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Kailash Nath Vs. Joti Prasad and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1948All307
AppellantKailash Nath
RespondentJoti Prasad and anr.
Excerpt:
- - the law is well-settled that money left in the hands of a vendee or a mortgagee, if unexpended, enures to the benefit, not of the transferee, but of the transferor :vide peary lal v.sinha, j.1. this is a first appeal against an order of the learned civil and sessions judge, cawnpore by which he allowed an appeal preferred against an order of the learned munsif. the facts are briefly these : on 2nd november 1939, one hulli sold certain property to the appellant, pandit kailash nath, for a sum of rs. 3,000/-and left rs. 1,400/- in his hands. the precise purpose of the deposit must be mentioned here. hulli's brother had made certain alienations and one of them was the alienation by which the property, hulli conveyed to kailash nath, had been sold. in his attempt to recover it, kailash nath had assisted him. this sum of rs. 1,400 was left in the hands of the vendee for recovery of other items of property wrongfully sold by hulli's brother.2. one joti prasad had a decree.....
Judgment:

Sinha, J.

1. This is a first appeal against an order of the learned Civil and Sessions Judge, Cawnpore by which he allowed an appeal preferred against an order of the learned Munsif. The facts are briefly these : On 2nd November 1939, one Hulli sold certain property to the appellant, Pandit Kailash Nath, for a sum of Rs. 3,000/-and left Rs. 1,400/- in his hands. The precise purpose of the deposit must be mentioned here. Hulli's brother had made certain alienations and one of them was the alienation by which the property, Hulli conveyed to Kailash Nath, had been sold. In his attempt to recover it, Kailash Nath had assisted him. This sum of Rs. 1,400 was left in the hands of the vendee for recovery of other items of property wrongfully sold by Hulli's brother.

2. One Joti Prasad had a decree against Hulli and he attached this sum of Rs. 1,400. Exception was taken to the attachment under Order 21, Rule 181, Civil P.C. on the allegation that he had already paid the sum to the vendor and the nature of the money in his hands did not attract the application of Order 21, Rule 131. The learned Munsif held that the attachment could not be made. On appeal, the learned Civil Judge held otherwise. Kailash Nath has come before us in appeal.

3. A preliminary objection has been taken to the hearing of the appeal on the ground that the order is not appealable and, at all events, no second appeal lies. In order to appreciate this contention the phraseology of Order 21, Rule 139 falls to be considered. It runs:

(1) Where the liability o( a garnishee has been tried and determined under these rules, the order shall have the same force and be subject to the same conditions as to uppeal or otherwise as if it were a decree.

(2) Orders not covered by Clause (1) shall be appealable as orders made in execution.

4. The learned Counsel for the appellant contends that he has a right of appeal on a true appreciation, of both the Clauses 1 and 2, inasmuch as the first clause says that ' it shall be subject to the game conditions as to appeal or otherwise as if it were a decree,' whereas the second clause also makes it clear that 'it shall be appealable as orders made in execution.' 'Orders made in, execution' have, it is argued, the force of a decree and an appeal or even a second appeal lies.

5. The learned Counsel for the respondents, on the other hand, argues that even though these orders may be treated as having been made in execution or may be treated as having the force of a decree, nevertheless they must be read in the light of the general provisions relating to the execution, discharge or satisfaction of the decree as embodied in Section 47, Civil P.C. That section provides:

All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution....

It is contended that a garnishee is not a decree-holder within the meaning of Section 47, Civil P.C. Reliance is placed upon Rama Iyer v. Andiappa Pillai : AIR1929Mad850 .

6. We think the contention of the learned Counsel for the respondents is correct. To the suit of Joti Prasad, which culminated in the decree in which the attachment was sought to be made Kailash Nath was not a party. He does not, therefore, come within the meaning of Section 47.

7. The learned Counsel is also right that Section 47 must control both the Rules, 181 and 139 of Order 21, Civil P.C. The sections represent the body of the Code as observed by Sir Lawrence Jenkins in Mani Mohan Mandal v. Ramtaran Mandal 4 .6 A.I.R.1917 Cal 57 at p. 152.

The body of the Code is fundamental and is un-alterable except by the Legislature, the rules are concerned with details and machinery and can be more readily altered. Thus it will be found that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised.

8. It is also contended that, even if the order under appeal has the force of a decree, the appellant should have filed a regular second appeal and paid ad valorem court-fee before he was entitled to be heard. For this proposition, he relies on Ram Chandra v. Ram Lall : AIR1938All254 .

9. It appears, if we may say so with respect, that the interpretation placed upon the two clauses of Order 21, Rule 139 is correct. The learned Judge held that if the order is against the decree-holder, he need not pay ad valorem court-fee, inasmuch as he must have already paid it in the suit itself; not so the garnishee, because he has paid nothing so far and if he wants to assail the order passed against him, he must needs pay the proper court-fee.

10. The learned Counsel for the appellant prays for time to pay the necessary court-fee. The appeal was filed so far back as 10th December 1945, and we are reluctant to accede to this request, unless a special case has been made out for this indulgence. We do not think there are any hard lines in the case at all. The law is well-settled that money left in the hands of a vendee or a mortgagee, if unexpended, enures to the benefit, not of the transferee, but of the transferor : vide Peary Lal v. Hub Lal : AIR1945All139 . This sum of Rs. 1,400, if saved, will enure to the benefit of the transferor and if the appellant has to pay anything to the decree-holder, his liability will, in proportion, be reduced. It is not, therefore, a case of any hardship and we decline to accede to the request of the learned Counsel for the appellant.

11. We, therefore, dismiss this appeal, but in the circumstances of the case we make no order as to costs.


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