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HIGH COURT OF CALCUTTA
GUHA RAY, MALLICK
RATAN MALA MONDAL - Appellant
Versus
GOPAL LAL DAGA - Respondent
A. F. O. O. 41 Of 1952
Decided On : JULY 09, 1954
SPECIFIC PERFORMANCE - DECREE - EXECUTION - Dagas as real purchasers - Sachindra Nath Goswami as agent or benamidar - Decree in favour of all plaintiffs - Dagas competent to execute decree for their own benefit - Decree of trial court not merged in decree of appeal court - Appeal dismissed and decree of trial court confirmed - Revival of pending execution proceeding after dismissal of appeal - Error of procedure curable under Section 99, Civil P. C.
Fact of the Case:
A suit for specific performance of an agreement for sale was instituted in the Court of 3rd Subordinate Judge of 24th Parganas against the defendants. The plaintiffs in the said suit are 5 Dagas and the said Sachindra Nath Goswami. It is pleaded in the plaint that Goswami entered into the said agreement with the defendants for and on behalf of the Dagas as their agent and benamidar so that the real beneficiaries under the agreement are the Dagas and not Goswami. A decree was passed on 29-1-1945 in favour of the plaintiffs. One of the defendants settled the suit with the plaintiffs and a compromise petition was put in. The operative part of the decree in so far as it is material runs as follows:"it is ordered that the suit is decreed on compromise against the defendant No. 1 in terms of petition of compromise filed and on contest against defendant Nos. 2 and 3 in part with 2/3rd costs on contested scale. The defendant Nos. 2 and 3 do execute a Deed of Sale in respect of properties in suit in terms of the agreement on receipt of the balance of the consideration due for their share of 2/3rd and also register the sale deed at the cost of the plaintiffs within one month hereafter". The decree was put to execution by the Dagas by filing the tabular statement on 18-7-1945. Against the decree passed by the learned Subordinate Judge an appeal was taken to this Hon'ble Court on 16-5-1945, being First Appeal No. 152 of 1945. By an order of this Court in the said appeal the execution of the decree was stayed. On 27-11-1950, the appeal was dismissed and the order for stay was vacated. Thereupon the Dagas took steps in execution already filed by them on 16-7-1945 as hereinbefore stated. Against the said application for execution a petition of objection was filed by Amulya Charan Mandal, one of the judgment-debtors on 18-4-1951 under Section 47, Civil P. C.
Finding of the Court:
The court held that the decree is ambiguous and by referring to the judgment, the ambiguity can be resolved. Hence principles laid down in -- 35 Cal LJ 339 (B)', have no application to the facts of this case. We hold, therefore, that the present petition for execution of the decree by the Dagas alone is competent and is maintainable in law. The court also held that the decree of the trial court is not merged in the decree of the appeal court and the only executable decree is the decree of the appeal court. There are authorities in support of the propositions that after appeal the decree of the trial court is merged in the decree of the appeal court and the only executable decree is the decree of the appeal court (see -- 'jowad Hossain v. Gendan Singh', AIR 1926 PC 93 (C); 'gajadhar Singh v. Kishen Jiwan Lal', AIR 1917 All 163 (SB) (D); 'syam Mandal v. Satlnath Banerjee', AIR 1917 Cal 728 (E), and the cases referred to in the notes under section 38 of the Code of Civil Procedure by Sir Dinshaw Mulla.)An examination of the authorities, however, shows that the court has applied the theory of merger in two classes of cases only, viz. , for the purpose of determining the point of time when limitation would run and for the purpose of amending the decrees. It has been held that limitation would run from the date as provided in the decree of the appeal court and not that of the trial court and appeal court alone is competent to amend the decree even if the appeal court decree is a decree of dismissal of the appeal and confir-mation of the decree of the trial court. The court has never applied the doctrine of merger for the purpose of defeating an execution petition of the decree of the trial court when the appeal has been dismissed and the decree of the trial court con-firmed.
Issues: 1. Whether the Dagas are competent to execute the decree for their own benefit? 2. Whether the decree of the trial court is merged in the decree of the appeal court?
