Skip to content


Narsidas Nathubhai Vohra Vs. Manharsing Agarsing Thakor - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 26 of 1930
Judge
Reported in(1931)33BOMLR370
AppellantNarsidas Nathubhai Vohra
RespondentManharsing Agarsing Thakor
Excerpt:
.....of the court.; order xxi, rule 29, of the civil procedure code refers to the court in which a suit is pending against the holder of a decree of such court, and has no reference to the personality of the judge presiding over such court, where, therefore, there are two or more judges attached to a court, it would be sufficient if the suit is pending in any court against the holder of the decree of such court, and the fact that the execution proceedings are pending before the first class subordinate judge whereas the suit is pending before another judge attached to the court makes no difference. it is not necessary that the execution proceedings should be pending before the sumo judge in whose court the suit is pending.; the terms of order xxi, rule 29, indicate that the court in which..........execution of a particular darkhast. it may be that according to the proper construction of this rule execution of the decree should not be stayed without the imposition of terms of some kind, but in this case the execution of the decree has been stayed upon terms. the terms imposed by the court were that the plaintiff in the now suit should deposit month by month the sums accruing due under the pension agreement. the subordinate judge having stayed the execution of the decree upon terms that, in my opinion, is all the rule requires. thus in the view we take of the case no question of jurisdiction really arises at all. there bus been no irregularity in the exercise of jurisdiction, nor i think can it be said that there has been any irregularity at all, whether affecting jurisdiction or.....
Judgment:

Patkar, J.

1. This is a revisional application against the order of the lower Court declining to take action under Order XXXIX, Rules 1 and 2, and passing an order under Order XXI, Rule 29, of the Civil Procedure Code.

2. The applicant Narsidas Nathubhai Was the Karbhari of the talukdari estate of Gamph in the Dhandhuka Taluka in the Ahmedabad District. The opponent's father Agarsingji passed a document of pension dated January 6, 1915, in favour of the applicant with the approval of the Talukdari Settlement Officer by which a pension of Rs. 100 per month was agreed to be paid to him during his lifetime, and Rs. 50 per month to his heirs for one generation. On October 1, 1918, the applicant retired, or, as is stated on the other side, his services were dispensed with. The applicant received the amount of the pension up to May 81, 1921. The father of the opponent Thakor Agarsingji died on June 15, 1923, and was succeeded by his minor son the opponent Manharsingji. On October 7, 1925, the applicant brought a suit, No. 1232 of 1925, in the Court of the First Class Subordinate Judge at Ahmedabad against the Talukdari Settlement Officer as guardian of the present opponent to recover Rs. 5, 800 as arrears of pension and for a declaration that he was entitled to recover Rs. 100 per month till his death and his heirs Rs. 50 per month for one generation. The amount claimed in the suit was for fifty-two months from June 1, 1921, to September 30, 1925. The applicant obtained a decree. No appeal was filed against the decree, and on June 30, 1927, the applicant filed darkhast No. 525 of 1827 for Rs. 7, 000. On October 16, 1927, the present opponent attained majority and the estate was handed over to him. The opponent on November 7, 1928, brought suit No. 1453 of 1928 for setting aside the decree in suit No. 1232 of 1925 in the First Class Subordinate Judge's Court at Ahmedabad That suit came on for trial before the Joint First Class Subordinate Judge at Ahmedabad, Mr. Yajnik, The execution proceedings referred to above were pending in the Court of the First Class Subordinate Judge, Mr. Jhaveri. On November 8, 1928, the opponent made an application for an interim injunction under Order XXXIX, Rules 1 and 2, and also prayed for any other order which Court might deem fit to pass under the circumstances.

3. On October 21, 1929, the learned Joint First Class Subordinate Judge, Mr. Yajnik, passed a final order under Order XXI, Rule 29, staying the execution of the decree till the suit filed by the opponent was finally decided. The learned Judge held that the application for injunction was not maintainable under Order XXXIX, Rules 1 and 2, and did not think it proper to pass any order under Section 151 of the Civil Procedure Code, but thought that an order under Order XXI, Rule 29, would meet the ends of justice in the present case, and passed an order staying the execution of the decree till the final decision of the suit. This application has been filed to revise the order of Mr. Yajnik passed under Order XXI, Rule 29.

