Tara Lal Singh v. Sarobur Singh
BS650279
PRIVY COUNCIL
Before:-Lord Morris, Lord Davey, Lord Robertson and Sir Richard Couch.
0 D/d. 14, 15.11/
09.12.1899
Tara Lal Singh - Appellants
Versus
Sarobur Singh (Plaintiff) - Respondents
On Appeal from the High Court in Bengal.
Solicitors for Appellant :- T.L Wilson & Co.
Execution - Attachment - Sale.
[Para ]
Where an execution sale was ordered and made in execution of three decrees, two of them against one brother alone and the third against three brothers jointly, and separate attachments and separate sale proclamations were made in all three cases :-
Held, that the sale operated a transfer of all three brothers' interest in the attached lands.
Appeal from a decree of the High Court (March 2, 1896) reversing a decree of the Subordinate Judge of Manbhoom (Sept. 30, 1893) which had dismissed the suit of the respondent Sarobur Singh.
Gadadhur, now represented by Sarobur, sued under the circumstances stated in their Lordships' judgment in reference to the decree against him passed in suit No. 107 and executed in case No. 224. He alleged (1) that the decree had been obtained ex parte and subsequently struck off; (2) that before it was set aside the Rajah had in execution thereof procured the sale by the Court of the villages now in suit and had purchased the same; (3) that the sale was therefore void. The appellant and his brother pleaded (1) limitation; (2) that the property had been sold not merely in case No. 224, but also in two other cases, 225 and 226, in which the decrees had not been set aside.
The Subordinate Judge dismissed the suit. He held that the sale was invalid as against Gadadhur, but that the suit was barred by limitation, Gadadhur being bound to sue under the Limitation Act of 1877, Sched. II, Article 12, within one year from the dismissal of his application to the Board of Revenue to set aside the sale.
The High Court held that the decree which was enforced was the decree which was passed in suit No. 107, which had been set aside, and that accordingly Gadadhur's interest did not pass.
The High Court accordingly declared that Gadadhur was entitled to his one-third share of the villages.
Mayne and Branson, for the appellant, contended that the High Court ought to have held that the sale of July 15, 1878, was held in execution of all three decrees and in all three execution cases, and that Gadadhur was shewn by the evidence to have been fully cognizant of this. The sale was a valid one under Bengal Act VIII of 1865. Gadadhur's interest had been attached prior to the sale. His interest passed to the purchaser at such sale, which was valid and operative to that effect.
The respondents did not appear.
JUDGMENT
The judgment of their Lordships was delivered by
9.12.1899
Lord Davey :- The suit out of which this appeal arises was one for possession of one third share of certain mouzahs, the entirety of which had been sold by auction in certain execution proceedings in the year 1878. A similar suit was commenced by another claimant, and the two suits were heard together. The validity and effect of these execution proceedings is the matter in dispute. The following are the material facts.
In and prior to the year 1870 three brothers named Chhatradhari, Gadadhur, and Sarobur were in joint possession of the mouzahs in question on a jaghir tenure under the late Rajah Nilmoni (the predecessor in title of the present appellant). The Rajah obtained three decrees in the Court of the Assistant Commissioner of Purulia: (1) No. 136 against Chhatradhari alone for the rent of the mouzahs for the Fasli years 1293-1295; (2) No. 107 against Chhatradhari and Gadadhur (mis-described as Gungadhur) for the rent for the years 1297-1299; and (3) No. 1334 against all three brothers (Sarobur being misdescribed as Surleswar) for the rent for the years 1280-1282. All these decrees were obtained ex parte, the defendants in the several actions not appearing. On June 3, 1879, and after execution proceedings, Gadadhur obtained an order for restitution of suit No. 107 to the judges' list for trial, and it was ultimately struck out so far as he was concerned for default of the plaintiff. The decrees in No. 136 and No. 107 were therefore in effect against Chhatradhari alone, and that in No. 1344 against the three brothers (subject to any question as to the misdescription of Sarobur).
The decree-holder applied for execution of these three decrees. The execution proceedings under No. 136 were numbered 225. Those under No. 107 were numbered 224, and those under No. 1334 were numbered 226. The decree-holder appears for some reason to have wished to take out execution against Chhatradhari alone. Some objection appears to have been made (though the record does not contain the document raising the objection or show by whom it was made), and the following orders were passed by the Deputy Commissioner:-
"Rajah of Pachete-Decree-holder,
versus
"Chhatradhari Singh and Others-Debtors".
"I am of opinion that the objection, though in point of abstract justice of no real importance, must in point of law be allowed."
(a) In each case when the application has not been made setting forth the names of actual parties the application must be amended.
