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Harbans Deo Rai Vs. Raj Kumar Rai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All702
AppellantHarbans Deo Rai
RespondentRaj Kumar Rai
Excerpt:
- - to this prayer we find this difficulty that the judgment complained of is the judgment of the learned district judge......appeal is competent. the suit was no doubt one cognizable by the court of small causes, being a suit for money to be recovered on foot of a simple bond. but it is said that there was the prayer for an injunction to be issued against the defendant restraining him from transferring his immovable property and thereby hindering the execution of the decree. as we have already stated, that was a prayer which the plaintiff could never hope to gain. it was as absurd a prayer to be added to a suit for money as could possibly have been conceived. it has been held in numerous cases decided by this and other high courts that a jurisdiction of a court of small causes (for the matter of that of any other court) could not be ousted by adopting any dodge which is capable of being discovered. the.....
Judgment:

Mukerji, J.

1. This second appeal arose under the following circumstances:

The respondent Rajkumar Ram brought a suit; for recovery of a small sum of money, viz. Rs. 185, on foot of a simple bond alleged to have been executed by the appellant Harbans Deo Rai. To the suit, besides the prayer for recovery of the sum of Rs. 185, the plaintiff added a prayer for an injunction restraining the defendant from disposing of his immovable property on the ground that he was likely to dispose of the property on hearing of the suit. The suit was not defended. It was decreed so far as the prayer for recovery of money went, but was dismissed as regards the prayer for injunction. The prayer for injunction was obviously a dodge to oust the jurisdiction of the Court of Small Causes, or to give a right of appeal to the plaintiff if the suit was decided against him. In any case by no conceivable means could the plaintiff have ever thought of there being a chance of his getting an injunction against the defendant restraining him from transferring his immovable property in the very suit in which he claimed the money.

2. The decree was put into execution and it was transferred for execution to the Court of the Munsif of Deoria. The Court which passed the decree was the Munsif of Gorakhpur.

3. In the Court of the Munsif of Gorakhpur an objection was filed by the judgment-debtor, the present appellant Harbans Deo Rai, objecting to the execution on the ground that it was barred by limitation. The Munsif held that the execution was not barred by time. Ignoring this judgment the judgment debtor went before the Munsif at Deoria and raised the same plea of limitation. The Munsif of Deoria held that the application for execution was barred by time. The decree-holder thereupon appealed to the learned District Judge of Gorakhpur, and the Judge in an elaborate judgment came to the conclusion that the judgment of the Munsif of Gorakhpur to the effect that the execution was time barred was an effective judgment and operated as res judicata and the Munsif of Deoria was therefore precluded from coming to a contrary conclusion.

4. Against this judgment of the learned District Judge of Gorakhpur the judgment-debtor filed an application in revision to this Court. When the application came up for hearing, the judgment-debtor asked that the application might be converted into a second appeal. It was accordingly done.

5. The first question that arises is whether a second appeal is competent. The suit was no doubt one cognizable by the Court of Small Causes, being a suit for money to be recovered on foot of a simple bond. But it is said that there was the prayer for an injunction to be issued against the defendant restraining him from transferring his immovable property and thereby hindering the execution of the decree. As we have already stated, that was a prayer which the plaintiff could never hope to gain. It was as absurd a prayer to be added to a suit for money as could possibly have been conceived. It has been held in numerous cases decided by this and other High Courts that a jurisdiction of a Court of Small Causes (for the matter of that of any other Court) could not be ousted by adopting any dodge which is capable of being discovered. The prayer was not bona fide one and, if it was added, it could not oust the jurisdiction of the Court of Small Causes from taking cognizance of the case. No authority is needed for such a clear proposition of law, yet the following cases may be referred to: see Chhotu v. Jawahir [1906] 28 All. 293, Narayan Bhaskar v. Balaji Bapuji Khot [1897] 21 Bom. 248, Vinayak Gangadhar v. Krishnarao Sakharam [1901] 25 Bom. 625 and Harischandra Deo v. Narayan [1901] 24 Mad. 508. We are therefore of opinion that the suit remained a suit for recovery of money on a simple money bond and therefore a suit cognizable by a Court of Small Causes in spite of the fictitious prayer added to it. That being our conclusion we are bound to and do hold that no second appeal lay to this Court from a matter arising in the execution of the decree.

6. The next point is whether we should not take up, as desired by the learned counsel for the judgment-debtor, the matter in revision. To this prayer we find this difficulty that the judgment complained of is the judgment of the learned District Judge. He took cognizance of the matter by way of an appeal and he was competent to hear the appeal. His competence to hear the appeal not being denied, the whole question remains whether, assuming that he made an error in arriving at the conclusion at which he did arrive we can set him right by taking up the matter in revision. There was no question of jurisdiction, for the learned District Judge had jurisdiction to hear the appeal. He committed no irregularity in the matter of hearing the appeal. An error is not an irregularity. The utmost that he may have committed was an error of judgment-we do not suggest that he committed an error. We hold therefore that no revision lies: see Amir Husain v. Sheo Baksh [1885] 11 Cal. 6. In the result we dismiss the appeal with costs.


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