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Chauthilal Vs. Badri Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. (Exn.) First Appeal No. 5 of 1955
Judge
Reported inAIR1960Raj249
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 11(2) - Order 41, Rule 5
AppellantChauthilal
RespondentBadri Prasad and anr.
Appellant Advocate C.B. Bhargava, Adv.
Respondent Advocate P.C. Bhandari, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases Referred and Ekram Hussain v. Mt. Umatul Rasul
Excerpt:
- - umatul rasul, air 1931 pat 27. 6. learned counsel for the appellant contended that the above principle may be suitable in cases where the decree had only been confirmed, but in a case like the present where a modification of the decree has been made, the decree-holder must be called upon to file a fresh application for executing the decree of the appellate court. 7. on principle i can find no difference where the decree is affirmed or modified, so long as what has been done in the execution proceedings is well within the terms of the decree of the appellate court. the decree-holder did not claim execution against ram charan, and whatever claim he made against chauthi lal had not been satisfied even for the smallest fraction of that amount......property. it was prayed that chauthi lal be arrested and detained in prison in execution of the decree. chauthi lal was arrested and detained in prison. ram charan lal, as was expected, filed an objection to the attachment of property on 20-5-47, and that objection was dismissed. the appeal by ram charan was dismissed on 29-7-1954, by the high court of rajasthan.on 19-8-1954, the judgment-debtor filed an objection that the decree put in execution on 25-2-1947, was a decree passed by the district judge of karauli, and that the application could not proceed as the said decree merged in the decree of the appellate court. the learned senior civil judge dismissed the objection on 30-4-1955, and the present appeal is directed against that order. it may be mentioned that in the meanwhile the.....
Judgment:

K.L. Bapna, J.

1. This is a first appeal in execution proceedings.

2. The respondent firm Badri Prasad Kishori Lal instituted a suit against Chauthi Lal and his son Ramcharan as owners of the firm Chauthi Lal Par-shadilal. The suit was for the recovery of Rs. 7,690/- principal and Rs. 86/8/- as interest, making the total claim at Rs. 7776/8/-. During the pendency of the suit, the plaintiff informed the Court that he had received Rs. 600/- from the defendants.

The trial Court gave a decree for Rs. 7.178/8/-with full costs and interest to run at 3 per cent p. a, during the pendency of the suit and till satisfaction. According to the decree the amount decreed and the costs came to Rs. 8,075/7/9. The decree-holders filed an application for execution of the decree on 25-2-1947, and wanted execution against Chauthi Lal for Rs. 8,433/1/3 as follows:

Amount according to decreeRs. 8,07579Cost of copies526Present expenses116153Interest during suit23579Total ....8,43313

In column No. 4 it was mentioned that there had been no appeal. The defendant in the meanwhile filed an appeal, and the Chief Court of Karauli modified the decree by judgment of 10-5-1947.

3. The decree against Rani Charan was reversed, and the suit against him was dismissed. The liability of Chauthi Lal to pay Rs. 7,176/8/- was confirmed, but the interest during the pendency or the suit and subsequently was to run on Rs. 7090/-aiid not the decretal amount of Rs. 7176/8/-. The rate of interest awarded was confirmed. Ram. Charan was awarded the costs of the first Court against the plaintiff. The costs of the appeal were made-easy.

4. It appears from a perusal of the record that on the same day, that is, 10-5-1947, the decree-holder applied to the executing Court that Chauthi Lal was about to run away in order to defeat and delay the execution of the decree, and Ram Charan was bent upon filing objections to the execution against the property. It was prayed that Chauthi Lal be arrested and detained in prison in execution of the decree. Chauthi Lal was arrested and detained in prison. Ram Charan Lal, as was expected, filed an objection to the attachment of property on 20-5-47, and that objection was dismissed. The appeal by Ram Charan was dismissed on 29-7-1954, by the High Court of Rajasthan.

On 19-8-1954, the judgment-debtor filed an objection that the decree put in execution on 25-2-1947, was a decree passed by the District Judge of Karauli, and that the application could not proceed as the said decree merged in the decree of the appellate Court. The learned Senior Civil Judge dismissed the objection on 30-4-1955, and the present appeal is directed against that order. It may be mentioned that in the meanwhile the house property of the judgment-debtor was attached and sold, but the same had subsequently been set aside.

