Patna High CourtMaharaja Sir Raveneshwar Prasad Singh ... vs Rai Baijnath Goenka Bahadur on 24 April, 1917Equivalent citations: 40IND. CAS.508, AIR 1917 PATNA 253JUDGMENT
 

Edward Chamier, C.J.1. This appeal and Miscellaneous Appeals Nos. 37, 39, 54, 69, 81, 90 and 131 are appeals against an order of the Subordinate Judge of Monghyr, dated February 22nd, 1916, dismissing applications by the appellants for execution of an order of His Majesty in Council, dated January 15th, 1915. The applications of all these appellants and other were beard together by the Subordinate Judge and were disposed of by one order. The appeals were heard in this Court together and this order will govern them all.2. Mahal Bist Hazari included 360 villages and in the Collector's register bore Tauzi No. 336, The owners of specified but undivided shares in the mahal applied for and obtained from the Collector a separation of accounts. It is said that there were no less than 148 separate accounts. This left, however, a large residue commonly called the ijmali or joint share, the owners of which remained jointly liable for the revenue due in respect thereof. In 1901 the ijmali share was found to be in arrears for the March and June instalments of Government revenue and was sold by the Collector on September 9th, 1901, and was purchased by the respondent Baijnath Goenka for a sum of Rs. 33,500. An appeal to the Commissioners of the Division by the owners of the ijmali share under Section 25 of Act XI of 1859 having been dismissed 15 owners of shares in the ijmali share brought a suit in the Court of the Subordinate Judge of Monghyr on September 30th, 1902, for annulment of the sale and for recovery of possession of their shares. As it was suggested before us by Counsel for some of the appellants that this was a suit by or on behalf of the whole body of owners of the ijmali share, it is necessary to point out that it was not so. Only fifteen persons were originally plaintiffs in the suit and they set out in paragraph 1 of their plaint their specific shares in the ijmali shares. In paragraph 22 they specified the price which each plaintiff or set of plaintiffs had paid for each of the shares claimed and after claiming that the sale of the ijmali share should be set aside or declared null and void and inoperative in law the plaintiffs claimed possession of the shares described in the second Schedule to the plaint, which shows against the name of each plaintiff or set of plaintiffs the precise share which each plaintiff or set of plaintiffs sought to recover in the suit. The ijmali share comprised 31 or 32 villages. The claim for possession does not extend to all these villages but extends only to the specified share claimed by the different plaintiff. A large number of sharers in the ijmali share were impleaded as defendants. The Subordinate Judge held that the sale was null and void and on June 30th, 1904, he decreed the claim with costs and with mesne profits to be assessed in the Execution Department. When dealing with issue No. 3 in the suit the Subordinate Judge said: If the plaintiffs succeed in setting aside the sale there will be no difficulty in their obtaining possession of the specified shares of the properties comprised in the ijmali share which are held separately by the several plaintiffs. The jama of the ijmali share is joint but the properties comprised in this jama are held separately and the shares are also specified," and when dealing with issue No, 11 the Subordinate Judge said: "The plaintiffs are entitled to recover the properties claimed by them, the shares of which are separately held." It thus appears to be clear that though there was only one suit all the plaintiffs or sets of plaintiffs claimed separate and distinct share. On appeal the High Court on May 1st, 1907, reversed the judgment of the Subordinate Judge and dismissed the suit. Seven of the original plaintiffs then appealed to His Majesty in Council with the result that on January 19th, 1915, their appeal was allowed, the decree of the High Court was set aside and the decree of the Subordinate Judge was restored save and except as to two villages named Matasi and Mirzaganj in regard to which the claim was permitted to be withdrawn with liberty to the appellants to institute a fresh suit in respect thereof if so advised. On June 10th, 1915, four of the appellants to His Majesty in Council, namely, the appellant in Miscellaneous Appeal No. 38 now before us and the three appellants in Miscellaneous Appeal No. 39 now before us applied to the Calcutta High Court under Order XLV, Rule 15 praying that Court to direct that the order of His Majesty in Council might be transmitted for execution to the Court of the Subordinate Judge, to issue a certificate as to the costs incurred in the Privy Council Appeal in. the High Court and to direct the Subordinate Judge to proceed to ascertain the mesne profits due to the applicants. On that application the High Court made the following order "Let the decree of His Majesty in Council be sent down to the lower Court for execution." The decree was sent down accordingly. Fifteen applications for execution were then presented to the Subordinate Judge. Three of them related only to costs and we are not now concerned with them. Another application resulted in a compromise. The order of the Subordinate Judge with which we are concerned related to-the remaining eleven applications. For reasons which will be stated hereafter all eleven applications were dismissed. One of the applicants filed no appeal in this Court. The remaining ten appealed. Two of the appeals have already been dismissed for de- fault and the remaining eight appeals are, now before us.3.Applications for the partition of mahal Bist Hazari were made to the Collector as long ago as 1876. It does not appear exactly what stage in these proceedings had been reached when the sale for arrears of revenue took place or when the suit was filed in the Court of the Subordinate Judge or when his decree was made, but it is common ground that before the decree was made the proceedings required by Section 57 of the Estates Partition Act, 1597, had been held. The partition was completed in 1908 shortly after the decision of the Calcutta High Court. It appears that at the time of the decree the plaintiffs in the suit were still recorded in the books of the Collector as owners of the shares which they claimed in the suit. The respondent who purchased