4. The only questions arising in the present application are whether the Joint First Class Subordinate Judge, Mr. Yajnik, had jurisdiction to pass an order under Order XXI, Rule 29, and whether he acted illegally or with material irregularity in the exercise of his jurisdiction. It is urged on behalf of the applicant that the Joint First Class Subordinate Judge, Mr. Yajnik, had no jurisdiction to pass an order under Order XXI, Rule 29, as the execution proceedings were not pending before him but were pending before the First Class Subordinate Judge, Mr. Jhaveri Order XXI, Rule 29, refers to the Court in which a suit is pending against the holder of a decree of such Court, and has no reference to the personality of the Judge presiding over such Court. There is no distinction made in that Rule between the Judge presiding over the Court and the Court as provided for in Order XLVII, Rule 5, of the Civil Procedure Code. Ordinarily when there is a single Judge attached to a Court, no difficulty arises When there are two or more Judges attached to a Court, it would be sufficient if the suit is pending in any Court against the holder of the decree of such Court, and the fact that the execution proceedings were pending before the First Class Subordinate Judge whereas the suit was pending in the Court of the Joint First Class Subordinate Judge would make no difference. Under Rule 29 of Order XXI, where a suit is pending in any Court against the holder of a decree of such Court, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. The present suit was pending in the Court of the First Class Subordinate Judge though it was presided over by Mr. Yajnik, and that suit was against the holder of a decree of such Court, that is, the First Class Subordinate Judge's Court, though the execution proceedings may have been pending before another Judge of the same Court. We think, therefore, that the Joint First Class Subordinate Judge, in whose Court the suit is pending, had jurisdiction to pass the order under Order XXI, Rule 29. It is not necessary that the execution proceedings should be pending before the same Judge in whose Court the suit is pending. If the execution of a decree is transferred for execution to another Court and a suit is brought in the Court in which the execution proceedings were first started against the holder of a decree of that Court, the Court in which the suit is brought would have jurisdiction to pass an order under Order XXI, Rule 29, though the execution proceedings may be actually pending before another Judge to whom the execution proceedings may have been transferred by the Court. It is not, therefore, necessary, in our opinion, that the execution proceedings must be pending before the same Judge before whom the suit is pending. It is sufficient if the suit is pending in any Court against the holder of a decree of such Court. The Joint First Class Subordinate Judge, Mr. Yajnik had, therefore, jurisdiction to pass an order under Order XXI, Rule 29.

5. It is next urged on behalf of the applicant that the application ought to have been made not to the Court in which the suit is pending, but ought to have been made to the Court in which the execution proceedings are pending, and reliance has been placed on the decisions in the cases of O. Steel & Co. v. Ichchamoyi Chowdhrain ILR (1886) Cal. 111, Lingum Krishnabhupati Devu v. Kandula Sivaramayya ILR (1896) Mad. 366, and Mahesh Chandra Sadhu v. Jogendra Lal Sarkar ILR (1927) Cal. 512, Though in the first two cases cited on behalf of the applicant an application was made to the Court in execution and it was held that an appeal lay against the order granting stay under Section 243, corresponding to Order XXI, Rule 29, the present point was not considered in those cases. It was recently held in the case of Janardan v. Martand : AIR1921Bom208 that the word 'stay ' occurring in Section 244 of the old Civil Procedure Code having been omitted in the present Section 47 of the Civil Procedure Code, an order passed under Order XXI, Rule 29, was an order which did not fall under Section 47 of the Civil Procedure Code, and was not a decree under Section 2 of the Civil Procedure Code, and therefore, an appeal would not lie. On the other hand, in the case of Tribhuwandas Kalliandas Gajjar v. Jivanchand ILR (1910) 35 Bom. 196, 12 Bom. L.R. 860 an application under Order XXI, Rule 29, was made to the Court in which the suit was pending but the point was not raised and decided, and the only decision in the case turned upon the question whether an award under the Indian Arbitration Act was a decree. The terms of Order XXI, Rule 29, indicate that the Court in which a suit is pending is the Court which has jurisdiction to pass an order under Order XXI, Rule 29. There is no indication in the Rule that the application must be made to the Court in the execution proceedings. On the other hand, the wording of the rule is quite clear that the Court in which a suit is pending has jurisdiction to pass an order under that rule. We think, therefore, that the Joint First Class Subordinate Judge, Mr. Yajnik, had jurisdiction to pass the order under Order XXI, Rule 29.