Ratio Decidendi: 1. The court held that the Dagas are competent to execute the decree for their own benefit because they are the real purchasers and Goswami is their agent or benamidar. The court relied on Order 21 Rule 15 of the Code of Civil Procedure which provides that some of the joint decree-holders are competent to execute the decree for the benefit of all. 2. The court held that the decree of the trial court is not merged in the decree of the appeal court because the appeal court merely affirmed the decree of the trial court and did not affect its terms in any way. The court relied on authorities from other courts which held that the fiction of merger should not be carried too far in cases like the present because it would lead to obvious injustice.
Final Decision: The appeal was dismissed.
( 1 ) THIS appeal arises out of a petition for execution of a decree obtained by some of the plaintiffs in a suit for specific performance. The facts leading to the present appeal may be stated as follows:
( 2 ) BY an agreement for sale dated 19-12-1936, the defendants, who for convenience may be referred to as the Mandals, as vendors agreed to sell and convey to Sachindra Nath Goswami as purchaser of the land and premises referred to in the said agreement. On 5-6-1939, a suit for specific performance of the said agreement was instituted in the Court of 3rd Subordinate Judge of 24th Parganas against the said Mandate. The plaintiffs in the said suit are 5 Dagas and the said Sachindra Nath Goswami. It is pleaded in the plaint that Goswami entered into the said agreement with the Mandals for and on behalf of the Dagas as their agent and benamidar so that the real beneficiaries under the agreement are the Dagas and not Goswami. Needless to say that plaint bears the signature of all the Dagas and Goswami. The suit was contested taut ultimately a decree was passed on 29-1-1945 in favour of the plaintiffs. One of the Mandals being defendant No. 1 settled the suit with the plaintiffs and a compromise petition was put in. The operative part of the decree in so far as it is material runs as follows:"it is ordered that the suit is decreed on compromise against the defendant No. 1 in terms of petition of compromise filed and on contest against defendant Nos. 2 and 3 in part with 2/3rd costs on contested scale. The defendant Nos. 2 and 3 do execute a Deed of Sale in respect of properties in suit in terms of the agreement on receipt of the balance of the consideration due for their share of 2/3rd and also register the sale deed at the cost of the plaintiffs within one month hereafter".
( 3 ) THE decree was put to execution by the Dagas by filing the tabular statement on 18-7-1945. In column 2 of the tabular statement, where the names of the plaintiffs are to appear, the Dagas described Sachindra Nath Goswami as the ''pro forma judgment-debtor" and in column 11 of the tabular statement it was prayed "that the judgment-debtor Nos. 2 and 3 be directed to execute and register the sale deed as per draft filed herewith. " In the draft filed the purchasers named are the Dagas and not Sachindra Nath Goswami.
( 4 ) AGAINST the decree passed by the learned Subordinate Judge an appeal was taken to this Hon'ble Court on 16-5-1945, being First Appeal No. 152 of 1945. By an order of this Court in the said appeal the execution of the decree was stayed. On 27-11-1950, the appeal was dismissed and the order for stay was vacated. Thereupon the Dagas took steps in execution already filed by them on 16-7-1945 as hereinbefore stated. Against the said application for execution a petition of objection was filed by Amulya Charan Mandal, one of the judgment-debtors on 18-4-1951 under Section 47, Civil P. C. This objection was numbered as Misc. Case No. 11 of 1951. Various grounds were taken in the said petition of objection of which two were pressed before the executing court, namely, (1) that a certain phrase in the draft conveyance should be clearly specified and (2) that the agreement for sale having been in favour of Sachindra Nath Goswami, the Dagas are not entitled to a conveyance, in the absence of any nomination by Goswami. The executing court accepted the first objection and directed the phrase to be clearly stated bringing it on the lines with the agreement for sale. The second objection was overruled on the ground that the judgment of the High Court in the said F. A. No. 152 of 1945, D/- 27-11-1950 (Cal) (A) clearly indicated that the Dagas were the real benefi-ciaiies under the agreement and Sachindra Nath Goswami was their agent or benamdar. Against this order the present appeal has been, taken.
( 5 ) MR. Nirmal Chandra Chakraborty who appeared in support of the appeal contends that the decree directs the defendants to execute a deed of
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