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Ram Prasad Singh Vs. the Benares Bank Limited - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1919All20; (1920)ILR42All98; 58Ind.Cas.600
AppellantRam Prasad Singh
RespondentThe Benares Bank Limited
Excerpt:
.....no penalty is elsewhere provided. we are satisfied that the learned judge of this court had jurisdiction in the matter, that his order was in effect one partly granting an application of bam prasad singh's, subject to a condition, and that he had jurisdiction to impose that condition......belonging to the appellant was attached in execution of the decree. on 23rd of june, 1918, ram prasad singh brought a suit against the benares bank in the court of the subordinate judge of benares; the reliefs sought were that the decree of 18th of august, 1917, be set aside and that the bank be restrained from proceeding against the property of the plaintiff, after the institution of the 'suit, and before it came on for trial, ram prasad singh applied to the court for the issue of an injunction restraining the benares bank from proceeding further with the execution of the ex parte decree. this prayer the learned subordinate judge granted, but only on condition that ram prasad singh should furnish security, to the full amount of the decree, for its due performance in the event of his.....
Judgment:

George Knox, Acting C.J. and Piggott, J.

1. Ram Prasad Singh appeals against an order passed by a single judge of this Court under the following circumstances. The appellant was one of three judgment-debtors in a decree obtained by the respondents (the Benares Bank, Limited), which decree was passed ex parte, on 18th of August, 1917, by the court of the Subordinate Judge of Benares. Between November, 1917, and April, 1918, the Bank got the decree transferred for execution to Patna, the appellant residing within the jurisdiction of the district court of that place, and immovable property belonging to the appellant was attached in execution of the decree. On 23rd of June, 1918, Ram Prasad Singh brought a suit against the Benares Bank in the court of the Subordinate Judge of Benares; the reliefs sought were that the decree of 18th of August, 1917, be set aside and that the Bank be restrained from proceeding against the property of the plaintiff, After the institution of the 'suit, and before it came on for trial, Ram Prasad Singh applied to the Court for the issue of an injunction restraining the Benares Bank from proceeding further with the execution of the ex parte decree. This prayer the learned Subordinate Judge granted, but only on condition that Ram Prasad Singh should furnish security, to the full amount of the decree, for its due performance in the event of his suit being dismissed. Ram Prasad Singh appealed to this Court against the imposition of this condition, his appeal was admitted on 27th of July, 1918, and registered as first appeal from order no.. 119 of 1918. It had not yet been set down for hearing when on 15th of November, 1918, Ram Prasad Singh presented an application supported by an affidavit sworn the previous day. This application was presented, in the ordinary course of business, to a single judge of this Court; it asked that the Benares Bank might be restrained from continuing the execution proceedings at Patna until the disposal of the pending first appeal from order. It was represented that there was no need for the taking of security from the petitioner, because the property taken in attachment by the Patna Court would remain under attachment and all that was asked was a postponement of the sale. The order passed was: 'Stay meanwhile; let notice go to the other side,' The learned judge who passed this order had not been informed that on 14th of November, 1918, the very day on which the affidavit laid before him, was sworn, the Court at Patna had struck the execution proceedings off its file by reason of some default on the part of the local agent or representative of the Benares Bank. When the agents of the said Bank sought to continue the execution proceedings the Court at Patna held itself to be unable to take any action by reason of the ex parte order passed by this Court on 15th of November, 1918, and refused even to renew the attachment. On this the Benares Bank presented a petition to this Court supported by affidavit, on 7th of December, 1918, representing that the ex parte order had been obtained from a judge who was ignorant of an essential fact in the case and that the Bank was now left without any security. The only relief in terms asked for was that the hearing of Ram Prasad Singh's application of 15th of November, 1918, should be expedited. When this petition was laid before the learned judge who had passed the order of that date, he pointed out that the Bank would not. be protected against any alienation which Ram Prasad Singh might make of the property at first attached by the Patna Court, unless an injunction were issued restraining him from making such alienation. His order purports to direct the application of the Benares Bank to be amended in this sense; but no actual amendment was made. The important point is, however, that the Bank's prayer for the expediting of the hearing of the application of 15th of November, 1918, was granted; that application was ordered to be set down for disposal on 9th of December, 1918, along with the Bank's application of 7th of December, 1918. The learned judge after hearing both parties, and having no suggestion before him that either party desired an adjournment for any purpose, passed orders dealing with both the applications then before him, i. e,, Ram Prasad Singh's application of 15th of November, 1918, and the Bank's application of 7th of December, 1918, In substance he ordered three things:

(a) that the hearing of first appeal from order No. 119 of 1918 be expedited; this he could not do of his own authority, but he obtained an order from the Chief Justice to that effect.

(b) that the Benares Bank might proceed with the execution of their decree in the Patna Court, so far as taking out attachment of Ram Prasad Singh's immovable property; but should not take steps to bring any of his property to sale before the disposal of the aforesaid first appeal from order.