6. Next it is urged that in passing the order Mr. Yajnik, the Joint First Class Subordinate Judge, acted illegally or with material irregularity in not demanding security for the whole amount of Rs. 7, 000 covered by darkhast No. 525 of 1927. It is urged that the words 'either absolutely or on such terms as it thinks fit', occurring in the corresponding section of the old Code, have been changed in the present rule. The phraseology of Order XXI, Rule 29, would indicate that it is not necessary that the Court should pass an order for security for the whole amount of Rs. 7, 000. The wording of Order XXI, Rule 29, is that the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pendig suit has been decided. We think that the Court had ample discretion in passing an order as to the terms on which the execution of the decree could be stayed until the pending suit had been decided. In the present case the learned Subordinate Judge did not consider that he had no jurisdiction to take security as to the whole amount of Rs. 7, 000, but observed as follows:--

The words 'on such terms as to security or otherwise, as it thinks fit' in the said rule are sufficient in themselves to show that the taking of the security is not a condition precedent to the granting of a stay order and that the Court need not take security if it thinks fit not to do so in the circumstances of the case.

7. We think, therefore, that the learned Subordinate Judge exercised his discretion in the imposition of the terms on which the execution of the decree was stayed, and one of the grounds suggested on behalf of the opponent in support of the order of the lower Court, is that the amount of the pension is made a charge on, two properties belonging to the opponent. That in itself can be considered a sufficient reason for not exercising the discretion in demanding security as to the whole amount of Rs. 7, 000 in the present case. One of the terms imposed by the learned Judge in desiring to maintain the status quo was that future payments should be made by the opponent every month in Court. We do not think, in view of the circumstances of this case, that there was any conscious or willful disregard of any section of the Code, and, therefore, it cannot be said that the lower Court had acted illegally or with material irregularity in the exercise of its discretion.

8. On these grounds we think that this application must be dismissed with costs.

9. We desire to add that suit No. 1453 of 1928 brought by the present Thakor for setting aside the previous decree should be disposed of with all possible despatch.

Broomfield, J.

10. This is an application for revision of the order of the Joint First Class Subordinate Judge, Ahmedabad, staying execution of the decree in suit No. 1232 of 1925 under Order XXI, Rule 29. Suit No. 1232 of 1925 was filed by the present applicant Narsidas to recover arrears of his pension as Karbhari of the Gamph estate on the strength of an agreement made by the late talukdar. A decree against the present talukdar, then a minor, was passed on November 1, 1926. A suit, No. 1453 of 1928, has been filed by the present talukdar to set aside that decree, and stay of execution of that decree has been granted on an application made by the present talukdar as the plaintiff in suit No. 1453.

11. The date of the Joint Subordinate Judge's order staying execution is October 21, 1929.

12. The first point taken by Mr. Divatia, on behalf of the applicant, was that the application having been made under Order XXXIX for an injunction, it was not legal for the Subordinate Judge in dealing with that application to make an order under Order XXI, Rule 29. It appears to me, however, that the application, which did not specify any particular order or rule, was wide enough to cover an order for stay under Order XXI, Rule 29. The application ended with these words:--

The Court will be pleased to issue injunction order in the darkhast matter and write a yadi for staying the proceedings of this darkhast and pass any other order the Honorable Court deems proper in this case.

13. It is admitted that the order passed by the Joint Subordinate Judge was passed under Order XXI, Rule 29. I can see nothing illegal in that.

