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GhazidIn Vs. Fakir Bakhsh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All73
AppellantGhazidin
RespondentFakir Bakhsh
Excerpt:
.....for execution. it is hardly necessary to add that the ratio decidendi of these two rulings is equally applicable to a case like the present, wherein the orders under appeal purport to have been made under section 545 of the code. the provisions of section 243 of the civil procedure code are limited to staying execution of decrees, and they have no reference to a case like the present, in which execution had already been carried out, and the decree-holder placed in possession of the property decreed to him. the same principle would apply to the case of a money-decree which had already been satisfied in execution......pleader for the respondent fails, so far as it aims at drawing a generic distinction between orders staying execution passed by the court which passed the decree and similar orders passed by the court to which the decree is sent for execution. nor do we think that the second part of the learned pleader's argument is sound. it is true that the object of an order staying execution is to suspend execution, but this circumstance is far from showing that such an order is not a question 'relating to the execution' of the decree within the meaning of section 244(c)of the civil procedure code. if the argument were sound, d fortiori would the proposition be true that an order dismissing an application for execution as barred by limitation is a matter not 'relating to the execution of the.....
Judgment:

Mahmood, J.

1. We have not yet entered upon a consideration of the pleas, as a preliminary objection to our entertaining the appeal has been taken by the learned pleader for the respondent. His contention in substance is that the orders of the 4th and 18th March having been passed in advertence to the second paragraph of Section 545 of the Code, and not being orders in execution, but in stay of execution of the decree, were not within Section 244, and not being specially appealable under Section 588 are not appealable at all. And it is further urged by him that an application to stay execution is in terms a prohibition to the applicability of Section 244, and, it is said, how can such an application involve any question 'relating to the execution' of the decree within the meaning of Clause (c) of that section, when its very object is to suspend execution

2. We have taken time to consider the contention, which at first sight seemed somewhat plausible, but, on consideration, we think its force is more apparent than real. It seems to us that the argument rests upon an erroneous construction of the expression 'Court which passed the decree' in Section 545 of the Code, and a too limited view of the scope of Section 244.

3. The chapter on execution of decrees in the Civil Procedure Code begins with Section 223, the first paragraph of which lays down the general rule that 'a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution;' and Section 228 lays down that' the Court executing a decree sent to it under this chapter shall have the same powers in executing such decree as if it had been passed by itself.' It is clear from these provisions that the functions of ' the Court executing a decree' may be discharged either by the Court which passed it or by the Court to which the decree has been transferred for execution; and, in order to prescribe the scope of those functions, Section 244 defines the questions to be 'determined by order of the Court executing a decree, and not by a separate suit.' The provisions of the section are general, and they certainly do not aim at drawing a distinction between 'the Court which passed the decree' and 'the Court executing it,' for both qualifications may be possessed by the same Court.

4. The subject of staying execution of decree is dealt with in the Code in two separate places; but this circumstance does not involve the soundness of the proposition relied upon by the learned pleader for the respondent, that an order staying execution does not fall within the purview of the general Section 244, which as we have shown, governs equally the procedure of the Court which passed the decree, when executing such decree, and the Court to which the decree is sent for execution. In connection with this subject, Sections 239, 240, 242 and 243 must be read with Sections 545 and 546, and indeed they might perhaps have more properly appeared together and in the same part of the Code. The use of the phrase 'Court which passed the decree' in Section 545 does not of itself necessarily exclude the Court executing the decree, for it may itself be such Court; but it does exclude the Court to which execution of a decree has been transferred, for that Court is not the Court which passed the decree. In other words it does not follow as a necessary consequence from the application under the second paragraph of Section 545 for stay of execution, having to be made to the 'Court which passed the decree,' that such application must be something other than a matter relating to the execution' within the meaning of Section 244(c). And this construction is supported by the fact that Section 239 of the Code provides for cases in which, though a decree has entered upon the stage of execution, after its transfer to another Court, the Court that passed it, and such Court, has still power to order stay of execution, or to make any order relating to the decree or execution, which might have been made by itself if it had issued execution, or if application for execution had been made to it; and any order it may pass 'in relation to the execution of such decree' shall be binding on the Court to which the decree was sent for execution (Section 242). To put the matter briefly, it may be said that the transfer of a decree to another Court for execution, amounts to a qualified delegation of the powers possessed by the Court that passed the decree, in discharging its functions relating to the execution of that decree. Such delegation is, however, not complete, nor does it entirely divest the Court which transfers the decree of its powers and functions 'in relation to the execution of such decree,' for under Sections 239 and 242, the higher authority in some matters still rests with that Court, notwithstanding the transfer. Indeed a comparison of the various sections shows that the powers as to stay of execution conferred by Sections 545 and 546 upon the Court which passed the decree are analogous to similar powers conferred by Sections 239 and 240 upon the Court to which the decree is sent for execution, both such Courts having in common the qualification of being 'the Court executing a decree,' within the meaning of Section 244. The powers are similar in kind, though different in minor details. Indeed, so strong is the analogy, that the provisions of Section 243, which relate to stay of execution pending suit between the decree-holder and the judgment-debtor, would seem to be common both to the Court which passed the decree and the Court to which it is sent for execution. Such was the ruling of this Court in the case of Cooke v. Hiseeba Beebee N.W.P.H.C. Rep. 1874 p. 181.

