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PATNA HIGH COURT
Rai and Raj Kishore Prasad JJ.
Dhirendra Nath Chandra
Versus
Satish Chandra Gorain
Appeal From Original Order No. 95 of 1955 ;
Civil Revision No. 355 of 1955 ;
Decided On : JULY 21, 1955
EXECUTION OF DECREE - SALE OF PROPERTY - JURISDICTION OF COURT - MINERAL CONCESSION RULES, 1949 - APPLICABILITY - PRINCIPLE OF CONSTRUCTIVE RES JUDICATA - APPLICATION - ORDER 21, RULE 15, CIVIL P. C. - NON-JOINDER OF DECREE-HOLDER - EFFECT.
Fact of the Case:
Decree-holders obtained a final decree for sale against judgment-debtors for arrears of royalty for coal lands leased to them. The decree-holders executed the decree against the lands of the appellants only, who filed an objection under Sec. 47, Civil P. C., which was rejected. The appellants preferred an appeal and also filed a Civil Revision against the order refusing to stay the sale of the disputed lands pending the disposal of the appeal.
Finding of the Court:
1. Rule 37, Mineral Concession Rules, 1949, does not apply to a transfer of a lease granted by a private person in case of land in which the minerals belong to him, and not to Government. 2. Rule 48, Mineral Concession Rules, 1949, applies to a transfer or an assignment, of a prospecting license, or a mining lease, in respect of land in which the minerals do not belong to Government, by a private person who may be the owner of the land as well as of the minerals therein, or he may be the owner of the minerals only but not of the lands, but the minerals therein must belong to him, and not to Government. 3. The principle of constructive res judicata applies to objections which could have been taken in a previous objection filed under Sec. 47, Civil P. C., but were not taken then. 4. The failure of a judgment-debtor to raise any objection to execution being proceeded with on the ground that the executing Court had no jurisdiction to execute the decree, on a previous occasion, on which he could have raised the plea of jurisdiction, precludes him from raising such a plea of jurisdiction on a subsequent occasion at a later stage of the execution proceeding on the principle or constructive res judicata. 5. The non-joinder of a decree-holder in an execution case is not fatal if the reason for such non-joinder is stated in the execution petition or in a separate application filed along with the execution petition.
Issues: 1. Whether Rule 37, Mineral Concession Rules, 1949, applies to a transfer of a lease granted by a private person in case of land in which the minerals belong to him, and not to Government? 2. Whether Rule 48, Mineral Concession Rules, 1949, applies to a transfer or an assignment, of a prospecting license, or a mining lease, in respect of land in which the minerals do not belong to Government, by a private person who may be the owner of the land as well as of the minerals therein, or he may be the owner of the minerals only but not of the lands, but the minerals therein must belong to him, and not to Government? 3. Whether the principle of constructive res judicata applies to objections which could have been taken in a previous objection filed under Sec. 47, Civil P. C., but were not taken then? 4. Whether the failure of a judgment-debtor to raise any objection to execution being proceeded with on the ground that the executing Court had no jurisdiction to execute the decree, on a previous occasion, on which he could have raised the plea of jurisdiction, precludes him from raising such a plea of jurisdiction on a subsequent occasion at a later stage of the execution proceeding on the principle or constructive res judicata? 5. Whether the non-joinder of a decree-holder in an execution case is fatal if the reason for such non-joinder is stated in the execution petition or in a separate application filed along with the execution petition?
Ratio Decidendi: 1. Rule 37, Mineral Concession Rules, 1949, applies to a transfer by a Government lessor of a lease granted by the State Government to him in respect of land in which the minerals belong to the State, Government, subject to the conditions mentioned therein. 2. Rule 48, Mineral Concession Rules, 1949, applies to a transfer or an assignment, of a prospecting license, or a mining lease, in respect of land in which the minerals do not belong to Government, by a private person who may be the owner of the land as well as of the minerals therein, or he may be the owner of the minerals only but not of the lands, but the minerals therein must belong to him, and not to Government. 3. The principle of constructive res judicata applies to objections which could have been taken in a previous objection filed under Sec. 47, Civil P. C., but were not taken then. 4. The failure of a judgment-debtor to raise any objection to execution being proceeded with on the ground that the executing Court had no jurisdiction to execute the decree, on a previous occasion, on which he could have raised the plea of jurisdiction, precludes him from raising such a plea of jurisdiction on a subsequent occasion at a later stage of the execution proceeding on the principle or constructive res judicata. 5. The non-joinder of a decree-holder in an execution case is not fatal if the reason for such non-joinder is stated in the execution petition or in a separate application filed along with the execution petition.
Final Decision: The appeal and the Civil Revision were dismissed.
Raj Kishore Prasad, J.
1. The appeal and the Civil Revision both are by judgment-debtors 4 to 8. The appeal is against an order passed by the learned Subordinate Judge of Dhanbad in an execution proceeding rejecting the objection of the appellants under Section 47, Civil P. C. The Civil Revision is against his order refusing to stay the sale of the disputed lands pending the disposal of the present miscellaneous appeal by this Court.
2. I shall deal with the appeal first. The facts leading up to the present appeal may briefly be stated thus;-- The decree-holders-respondents 1 to, 23, who are respondents first party in the present appeal, are proprietors of Mauza Jayramdih, within pargana Nawagarh, which contains about 442 bighas of coal lands. On 26-4-1937, the decree-holders leased these lands to one Sripati Pal, father of respondents 1 to l(b) and husband of respondent- 1 (c), and, Mahadeo Chandra, respondent 2, on payment of royalty, the lands leased being first charge for payment of royalty, etc. At present these, lands are in possession of five sets of persons, viz. (1) Sashankasekhar Pal and others, sons and wife of Sripati Pal, one of the original lessees, (2) Mahadeo Chandra, the other original lessee, (3) Rai Saheb Kunja Behari Chandra, (4) Dhirendra Nath Chandra and his brothers, he present appellants, and (5) Rai Bahadur Waliram Taneja. The appellants have a separate block of 90 bighas of coal lands out of the entire 442 bighas: The decree-holders brought a suit for recovery of arrears of royalty for the entire village against all the above five sets of persons, end, on 26-3-1954, obtained a final decree for sale against the aforesaid persons. The decree was passed for Rs. 75,828-4-3 jointly against all the above persons. The decree-holders on 18-6-1954, executed their decree for the entire amount, but they are proceeding against the lands of the appellants only. The appellants on 3-9-1954, filed an objection under Sec. 47, Civil P. C., which however, was rejected on 13-12-1954. The sale proclamation was issued on 21-12-1954, fixing 15-2-1955, for sale of the properties advertised. On 15-3-1955, the appellants filed the present objection under Sec. 47, Civil P.C., out of which the present appeal arises. This objection was rejected by the learned Subordinate Judge on 19-3-1955, on the ground that the objections which have been taken now, could have been taken on the first occasion, and as such these objections not having been taken before are barred by the principle of constructive res judicata. The judgment-debtors have, therefore, preferred the present appeal to this Court.
3. In support of the appeal, Mr. S. C. Mazumdar has placed before this Court four points, namely, (1) the executing Court has no jurisdiction to sell the property in view of Rule 37, Mineral Concession Rules, 1949 ; (2) the decision of the Court below that the objections of the appellants are barred by the principle of constructive res judicata is erroneous; (3) Makhaubala Dasi, one of the decree-holders, is not shown as one of the decree-holders, who are executing the decree, and, as such the execution was invalid under Order 21 Rule 15, Civil P. C.; and (4) the final decree mentions only 200 tubs to be sold, but in the execution petition as also in the sale proclamation 400 tubs have been mentioned for being sold and this was against the final decree, and, as such, it was illegal.
4. As regards the first contention of Mr. Mazumdar, it will appear that Rule 37, Menral Concession Rules, 1949, has absolutely no application to the present, case, Rule 37 reads as follows:-
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"The lessee may, with the previous sanction of the State Government and subject to the conditions specified in the first proviso to Rule 35 and in Rule 38, transfer his lease, or any right, title, or interest therein, to a person holding a certificate of approval on payment of a fee of Rs. 100.00 to the State Government."
Rule 37 occurs in Chapter IV which deals with "G
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