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Raynor Vs. the Mussoorie Bank Limited. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All681
AppellantRaynor
RespondentThe Mussoorie Bank Limited.
Excerpt:
.....of interest pending suit - lis pendens--application to bring transferee upon the record--civil procedure code, sections 244, 372--high court's powers of revision--civil procedure code, section 622. - - he applied, stating that a warrant of the court executing the privy council decree had been issued against him, presumably under section 259 or 261 of the civil procedure code, for the surrender by him of twenty-four delhi and london bank shares (paragraph 1 of the petition), that obedience on his part had been obstructed by the circumstance that 'while the litigation was going on' he had 'transferred the shares to one of his counsel in this case, who has failed to restore them' (paragraph 2), and he therefore prayed that the said person 'might be brought upon the record, and that..........but was respondent and judgment-debtor under the privy council decree (section 583 of the civil procedure code). the court at mussoorie has unquestioned jurisdiction to execute this decree, and is competent to enforce or execute it in the manner and according to the rules applicable to the execution of its original decrees (section 610). in the exercise of this jurisdiction the mussoorie court, by virtue of the rule of section 647 of the code, is authorized to follow in these proceedings the procedure provided by chapter xxi (of incidental proceedings) for suits. by the last section (372) of that chapter, it is provided that in cases of assignment, creation, or devolution of any interest, pending a suit, other than devolution to a 'legal representative,' that is to say, an heir,.....
Judgment:

Tyreell, J.

1. A preliminary objection has been taken to this application by the learned Counsel for the respondent, on the ground that it is not cognizable by us in the exercise of the revisional jurisdiction of this Court. It appears that an application had been made to the Civil Court at Mussoorie, by a party entitled under a Privy Council decree to the benefit of some scrip, by way of restitution to be made to such party by one Raynor, who had been plaintiff in the suit, but was respondent and judgment-debtor under the Privy Council decree (Section 583 of the Civil Procedure Code). The Court at Mussoorie has unquestioned jurisdiction to execute this decree, and is competent to enforce or execute it in the manner and according to the rules applicable to the execution of its original decrees (Section 610). In the exercise of this jurisdiction the Mussoorie Court, by virtue of the rule of Section 647 of the Code, is authorized to follow in these proceedings the procedure provided by Chapter XXI (of Incidental Proceedings) for suits. By the last Section (372) of that chapter, it is provided that in cases of assignment, creation, or devolution of any interest, pending a suit, other than devolution to a 'legal representative,' that is to say, an heir, devisee or executor, the proceedings may, with the leave of the Court, given after the service of notice in writing on all parties and hearing their objections, if any, be continued against the person to whom such interest has come, either in addition to, or in substitution for, the person from whom it has passed. Let us see now what the application made by Raynor really was, and what part of the Court's legal machinery he proposed thereby to put in motion. He applied, stating that a warrant of the Court executing the Privy Council decree had been issued against him, presumably under Section 259 or 261 of the Civil Procedure Code, for the surrender by him of twenty-four Delhi and London Bank shares (paragraph 1 of the petition), that obedience on his part had been obstructed by the circumstance that 'while the litigation was going on' he had 'transferred the shares to one of his counsel in this case, who has failed to restore them' (paragraph 2), and he therefore prayed that the said person 'might be brought upon the record, and that execution for the recovery of the said shares may be given against him' (paragraph 3). And in the last paragraph (4) of his petition, Raynor tendered and filed in the Court documentary proof that 'Goodall holds now the shares in suit.' This application purported to be made under Section 244 of the Civil Procedure Code. But apart from other considerations showing that Section 244 is not applicable to a proceeding of this character, it is sufficient here to observe that an application cognizable under that section must be an application between the parties, that is to say, between the parties arrayed against each other as decree-holder of the one part, and judgment-debtors or their representatives of the other. But this is not such a question. It is a controversy of two judgment-debtors inter se, and the provisions of Section 244 do not apply to the determination of such questions.

2. Moreover, the allegations of Raynor were sufficient of themselves to show that no real or bona fide plea of 'representation' of him (Raynor) by Goodall in the sense of Section 244(c) was raised, or meant to be made in the application; for Goodall is therein described as a limited, temporary transferee or depositary only--a 'holder'--who 'has failed to restore,' and the documents produced in proof are intended to show that the proprietary interest in the scrip never passed from Raynor to Goodall, who is a wrong-doer in continuing to hold it.

3. This view is further fortified by a consideration of the order issued by the Court on this application, and of Goodall's answer thereto. The Court did not call on Goodall to show cause why he should not be made liable under the decree as a representative of Raynor; but to show cause why he 'should not be called upon to restore the twenty-four Delhi and London Bank shares made over to him by Raynor.' To which Goodall replied: 'My reply is, that I am not, and never was, the custodian of these shares, but their purchaser for value.' The question thus raised is not a question between the decree-holder and a 'representative' of his judgment-debtor.

4. It appears to us that the application was meant to be, and actually was, an application on the part of Raynor, praying that, in respect of the scrip, restitution of which was being enforced against him, the person to whom some interest in it, more or less, had come pending the suit, might, in addition to himself, in so far as such interest had passed from him, be brought under the operations of the execution proceedings. With the merits of this application and the propriety of the order passed on it, we have nothing to do. For it is an application under Section 372 of the Civil Procedure Code, and an appeal is allowed [Section 588, (21)] to a person whose objection under it has been disallowed. We therefore allow the preliminary objection, and reject the application with costs.


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