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PATNA HIGH COURT
Lalit Mohan Sharma and Birendra Prasad Sinha JJ.
Keshav Nandan Sahay
Versus
Bank Of Behar
Appeal From Original Order No. 323 of 1972 ; 324 of 1972 ;
Decided On : AUGUST 30, 1976
EXECUTION OF DECREE - ATTACHMENT - EXEMPTION - AGRICULTURAL PURPOSES - VALUATION - SEPARATION OF JOINT FAMILY - PIOUS OBLIGATION - LIABILITY OF WIFE - RES JUDICATA - DISMISSAL FOR DEFAULT.
Fact of the Case:
The judgment debtors in two execution cases appealed against the valuation of attached properties and the maintainability of the execution proceedings. They claimed that the residential house was exempt from attachment under S. 60 of the Civil P. C. as it was used for agricultural purposes, that the properties were undervalued, and that they had no pious obligation to pay the decree passed against their father after separation from him in 1944.
Finding of the Court:
1. The residential house was not exempt from attachment under S. 60 of the Civil P. C. as there was no satisfactory evidence to show that agricultural operations were carried on from there. 2. The valuation of the properties by the Court below was just and reasonable and did not need any interference. 3. The story of separation in the family in 1944 was false and not substantiated. 4. The sons were liable to pay the debts incurred by their father before the separation, even after partition, as there was no arrangement for payment of these debts at the time of partition. 5. The wife of the judgment-debtor was not liable for the payment of the decretal dues as the doctrine of pious obligation did not apply to her. 6. The dismissal of earlier miscellaneous cases for default did not bar the present objections by the principles of constructive res judicata.
Issues: 1. Whether the residential house was exempt from attachment under S. 60 of the Civil P. C. 2. Whether the valuation of the properties by the Court below was just and reasonable. 3. Whether the appellants had a pious obligation to pay the decree passed against their father after separation from him. 4. Whether the wife of the judgment-debtor was liable for the payment of the decretal dues. 5. Whether the dismissal of earlier miscellaneous cases for default barred the present objections by the principles of constructive res judicata.
Ratio Decidendi: 1. The provisions of S. 60 (1) (c) of the Civil P. C. suggest a person who tills the soil in order to maintain himself. Under Cl. (c), houses and other buildings belonging to an agriculturist and occupied by him are exempt from attachment. The word "agriculturist" in Cl. (c) must carry the same meaning as the word "agriculturist" in Cl. (b) and the house must be occupied by him as such. 2. The valuation of the properties by the Court below was based on the evidence on record and was just and reasonable. 3. The sons are liable to pay the debts incurred by their father before the separation, even after partition, unless there was an arrangement for payment of these debts at the time when the partition took place. 4. The doctrine of pious obligation cannot apply to the wife and she, therefore, cannot be liable to the creditors on the principles applicable to the sons. 5. Dismissal for default of an application by the judgment-debtor, resisting the execution of a decree, is not a final decision of the Court after hearing the parties and, therefore, cannot operate as res judicata.
Final Decision: The appeals were allowed in part. The objections to the execution of the decrees in regard to 1/5th share in the property which had been allotted to the share of the wife of Shri Deonandan Saihay were allowed. Subject to this modification, the decision of the Court below on all other points was confirmed. There was no order as to costs.
BIRENDRA PRASAD SINHA, J.
1. These two appeals are by the judgment-debtors in two execution cases.
2. The respondent-decree-holder, Bank of Behar, now State Bank of India, obtained a decree in Money Suit No. 61 of 1956, on the 29th June, 1957, for a sum of Rs. 28,750/12/- against Deonandan Sahay. It also obtained against him another decree in Money Suit No. 109 of 1956, on the 24th February, 1958, for a sum of Rs. 3,44,232/-. Two execution cases were filed against the judgment-debtor, Deonandan Sahay. Execution Case No. 62 of 1958 arose out of Money Suit No. 61 of 1956 and Execution Case No. 112 of 1958 arose out of Money Suit No. 109 of 1956. After service of notice, Deonandan Sahay filed petitions under S. 47 of the Civil P. C., giving rise to Miscellaneous Case No. 53 of 1961 in Execution Case No. 62 of 1958 and Miscellaneous Case No. 54 of 1961 in Execution Case No. 112 of 1958. Deonandan Sahay died in April 1962 and the two miscellaneous cases were dropped. His heirs including his wife, sons and daughters were brought on record in June 1962 in both the execution cases. In December 1962, the widow of Deonandan Sahay filed petitions under S. 47 of the Civil P. C. in both the execution cases, giving rise to Miscellaneous Case Nos. 106 and 107 of 1963. On the 15th July, 1967, both the miscellaneous cases were dismissed for default. On the 18th July, 1967, fresh petitions were filed by the widow giving rise to Miscellaneous Cases Nos. 35 and 36 of 1967. In those miscellaneous cases, the widow was ordered to deposit security which not having been deposited by her, the two cases stood dismissed for default on the 10th December, 1968. The widow died some time after. The sons and daughters of Deonandan Sahay (the present appellants) this time filed two petitions under Ss. 47 and 60 of the Civil P. C. and Ss. 14 and 15 of the Bihar Money-Lenders Act in both the execution proceedings.They were registered as Miscellaneous Cases Nos. 69 and 70 of 1967. Miscellaneous Appeal No. 323 of 1972 arises out of Miscellaneous Case No. 69 of 1967 and Miscellaneous Appeal No. 324 of 1972 arises out of Miscellaneous Case No. 70 of 1967. Both the miscellaneous cases were heard together by the Court below and a common order was passed in both of them. Although valuation of the attached properties was raised, the objections were substantially disallowed.
3. The original judgment-debtor Deonandan Sahay and his two brothers, Shyam Nandan Sahay and Hari Nandan Sahay, owned extensive properties which included zamindari interests in several Touzis and agricultural lands in several villages. They had their ancestral house at village Baghi and another big house called Sahay Bhawan at Muzaffarpur. The one-third share of Deonandan Sahay was attached in the execution proceedings and was described in four lots. Lot No. 1 consisted of 4.21 acres of land in village Baghi including a pucca double-storeyed house in which one-third share of the judgment-debtor was valued by the decree-holder at Rs. 10,000.00. The Court below has raised the valuation of lot No. 1 to Rs. 1,00,000/-. Lot No. 2 consisted of Sahay Bhawan, a pucca house with boundary having an area of 5.46 in the town of Muzaffarpur. In it one-third share of the judgment-debtor was valued at Rs. 15,000.00 By the decree-holder, but the Court below valued the house at Rs. 3,00,000/-. one-third share of Deonandan Sahay being Rs. 1,00,000/-. Lot No. 3 properties consisted of agricultural lands in village Muriari, having an area of 30 bighas. A nominal valuation was given by the decree-holder but the Court below has valued it at Rs. 60,000.00 as claimed by the appellants. Lot No. 4 consisted of certain shares in different companies. In the execution case they were valued at Rs. 3,462/-. The appellants still claim a higher value for the properties which I shall deal with at a proper place.
4. The appellants raised several objections in the two miscellaneous cases. They being similar, I propose to deal w
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