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Shiv Lal Ghanaya Lal Vs. Mehr Chand Gaind - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberExn. First Appeal No. 65 of 1950
Judge
Reported inAIR1952P& H42
ActsCode of Civil Procedure (CPC) , 1908 - Order 45, Rule 7
AppellantShiv Lal Ghanaya Lal
RespondentMehr Chand Gaind
Appellant Advocate P.L. Behl, Adv.
Respondent Advocate K.L. Gosain, Adv.
DispositionAppeal allowed
Excerpt:
.....will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - fortheir costs incurred in england'.clearly, under the order passed by his majesty in council on 27-4-1948, in the privy council appeal no. the deposit in question was merely by way of security for liability for costs which might arise in case the appeal failed. clearly, the security deposit under rule 7 of order 45 of the code is the property of the appellant and in case of the success of the appeal has to be returned to him......kanhaya lal respondents in the privy council appeal no. 15 of 1947, hereinafter referred to as the decree-holders, sued out execution for the recovery of rs. 4,762/15/3. in the execution proceedings the shop of mehr chand, hereinafter referred to as the judgment-debtor, was attached, whereupon the judgment-debtor objected urging that the decree-holders should recover the sum of rs. 4,000/- deposited under rule 7 of order xlv of the code and then recover the balance from him.5. now, the decree-holders resisted the objection petition of the judgment-debtor and on the pleadings of the parties the executing court fixed the following issues:'1. what was the amount due to the decree-holder under the present decree? 2. was the decree-holder liable to realize the amount of rs. 4,000/- out of.....
Judgment:

Harnam Singh, J.

1. In order to appreciate the point of law arising in Execution First Appeal No. 65 of 1950 the facts of the case may be set out in some detail.

2. Mehr Chand applied under Rule 2 of Order XLV of the Code of Civil Procedure, hereinafter referred to as the Code, for leave to appeal to His Majesty in Council from the decree passed in Regular First Appeal No. 457 of 1939. In those proceedings Mehr Chand furnished security in cash in a sum of Rs. 4,000/- for the costs of respondents.

3. On the 27th of April, 1948, His Majesty in Council was pleased to dismiss Privy Council Appeal No. 15 of 1947 and to direct that there be paid by the appellant to the respondents their costs of that appeal incurred in the High Court and the sum of 323 6 s. 2 d. for their costs thereof incurred in England.

4. On the 1st of December, 1948, Shib Lal and Kanhaya Lal respondents in the Privy Council Appeal No. 15 of 1947, hereinafter referred to as the decree-holders, sued out execution for the recovery of Rs. 4,762/15/3. In the execution proceedings the shop of Mehr Chand, hereinafter referred to as the judgment-debtor, was attached, whereupon the judgment-debtor objected urging that the decree-holders should recover the sum of Rs. 4,000/- deposited under Rule 7 of Order XLV of the Code and then recover the balance from him.

5. Now, the decree-holders resisted the objection petition of the judgment-debtor and on the pleadings of the parties the executing Court fixed the following issues:

'1. What was the amount due to the decree-holder under the present decree?

2. Was the decree-holder liable to realize the amount of Rs. 4,000/- out of these costs now claimed by him, which amount had been deposited by the judgment-debtor in the Lahore High Court and the said decree-holder was not entitled to proceed against the other property of the judgment-debtor to that extent?'

6. In deciding Execution Case No. 221 of 1948 the Senior Subordinate Judge, Amritsar, has found that the sum of rupees 4,609/5/6 was due to the decree-holders under the order of His Majesty in Council but that the decree-holders were entitled to recover a sum of Rs. 609/5/6 only from the judgment-debtor. In other words the Senior Subordinate Judge has found that the decree-holders cannot proceed against the judgment-debtor for the recovery of Rs. 4.000/- out of the costs awarded to them under the order of His Majesty in Council.

7. From the order passed by the Senior Subordinate Judge on 9-2-1950, the decree-holders have come to this Court in appeal under Section 47 read with Section 96 of the Code.

8. Mr. Panna Lal Behl appearing for the appellants urges that the Senior Subordinate Judge, Amritsar, was in error in holding that by reason of the security deposit under Rule 7 of Order 45 of the Code the decree-holders cannot recover Rs. 4,000/- out of the costs awarded to them from the judgment-debtor.

9. Now, it is said that the duty of the Courts in India being to observe, obey and carry into execution the orders passed by His Majesty in Council in the Privy Council Appeal No. 15 of 1947 on 27-4-1948, the order under appeal is not sustainable in law. As stated above, in the Privy Council Appeal No. 15 of 1947 the 'judgment-debtor has been ordered to pay to the decree-holders thejr costs of the Privy Council Appeal incurred in the High Court of Judicature at Lahore and the sum of 323 6 Section 2 d. fortheir costs incurred in England'. Clearly, under the order passed by His Majesty in Council on 27-4-1948, in the Privy Council Appeal No. 15 of 1947 the judgment-debtor is personally liable to pay to the decree-holders the sum of Rs. 4,609/5/6.

10. Then it is said that the deposit in question was made under Rule 7 of Order 45 of Code, which provides that the applicant shall within the time specified :

'furnish security in cash or Governmentsecurities for the costs of the respondents.'

Indeed, under the first proviso to Rule 7 (1) of Order 45 of the Code the Court at the time of granting the certificate may order on the ground of special hardship that some other form of security may be furnished. The deposit in question was merely by way of security for liability for costs which might arise in case the appeal failed. If so, it is open to the decree-holders to relinquish security and recover the costs of the appeal from the judgment-debtor. On 7-5-1951, the decree-holders stated in a written application under Section 151 of the Code that they relinquished the security and wanted to proceed in execution against the person and property of the judgment-debtor. Clearly, the security deposit under Rule 7 of Order 45 of the Code is the property of the appellant and in case of the success of the appeal has to be returned to him. In the present case the decree-holders having relinquished the security can recover the costs awarded to them under the order of His Majesty in Council by proceedings against the person and property of the judgment-debtor.

11. For the foregoing reasons I allow the appeal, set aside the order passed by the executing Court on 9-2-1950, in Execution Case No. 221 of 1948 and remanding the case to the executing Court direct that further proceedings in execution be had in accordance with this decision.

12. Considering the circumstances of the case I make no order as to costs.

13. Parties are directed to appear in theCourt of the Senior Subordinate Judge, Amrit-sar, on 29-10-1951.


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