(c) that until the disposal of the said appeal, or until this Court might see fit otherwise to direct Ram Prasad Singh should not alienate any of the property which had been under attachment by the Patna Court prior to the 14th of November, 1918.

2. This order was passed in the presence of both parties, duly represented by counsel, and a formal injunction to the same effect was also issued for service on Ram Prasad Singh per-actually.

3. This injunction was eventually returned unserved, the ministerial officer reporting that he was unable to find that gentleman at his ordinary place of residence. Almost immediately after this ineffectual attempt at personal service, that is to say, on 3rd of January and 4th of January, 1919, Ram Prasad Singh executed two sale-deeds by which ho purported to convey certain property, including some of the property affected by this Court's order of 9th of December, 1918, to one of his secured creditors. These deeds were registered together on 4th of January, 1919, and thus came to the knowledge of the agents of the Benares Bank.

4. On the application of the latter proceedings were taken against Ram Prasad Singh for breach of this Court's injunction of 9th of December, 1918, the learned judge who issued the injunction has inquired into the matter and heard both parties. He has ordered that Ram Prasad Singh be detained in a Civil Jail for a period of six months, and that his property remain under attachment for a period of twelve months.

5. A number of points have been argued.

(a) It is contended that this Court's injunction of 9th of December, 1918, is ineffective for want of personal service on Ram Prasad Singh.

[After discussing the facts relative to this part of the case, the judgment continued.]

The circumstances under which the attempt to effect personal service-failed are themselves suspicious, and we must agree with the learned judge of this Court) that it is not possible really to believe that the prohibitory order, passed in open court, in the presence of a responsible legal adviser, was never communicated to the person principally concerned. Apart from the merits, we cannot hold the appellant absolved from all liability merely because of the failure of the attempt to effect personal service. The prohibitory order was passed in open court; it may not technically have the effect of a decree, but it was passed in the presence of both parties duly appearing before the court, and it takes effect from the date of its delivery, just as much as a permanent injunction embodied in a judgment and incorporated in a decree of the court.

These findings really dispose of all the pleas taken in the memorandum, of appeal, except two objections of a technical nature which may be more briefly disposed of.

(b) It is contended that the learned judge of this Court had no jurisdiction to issue any injunction against Ram Prasad Singh as the latter does not reside within the jurisdiction of this Court. On the abstract question we were referred to two decisions of the Calcutta High Court, one on each side; Mungle Chand v. Gopal Ram (1906) I.L.R. 34 Calc. 101, affirming the existence of such jurisdiction, and Vulcan Iron Works v. Bishumbhur Prosad (1908) I.L.R. 36 Calc. 233, denying the same. The present case, however, seems to us a clear one. Ram Prasad Singh was an appellant before this Court, and he had himself invoked the jurisdiction of this Court to take interim proceedings pending the decision of his appeal. The orders passed on the 9th of December, 1918, must be considered as a whole; so considered their effect is clear. Ram Prasad Singh got a portion of what he wanted; the Benares Bank was restrained from actually bringing to sale any of his property pending the decision of his first appeal from order. He got this subject to a condition, namely, that he should not alienate certain property in the meantime. It was clearly within the jurisdiction of this Court to impose such a condition. It has been suggested that, in any case, no procedure is provided for punishing any breach of the condition so imposed. This argument turns in part on the interpretation to be put on Order XXXIX, Rule 2, Clause (3), of the Code of Civil Procedure. The drafting of the rule is a little clumsy, because it has followed mechanically the arrangement of sections in the Code of Civil Procedure of 1882; but we are satisfied that the words 'in case of disobedience' are wide enough to cover breaches of injunctions issued under Order XXXIX, rule (1), for which breaches no penalty is elsewhere provided. In any case this Court has unquestionably the power to punish contempt of its own orders. As regards the precise mode of execution of the order for imprisonment in the civil jail that point may be considered when it arises. We should prefer to affirm the order without committing ourselves to the mode of execution suggested in the order under appeal. The provisions of Sections 136 of the Code of Civil Procedure and of Section 16 of Act No. V of 1871, require consideration. It may be that the proper mode of execution is for this Court to cause Ram Prasad Singh to be arrested and then to commit him to the civil jail in this place. This question is at present immaterial.

(c) Finally it is contended that, under the rules of this Court, no single judge has authority to deal with an application for an injunction, as such. No such point was taken before the single judge whose order is under appeal. If it had been, we have no doubt he would have carefully considered whether, in order to give full effect to the spirit, rather than to the letter, of the rules, he would not allow Ram Prasad Singh an opportunity of arguing his case before a Bench of two judges. Technically the plea has no force because the Benares Bank had not applied for the issue of an injunction. We are satisfied that the learned judge of this Court had jurisdiction in the matter, that his order was in effect one partly granting an application of Bam Prasad Singh's, subject to a condition, and that he had jurisdiction to impose that condition.

6. We, therefore, dismiss this appeal, with costs, but we do so with the remark that while we affirm the order for Ram Prasad Singh's detention in a civil jail, we leave open the question as to the manner of execution of the said order.


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