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Allahabad High Court
Mt. Shibbi vs Hardhian Singh on 23 November, 1926
Equivalent citations: AIR 1927 All 378
Author: Ashworth


Ashworth, J.

1. This second appeal arises out of a suit brought by the plaintiff-appellant for a declaration that she is entitled to certain property. There was an alternative prayer that in the event of it being found that she had lost possession of the property the decree should be one for possession. The circumstances of the suit are as follows: The owner of the property was originally one Ramjas. The plaintiff, Mt. Shibbi brought a suit for possession against him and obtained a decree on the 8th of May 1915. The decree was executed and the plaintiff obtained possession on the 27th of September 1915. Subsequent to this Ramjas executed a simple mortgage-bond in favour of Hardhian Singh, the plaintiff-respondent, in respect of half the property sold to plaintiff. Hardhian Singh brought a suit on the basis of this mortgage against Ramjas and therein impleaded Mt. Shibbi the plaintiff. Mt. Shibbi pleaded that the property had been sold to her by Ramjas before Ramjas executed the mortgage-bond in favour of Hardhian Singh. The Court found that this was correct.

2. But in view, of the fact that there was an earlier mortgage-bond executed in favour of Hardhian Singh by Ramjas it refrained from dismissing the suit against Mt. Shibbi. It held, however, that on the present mortgage-bond no claim could be maintained against Mt. Shibbi. It accordingly exempted Mt. Shibbi as a party and gave her costs, but gave the defendant against Ramjas a decree for sale in execution of which he got sold and himself purchased the whole property. Delivery of the property was given by the Court amin. In consequence of this delivery of the property Hardhian Singh obtained mutation of names. Thereupon, Mt. Shibbi applied under Order 21, Rule 100 of the Civil P.C. for restoration of the property on the ground that she had been dispossessed by Hardhian Singh in the execution proceedings following the decree obtained by the latter against Ramjas. This application was rejected by the Court on the ground that the amin’s delivery of possession of the property had merely been symbolical and had not, in fact, caused Mt. Shibbi to lose possession of the property which had been hers up to the time of delivery by the amin.

3. The plaintiff Mt. Shibbi is still finding difficulty as the defendants assert their possession or at any rate their right to possession, and accordingly has brought the present suit. The first Court decreed it, and finding that Mt. Shibbi was, at the time of filing the suit, actually out of possession it gave not merely a declaration but a decree for possession. The lower appellate Court has held that the suit is barred by Section 47 inasmuch as the question between Mt. Shibbi plaintiff and the defendant is a question arising between the parties to the mortgage suit brought by the defendant and that in consequence the question should have been settled in the execution proceedings and no suit could be brought. The question is whether this finding is correct.

4. It is to be noted that Mt. Shibbi’s application under Section 100 was based on her allegation that she had actually lost possession in execution proceedings. The execution Court then dismissed her application on the ground that she had not lost possession. Her present plea is an alternative one. Either she is still in possession and is entitled to a declaration or she has lost possession subsequent to the order of the execution Court dismissing her application under Rule 100 on the ground that she was still in possession. In my opinion the present question is not one that related to the execution, discharge or satisfaction of the decree obtained by Hardhian Singh in the mortgage suit and consequently Section 47 will be no bar even if we consider that the order of the Court exempting the plaintiff was in effect an order dismissing the suit against her.

5. The decision of a two Judge Bench of this Court Data Din v. Nanku [1918] 16 A.L.J. 752 has been cited to us as authority for holding that where in a previous suit a remedy has been denied to a plaintiff as against one defendant, by reason of the exemption of the latter or the dismissal of the suit against the latter, the plaintiff is barred by Section 47 of the Civil P.C. from bringing a fresh suit against the same defendant to obtain the remedy. The decision referred to, though, in my opinion, a correct decision, does not appear to me to be authority for this proposition. It was not held that a defendant exempted is a person against whom a suit is dismissed, but merely that the judge had misused the term exempted in that particular decree. Again, in that case the plaintiff after getting a decree and failing to execute it entirely by sale of the father’s interest in the joint family property applied to execute it against the sons (who had been exempted in the suit) for the balance. His application was rejected in the execution department. He then brought a suit for a declaration that he was entitled so to execute it. His application was held barred by Section 47 of the Code and I think rightly so. It was not held that a second suit to obtain a new decree, like the present one, could be so barred. Obviously in the circumstances of the case cited such a second suit would have been barred by Section 11, but it would not have been barred by Section 47.

