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Gurbax Rai Vs. Man Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 959 of 1949
Judge
Reported inAIR1952P& H155
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 - Order 23, Rule 3
AppellantGurbax Rai
RespondentMan Singh
Appellant Advocate Bishan Narain, Adv.
Respondent Advocate C. Rai, Adv.
Cases ReferredLal Singh v. Mohan Singh
Excerpt:
.....high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a..........is a judgment of the division bench it is binding on me, and i must treat this execution second appeal as an appeal and not as a revision, although except to the extent of limitation, no difference in fact would arise. 5. as i read the decree, it was conditional of the plaintiff giving to the defendant the portion mentioned therein and it is to be executed irrespective of the fact whether the other portion which the plaintiff was to give to the defendant was the subject-matter of the suit or not. the vacating of the premises by the defendant was conditional on the plaintiff giving the portion mentioned in the decree to the defendant. in other words, the latter was the consideration for the former and the contract can only be enforced if both portions are enforced together. 6. it has.....
Judgment:

Kapur, J.

1. This is a second appeal against an order passed by the Senior Subodrinate Judge, Delhi, reversing an order of the executing Court by which the executing Court ordered the execution of the decree as it stood.

2. A suit was brought on the 17th May 1947 byMan Singh for ejectment against Gurbax Rai onthe ground that he required the premises 'bonafide' for his own use. A compromise was enteredinto between the parties on the 28th October 1948which resulted in a decree in the following words:

'According to the statements of the parties adecree for ejectment is granted in favour of theplaintiff against the defendant. The defendantshall vacate the portion in dispute within 15days and the plaintiff will deliver the adjoiningportion to the defendant. If the defendant doesnot do so, the plaintiff shall be entitled to get itvacated through Court. * * *.'

3. Execution of this order was sought and the executing Court on the 23rd July 1949 ordered the execution and for the purpose of carrying out its order appointed one Bhola Nath, Advocate, as Commissioner who was to be accompanied by a bailiff to go to the spot and there possession was to be delivered to the parties in accordance with the statements made by the parties. An appeal was taken against this order to the Senior Subordinate Judge who held that as the decree comprised a matter which was not the subject-matter of the suit, only that portion of the decree could be executed which gave to the plaintiff the right to eject the defendant from the room claimed by the plaintiff. It is against this order that a second appeal has been brought to this Court.

4. A Division Bench of this Court has held that although the order passed by the Court in the suit itself was not appealable, in execution, a second appeal will lie. As this is a judgment of the Division Bench it is binding on me, and I must treat this execution second appeal as an appeal and not as a revision, although except to the extent of limitation, no difference in fact would arise.

5. As I read the decree, it was conditional of the plaintiff giving to the defendant the portion mentioned therein and it is to be executed irrespective of the fact whether the other portion which the plaintiff was to give to the defendant was the subject-matter of the suit or not. The vacating of the premises by the defendant was conditional on the plaintiff giving the portion mentioned in the decree to the defendant. In other words, the latter was the consideration for the former and the contract can only be enforced if both portions are enforced together.

6. It has been held by a Full Bench of the Allahabad High Court in 'Shyam Lal v. Shayam Lal', 55 All 775 (FB) that where a compromise refers to property or matter which is not the subject-matter of the suit, the proper decree to be passed is to put in the operative part only that portion of the compromise which formed part of the subject-matter of the suit, but if the Court in spite of this puts other matters also in the operative part, the decree has to be executed as passed by the Court. The same view was taken in 'Moho-Mmad Ismail v. Bibi Shaima', 13 Pat 17 where it was held that an executing Court has no power to discuss the validity of the terms of the decree which it is directed to execute and therefore the objection that one of the terms of the compromise is outside the scope of the suit cannot be taken in the executing Court. The view taken in the Lahore High Court by Jai Lal, J., in 'Lal Singh v. Mohan Singh', AIR (21) 1934 Lah 623 is the same. I am in respectful agreement with this rule, and II therefore hold that the executing Court could not| refuse to execute the decree as it was given by the Court passing the decree.

7. I therefore set aside the order of the appellate Court and restore that of the executing Court. The appellant will have his costs in thisCourt and in the Courts below.


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