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Hirji Jina Vs. Naran Mulji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in1Ind.Cas.1
AppellantHirji Jina
RespondentNaran Mulji and ors.
Excerpt:
account - apportionment--decree construction--amendment of decree--clerical error--practice. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of..........the portion of the decree set out above, proceeded.) we do not perceive upon what principle the account decreed could properly have been limited to six years as it was. however, we are not now re-hearing the cause or reviewing the decree, and, taking it with that limit, we have only to say what is the true construction of that portion of the decree as to credits which i have now read. it is contended on behalf of the defendants that moneys which, assuming the defendants to have been silent at the time of payment as to appropriation, would by law have been appropriated to the satisfaction of the earlier claims of the plaintiff, ought, notwithstanding the general rule of law, under the special language of the decree in this particular case, to be applied in satisfaction of the latter.....
Judgment:

Michael Westropp, C.J.

1. It seems to us that in this case the Commissioner took the right view of the decree, the important part of which is that which directs the taking' of the account. (His Lordship, after reading the portion of the decree set out above, proceeded.) We do not perceive upon what principle the account decreed could properly have been limited to six years as it was. However, we are not now re-hearing the cause or reviewing the decree, and, taking it with that limit, we have only to say what is the true construction of that portion of the decree as to credits which I have now read. It is contended on behalf of the defendants that moneys which, assuming the defendants to have been silent at the time of payment as to appropriation, would by law have been appropriated to the satisfaction of the earlier claims of the plaintiff, ought, notwithstanding the general rule of law, under the special language of the decree in this particular case, to be applied in satisfaction of the latter items in the account, those namely, which are comprised within the last six years only of the account. That is, although it is a running account of mutual dealings between the plaintiff and the defendants, the defendants claim to be justified by the terms of the decree in drawing a line across the account, and saying to the plaintiff 'you are not to go behind that line to show any claim against us, but we are entitled to bring from behind that line payments made by us, and apply them in reduction of your claim on this side.' But we are of opinion that, unless the language of the decree is so explicit as to admit of no doubt whatever on this point, we should not be justified in putting on the decree a construction so contrary to settled law, and to the justice of the case. If a hard and fast line is to be drawn across the account, excluding items of the plaintiff's claim previous to a given date, the defendant is only entitled to credit for sums paid in respect of the items of the plaintiff's claim on or subsequently to that date. It may be that the learned Judge is now of opinion that a certain construction ought to be put on his decree, yet, if we think that construction wrong,' and the words admit of another, which we think right, we should not be justified in not putting the latter construction on them. Looking then at the decree, we are of opinion that the words 'entitled to credit' mean properly entitled, after taking into account all debits. The defendants could not properly be allowed credit for payments in respect of one set of items when the law would appropriate those very payments to an entirely different set of items. That is, payments properly applied by the law to earlier debits are not (in the absence of an express appropriation by the party making those payments) to be applied to later debits, and so leave the earlier unsatisfied. The failure of the plaintiff to prove the alleged adjustment in 1868 does not in the slightest degree affect the present question. We think in this case the defendant is, under the decree, only entitled to credit for such items as ho would, by the ordinary custom of merchants in taking accounts, and by the ordinary rule of law, be entitled to claim. The order of 19th December 1874 must therefore be reversed, but there being some vagueness in the decree, and the learned Judge in the Court below having been with the defendants on the construction to be put on it, we think the parties ought to bear their own costs, both of the argument in the Division Court on the Commissioner's certificate, and of this appeal. The appellant, however, must have his costs of the former argument before us on the question whether an appeal lay from the order now reversed 12 Born. H.C. Rep,

Sargent, J.

2. I concur that this order must be reversed. I confess I have felt some difficulty in putting on the decree a construction different to that which the Judge making the decree had himself put on it. On consideration, however, I think the plaintiff may contend that whatever the intention of the learned Judge may have been in making the decree, that intention has not been so clearly expressed as to preclude that construction which can alone do justice between the parties. Under the circumstances, therefore, I think the plaintiff is entitled to insist on the appropriation of these payments in the manner for which he contends.


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