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Shri NaraIn Gurwala Vs. Vadi Lal Ichcha Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 173-D of 1961
Judge
Reported inAIR1963P& H396
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 50(2)
AppellantShri NaraIn Gurwala
RespondentVadi Lal Ichcha Chand
Appellant AdvocateParty in person
Respondent Advocate J.K. Miranandani, Adv.
DispositionPetition dismissed
Cases ReferredJai Narain Ram Lundia v. Kedar Nath Khetan
Excerpt:
.....the c.p.c., by 2002 amendment act, no letters patent 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..........application of the decree-holder under order xxi, rule 50 (2) of the civil procedure code.a money decree was passed by the judge, small cause court, ahmadabad, in favour of vadi lal ichha chand against messrs parmehari dass pad am chand on the 19th of december, 1958. this decree was transferred for execution to the court of judge small cause delhi. in this court the decree-holder made a petition under order xxi, rule 50 (2) of the code praying that leave be granted against the petitioner and he be adjudged as one of the partners of the judgment-debtor firm. the petitioner's stand in the court was that the application could only be entertained by the court which passed the decree and not by the transferee court. this contention has been negatived by the court below and hence this.....
Judgment:
ORDER

D.K. Mahajan, J.

1. This is a petition for revision by one Shri Shri Narain Gurwala, Advocate, Delhi, against the order of the executing Court entertaining an application of the decree-holder under Order XXI, Rule 50 (2) of the Civil Procedure Code.

A money decree was passed by the Judge, Small Cause Court, Ahmadabad, in favour of Vadi Lal Ichha Chand against Messrs Parmehari Dass Pad am Chand on the 19th of December, 1958. This decree was transferred for execution to the Court of Judge Small Cause Delhi. In this Court the decree-holder made a petition under Order XXI, Rule 50 (2) of the Code praying that leave be granted against the petitioner and he be adjudged as one of the partners of the judgment-debtor firm. The petitioner's stand in the Court was that the application could only be entertained by the Court which passed the decree and not by the transferee Court. This contention has been negatived by the Court below and hence this revision.

2. It is no doubt true that there is a conflict of judicial decision on the matter. The Patna High Court in Kalu Ram v. Sheonand Rat Jokhi Ram, AIR 1932 Pat 323 dissented from the decision of the Allahabad High Court in Sital Prasad v. Clements Robson and Co., AIR 1921 All 199 (2) and held that an application under Order XXI, Rule 50 (2) is only entertainable by the Court which passed the decree and not by the transferee Court. But this view has not been accepted by the Punjab High Court. In this connection, reference may be made to Abdul Hamid v. Dhanpat Mal Diwan Chand, AIR 1931 Lah 507 (2), Bombay Company Ltd. v. Kahan Singh, AIR 1931 Lah 736 and E.D. Sasson and Co., Ltd. v. Shivjiram Devi Das, AIR 1929 Lah 228.

The petitioner contends that these cases did not in fact go against him because they were cases under an award and he contends that when an award is made a rule of the Court, the Court does not pass a decree and that these decisions were distinguished by the Patna High Court on this ground. However, I am unable to agree with this contention for the simple reason that the matter now seems to have been finally settled by the Supreme Court in Jai Narain Ram Lundia v. Kedar Nath Khetan, 1956 SCR 62. At p. 70 ( (S) AIR 1956 SC 359 at p. 363) of thereport, their Lordships of the Supreme Court observed as under:-

'The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question, who can? The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court Executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, under Section 47 of the Civil Procedure Code it can only be determined by the Court executing the decree and as for the first Court's conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, that Section 42 of the Code expressly gives the Court executing a decree sent to it the same power in executing such decree as if it had been passed by itself.'

It would appear, therefore, from this decision that the powers of the executing Court whether it is the Court which passed the decree or it is the transferee Court are the same and in this view of the matter it appears to me that the decision of the Patna High Court is no longer good law. That being so, this petition fails and is dismissed. However, I will make no order as to costs.


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