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Ganga Jee Vs. Sat NaraIn Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All572; 87Ind.Cas.205
AppellantGanga Jee
RespondentSat NaraIn Lal and ors.
Excerpt:
.....made perfectly clear by the endorsement of the munsarim on the back of the application, which the decree-holder eventually filed in this case on the 23rd of april, 1923, saying :this is a decree of the court of small causes of bombay. the decree-holder's representative in the court below did his best to ruin any chanca which the decree-holder had. but in the column reserved for stating the mode in which he requires the assistance of the court, he does say that his prayer 'to issue notice to the judgment-debtor' is in aid of the previous execution clearly intimating that it is -as i have no doubt it is -in fact an attempt to revive a previous application which had been indefinitely postponed. the principles governing this matter seem to me to be quite simple and clearly established by..........that to affirm the decision of the court below would result in grave injustice and injury to the decree-holder, which would be entirely due, as it seems to me, to the acts of the court itself. except so far as they afford a guide for the principles which ought to govern cases of this kind, the authorities referred to in the courts below and in the arguments do not really assist one, because these cases must depend in the main upon the facts peculiar to them. in this case there are two appeals and there are two decrees, both of which were obtained by the appellant decree-holder in bombay in 1917, one on the 12th of may, 1917, and one on the 11th of june, 1917. they were transferred to the court of the muasif of jaunpur for execution, presumably upon the application of the decree-holder......
Judgment:

Walsh, J.

