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Gopi Vs. Kassa Mal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All389
AppellantGopi
RespondentKassa Mal
Excerpt:
.....pending suit between decree-holder and judgment-debtor--appeal from order staying execution--civil procedure code, section 243--'such court'--civil procedure code, sections 235 (d), 381, 583. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals..........subordinate judge of the 25th january 1887, was passed under section 243 of the civil procedure code, no appeal lay to the learned judge of the lower appellate court [391] and in support of this contention he relies upon a ruling of a division bench of the calcutta high court in nehal chand v. rameshari dassee i. l. r., 9 cal., 214, in which it was held that in a case such as this no appeal would lie, because the order passed under section 243, civil procedure code, was not such an order as would fall within the purview of clause (c), section 244 of the code, so as to render it appealable as a 'decree' within the meaning of the definition of the word in section 2 of the code.5. the ruling is no doubt in favour of the learned pleader's contention, but in a judgment of my own in the.....
Judgment:

Mahmood, J.

1. The facts necessary for the disposal of this appeal are the following: A suit was instituted by Musammat Gopi, plaintiff-respondent, judgment-debtor, for recovery of money and other reliefs of a cognate character to which I need not refer. The suit was finally dismissed in appeal by this Court on the 27th November 1886, by which decree a sum of about Rs. 1,000 was found due by the said Musammat Gopi to Kassa Mai, the decree-holder, appellant, before me.

2. Thereupon, it is admitted before me by Pandit Sundar Lal on the one hand and Mr. Kashi Prasad on the other, that a suit was instituted by the aforesaid Musammat Gopi against the aforesaid Kassa Mai in the Court of the Subordinate Judge of Farukhabad, and during the pendency of the suit an application was made by the decree-holder, Kassa Mal, on the 4th January 1887, for the recovery of the above-mentioned item of Bs. 1,000 costs of the formar litigation. Thereupon, Musammat Gopi, by her application of the 25th January 1887, applied under Section 243 of the Civil Procedure Code for stay of execution of the decree, but the application was rejected by the Court in which the second suit was pending, namely, the Court of First Instance, on the 25th January 1887, that is, the same day as the one upon which the application was made.

3. From this order Musammat Gopi preferred an appeal to the learned Judge of the Lower Appellate Court, and, by his order of the 16th April 1887, he held that, under the circumstances of the case, the execution of the decree of the 27th November 1886, should have been stayed pending the decision of the new suit.

4. From that order, this second appeal has been preferred, and in supporting it Pandit Sundar Lal has argued, in the first place, that inasmuch as the order of the Subordinate Judge of the 25th January 1887, was passed under Section 243 of the Civil Procedure Code, no appeal lay to the learned Judge of the Lower Appellate Court [391] and in support of this contention he relies upon a ruling of a Division Bench of the Calcutta High Court in Nehal Chand v. Rameshari Dassee I. L. R., 9 Cal., 214, in which it was held that in a case such as this no appeal would lie, because the order passed under Section 243, Civil Procedure Code, was not such an order as would fall within the purview of Clause (c), Section 244 of the Code, so as to render it appealable as a 'decree' within the meaning of the definition of the word in Section 2 of the Code.

5. The ruling is no doubt in favour of the learned pleader's contention, but in a judgment of my own in the case of Ghazidin v. Fakir Bakhsh I. L. R., 7 All., 73, I, with the concurrence of my brother Straight, held an opposite view of the law; and that view, I find, was adopted by another Division Bench of the Calcutta Court itself in O. Steel & Go. v. Ichhamoyi Ghowdhrain I. L. R., 13 Cal., Ill, in which the view laid down in the case of Nehal Chand v. Rameshari Dassee I. L. R., 9 Cal., 214, was repudiated. I still adhere to the views which I expressed in the case of Ghazidin v. Fakir Bakhsh I. L. R., 7 All., 73, and I have no doubt that an appeal did lie to the Lower Appellate Court.

6. And holding this view, I need not deal with the contention pressed upon me by Mr. Kashi Prasad, on behalf of the respondent, that if an appeal did not lie to the Lower Appellate Court, this appeal would, a fortiori, not lie, and the only possible remedy for the appellant, in that event, would have been, perhaps, an application under Section 622 of the Civil Procedure Code for revision.

