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Birj Bhukan Lal Vs. Lala Mahadeo Pershad Minor Through Musammat Champa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1916All308; 35Ind.Cas.205
AppellantBirj Bhukan Lal
RespondentLala Mahadeo Pershad Minor Through Musammat Champa
Excerpt:
.....difficult to hold that in an attachment proceeding like this the attaching party was executing his decree. counsel have full discretion as to the conduct of their cases, and what is best in the interest of their clients. and counsel may have many excellent reasons for not pressing a point which is no business of any, body else. it is not like the construction of a contract. the bar have privileges of audience, and a good deal more than audience, which involve correlative obligations, and matters like admissions, consents, withdrawals by counsel in the conduct of their cases made in open court are, in my judgment, subject to the condition that i have mentioned, final and binding upon the parties. the decree-holder's pleader had clearly consented to the set-off being made and had withdrawn..........lal objected to the execution on the ground that he had already attached the civil court decree. mahadeo prasad urged in appeal that the revenue court decrees had become time-barred and brijbhukan lal was, thereupon, ordered to produce his decrees and show that they were within time. under schedule iv, rule (d), serial nos. 47 and 48, an application for execution of a decree under rs. 500 can be made at any time within three years and in the case of decrees over rs. 500 the rules applicable to the execution of the decrees of the civil court are applicable to the execution of decrees of the revenue court, and the application for execution must be made within the time fixed by the said article. an application so made might go on for a considerable time but all that the law.....
Judgment:

Walsh, J.

1. I am of opinion that this appeal must be allowed and that the only question is one of amount. I propose to say very little about the particular facts of this case, leaving it to my brother Mr. Justice Sundar Lal to deal with his great experience with the practical side of the questions which arise. Speaking for myself, so far as I appreciate the attachment proceedings, I have considerable doubt whether the question of limitation could arise, on the simple ground that it seems to me difficult to hold that in an attachment proceeding like this the attaching party was executing his decree. However, I do not think it necessary to come to any final conclusion upon that point. I propose to base my decision upon what occurred in the first Court. Whether there is anything in the limitation point or not I think it is not open to the respondent, having regard to the fact that in the first Court his Pleader stated that he would examine the account and that he had no other objection. After that it is impossible for the party which he represents to raise any other question. Counsel have full discretion as to the conduct of their cases, and what is best in the interest of their clients. And Counsel may have many excellent reasons for not pressing a point which is no business of any, body else. It is entirely within their discretion to press or not to press a particular point. And when Counsel makes a statement of that kind in open Court upon which the Court acts it must be treated as final, unless he has been induced or misled by some circumstance to make a statement under a mistake. I entirely dissent from the view taken by the lower Appellate Court that it is a question of interpretation. It is not like the construction of a contract. Counsel cannot make bargains with the Court, nor the Court with Counsel. The rule is that parties are bound by what Counsel do in the exercise of their discretion acting within the scope of their authority. Such a rule is absolutely necessary for the conduct of the business. The Bar have privileges of audience, and a good deal more than audience, which involve correlative obligations, and matters like admissions, consents, withdrawals by Counsel in the conduct of their cases made in open Court are, in my judgment, subject to the condition that I have mentioned, final and binding upon the parties. When one thinks about it for a moment, it is obvious that unless the Court can act upon statements made by the Bar as being final and binding, fresh controversies would constantly arise out of the discussion of the real controversy in the suit between the parties. This rule has always been considered to be in the interest, not only of the public, but of the Bar themselves, because it involves great weight, value and responsibility to every word uttered by Counsel in open Court and in this case I am content to rest my judgment upon that ground alone.

Sundar Lal, J.

