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Gordhan Das Vs. Husaina and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All659; 103Ind.Cas.34
AppellantGordhan Das
RespondentHusaina and anr.
Excerpt:
- - to say the least the statement being duly signed by the plaintiff as well as his pleader amounted to an agreement that he would be bound by the statement that would be made by the referee. the statement made by the referee was clearly a statement made by a person to whom the parties to the suit had expressly referred for information in reference to the matters in dispute, and was a statement within the meaning of section 20 of the indian evidence act. it is clear that any admissions made in execution proceedings must be held to be binding when the unsuccessful party proceeds to a suit......referee. the statement made by the referee was clearly a statement made by a person to whom the parties to the suit had expressly referred for information in reference to the matters in dispute, and was a statement within the meaning of section 20 of the indian evidence act. it is true that ordinarily mere admissions are not conclusive, as is provided in section 31; but admissions of this kind must be taken to be admissions made in a suit by the nominee of a party thereto. such admissions, therefore, are as conclusive and effectual as admissions made by the parties in their written or oral pleadings. the effect is to prevent each party from resiling from the statement made by such a nominee.3. the view that would be taken, therefore, of the statement of the vakil would be that it was.....
Judgment:

Dalal, J.

1. The plaintiff is a decree-holder of a certain decree and attached some jars of rab as the property of the judgment-debtor Imam Bakhsh. Husaina objected, and under Order 21, Rule 58, Civil P.C., an inquiry was held, and both parties agreed to abide by the statement which a certain pleader, Mr, Rizwanulwila, might make after local inquiry. The pleader, after inquiry, made a statement that 36 jars belonged to the objector, and those jars, accordingly, were released from attachment. The decree-holder thereupon brought a regular suit under Order 21, Rule 63, treating the order of the Court on the basis of the agreement as one passed in the ordinary course without any reference to an arbitrator. He succeeded in the trial Court, but the lower appellate Court was of opinion that the plaintiff was bound by the statement of the pleader, and dismissed the suit. This is a second appeal. The point is of interest, and considerable help is obtained from a bench ruling of this Court in the case of Himanchal Singh v. Jatwar Singh A.I.R. 1924 All. 570. In that case the plaintiff and the contesting defendants and their respective pleaders entered into an agreement in writing signed by them to the effect that it has been settled between the parties that Rai Sahab Pandit Gopal Das Sharma, vakil, shall hear the whole affair, and that we shall accept any statement that he may make before Court.

2. A sworn statement was made by the referee named to the Court, and a decree in accordance therewith was duly passed. Under such circumstances it was held by the learned Judges that the parties could not be permitted to resile from the agreement entered into by them, and the decree must stand. The observations which are pertinent to the present case are on pp. 711 and 712. Their lordships observed:

To say the least the statement being duly signed by the plaintiff as well as his pleader amounted to an agreement that he would be bound by the statement that would be made by the referee. The statement made by the referee was clearly a statement made by a person to whom the parties to the suit had expressly referred for information in reference to the matters in dispute, and was a statement within the meaning of Section 20 of the Indian Evidence Act. It is true that ordinarily mere admissions are not conclusive, as is provided in Section 31; but admissions of this kind must be taken to be admissions made in a suit by the nominee of a party thereto. Such admissions, therefore, are as conclusive and effectual as admissions made by the parties in their written or oral pleadings. The effect is to prevent each party from resiling from the statement made by such a nominee.

3. The view that would be taken, therefore, of the statement of the vakil would be that it was an admission on behalf of the plaintiff by a person expressly referred to by him. The illustration to Section 20 of the Evidence Act is:

The question is whether a horse sold by A to B is sound. A says to B go and ask C; C knows all about it; C's statement is an admission.

4. In the present case what Gordhan Das in effect says as to the question of ownership of the jars is that the vakil should be referred to and the vakil stated that 36 jars belonged to the objector. The statement amounted to an admission within the meaning of Section 20 of the Evidence Act. This admission was made in the Rule 58 proceedings, but for that reason it cannot be kept out of the subsequent suit brought by the plaintiff. Once the plaintiff admitted that 36 jars belonged to the objector Husaina, that statement would be binding on him whether the proceedings were under Rule 58 or whether a suit was brought under Rule 63. It cannot be possible far the plaintiff in any proceedings or suit to go behind that admission.

5. It was argued that this admission was merely for the purpose of the execution Court proceedings and not for the purpose of a suit. It would be dangerous to hold accordingly. A person referring a matter to arbitration in execution proceedings and obtaining an award unacceptable to him may then get rid of the award by regular proceedings in a suit. This cannot have been the intention of the Legislature or would amount to an abuse of the process of law. It is clear that any admissions made in execution proceedings must be held to be binding when the unsuccessful party proceeds to a suit.

6. It was further argued that there was no word of acceptance in the reference to the pleader. The statement as to reference cannot, in my opinion, bear any other meaning.

7. I dismiss this appeal with costs.


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