14. The second point taken by Mr. Divatia arises from the fact that the Court of the First Class Subordinate Judge, Ahmedabad, has two Judges, the First Class Subordinate Judge and the Joint Judge. It so happened that at the material time the execution proceedings in connection with the decree obtained by Narsidas were pending before the First Class Subordinate Judge himself, whereas the Joint Judge was in charge of the suit filed by the minor talukdar. Mr. Divatia has quoted a number of cases, O. Steel & Co. v. Ichchamoyi Chowdhrain IRL (1886) Cal. 111, Lingum Krishnabhupati Devu v. Kandula Sivaramayya ILR (1896) Mad. 366 and others, in which the application for stay happened to be or was treated as an application in execution proceedings. The argument is that these cases and also the position of Rule 29 in the Code show that the order contemplated is an order in execution proceedings and not an order in the suit, whereas in the present case it is contended that the application was not made in the execution proceedings but in the suit, i.e., the second suit filed by the talukdar. The particular point, however, did not arise in the cases cited before us. Mr. Divatia's contention would really require us to imply a proviso or exception to the rule in question : 'Provided that where a Court consists of two or more Judges, the application under this rule shall be made to the Judge before whom the execution proceedings are pending'. In my opinion, there is no necessity to imply any such proviso, nor indeed can I see any good reason why it should be done. It-was urged before us that the Judge in charge of the execution proceedings is in a batter position to decide whether those proceedings should be stayed. There can be very little in it either way. The Judges are Judges of the same Court and information in the possession of either could, no doubt, be readily made available to the other; but it would seem that generally speaking the Judge in charge of the suit would be in a better position to say whether execution of the previous decree should be stayed in consequence of it than the Judge who is merely concerned with carrying out the execution. As my learned brother has pointed out, the wording of the rule is clearly against Mr. Divatia's argument, because it provides that the application is to be made to the Court in which the suit is pending. I may also say that if it is necessary that the order in question should be regarded as an order made in execution proceedings, I can see no good reason why the order here made should not be so regarded. It may be an order made in execution although it is not an order coming under Section 47, as held by this Court in Janardan v. Martand : AIR1921Bom208 . For these reasons I hold that the Joint Subordinate Judge had jurisdiction to make the order in question.

15. Mr. Divatia next contended that the Subordinate Judge was bound to consider whether a prima facie case had been made out for the grant of stay, that he had not so considered and that he had granted the stay of execution simply because another suit had been filed, as if it necessarily followed from that circumstance that the parties should be kept in statu quo. That, however, appears to me to be a misrepresentation of the order of the learned Subordinate Judge. He says : ' On a careful consideration of the facts of the case, 1 am of opinion that the ends of justice will under the circumstances be met by keeping the parties in statu quo, ' and I think it is evident from a perusal of the order as a whole that the Subordinate Judge stayed execution not because he considered that he was bound to do so, but because in the view which he took of the circumstances, he thought that it was the most equitable thing to do,

16. It was also contended that the order made is not in accordance with the provisions of Order XXI, Rule 29. The corresponding section of the Code of 1882, Section 243, allowed the Court to stay execution either ' absolutely ' or on terms. In the present rule the words are ' the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution....Under the present rule, Mr. Divatia contends, it is essential that terms of some kind should be imposed, and he urges that with regard to the particular darkhast No. 525 no terms have been imposed at all. But the order contemplated by this rule is an order staying execution of the decree and not an order staying execution of a particular darkhast. It may be that according to the proper construction of this rule execution of the decree should not be stayed without the imposition of terms of some kind, but in this case the execution of the decree has been stayed upon terms. The terms imposed by the Court were that the plaintiff in the now suit should deposit month by month the sums accruing due under the pension agreement. The Subordinate Judge having stayed the execution of the decree upon terms that, in my opinion, is all the rule requires. Thus in the view we take of the case no question of jurisdiction really arises at all. There bus been no irregularity in the exercise of jurisdiction, nor I think can it be said that there has been any irregularity at all, whether affecting jurisdiction or otherwise. The nature of the terms to be imposed by the Subordinate Judge in his order staying execution of the decree was a matter within his discretion. It is arguable perhaps that the terms as to security might have been made stricter in view of the fact that no appeal had been filed against the decree obtained by Narsidas, but whether that be so or not, it is not a matter which will justify this Court in interfering in revision. The ultimate security appears to be sufficient, and the order made by the Subordinate Judge for the deposit of money in Court from time to time seems to be calculated to ensure that the suit filed by the talukdar will be disposed of as speedily as possible.

17. I agree with the order proposed by my learned brother.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //