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Janki Vs. the Collector of Allahabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All64
AppellantJanki
RespondentThe Collector of Allahabad
Excerpt:
.....paramount claim on the sum decreed to chedi by reason of his partial success in his suit against musammat janki, and that no step in execution having been taken by chedi to realize this debt from janki, and consequently no counterclaim against the same on the part of janki having come into existence in the modes contemplated in sections 246 and 247 of the civil procedure code, and the government being in these proceedings not the representative of chedi, the decree-holder, but an independent party holding a decretal order apart from, and even adverse to, the said chedi, this first claim must be allowed, and could not be defeated by the cross-claim of musammat janki under the decree in suit no. it was argued for the appellant that the 'subject-matter of the suit' (section 411) means the..........of sections 246 and 247 between those two persons.3. it also seems to us to be clear that when chedi, claiming to recover by his pauper suit rs. 60,000 from musammat janki, alleged to be wrongfully kept from him by her, gained a decree against her for rs. 1,439-2-6 of that money, he is a plaintiff in the sense of section 411, civil procedure code, who has succeeded in respect of part of the 'subject-matter' of that suit, and on that part, therefore, a first charge is by the law reserved and secured to the government-respondent, which is justified in recovering it in these proceedings, under the circumstances of this case mentioned above, from musammat janki, who was ordered by the decree to pay it, in the same way as costs are ordinarily recoverable under the code. holding, then,.....
Judgment:

Brodhurst and Tyrrell, JJ.

1. A preliminary objection was taken to the hearing of this appeal by the learned pleader for the respondent, on the ground that the case does not come within the provisions of Clause (c) of Section 244 of the Civil Procedure Code, and therefore no appeal lies under that section, none also being allowed under Section 588 id. We held that, having regard to Section 411 of the Code, the respondent may be deemed to have been a party to the suit in the sense of Section 244 supra. We therefore entertained the appeal. The facts of the case are fully and correctly given by the Subordinate Judge, whose order is under appeal before us. Briefly stated, the case stands thus: In suit No. 359 the Subordinate Judge of Allahabad practically made three decretal awards; (a) he decreed to the plaintiff Chedi Rs. 1,439-2-6 with costs thereon against the defendant Musammat Janki, now appellant here; (b) he decreed to the same defendant her costs on the large portion of Chedi's claim which stood dismissed; and (c) he awarded to the Government--respondent here--Rs. 1,225-8-0, costs in the sense of Section 411 of the Civil Procedure Code, of which Rs. 1,196 were payable by Chedi and Rs. 29-6-6 by Musammat Janki. The latter has paid this claim. No application for execution was made by Chedi on the one hand, or by Musammat Janki on the other.

2. But on the 11th April 1885, the Government applied for and obtained attachment of Chedi's claim against Musammat Janki for Rs. 1,439-2-6, and an order was served on Musammat Janki forbidding her to pay to Chedi, and on him restraining him from recovering from Musammat Janki, the decretal amount just mentioned. Musammat Janki objected to this order, but her objection was disallowed. The Subordinate Judge ruled that the Government had a first and paramount claim on the sum decreed to Chedi by reason of his partial success in his suit against Musammat Janki, and that no step in execution having been taken by Chedi to realize this debt from Janki, and consequently no counterclaim against the same on the part of Janki having come into existence in the modes contemplated in Sections 246 and 247 of the Civil Procedure Code, and the Government being in these proceedings not the representative of Chedi, the decree-holder, but an independent party holding a decretal order apart from, and even adverse to, the said Chedi, this first claim must be allowed, and could not be defeated by the cross-claim of Musammat Janki under the decree in suit No. 359, or in her cross-suit against Chedi No. 445. We think that this decision was right. It was argued for the appellant that the 'subject-matter of the suit' (Section 411) means the sum which the successful pauper-plaintiff is entitled to get and can obtain as a result of his success in his suit; but that in the suit No. 359 and in the cross-suit between the same parties, No. 445, decreed together by the same Court, Chedi ultimately stands to lose a small sum, Musammat Janki being, on the combined results of the two suits, the holder of the larger sum awarded altogether. Now, whatever force there might be in this contention, if execution had been initiated or taken out by Chedi or by Musammat Janki, or by both of them, we think that it has none in the state of affairs presented in these proceedings. For it cannot be conceded that the Government has been trying to execute Chedi's decree, or is a representative of Chedi as holder of this decretal order that Musammat Janki should pay him Rs. 1,439-2-6, in such a sense or mode as to bring into operation the special rules of Sections 246 and 247 between those two persons.

3. It also seems to us to be clear that when Chedi, claiming to recover by his pauper suit Rs. 60,000 from Musammat Janki, alleged to be wrongfully kept from him by her, gained a decree against her for Rs. 1,439-2-6 of that money, he is a plaintiff in the sense of Section 411, Civil Procedure Code, who has succeeded in respect of part of the 'subject-matter' of that suit, and on that part, therefore, a first charge is by the law reserved and secured to the Government-respondent, which is justified in recovering it in these proceedings, under the circumstances of this case mentioned above, from Musammat Janki, who was ordered by the decree to pay it, in the same way as costs are ordinarily recoverable under the Code. Holding, then, that the decrees in the cases Nos. 359 and 445 had not reached a stage in which the provisions of Sections 246 and 247 would come into play, we are of opinion that no questions of set-off and consequent reduction or other modification of the 'subject-matter' of the suit decreed against Musammat Janki as payable by her to Chedi have arisen or can be entertained. Therefore the pleas of this appeal are irrelevant to the case, and we dismiss the appeal with costs.


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