1. This to my mind is a very clear case, and I find myself unable to agree with the decision of the Court below. Nobody can doubt that to affirm the decision of the Court below would result in grave injustice and injury to the decree-holder, which would be entirely due, as it seems to me, to the acts of the Court itself. Except so far as they afford a guide for the principles which ought to govern cases of this kind, the authorities referred to in the Courts below and in the arguments do not really assist one, because these cases must depend in the main upon the facts peculiar to them. In this case there are two appeals and there are two decrees, both of which were obtained by the appellant decree-holder in Bombay in 1917, one on the 12th of May, 1917, and one on the 11th of June, 1917. They were transferred to the Court of the Muasif of Jaunpur for execution, presumably upon the application of the decree-holder. On the 20th of February, 1918 an order was made by the Munaif of Jaunpur. The reason for that was this. The judgment-debtor had begun a suit or suits in Jaunpur seeking to set aside the decrees which had been obtained against him in Bombay, on the ground of fraud. Nobody, I imagine would expect that the decree would be executed while the suit to set it aside was being litigated, and the Munsif made an order : 'execution proceedings shall be stayed until decision of the regular suit.' Unfortunately this form of order is what may be described as slipshod or katcha. A Judge ought to make it clear when he means the order to come to an end. In one sense a suit is not decided until it is no longer appealable. Where a right of appeal is given, a suit is often finally decided in the appellate Court and Courts ought to make their own orders clear by saying whether the stay is to operate until the decision of the suit in the trial Court, or the decision of the appeal, if any. The decree-holder was required to communicate to the Court the result of the suit, but the Court seems to have been in a great hurry, and apparently to have yielded to the temptation to get rid of a pending application, and on the 29th of June, 1918, the Court passed the following order : - 'As the regular suit is not decided, the case be struck off.' Two things are perfectly clear upon that order. First the execution application has never bean disposed of at all either on the merits or by a judicial proceeding. The Judge did say 'strike it off,' which is not a good way of removing from the list, or indefinitely postponing. The reason given however shows clearly that it was only intended to be suspended. Secondly the act was the act of the Court, and in no sense the act of the decree-holder. The suits were decided in the trial Court on the 9th of December, 1919, against the judgment-debtor, but the judgment debtor of course appealed - everybody seems to appeal - and the presumption is that if a suit is decided against anybody, he will appeal, and that a suspension of execution in a case like this means suspension until the final disposal of the suit. Technically the decree-holder might, when the trial Court had disposed of the suit on the 9th of December, 1919, have applied to the Court which had suspended his execution proceedings, to have it revived, at any rate without committing any act of disobedience of the previous order. But everybody in his senses must have appreciated that if an appeal were pending, the same reason would have operated on the mind of the Court pending tha-appeal, as operated on its mind pending; the trial of the original hearing, so that it would have been a perfectly idle application. Meanwhile some rule operating, behind the back of the decree-holder in the record room must have come into operation, and the record was sent back, to Bombay on the 29th of May, 1920. That did not prevent its being sent for again, but it was the act of the Court, and it further indefinitely postponed the decision of the execution application. That is made perfectly clear by the endorsement of the Munsarim on the back of the application, which the decree-holder eventually filed in this case on the 23rd of April, 1923, saying : 'this is a decree of the Court of Small Causes of Bombay. The decree-holder should first produce a certificate of transfer.' The appeals were decided on the 30th of March, 1992, after a successful delay of four years, which the judgment-debtor and his advisers no doubt hoped to achieve by alleging fraud, and delaying, the decree-holder so that ho could not get execution by making a further application within three years of his application of 1918. It is not improbable that the-whole scheme of the suit and appeals was-a scheme to prevent execution and to put the decree-holder in this difficulty. The-decree holder himself was guilty of his usual contribution towards the general-delay and did not apply until the 23rd of' April, 1923. Owing to the Munsarim's note, to which I have already referred, it was necessary to get the record from Bombay, and a further substantial contribution to the general fund of delay was made by all the Courts concerned. Between them it took the Munsif's Court at Jiunpur, the District Court at Bombay, and the High Court at Bombay, 8 months to get the record back from Bombay where it had gone in 1920, and it eventually returned to Jaunpur on the 8th of December, 1923. The only Question in this appeal - indeed in this application - throughout has been whether this application for execution is a new application in which case it is undoubtedly barred by time, or whether it is only a revival of the application which was suspended and eventually struck off the list in February and June 1918 respectively. The decree-holder's representative in the Court below did his best to ruin any chanca which the decree-holder had. In dealing with the previous application, he foolishly alleged that it was 'struck off for want of prosecution.' But that is not the case and a misdescription of the order five years afterwards cannot affect the legal result of the order. But in the column reserved for stating the mode in which he requires the assistance of the Court, he does say that his prayer 'to issue notice to the judgment-debtor' is in aid of the previous execution clearly intimating that it is - as I have no doubt it is - in fact an attempt to revive a previous application which had been indefinitely postponed. The view which I am taking may perhaps be said to involve holding that the order of June 1918, and the sending of the record to Bombay in 1920, was an indefinite postponement, so that the decree-holder would be entitled to come back even after 20, 30 or 40 years and ask for it to be revived on the same ground that I am deciding he is entitled to have it revived now. I think that is the logical result, but it is due to the orders of the Court and not the fault of the decree-holder. The principles governing this matter seem to me to be quite simple and clearly established by the ruling of the Privy Council in 1905 in the case of Qamar-ud-din v. Jawahir Lal (1905) 27 All. 334. The effect of that decision is accurately set out by Mr. Justice Piggott on page 176 in the case of Madho Prasad v. Draupadi Bibi A.I.R. 1921 All. 99 where he says that that case is a good authority for the proposition that where the execution of a decree has been suspended through no act or fault of the decree -holder, the latter has a right to ask the Court to revive and carry through the execution proceedings which have thus been suspended. In the case of Madhabmani Dasi v. Lambert (1910) 37 Cal. 796 it was held, 'that an application for execution may be treated as one in continuation or revival of a previous application similar in scope and character, the consideration of which has been interrupted by the intervention of objections, and claims subsequently proved to be groundless,' and quite recently Mr. Justice Lindsay in Execution Second Appeal No. 264 of 1922 took the same view, and held that an application to revive and carry through a pending execution proceeding will not be time barred even if presented more than three years after the order of suspension was passed. I am prepared to go even further than Mr. Justice Lindsay and to hold that such an application would be within time even if presented more than 103 years after the order of suspension was passed. This seems to me the just and business result, and clearly does justice in this case, and I think is in accordance with well settled principles. The authorities mainly discussed by the Judge in the Court below seem to me to deal with cases where an injunction with a definite date for determination has been granted. I am inclined, further to think that this case could be treated within Section 15 of the Limitation Act, to which I was quite properly referred by Mr. Mushtaq Ahmad in the arguments, by reason of the fact that the execution of the decree has been in effect stayed by the orders of February and June 1918, and that it was stayed indefinitely. I do not think it necessary to determine that question as I am satisfied that the appeal ought to succeed on the ground which I have already stated.

2. The appeal must be allowed with costs here and below including in this Court fees on the higher scale, and the case must be remitted to the lower Court for execution according to law.


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