7. The next point which has been argued before me at considerable length by Pandit Sundar Lal on behalf of the appellant, is that the words 'such Court' as they occur in Section 243, Civil Procedure Code, limit the exercise of the powers contemplated by that section to decrees passed by the Court in which the suit is pending; and upon this ground the learned pleader goes further and contends that the decree sought to be executed, namely, the decree of the 27th November 1886, being a decree passed in appeal by the High Court, the Court of First Instance, even as a Court executing this Court's appellate decree, could not apply the provisions of Section 243 to such a case. The reason of the contention put before me by the learned pleader is that a Full Bench of this Court in Shohrut Singh v. Bridgman I. L. R., 4 All., 376, has held that the decree of the Court of last instance is the only decree susceptible of execution, and the specifications of the decrees of the lower Court or Courts, as such, may not be referred to and applied by the Court executing such decree. Taking the Full Bench ruling as the central point of the argument, the learned pleader contends that the decree of the 27th November 1886, could not be dealt with under Section 243, as it was not a decree passed by the Court in which the suit was pending.

8. I cannot accept this contention. There is no doubt that I am bound to accept the authority of the Full Bench ruling upon which the learned pleader relies, hut it is not inconsistent with that ruling to say that the decrees of the Courts of appellate jurisdiction are, by reason of Sections 581 and 583 of the Civil Procedure Code, subject to the same rules as those decrees which have been passed by the Court of original jurisdiction. Section 581 of the Code simply specifies how appellate decrees are to be dealt with, and inter alia it goes on to say that such decree 'shall be filed with the original proceedings in the suit, and an entry of the judgment of the appellate Court shall be made in the register of civil suits.'

9. Now the next matter which has to be considered is, how such decrees are to be executed; and upon this point, I think Mr. Kashi Prasad was right in calling my attention to Section 235, Clause (d), which in stating the contents of application for execution of decree, directly contemplates that the application for execution is to state any modifications or reversals, &c.;, which the appellate Court's decree may have introduced in the decree. What Pandit Sundar Lai contends is that, notwithstanding the provisions of Sections 581 and 583 of the Code, a Court in exercising the powers under Section 243 of the Civil Procedure Code is limited to its own decrees, and that such powers do not apply to decrees passed either by a Court of co-ordinate jurisdiction, or by a Court of appeal, even though such decrees may, under the rules of procedure, have to be executed by the Court to which an application under Section 243 is presented. In supporting this contention the learned pleader has, in the first place, called my attention to Section 228 of the Code, which relates to the execution of decrees transmitted by other Courts for execution to a Court, and he argues that it is only because that section specifically states that the powers possessed by the Court to which the decree is sent, are to be co-extensive and similar in respect of such decrees that the provisions of Section 243 would be applicable, and he contends that because Section 243 does not contain any specification of such a character with reference to appellate decrees, therefore that section would not be applicable to this case. But it seems to me that this contention is somewhat inconsistent, because as Mr. Kashi Prasad has contended, provisions corresponding to Section 228, so far as their application to the general rules as to execution of decrees is concerned, are to be found in Section 583 of the Code.

10. That section, in stating how an appellate Court's decree is to be executed, goes on to say that 'such Court shall proceed to execute the decree passed in appeal according to the rules hereinbefore prescribed for the execution of decrees in suits.'

11. Just as I have before now held that the provisions of Section 582 of the Civil Procedure Code render the earlier rules as to original suits applicable mutatis mutandis also to the procedure in appeals, so I also hold that the effect of the provisions of Section 583 is to render all the antecedent rules as to execution of decrees in Courts of original jurisdiction, applicable also to the execution of decrees passed by Courts of appellate jurisdiction.

12. And once this view is accepted, not only the provisions of Section 243 but of various other parts of the Code become applicable. For instance, the proviso to Section 246, which in stating how cross-decrees are to be dealt with for the purposes of setting off one decree against another, goes on to say (consistently with the principle which I have accepted as the basis of the rule), that 'the decrees contemplated by this section are decrees capable of execution at the same time, and by the same Court.' I think it is clear that by reason of this rule, the provisions of Section 228, as also of Section 243, as also of Section 583, would become applicable, and the Court executing its own decree could set off that decree against the decree passed by another Court, if that decree has been transmitted to it or is a decree of the appellate Court, when such decree is before the Court for execution. This reasoning, however, is applicable only by analogy, because the exact point before me is simply whether or not, within the meaning of Section 243 read with Section 583 of the Code, are included the decrees not only of the Court in which the suit is pending but also decrees of appellate Courts. As I have already said, I hold that the suit being pending before the Subordinate Judge of Farukhabad, and the High Court's decree of the 27th November 1886, being before the Court for execution, that Court or the Court to which an appeal would lie for the purpose of the decree, had jurisdiction to stay execution within the meaning of Section 243 of the Civil Procedure Code.