the mahal at the revenue sale did not obtain mutation of names in his favour until 1903. Under the partition the different plaintiffs in the suit were allotted other shares in lieu of their original shares in the parent estate. In some cases they obtained shares in the same villages, in other oases they obtained shares in different villages. The matter is complicated by the fact that several of the plaintiffs held shares not only in the ijmali share but also in the separate accounts and it is further compli-cated by the fact that the respondent also was the owner of interests in some of the separate accounts before he purchased the ijmali share at the revenue sale.4. At this stage it is convenientto mention that when the suit was pending in the Court of the Subordinate Judge some co-sharers in the ijmali share who had been impleaded as defendants applied to be made plaintiffs in the suit and orders seem to have been made by the Subordinate Judge that they should be made plaintiffs. That appears to have been the case with reference to the appellants in Miscellaneous Appeals Nos. 81 and 131. All the papers are not before us but it appears that the appellants in these two appeals applied also for amendment of the plaint so that they too might obtain decrees for their separate shares. It is, however doubtful whether the plaint ever was amended. The decree of the Subordinate Judge appears to give shares only to the original plaintiffs. In the view which I am disposed to take of this case it is unnecessary to pursue this matter further. For the purpose of my judgment I am prepared to assume that the plaint was amended as prayed.5. It is also necessary to notice that the appellants in Miscellaneous Appeal No. 69 claim to be the representatives of certain defendants to the suit who never applied to be made plaintiffs. It is impossible to accede to the contention put forward by Mr. Ganesh Dutt Singh on their behalf that the decree of the Subordinate Judge should be treated as a decree in favour of all the holders of shares in the ijmali share. He sought to apply to the decree the analogy of decrees passed in suit for partition which can be enforced by all the persons found to be entitled to shares whether arrayed as plaintiffs or defendants in the suit. There can be no doubt that Miscellaneous Appeal. No 69 should be dismissed.6. In consequence of the partition having, been completed as stated above in 1908, the applicants for execution of the Order in Council have prayed not for possession of the shares specified in Schedule II to the plaint but for the estates or interests which according to them have by the partition been allotted to them in lieu of their original shares in the ijmali share. The Subordinate Judge dismissed all the applications on the ground that in consequence of the. partition and on the authority of the decision of the Calcutta High Court inKrishna Roy v. Jawahir Singh20 C. 260; 10 Ind. Dec. (N.S.) 176 the applicants are not entitled by means of proceedings in the Execution Department to ask the Court to enquire and determine what estates or interests have been substituted by the partition for the shares originally claimed under Schedule II of the plaint in the suit. The Subordinate Judge was of opinion that the decree-holders could not get possession without bringing a regular suit to establish their title to the substituted estates or interests. He also held that all the applications except two, namely, those made by the appellants in Miscellaneous Appeals Nos. 38 and 39, should be dismissed on the ground that the applicants had not applied to the Calcutta High Court under Order XL V, Rule 15.7. It appears to me that the view taken by the Subordinate Judge regarding Order XLV, Rule 15 is correct and that those persons only (or their representatives) were entitled to apply to the Subordinate Judge for execution who had applied to the Calcutta High Court under Order XLV, Rule 15. It may be that where a decree has been passed in favour of a number of persons jointly an application under Order XLV, Rule 15 by one or more of them would be sufficient to entitle all of them to apply for execution in the Court below. But as explained above the suit in which, the decree was passed was not a suit by several persons for possession of property to which they were jointly entitled. The claim was in reality a collection of claims by persons entitled to separate shares for possession of those separate shares and it is quite clear that each plaintiff or set of plaintiffs obtained by the decree a right to a separate share or separate shares. No single plaintiff is entitled to execute the decree on behalf of all of the plaintiffs. Each plaintiff must obtain possession of the share or shares to which he is entitled. The action taken by the plaintiffs themselves shows that they understood that each plaintiff must take out execution in respect of his own share. For these reasons I am of opinion that only those plaintiffs were entitled to apply to the Subordinate Judge for execution of the Order in Council who applied to the Calcutta High Court under Order XLV, Rule !5, and obtained an order from that Court. In this view six of the appeals before us must be dismissed.8. There remain Miscellaneous Appeals Nos. 38 and 39, the appellants in which applied to the Calcutta High Court under Order XLV, Rule 15. The question which we have to decide is whether they were entitled to ask the Subordinate Judge to ascertain in the Execution Department what estates and interests had been substituted for their original shares in the ijmali mahal and to give them possession of the substituted estates or interests. Counsel for the respondent, Baijnath Goenka, contended that the decree of the Subordinate Judge which was restored by the Order in Council is now incapable of execution, that the plaintiffs ought to have informed their Lordships of the Privy Council that the ijmali share had been partitioned in 1908 and that if they had done so their Lordships would not have contented themselves with restoring the decree of the Subordinate Judge but would have gone on to declare that the plaintiffs were entitled to the substituted shares. Counsel also contended that the decree of the Subordinate Judge was contrary to the provisions ofSection 26of the Estates Partition Act, which provides that every decree affecting a parent estate made by a Civil Court after the estate has been declared underSection 29to be