5. Learned counsel relied on Harilal Dalsukh-ram v. Mulchand Asharam, AIR 1930 Bom 225 in support of his contention that the decree of the Court of District Judge was not executed, and the application should be thrown out. As I read the judgment, Justice Murphy has only held it to be a technical error, which can be corrected by reference to S. 99 ot the Code of Civil Procedure. The authorities, which lay down that the decree of the trial court gets merged in the decree of the appellate court are no doubt correct, but the said decisions only emphasise this fact when dealing with the question of limitation as to when the period of limitation will commence for execution of the decree, or when the point in dispute is as to what court cart amend the decree.

Order XLI, Rule 5, C. P. C., says that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. It is evident that when a decree of the lower Court is taken out in' execution, it may be stayed by the appellate Court, but when the appeal is dismissed, the execution proceedings can continue. The dismissal of the appeal would no doubt have the result of the lower Court's decree being merged in the decree of the appellate court, but that would not have the effect of wiping out the proceedings taken for execution of the decree passed by the trial Court. What should be done in a case of this nature is that the decree-holder or for that matter the judgment-debtor can inform the court as to the result of the appeal, and the execution proceedings can further continue in accordance with what has been decided by the appellate court. The same indication is found in Order XXI, Rule 11, where Sub-rule (2), Clause (d) requires a mention whether any appeal has been preferred from a decree. The decree to be executed is the decree of the trial court, and when the appeal is decided, one of the two parties has to inform the Court as to what has happened in the appeal, so that the lights of the parties as determined by the higher court may be enforced. If the effect of the decision of the appeal were to nullify the execution proceedings, much injustice would be caused in a great many cases. Suppose, for instance, the property of the judgment-debtor is attached, and the property is put up for sale. If in the meanwhile the appeal is decided and a fresh application is necessary, all the previous proceedings would be wiped out, and a fresh attachment, fresh proclamation, and fresh sale would become necessary, and in the meanwhile other complications may arise, and the decree-holder may be put to the trouble and expense of taking all the proceedings over again.

Other decree-holders may come into existence in the meanwhile, and may claim rateable distribution in certain cases, or the property may be transferred, and the question of bona fide transfer for value may arise. I have only indicated some of the difficulties which may arise if the correct view of the law were that as soon as an appellate court disposes of an appeal, the proceedings in execution of the decree of the trial Court are wiped out. What is only necessary is that as soon as an appeal is decided, it is for one or the other party concerned to inform the Court as to what has happened in the appeal, and the execution application is to be amended or a note made by the Court as to what relief had been granted by the appellate Court, and to determine the rights of the parties in execution according to the decision of the appellate Court. I am supported in this opinion by several decisions ' of the Indian High Courts:

Sm. Ratan Mala Mondal v. Gopal Lal Daga, (S) AIR 1955 Cal 14; Saroop Narain v. Suraj Mohan, AIR 1942 Oudh 84; Pateshwari Prasad Singh v. Abdul Karim. AIR 1946 All 496 and Ekram Hussain v. Mt. Umatul Rasul, AIR 1931 Pat 27.

6. Learned counsel for the appellant contended that the above principle may be suitable in cases where the decree had only been confirmed, but in a case like the present where a modification of the decree has been made, the decree-holder must be called upon to file a fresh application for executing the decree of the appellate court.

7. On principle I can find no difference where the decree is affirmed or modified, so long as what has been done in the execution proceedings is well within the terms of the decree of the appellate court. In the present case, the appellate court confirmed the decree for the recovery of Rs. 7,176/8/-against Chauthilal, but only reduced the amount from Rs. 7,176/87- to Rs. 7,090/-. on which interest would run during pendency of the suit and till satisfaction.

8. The other part of the decree of the appellate court was that the suit against Ram Charan had been dismissed. The decree-holder did not claim execution against Ram Charan, and whatever claim he made against Chauthi Lal had not been satisfied even for the smallest fraction of that amount. The arrest and detention already made was covered by the relief which had been granted to him by the appellate court.

9. Learned counsel for the respondent has filed an application today for amending of the execution application according to the judgment of the Chief Court of Karauli, dated 10-5-1947. This is all that is required to be done under the law. I, therefore, see no ground to accept this appeal.

10. The appeal is accordingly dismissed. The lower court will make a note on the execution application that an appeal was filed, and also note down the reliefs to which the decree-holder became entitled under the decree of the appellate court. I will not allow costs to the respondent because such a simple thing could be done by him in the trial court at least long before the hearing in this Court. The further proceedings for the execution of thedecree will be carried on according to the amountdue under the appellate court's decree.


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