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Har Parshad and anr. Vs. Prem Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx Second Appeal No. 390 of 1951
Judge
Reported inAIR1952P& H138
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1)
AppellantHar Parshad and anr.
RespondentPrem Singh
Appellant Advocate C. Rai and; K.S. Thapar, Advs.
Respondent Advocate Shamair Chand, Adv.
DispositionAppeal dismissed
Cases ReferredHaridas v. Charuchandra
Excerpt:
.....appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1..........that the right of the judgment-debtor to receive offerings from kalkaji temple in delhi, cannot be sold in execution of a decree under section 60(1)(f) of the code of civil procedure.2. on the 26th october 1951 i heard mr. shamair chand in the absence of the appellants and held that no case had been made out for the appellants. yesterday mr. rai appeared in this court and made a submission that he was absent because he was busy elsewhere and that he did not know that the case had been called. those being the circumstances i allowed mr. rai to argue the case and have heard what he had to say in support of the case of the appellants. after hearing him i am not convinced that either of the courts below has gone wrong in giving the decision that they have.3. the question in the present case.....
Judgment:

Kapur, J.

1. This is a second appeal against an appellate order of the Senior Subordinate Judge of Delhi affirming the order of the executing Court that the right of the judgment-debtor to receive offerings from Kalkaji temple in Delhi, cannot be sold in execution of a decree under Section 60(1)(f) of the Code of Civil Procedure.

2. On the 26th October 1951 I heard Mr. Shamair Chand in the absence of the appellants and held that no case had been made out for the appellants. Yesterday Mr. Rai appeared in this Court and made a submission that he was absent because he was busy elsewhere and that he did not know that the case had been called. Those being the circumstances I allowed Mr. Rai to argue the case and have heard what he had to say in support of the case of the appellants. After hearing him I am not convinced that either of the Courts below has gone wrong in giving the decision that they have.

3. The question in the present case is whether in case of offerings of Kalkaji temple in Delhi a decree-holder can get them attached for the payment of his decree. The executing Court held that the right fell within the proviso (f) of Section 60 of the Code of Civil Procedure and that no custom was made out allowing those offerings to be sold in execution of a decree. On appeal being taken to the Senior Subordinate Judge this finding was affirmed in the following words:

'It was found in that judgment (Exhibit J. D. 1) that the right to receive offerings was legally inalienable and no custom was established that such rights were transferable in execution of a decree or otherwise.'

Mr. Rai has relied on a judgment of the Lahore High Court in 'Muhammad Ali v. Muhammad Naqi', 15 Lah 136, where the Khadim's share in the offerings of the shrine was by customallowed to be sold amongst the 'khadjms' themselves, it was held that the right to such a share was liable to attachment and sale in execution of a decree but that the right should be sold only to 'khadims'. A similar rule was laid down in 'Haridas v. Charuchandra', 60 Cal 1351. But in both these cases, which have been strongly relied on by Mr. Rai, a custom had been established which allowed the offerings to be sold, though amongst a limited circle. In the present case the finding of both the Courts is that no such custom has been established. After hearing Mr. Rai I am not convinced that any such custom has been established.

4. I therefore dismiss this appeal and affirrnthe judgments of the Courts below. There willbe no order as to costs in this Court.


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