under partition but before the date specified in the notice served underSection 94, shall be made in recognition of the proceedings in progress under the Act for partition of the estate and shall be framed in such manner that the decree may be applied to and carried out in reference to the separate estates which the Collector in his proceedings recorded underSection 29has ordered to be formed out of the parent estate. Counsel contended that if the attention of their Lordships had been drawn to these provisions they would have passed an order in compliance with them. It appears that the provisions ofSection 26of the Estates Partition Act, 1897, and ' of the corresponding section in the earlier Act of 1876, have been more honored in the breach than in the observance. The most experienced Legal Practitioner present in Court was unable to say that he had ever seen a decree passed in compliance with or even with direct reference toSection 26of the Act. Sub-section (2) ofSection 26does not appear to apply to the case at all. Only Sub-section (1) can be held to apply. At the time when the Subordinate Judge made his decree all that he could have done by way of compliance withSection 26Sub-section (1) would have been to add to his decree a provision that the decree should be executed with reference to the separate estate which the Collector had ordered to be formed out of the parent estate and which might in due course subject to any objections taken and allowed in the partition proceedings be formed out of the parent estate. At the time when he made his decree the exact form which the partition would take had not been finally determined and it appears from certain papers which have been shown to us that in fact part of the order passed underSection 29of the Act was subsequently modified. It appears that it would have been impossible for the Subordinate Judge when he made his decree to have indicated the exact substituted shares to which his decree would apply. In other words the Subordinate Judge could have done no more than make a formal order that his decree should be executed in reference to the separate estates which might be formed at the partition. His omission to do this does not, in my opinion, oblige us to hold that his decree is altogether inoperative. If the attention of their Lordships of the Privy Council had been drawn to the fact that a partition had taken place in 1908, all that they could have done would have been to make a general direction that the decree should be executed with reference to the altered state of affairs. It was contended by Mr. Pugh that the Order in Council is at present inoperative and that the plaintiffs cannot obtain relief even by means of a separate suit, [t appears to me to be quite clear that the plaintiffs must be entitled either by execution proceedings or by means of a separate suit to obtain relief. I cannot accept the suggestion that they should be required to apply to the Privy Council for amendment of the order. As I have already said, it appears to me that all that could be done by way of amendment would be to pass an order in general terms to the effect that the decree should be executed with reference to the altered state of affairs.In the case ofKrishna Roy v. Jawahir Singh(20) C. 260 : 10 Ind. Dec. (N.S.) 176referred to above, the plaintiff had purchased a small share in Estate No. 831 and obtained a decree for possession against the defendants. Before he took out execution of the decree partition proceedings took place in which the interest in suit was converted into an Estate No. 2218. Instead of seeking to execute his decree he brought a separate suit for a declaration that he was entitled to Estate No, 2218, and it was held that the suit was not barred bySection 244of the Code of Civil Procedure. The decree made in that suit does not appear to have been made in accordance with theEstates Partition Act, but the High-Court did not hold that the plaintiff was on that account unable to establish his right to the substituted estate. All that they held was that the proper course to pursue was to bring a separate suit. Their decision recognises the right of a decree holder to have recourse to the substituted share so also does theEstates Partition Act. I am of opinion that the irregularity or informality in the decree of the Subordinate Judge in the present case which was restored by the Order in Council does not deprive the plaintiffs of their right to recover what has been substituted for the original shares decreed to them. The question whether the plaintiffs should proceed by separate suit or in the Execution Department is not a matter of much importance.Section 47, Sub-section (2), of the presentCode of Civil Procedurewas intended to put an end to the scandal of persons being deprived of their rights by the difficulty of determining whether they should proceed in the Execution Department or by; a regular suit. That Sub-section provides that the Court may subject to any objection! as to limitation or jurisdiction treat a? proceeding under that section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court fees. It appears to me that if the decree of the Subordinate Judge is operative to any extent notwithstanding the non-compliance withSection 26of the Estates Partition Act there is no reason why the plaintiffs should not obtain their rights in the Execution Department. In my opinion Appeals Nos. 38 and 39 should be allowed and the Subardinate Judge. should be directed to restore the applications of these appellants to the pending file and hold the necessary enquiries. In these two appeals I would order that the costs of this Court including in each case a hearing fee of three gold mohurs should be costs in the cause and should be dealt with by the Subordinate Judge. Some of the difficulties which will confront the Subordinate Judge have been brought to our notice in the course of the arguments. We find ourselves unable to deal with them or to give the Subordinate Judge any detailed instructions inasmuch as he took no evidence and held no enquiry whatever. He should ascertain exactly the questions of law and fact upon which the parties before him are at variance and should endeavour by his order to put an end to a litigation which has continued for a great number of years. I would dismiss Appeals Nos. 37, 54, 69, 81, 90, and 131 with costs and in each case I would allow a hearing fee of three gold mohurs.Rob, J.8. I agree.