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Khepoo Paramanick Vs. Poromanand Khasnabish - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal354
AppellantKhepoo Paramanick
RespondentPoromanand Khasnabish
Cases ReferredAllahabad Court Sitaram v. Mahipal I.L.R.
Excerpt:
execution of decree - payment not certified in court--fraud--cause of action--regular suit--code of civil procedure (act xiv of 1882), section 258. - .....whether a suit of this nature will lie. the old law under the code of 1859, as settled by the full bench decision in gunamani dasi v. prankishori dasi 5 b.l.r. 223 was that such a suit will lie. upon the code of 1877, as unamended by the act of 1879, there are two madras decisions to be found in viraraghava reddi v. subbaka i.l.r. 5 mad. 397 a full bench case, and chembrakandi mussutti v. themdyal puthalath shekharan nayar i.l.r. 6 mad. 41 following the full bench decision, that the suit is maintainable. immediately after the madras full bench decision, section 258 of the code was altered and amended. the last paragraph of the section, as amended by the act of 1879, and as it stands in the code of 1882 now in force, is: 'no such payment or adjustment shall be recognized by any court,.....
Judgment:

Field, J.

1. This was a suit brought to recover Rs. 186-14, alleged to have been paid by the plaintiff in satisfaction of a previous decree obtained by the defendant against him.

2. The question which has been argued before us is whether a suit of this nature will lie. The old law under the Code of 1859, as settled by the Full Bench decision in Gunamani Dasi v. Prankishori Dasi 5 B.L.R. 223 was that such a suit will lie. Upon the Code of 1877, as unamended by the Act of 1879, there are two Madras decisions to be found in Viraraghava Reddi v. Subbaka I.L.R. 5 Mad. 397 a Full Bench case, and Chembrakandi Mussutti v. Themdyal Puthalath Shekharan Nayar I.L.R. 6 Mad. 41 following the Full Bench decision, that the suit is maintainable. Immediately after the Madras Full Bench decision, Section 258 of the Code was altered and amended. The last paragraph of the section, as amended by the Act of 1879, and as it stands in the Code of 1882 now in force, is: 'No such payment or adjustment shall be recognized by any Court, unless it has been certified as aforesaid.' It might be contended that the Legislature meant by this provision to overrule the decision of the Full Bench of the Madras High Court just referred to, but, as was pointed out by Mr. Justice O'Knealy in the course of the argument in this case, it is a very proper answer to this contention to say that if the Legislature meant to overrule the decision of the Madras High Court, it would have been very easy to say in express language, admitting of no doubt, that no separate suit will lie. Upon the amended section in this present shape, there are two decisions of the Allahabad High Court Sita Ram v. Mahipal I.L.R. 3 All. 533 and Shadi v. Gunga Sahai I.L.R. 3 All. 538 in which it has been held that a separate suit will lie.

3. There is also a decision of this High Court, Ishan Ghundra Bundopadhya v. Indro Narain Gossami I.L.R. 9 Cal. 788 in which it has been held that a separate suit is maintainable. On the other hand, there is a decision of the Bombay High Court Patankar v. Devji I.L.R. 6 Bom. 146 in which it has been decided that a separate suit is not maintainable. In this conflict of authority it appears to us that we ought to follow the previous decision of this Court, especially as no grounds have been advanced to induce us to suppose that that decision is not correct. Speaking for myself I desire to say, with reference to certain observations made in the decision of this Court and in the decision of the Allahabad Court Sitaram v. Mahipal I.L.R. 3 All. 533 that it does not appear to me necessary, in order to arrive at the conclusion that a separate suit will lie, to limit the meaning of the words 'any Court' in the last paragraph of Section 258, to any Court executing the decree. I think that if this had been the intention of the Legislature, the expression 'the Court' would probably have been used for 'any Court.' It is quite possible to suppose cases, other than those concerned with the satisfaction of the decree by a money-payment, or other form of satisfaction, in which the question whether the decree had been satisfied might involve questions relating to title or other matters either as between parties to the suit, or as between other parties, and it may be quite possible (it is unnecessary to decide the point, which does not arise in the present case) that in using the expression 'any Court' the Legislature had in its mind, cases of this description. The conclusion at which we arrive is that the suit was maintainable, and that this appeal must therefore be dismissed with costs.


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