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Mohan Singh Vs. Roshan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Misc. No. 384 of 1968 In Ex. Petn. No. 5 of 1968
Judge
Reported inAIR1970Delhi88
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 45, Rule 13(2)
AppellantMohan Singh
RespondentRoshan Lal and ors.
Appellant Advocate Sushil Malhotra, Adv
Respondent Advocate Chhabildass, Adv.
Excerpt:
.....relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - section 151 merely saves by expressly preserving to the court (which is both a court of equity and law) inherent power to act according to justice, equity and good conscience and make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. there is no question of abuse of the process of the court in this case and we are also far from satisfied that it is necessary in the ends of justice to make the order sought in the circumstances disclosed on the record......procedure code. his application so far as material may be reproduced in extenso:- 'the respondent decree-holder respectfully prays as under:- 1. that in the aforesaid r.f.a. no. 21 of 1967 this hon'ble court consisting of hon'ble mr. justice s. n. shankar and hon'ble mr. justice jagjit singh in its judgment dated 30th august, 1968 was pleased to hold that the respondent decree-holder was entitled to recover the amount of rs. 5,08,333-5-6 plus interest up to 7th april, 1961. costs awarded by the pakistan court, costs awarded by the trial court at simla and interest on principal amount from 8th april, 1961 till realization amounting to a total of rs. 10,92,318-37 calculated up to 8-9-1968. it was further directed in the judgment and decree that the respondent/decree-holder is entitled to.....
Judgment:

I.D. Dua, C.J.

1. The decree-holder has approached this Court under Section 151, Civil Procedure Code. His application so far as material may be reproduced in extenso:-

'The respondent decree-holder respectfully prays as under:-

1. That in the aforesaid R.F.A. No. 21 of 1967 this Hon'ble Court consisting of Hon'ble Mr. Justice S. N. Shankar and Hon'ble Mr. Justice Jagjit Singh in its judgment dated 30th August, 1968 was pleased to hold that the respondent decree-holder was entitled to recover the amount of Rs. 5,08,333-5-6 plus interest up to 7th April, 1961. Costs awarded by the Pakistan Court, Costs awarded by the Trial Court at Simla and Interest on principal amount from 8th April, 1961 till realization amounting to a total of Rs. 10,92,318-37 calculated up to 8-9-1968. It was further directed in the judgment and decree that the respondent/Decree-Holder is entitled to take out immediate execution for the recovery fo the decretal amount as mentioned above less, deposit amount of Rupees Three Lacs with a proviso that if within three years from the date of this order nopayment is received by him out of or from the Deposit amount he will be entitled to sue for execution for the recovery of the unpaid decretal amount then due to him.

2. That the Decree-Holder feels that it would be difficult for him to realise the amount of Rupees three lacs lying in deposit in the High Court of West Pakistan from the legal representatives of Late Rai Bahadur Jodha Mal the original defendant.

3. It is, thereforee, fit and proper in the circumstances as mentioned above that the Judgment-Debtor/Appellant be directed to furnish a Cash Security or a Bank Guarantee to the satisfaction of this Hon'ble Court so that there is no difficulty for the respondent/Decree-Holder to realise the aforesaid amount of Rupees Three Lacs if the same is not received by the Decree-Holder within the stipulated period.

4. This is without prejudice to the right of the Decree-Holder respondent to take any other appropriate action arising out of the Judgment of this Hon'ble Court.

5. It is, thereforee, prayed that your Lorships may be pleased to direct the Judgment-Debtor/Appellant to furnish caseh security or a Bank Guarantee for Rs. 3 Lacs to the satisfaction of this Hon'ble Court.

Any other orders or directions that your Lorships may deem fit and proper under the circumstances of this case may be passed.'

2. This matter originally came up before learned Single Judge of this Court more than once. On the last occasion my learned brother P.N. Khanna, J., referred the matter to a larger Bench because it was suggested (the suggestion is also repeated before us) that the prayer in this petition virtually amounts to the amendment of the decree. It is for this reason that the matter was placed before a Division Bench .

3. The relvant part of the Judgment of the Division Bench of this Court dated August 30, 1968, which judgment and decree is the subject-matter of appeal in the Supreme Court by both parties on a grant of a certificate, reads as under:-

'We, accordingly, hold that the plaintiff is entitled to recover the aforementioned amounts and future interest out of the assets of the deceased R.B. Jodha Mal and the appellants will be liable to pay the same to that extent only. As stated earlier, he (Rai Bahadur Mohan Singh Oberoi) will be entitled to take out immediate execution only for the recovery of the decretal amount less the deposit amount of rupees three lacs with a proviso that if within three years from the date of this order no payment is received by him out of or from the deposit amount, he will be entitled to sue out execution for the recovery of the unpaid decretal amount then due to him.'

4. It is conceded at the Bar that objection to this part of the judgment and decree has been taken in the memorandum of appeal to the Supreme Court and the matter will have to be ultimately decided by that Court. Indeed, the judgment-debtor is also questioning, on appeal to the Supreme Court the decree to the extent of Rs. 3,00,000/- as granted by this court.

5. On behalf of the decree-holder now what is prayed in real substance is that we should modify the judgment and decree of this Court against which cross-appeals are already pending in the Supreme Court, by adding a further proviso that the judgment-debtor should furnish adequate scurity for a sum of Rs. 3,00,000/- and this relief is sought so that the ultimate realization of this amount by the decree-holder is facilitated in case the supreme Court upholds this part of the decree. We are unable to make this order under Section 151, Civil Procedure Code on the facts and circumstances of this case. Section 151 merely saves by expressly preserving to the Court (which is both a Court of equity and law) inherent power to act according to justice, equity and good conscience and make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. It does not confer any additional power not already vesting in it, to entertain a proceeding but applies only to the exercise of power when the matter is before the Court. There is no question of abuse of the process of the Court in this case and we are also far from satisfied that it is necessary in the ends of justice to make the order sought in the circumstances disclosed on the record. Reference has been made to Order Xlv, Rule 13(2)(d), Civil Procedure Code, by Shri S. Malhotra and according to him, even though his application does not purport to be under this provision of law, the prayer in the application is clear and this Court should, despite different label on the application, exercise its power under Clause (d) of this rule and give the directions prayed. In our opinion, this rule does not empower this Court to alter, amend or modify the judgment or decree. The conditions to be placed on any party seeking relief from the Court and directions to be given respecting the subject-matter of the appeal are intended largely for the restricted purpose fo interim protection without altering on merits the judgment appealed from. The matter is concededly pending before the Supreme Court and if the parties are so advised, they may approach that Court and seek appropriate directions by way of interm relief for safeguarding their rights.

6. For the reasons given above, this petition fails and is dismissed with costs.

7. Petition dismissed.


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