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Chhotubhai Bhimbhai Vs. Bai Kashi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Reference No. 10 of 1939
Judge
Reported in(1941)43BOMLR733
AppellantChhotubhai Bhimbhai
RespondentBai Kashi
Excerpt:
civil procedure code (act v of 1908), order xlvi, rule 1--'not subject to appeal'--'any such decree'--interpretation--subordinate judge--reference to high court.;the words 'not subject to appeal' in order xlvi, rule 1, of the civil procedure code, 1908, mean that the law provides no appeal in any circumstances. they include a case in which it can be said that there might have been an appeal from the decree passed by the high court, although it was extremely unlikely that there should have been one.;the words 'any such decree' in the rule mean either (a) a decree in a suit where no appeal is provided against the decree, or (b) a decree in an appeal where no further appeal is provided.;oriental loan association, limited v. george pelham hatch (1892) i.l.r. 17 bom. 735, followed. - section..........which the wording was somewhat different and instead of 'decree not subject to appeal' the words 'final decree' occurred. a question had been referred to the high court by a judge of the consular court at zanzibar which arose in execution of a decree of a division court. it was argued that the matter ought not to have been referred on the ground that the decree was not final, because it was a decree of a division court against which there might be an appeal. this argument was accepted. it was held that no reference lay, the decree not being final. the reason for holding that the decree was not final was that there might have been an appeal against it. so in this case we think it can be said that as there might have been an appeal from the decree of this court, although it was extremely.....
Judgment:

Broomfield, J.

1. This purports to be a reference under Order XLVI, Rule 1 but in our opinion no reference lies.

2. The facts of the case briefly are as follows. A suit was filed in 1915 to obtain a share in a certain cash allowance payable at the Sub-Treasury of Jalalpur in the Surat District. The plaintiff got a decree for a sum of Rs. 9-14-0 against two defendants which amount he was held entitled to recover annually 'from generation to generation. Up to the year 1931 it appears that plaintiff recovered what was due, but from 1931 to, 1938 nothing was recovered because, as we were informed, the judgment-debtors died and the names of their legal representatives were not brought on the alienation register. In 1938 the plaintiff brought a darkhast to recover the arrears and made an application under, Order XXI, Rule 52, laying claim to Rs. 69 and odd out of a sum of Rs. 182 lying in the Sub-Treasury in the names of the judgment-debtors. Order XXI, Rule 52, provides that where property to be attached is in the custody of any Court or public officer, the attachment is to be made by a notice to such Court or officer, requesting that such property may be held subject to the further orders of the Court from which the notice is issued. A notice was issued to the Sub-Treasury officer to hold the amount subject to the orders of the Court and he was further directed to send the money, but on May 12, 1939, a communication was received from the Collector of the district stating that as the money had been unclaimed for six years it was liable to forfeiture. On May 29, he wrote again saying that it had actually been forfeited with the sanction of the Commissioner. Thereafter there were further proceedings in the darkhast. A notice was sent to the Collector who appeared by the Government Pleader and objected that the only procedure open to the Court was to sell the debt or appoint a receiver for the purpose of bringing a suit on the analogy of Order XXI, Rule 46. After hearing the matter argued the learned Judge felt a difficulty as to the correct procedure and referred the following point for the determination of this Court: Whether it is open to the executing Court under Order XXI, Rule 52, to question the refusal of a public officer to pay the amount attached by a prohibitory order under Order XXI, Rule 52, if the amount was due and payable on the date on which the prohibitory order was served.

3. The question submitted to this Court appears to assume that the amount was due and payable on the date on which the prohibitory order was served, which is by no means clear on the record before us. However, as we are of opinion that the reference does not lie we are not going into the merits of the case.

4. Order XLVI, Rule 1, is in the following terms:--Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may draw up a statement of the facts and refer such statement for the decision of the High Court. It should be mentioned that the decree which the plaintiff has now sought to execute is the decree of this High Court. There were first and second appeals against the original decree in plaintiff's favour by which that decree was confirmed. It is well settled that when there has been an appeal, which has been heard and decided, whether the decree of the Court of first instance is confirmed or not, the only decree which can be executed is the decree of the appellate Court. So that here we are concerned with the execution of a decree of this High Court passed in second appeal.

5. The learned Assistant Government Pleader who appears for Government on this reference has contended that there was no further appeal and therefore the case comes within the scope of Order XLVI, Rule 1, and the reference lies. On the other hand, the learned advocate for the plaintiffs contends that the decree of this Court was subject to appeal to the Privy Council, at any rate under Clause (c) of Section 109, and therefore the reference does not lie. The idea underlying the rule seems clearly to be to allow difficult points of law to be brought before the High Court in cases where that could not otherwise be done, e.g. where the original decree in a suit is final or where a matter has been decided in first appeal and no second appeal is provided. In execution proceedings one would have expected that the power to refer points would have been limited to cases where there is no appeal against the order of the executing Court. But that is not a possible construction of the rule. The power depends on whether the decree to be executed is subject to appeal or not.

6. Mr. Rao relied upon the fact that in the particular case no application was made to appeal to the Privy Council. But, whatever meaning is to be attached to the words 'not subject to appeal' in the rule, it seems at any rate clear that they cannot mean simply that no appeal has in fact been made. Having regard to the first sentence of the rule 'before or on the hearing of a suit or an appeal in which the decree is not subject to appeal', the words 'any such decree' in the clause with which we are concerned must mean either (a) a decree in a suit where no appeal is provided against the decree, or (b) a decree in an appeal where no further appeal is provided. As a matter of construction, apart from questions of convenience, it seems to be impossible to say that the appeal in {b) can be limited to first appeals in cases where no second appeal is provided. On the other hand, we take the view that the words 'not subject to appeal' must mean that the law provides no appeal in any circumstances. It is quite true that in a case of this kind it is exceedingly unlikely that an appeal to the Privy Council from the decree of this Court would have been made or that this Court would have certified the case to be a fit one for appeal under Section 109(c). At the same time that might have been done; there might have been an appeal, and, if in certain circumstances there might be a further appeal, it cannot be said that the decree is not subject to appeal.

7. As far as we are aware this particular point is one of first Impression. No case has been cited which really bears on the facts of the present case. In Oriental Loan Association, Limited v. George Pelham Hatch (1892) I.L.R. 17 Bom. 735. the Court was concerned with the construction of the corresponding rule in the Civil Procedure Code of 1882 in which the wording was somewhat different and instead of 'decree not subject to appeal' the words 'final decree' occurred. A question had been referred to the High Court by a Judge of the Consular Court at Zanzibar which arose in execution of a decree of a Division Court. It was argued that the matter ought not to have been referred on the ground that the decree was not final, because it was a decree of a Division Court against which there might be an appeal. This argument was accepted. It was held that no reference lay, the decree not being final. The reason for holding that the decree was not final was that there might have been an appeal against it. So in this case we think it can be said that as there might have been an appeal from the decree of this Court, although it was extremely unlikely that there should have been, nevertheless the decree was strictly speaking subject to appeal and no reference could therefore be made under the rule in question.

8. The learned Sub-Judge must therefore decide the question in dispute for himself and dispose of the application for execution. We make no other order on the reference except that the papers should be returned and costs will be costs in the cause.


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