6. For the above reasons. I would allow the appeal with costs.

Mukerji, J.

7. The substantial question of law that arises in this appeal is whether the suit is barred by Section 47 of the Civil P.C. (After stating facts as in the first judgment his Lordship proceeded.) Mt. Shibbi brought the suit, out of which this appeal has arisen, to obtain a declaration of her title and in the alternative to obtain possession.

8. The first Court decreed the suit on the merits. But the lower appellate Court dismissed the suit on the preliminary ground that it was barred by Section 47 of the Civil P.C. The matter came before a learned Single Judge of this Court and he, having regard to the complicated nature of the point involved, referred the matter to a Bench of two Judges.

9. I am clearly of opinion that the suit is not barred by the provisions of Section 47 of the Civil P.C. I am prepared to concede without deciding the point that the exemption of the present plaintiff from the suit of 1917 was tantamount to the dismissal of the suit as against her. But it is clear to me that the question now raised is not a question contemplated by Section 47 of the Civil P.C. Section 47 does not apply to all sorts of questions that may arise between people who had once been parties to a decree. It applies only to questions that arise ‘relating to the execution, discharge or satisfaction of the decree to which the litigants are parties. Now, let us consider what was the decree that was passed in the suit of 1917. It was to the effect that the property was to be sold so far as Ramjas was concerned, the suit was to be dismissed and Mt. Shibbi was to get her costs. So far, therefore, as Mt. Shibbi was concerned with the decree it related only to a denial of relief to the plaintiff Hardhian Singh and an award of costs of Mt. Shibbi. Mt. Shibbi is not attempting to recover the costs by the present suit. She wants a decision on the question of title that was left open in the suit of 1917. That question must be decided. But it cannot be decided in the execution of the decree, the nature and the scope of which I have already described.

10. The case of Data Din v. Nanku [1918] 16 A.L.J. 752 has been cited before us as an authority for the proposition that the present question must be decided in the execution department. The facts of the case ware briefly these. A mortgagee who had obtained a mortgage from a father of a joint Hindu family brought a suit against the executant of the mortgage and his sons for recovery of the money lent by sale of the property. The sons claimed that there was no legal necessity for the loan and urged that they were not liable to pay. In the result the sons were exempted and a simple money-decree was passed against the father in his personal capacity. After the decree-holder had exhausted his remedy against the father, that is to say, sold the share of the father in the family property in execution of the decree, he sought to realise by execution the balance of the decree from the sons on the ground, that the sons were liable to pay the balance on account of their pious obligation to pay their father’s debt. The sons successfully objected, and then a suit was filed against them to obtain a declaration ‘that they were liable under the decree already passed, and their property was liable to be taken in execution. Two learned Judges of this Court held that the question must be decided in the execution department and, therefore, the suit was dismissed. The question could be litigated only in the execution department. The question that was raised was not alleged to be based on a fresh cause of action and it had everything to do with the decree that was already passed. The case of the decree-holder was that there was a balance of debt left and the sons were bound to pay that. Further, it was his case that he could execute the old decree itself against the sons, because of their pious obligation. The suit was barred not only by Section 47 of the Civil P.C., but also by Section 11 of the same Code. If the sons were liable to pay their father’s debt on account of their pious obligation that was a plea which might and ought to have been taken by the plaintiff in the very suit which failed against the sons. This case has, therefore, no application.

11. The case of Krishnappa Mudaly v. Periaswamy Mudaly 38 I.C. 297 lays down
where a party to a mortgage suit, who sets up a title adverse to both the mortgagor and the mortgagee, has bean exonerated from the suit on the ground of misjoinder and his claim has not been adjudicated upon in the suit, he does not remain a party to the suit for the purpose of Section 47 of the Civil P.C., and his claim petition in respect of properties delivered in execution of the decree to the decree-holder falls under Order 21, Rule 100 of the Code.

12. This ruling is relied upon by the learned Counsel for the appellant. Although partially the principle of the ruling would support the appellant’s case it is not necessary to discuss it because it is not on all fours with the case before us.

13. For reasons given above I would allow the appeal, set aside the decree of the Court below and remand the appeal to the lower appellate Court for disposal on the merits.

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