KOK SINGH versus DEOKABAI

Citation: [1976] 2 S.C.R. 963 · Decided: 10-12-1975 · Supreme Court of India · Bench: KUTTYIL KURIEN MATHEW, S. MURTAZA FAZAL ALI · Disposal: Dismissed

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Judgment (excerpt)

963 
KOK SINGH 
v. 
DEOKABAI 
December IO, 1975 
' 
[K. K. MATHEW AND S. MURTAZA FAZAL ALI, JJ.] 
Code of Civil Procedure, O.XLI; r. 33-High Court if competent to pass 
C• decree fdr enforcement of charge even when no appeal filed. 
A 
B 
The appellant, who bought property from the respondent's husband, co-
venanted that in case of non-payment of the consideration, the amount due would 
be a charge upon the property. 
The respondent, on the death of her hmband, 
filed a suit on the ground that the appellant defaulted to pay the full purchase 
money of the property. 
The ·trial court held that no dec~ee could be passed 
for enforcing the charge against the· property as it was held in occupancy right 
C 
by 
the 
appellant, 
but 
gave 
a 
personal 
decree 
against 
the -
appellant for a. ce·rtain sum. 
On the appellant's appeal the High Court held that 
the respondent was entitled to ·enforce the charge on the property but negatived 
the respondent's claim for a personal decree. 
On appeal to this Court, it was contended (1) that the Court was not com-
petent to pass a decree creating a charge on the property since it was held by the 
appdlant as an occupancy tenant and (2) that as the respondent did not appeal 
from. the decree of th.e trial court negativing her claim in the suit for a charge 
D 
on the property, the High Court was wrong in granting a decree for enforcement 
~ the ~H~ 
. 
Dismissing the appeal, 
HELD : 
(1) The High Court was right in holding that the prohibition to 
pass a decree for sale or for closure of any. right of an occupancy tenant in 
his holding was not in existen_ce in l 952 when the suit was filed, because, 
s. l 2 of the Central Provinces Tenancy Act, 1920, which contained the pro-
hibition, had been repealed before the decree was passed. [964 E-F] 
(2) Even if the respondent did not file any appeal from the decree of the 
trial court, that was no bar to the High Court passing a decree in favour of 
the respondent for the enforcement of the charge. 
Under Order XLI, r. 3 3 
of the Code of Civil Pro~edure, the High Court was competent to pass a decree 
for the enfmcement of the charge in favour of the respondent notwithstanding 
the fact that the respondent did not file any appeal from the decree. [964 G, 
965 El 
Radhi/,a Mohan v. Sudhir Chandra, A.LR. 1937 Calcutta 10 and Giani 
Ram & Others v. Ramji Lal and Others, [1969] 3 S.C.R. 944, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2354 of 1968 
From the judgment and order dated the 7th March, 1968 of the 
Madhya Pradesh High Court in First Appeal No. 24 of 1969. 
C. P. Lal for the appellant. 
S. T. Desai and D. N. Misra for the respondent. 
The Judgment of the Court was delivered by 
E 
F 
G 
MATHEW, J. 
One Deojibhai executed a sale deed on 30-12-1950 
in respect of the property in question in favour of the appellant for a 
sum of Rs. 12,000/-. No part of consideration was paid at the time of 
the execution of the sale deed. 
The appellant promised to pay the 
H 
amount by 21-5-1951 and covenanted that in case of non-payment, the 
amount due would be charge upon the property sold. 
After the ex-
ecution of the sale deed, the appellant was put into possession of the 
A 
B 
964 
SUPREME COURT REPORTS 
[1976] 2 s.c.R. 
property and he paid Rs. 3,1001- in three instalments. Deojibhai died 
in 1955 leaving his widow, the respondent,, and a son who died sub-
sequently leaving his widow Manibai. 
Manibai filed a suit in 1956 in 
the Bombay City Civil Court against Deokabai, the respondent, claim-
ing a share in the property left by her father-in-law, Deojibhai. 
This 
suit was compromised and Deokabai was appointed r·eceiver of the 
estate of Deojibhai with a direction by the Court to realise his assets 
and to pay a certain amount to Manibai. 
Deokabai, the respondent, 
filed the suit from which the appeal arises, on the basis that the appel-
lant defaulted to pay the full purchase money of the property and that 
she was entitled to the same with interest. 
The appellant contended that the charge could not be enforced 
against the property as it formed part of his occupancy holding and 
c 
that, besides the. sum of Rs. 3,.100/- he had made other payments 
totalling Rs. 9,500/-. 
The trial court found that no decree could be 
passed for enforcing the charge against the property as it was held in 
occupancy right by the appellant, but the court gave a personal decree 
against the appellant for Rs. 21,375/-. The appellant appea

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