2. The facts of the case are these: On the 19th of December 1910 one Mahadeo Prasad obtained a decree against Brijbhukan Lal in the Court of the Subordinate Judge for a sum of over Rs. 1,209. It also appears that Brijbhukan Lal obtained two decrees in the Revenue Court against Mahadeo Prasad in 1909 aud 1910, respectively. Brijbhukan Lal applied to the Revenue Court to attach the decree of Mahadeo Prasad which he had obtained in the Civil Court. Prom the record it seems that originally the prayer was that under Rule 18 of Order XXI the Revenue Court decrees might be set off against the Civil Court decree. But on its being pointed out that the decrees were not under execution in the same Court, it was held that Rule 18 was not applicable in that case. The idea of setting off one decree against the other was given up and the Revenue Court, therefore, made an order for the attachment of the decree of the Civil Court. The attachment was accordingly made, but no proceedings to execute the decree attached appear to have been taken by Brijbhukan Lal, and Maha-deo Prasad had, therefore, applied for execution of his own decree. On such application being made Brijbhukan Lal objected to the execution on the ground that he had already attached the Civil Court decree. Mahadeo Prasad urged in appeal that the Revenue Court decrees had become time-barred and Brijbhukan Lal was, thereupon, ordered to produce his decrees and show that they were within time. Under Schedule IV, Rule (d), serial Nos. 47 and 48, an application for execution of a decree under Rs. 500 can be made at any time within three years and in the case of decrees over Rs. 500 the rules applicable to the execution of the decrees of the Civil Court are applicable to the execution of decrees of the Revenue Court, and the application for execution must be made within the time fixed by the said Article. An application so made might go on for a considerable time but all that the law requires is that the proceedings for execution must be initiated within time. In this case they were certainly within time when the application was made and the question is whether the decrees of the Revenue Court have by this time become time-barred. From the proceedings of the Revenue Court which have been sent up by the said Court and which have been placed upon the record, it appears that the execution of these decrees is still pending in the Revenue Court. If the execution proceedings are still pending the attachment subsists. At any rate until an order under Rule 57 has been made the attachment subsists. In this case, however, it appears that when Mahadeo Prasad applied for the execution of his decree, Brijbhukan Lal objected to the application on the ground that the decree had been attached by the Revenue Court. Mahadeo Prasad thereupon urged that the Revenue Court decrees had become time-barred. Brijbhukan Lal, therefore, was called upon to produce copies of his decrees of the Revenue Court and to show that they were still within time. The proceedings in execution lasted for a considerable period. From the rubkars: of the Revenue Court which are upon the record, it seems that the decrees are still under execution and that the attachment has not come to an end. It also appears that the judgment-debtor asked the Court to set off the amount of his decrees of the Revenue Court against the decrees of the Civil Court which was for the larger amount. The debtor offered to pay in the balance in, Court. The Court granted him one week's time to pay in the balance. Brijbhukan Lal thereupon deposited the sum of, Rs. 325 and stated that that is all that was due after setting oft the decrees. The Pleader for the decree-holder Mahadeo took time to examine the account and to obtain instructions from his client. The case then stood over for a considerable period and at last the Pleader for the decree-holder stated that he would examine the account and seek execution only for the balance of what was really due after setting off the decrees of the Revenue Court. He expressly stated that he had no further objection to offer. Upon this state of things the Court of first instance went into the account, set off the Revenue Court decrees against the Civil Court decree and ordered execution to issue for the balance after crediting the payment of Rs. 325. Mahadeo appealed against the said decree. The learned Judge who has held that the statement by his Pleader did not amount to an abandonment of all his objections to the execution of the decree and to setting off the Revenue Court decrees in the Court below, was obviously wrong. The decree-holder's Pleader had clearly consented to the set-off being made and had withdrawn all other objections. The decree-holder could not go behind his Pleader's admission. I think that the order of the Court below should be set aside and that of the Court of first instance restored.

3. The order of the Court is that the order of the lower Appellate Court be set aside and that of the Court of first instance restored. The appellant will have his costs in all the Courts, which in this Court will include Counsel's fee on the higher scale.


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