 approving of the decision of this Court in Sakharam Govind Kale v. Damodar Akhuram Gujar 9 B. 468. That decision of the Privy Council has been followed in several cases : see Bhubon Mohun Pal v. Nunda Lal Dey 26 C. 324 : 3 C.W.N. 399; Dhani Ram v. Chaturbhuj 22 A. 86; Amir Bahsha Sahib v. Venkatachala Mudali 18 M. 439. In all these, the suits were to set aside Court sales and both the decree-holders and auction-purchasers were parties. That is the case here too. Once we arrive at the conclusion that the appellants’ assignors, as the sons of Vinayak, were on the record of the previous suit in their personal capacity as such sons, liable to satisfy his debt under the Hindu law, and that they were parties to the decree in which that suit resulted, the suit now brought becomes virtually one in which the appellants, claiming under those parties, are seeking to set aside the sale held in execution of that decree and the question relating to that execution falls within the provisions of Section 244.

4. What I have so far said disposes of the further contention that the decree in the previous suit having simply directed that its debt should be satisfied out of the property of the deceased Vinayak in the hands of his sons, it is open to the appellants to show in a separate suit that the property sold in execution of the decree was not Vinayak’s. Whether the property was ancestral or self-acquired, liable or not, in the hands of the sons to satisfy their father’s debt under the Hindu law is a question relating to the execution of the decree and cannot be raised in a separate suit.

5. This conclusion is in accordance with the decision of the Privy Council in Chowdhry Wahed Ali v. Musamviat Jumaee 18 W.R. 185 : 11 B.L.R. (P.C) 149. The learned pleader for the appellants before us cited this last decision as an authority, which it is not, in support of his contention. The judgment of their Lordships states clearly the facts. There Musammat Jumaee had been brought upon the record of what their Lordships call suit A, as a legal representative of the deceased defendant in that suit, but by the decree she was released from the suit altogether. In execution the decree-holder attached and obtained an order for the sale of certain property belonging to her. She objected, but the executing Court overruled the objection and held that the property was liable to attachment and sale, because as an heir of the deceased defendant in the suit, Musammat Jumaee was liable to it’ in her representative character. This order for sale, however, was not acted upon. Under those circumstances their Lordships held that had there been a decree in the suit against Musammat Jumaee in her representative capacity she would have been a party to the suit and the provisions of Section 11 of Act XXIII of 1S61 (the same as those of Section 244 of Act XIV of 1882) would have applied to her case. But their Lordships held that those provisions could not apply to her and bar her subsequent suit to set aside the sale because there had been no decree against her whether in her private or her representative capacity and because even if the order in execution had against her property were assumed to have amended that decree, yet that order had not been acted upon by the party who relied upon the sale.

6. Lastly, Mr. Khare asks us to treat this suit as a proceeding in the execution of the decree in the previous suit because (he represents) the property had been attached and sold behind the back of the appellants’ assignors in violation of the procedure prescribed by Section 248 of Act XIV of 1882. Under the circumstances of the case there are no grounds for allowing the suit to be converted into an execution proceeding. The decree must be confirmed with costs.

Heaton, J.

7. It seems to me that the case falls exactly within the terms of Section 244. The defendant in this suit obtained a money decree against the sons of one Vinayak which could according to its terms be executed against such property of Vinayak as his sons had. They sold to the plaintiffs in this suit the property to which the suit relates. But prior to this sale that identical property was sold in execution of the original decree above-mentioned to a purchaser who afterwards sold it to the defendant that is to the decree-holder who brought about the sale in execution. The plaintiffs claim the property alleging that it was never Vinayak’s property and, therefore, could not be sold under the decree. The defendants allege that the suit will not lie because the matter in dispute is one which must be determined in execution as provided by Section 244 of the Code of Civil Procedure then in force.

8. The facts recited demonstrate that the matter in dispute is one relating to the execution, discharge or satisfaction of the decree. The matter is also, it seems to me, a question “arising between the parties to the suit in which the decree was passed or their representatives,” because the plaintiffs are assignees of the property in suit from the defendants in the original suit and as. such are their representatives. The defendant in this suit was the plaintiff in the original suit. It is true he is sued because he has bought from the auction-purchaser and as such represents that person who was not a party to the original suit. But he also represents himself and he himself as decree-holder in the original suit is interested in the result of this suit because the matter in dispute relates to the execution, discharge or satisfaction of the decree in the former suit.

9. Therefore, I am of opinion that the decrees of the lower Courts are correct.

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