5. For these reasons, the argument of the learned pleader for the respondent fails, so far as it aims at drawing a generic distinction between orders staying execution passed by the Court which passed the decree and similar orders passed by the Court to which the decree is sent for execution. Nor do we think that the second part of the learned pleader's argument is sound. It is true that the object of an order staying execution is to suspend execution, but this circumstance is far from showing that such an order is not a question 'relating to the execution' of the decree within the meaning of Section 244(c)of the Civil Procedure Code. If the argument were sound, d fortiori would the proposition be true that an order dismissing an application for execution as barred by limitation is a matter not 'relating to the execution of the decree,' for whilst, in the one case, execution of the decree is temporarily suspended, in the other it is absolutely prohibited; and, whilst the learned pleader does not go to the extent of contending that the latter proposition is tenable, his argument falls short of explaining the anomaly which the logical consequence of his reasoning involves.

6. We have, therefore, no hesitation in holding that all orders staying execution of decrees, whether passed by the Court which passed the decree, or by the Court to which it is sent for execution, are 'questions arising between the parties to the suit in which the decree was passed, and relating to the execution' thereof, within the meaning of Section 244(c), and, as such, appealable, irrespective of the provisions of Section 588 of the Civil Procedure Code. Such was the view taken by the Calcutta High Court in Kristomohiny Dossee v. Bama Churn Nag Choudhry I.L.R. 7 Cal. 733 in connection with an order staying execution under Section 243; and again in Luchmeeput Singh v. Sita Nath Doss I.L.R. 8 Cal. 477 which was an appeal from an order made by the Court which passed the decree, and in which the execution was pending, requiring the decree-holder to give security under the provisions of Section 546 of the Civil Procedure Code. It is hardly necessary to add that the ratio decidendi of these two rulings is equally applicable to a case like the present, wherein the orders under appeal purport to have been made under Section 545 of the Code.

7. We are of opinion that the widest meaning should be attached to Clause (c) of Section 244, so as to enable the Court of First Instance and the Court of Appeal to adjudicate upon all kinds of questions arising between the parties to a decree, and relating to its execution. And as a result of this view, we shall hear these cases on the merits of the pleas urged in appeal.

8. The Court, after hearing the cases, was of opinion that the pleas urged in appeal must prevail, and continued as follows:

It appears that before the order of the 4th March 1884 was passed, the order of the Subordinate Judge, dated the 22nd of February 1884, had already been carried out by the Amin, and possession of the decreed property had already been delivered to the decree-holder-appellant. The decree had, therefore, been already executed, and the order of the Subordinate Judge, dated the 18th March 1884, directing that the judgment-debtor be restored to possession, was therefore illegal. There is no provision in the law which empowers the Court passing the decree to set aside the proceedings under which the decree-holder has already been placed in possession in execution of the decree. The provisions of Section 243 of the Civil Procedure Code are limited to staying execution of decrees, and they have no reference to a case like the present, in which execution had already been carried out, and the decree-holder placed in possession of the property decreed to him. The same principle would apply to the case of a money-decree which had already been satisfied in execution. Indeed, an order such as the order of the 18th March in this case cannot be described as an order staying execution of a decree, for the execution had already taken place.

9. Upon the application of the decree-holder-appellant this Court, by its order of the 20th March 1884, stayed the Subordinate Judge's order of the 18th March, and the decree-holder is therefore still in possession, and the decree under which he obtained possession is the subject of an appeal which is now pending in this Court.

10. Under the circumstances of this case, we decree both the appeals, and set aside the lower Court's orders, dated the 4th and 18th March 1884, costs in both the Courts to be paid by the judgment-debtor-respondent.


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