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Co-operative Bank, Harsana Kalan Vs. Ram Sarup Ravi Datt - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 46 of 1952
Judge
Reported inAIR1953P& H267
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantCo-operative Bank, Harsana Kalan
RespondentRam Sarup Ravi Datt
Advocates: F.C. Mittal, Adv.
DispositionAppeal allowed
Excerpt:
.....& 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 judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....that is not a question which can be gone into by an executing court whose jurisdiction extends to executing the decree or not executing it only when it is without jurisdiction. merely because there was an order (agreement?) previous to the decree that the debtor will have no further liability, limited or unlimited, is not a ground of jurisdiction, but could only have been raised as a bar to the making of the award. in the circumstances i am of the opinion that both the courts below were in error in refusing to execute the decree. 3. i would therefore allow this appeal, set aside the order of the courts below and direct that the execution should proceed. in view of the fact that there is no appearance for the respondents) there will be no order as to costs in this court, but the.....
Judgment:

Kapur, J.

1. This is an execution second appeal against an appellate order of Mr. D. P. Sodhi, Senior Subordinate Judge, Rohtak, dated 19-11-1951, confirming the order of the executing Court which had held that the decree was inexecu table.

2. The Co-operative Bank of Harsana Kalan took out execution for a sum of Rs. 225/-against Ram Sarup on the basis of an award made by the Liquidator, which is Ex. D. H. 1. An objection was token by the judgment-debtor that this award which operates as a decree could not be executed, because there was previous agreement between the parties that the judgment-debtor will be free from all liability in 'praesenti' or in 'future'. It is not quite clear from the record whether this agreement was pleaded as a bar before the arbitrator, but whether it was pleaded or not that is not a question which can be gone into by an executing Court whose jurisdiction extends to executing the decree or not executing it only when it is without jurisdiction. Merely because there was an order (agreement?) previous to the decree that the debtor will have no further liability, limited or unlimited, is not a ground of jurisdiction, but could only have been raised as a bar to the making of the award. In the circumstances I am of the opinion that both the Courts below were in error in refusing to execute the decree.

3. I would therefore allow this appeal, set aside the order of the Courts below and direct that the execution should proceed. In view of the fact that there is no appearance for the respondents) there will be no order as to costs in this Court, but the judgment-debtor will pay the costs o the two Courts below.


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