(b) A separate notice of sale for each decree must be made. This notice shall be hung up in (1) Mr. Kenny's court, (2) in the Collector's court, (3) in the Subordinate Judge's court, (4) in the court of the Judicial Commissioner, to whom a memo, in English will be sent, (5) in one of the villages on the land, to wit, Assenhole, (6) in the nearest village to the land.
(c) The notice shall specify the name of the mouzah and pergunnah in which the under-tenure is situated, the rent payable-viz., Rs. 671 per annum-and the entire amount (correctly calculated and, if both are agreeable, admitted by signature of both parties) recoverable under the decree under which the under-tenure is to be sold.
(d) In each copy of the notice (the copies for Mr. Kenny's court and the Collector's court will be hung up not later than the 20th June) it shall be said that the sale shall take place on the 15th day of July, 1878, at noon, in the Cutchery of the Collector.
B.W. Morton, D.C.
"The 15th June, 1878.
"As the decree-holder does not choose to take out execution against all the persons against whom he obtained decrees, and only against Chhatradhari Singh, it does not appear to me that he is bound to take out execution against all. He says Chhatradhari Singh is the only man who has any right. Decree-holder knows his own business best. In the notice the claims of all parties will be given, as the law directs this to be done. If the other men are real tenure-holders they may protest. I direct that they be served personally with notice of the proposed sale of the under-tenure.
B.W. Morton, D.C.
It appears clearly from the language of these orders that the Deputy Commissioner had the several decrees before him, and that his order applied to each decree, and it must, their Lordships think, be assumed that his orders were complied with and the proper notices were given to the several defendants in suit No. 1334 as well as in the other suit, so as to bind the interests of all these defendants.
The sale took place on July 15, 1878, and the decree-bolder was declared the highest bidder and purchaser of the villages at the price of Rs. 7000. It is plain from the rubokari of the Court of the Collector confirming the sale that it was made in execution cases, Nos. 224, 225, and 226. It is headed with those numbers. It mentions attachment was made separately of the said lands in the several cases numbered separately; that separate sale proclamations were published, and that the three records were put up on the day fixed for the sale. There can, therefore, be no doubt that the sale was made in suit 1344, and there can be no doubt that the proper notices were given and proclamations made to bind all the defendants in that suit. There is no allegation or proof to the contrary in the present suits.
A sale certificate was issued to the purchaser on October 28, 1878. Before the granting of this certificate, the three brothers, . on August 6, 1878, filed a memorandum of objection for the purpose of having the sale set aside, and their first two grounds of objection are that the sale was made in three separate execution cases, in which they were the judgment debtors separately, each of them not being the judgment debtor in each of these decrees. They also made objections to the regularity of the proceedings on the sale, and raised certain questions as to the disposal of the purchase-money.
The appeal of the judgment debtors was dismissed by the Commissioner, and his judgment appears to have been confirmed by the Board of Revenue. Their Lordships do not think that this judgment can be regarded as res judicata in the present suits if, as the High Court has held, there was no sale of anything but Chhatradhari's interest but the proceedings are important as showing that the three brothers understood that the sale was in all three decrees, and that they were all judgment debtors, and the property had been sold in execution of at least one judgment against them all. They also show that Sarobur recognised himself as the person sued, notwithstanding the mistake in his name on the record of 1344.
The present suit was commenced on June 2, 1890, and in his plaint the plaintiff alleged that the property was sold under decree No. 107, and the execution case 224 (without mentioning the other decrees and execution cases), and that inasmuch as that decree had been set aside, the sale on execution of it was void as against him. Their Lordships have already intimated the grounds upon which this contention cannot be maintained. The High Court have, however, held that, having deliberately elected to execute the decrees against Chhatradhari alone, and having, after the sale, chosen to have the sale treated as made in execution 224, the decree-holder cannot be allowed to treat the proceedings differently, and support it as a sale of the interests of all three brothers. Their Lordships cannot accede to this reasoning. The learned judges do not seem to have thought that if the sale took place, and is to be treated as having taken place in execution No. 226, the sale would not be valid, but they seem to have thought that the decree-holder and the present appellant are in some way estopped from treating the sale as made under execution No. 226. It is not, however, a question of estoppel, but of fact, and on this, point their Lordships need not repeat what they have said. There can be no estoppel when the truth of the matter appears, as it does in the present case, on the face of the proceedings. And it is plain from their memorandum of objections that Gadadhur and Sarobur were not deceived as to the facts, or prevented by any misstatement of the Rajah from asserting any rights they may have conceived themselves to possess. On the whole, their Lordships cannot find on this record that either in form or substance any injustice was done to Gadadhur or Sarobur, and they hold that the sale passed the entirety of the property.
They will, therefore, humbly advise Her Majesty that the order appealed from be reversed, and the appeal to the High Court be dismissed, the parties bearing their own costs as in the First Court. As this is a pauper case, there will be no costs of the appeal.
.