13. The only ruling against this view which Pandit Sundar Lai has cited to me is the case of Mittun Bibi v. Bazloor Khan, 8 W. R., 392, which turned upon the interpretation of Section 209 of the old Code of Civil Procedure (Act VIII of 1859), which section corresponds to Section 243 of the present Code of Civil Procedure. It was in interpreting that section that Jackson, J., laid down the rule that 'when an application to stay execution of a decree is made to a Court in which a suit is pending against the decree-holder, the Court's competency under Section 209, Act VIII of 1859, to grant the application depends on the decree being its own decree.' The other learned Judge before whom the case was argued was Hobhouse, J., who began his judgment by stating that he had some doubts in consequence of the provisions of Section 362 of the same Code (Act VIII of 1859) which section corresponds to Section 583 of the present Code upon which Mr. Kashi Prasad has relied. It seems to me that the doubts of Hobhouse, J., were well founded, and although he deferred to the views of Jackson, J., the rule of law laid down in the case is, as I respectfully think, unsound, opposed as that rule seems to me to the broad and fundamental principles of the equitable doctrines of compensation and set-off upon which I dwelt at some length, with the approval of my brother Straight, in Ishri v. Gopal Saran I. L. R., 6 All., 351, which, though a suit for pre-emption, involved considerations not dissimilar to those in the case, so far as the question of principle is concerned. It is doubtful whether the ruling of Jackson, J., has since been followed by the Calcutta Court itself, because Pandit Sundar Lal has not been able to show me any such ruling. On the contrary, the general ratio decidendi upon which the ruling of my brother STRAIGHT and myself in Ghazidin v. Fakir Bakhsh I. L. R., 7 All., 73, proceeded, and the ratio decidendi of the cases to which it refers, are opposed to the ruling of Jackson, J., in the case above cited, and the ruling of my brother Straight and myself, as I have already said, was adopted by the Calcutta Courts in the latest case of O. Steel d Co. v. Ichhamoyi Chowdhrain I. L. R., 13 Cal., 111.

14. The only other point which I have got to deal with is whether or not, upon the merits of the case, the learned Judge of the Lower Appellate Court was right in staying execution of decree pending the decision of the present suit. Upon this point I think I need not say much, because it is admitted before me that the suit which ended in dismissal by this Court on the 27th November 1886, was a suit filed by Musammat Gopi, the present judgment-debtor respondent, that the suit failed on a technical point of law as to whether or not the suit in its then form was maintainable, that the suit now pending before the Subordinate Judge of Farukhabad is a suit by the same Musammat Gopi against the same Kassa Mal, for purposes of a remedy which is now prayed for in lieu of that which was prayed for in the former unsuccessful litigation ; that the costs awarded by the decree of the 27th November 1886, are costs in the former decree of the older litigation, and that if the suit now pending before the Subordinate Judge succeeds, the costs might not have to be paid by Musammat Gopi, but on the contrary, she might have to recover considerable sums of money from the present decree-holder appellant, Kassa Mal, or at least, might be entitled to claim set-off for her decree against the decree for costs held by the appellant.

15. If the costs were a simple debt instead of being a judgment debt, the defendant might possibly have pleaded the amount as a set-off under Section 111, Civil Procedure Code, against the claim of Musammat Gopi in the suit now pending; but without deciding this question, I may add, that whilst it is not shown that the stay of execution will materially prejudice the decree-holder appellant, there are indications in the circumstances of the case, to suggest the suspicion that the execution has been prayed for by the decree-holder, mainly with the object of hampering the respondent Musammat Gopi, in prosecuting the suit now pending against the decree-holder.

16. I think, under these circumstances, the learned Judge of the Lower Appellate Court exercised a sound discretion in staying execution of the decree of the 27th November 1886. I dismiss the appeal with costs.


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