Skip to content


Krishna Mohini Dossee Vs. Kedarnath Chuckerbutty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal447
AppellantKrishna Mohini Dossee
RespondentKedarnath Chuckerbutty and anr.
Cases ReferredAmir Hassan Khan v. Sheo Baksh Singh
Excerpt:
execution of decree - civil procedure code (act xiv of 1882), sections 232, 612--assignee of decree, execution by--cross-decrees--discretionary power of court under section 232 of act xiv of 1882. - .....the decree for valuable consideration to the person who has now petitioned the subordinate judge for execution. upon the hearing of that application, it appeared that the judgment-debtor had obtained against the decree-holder who had assigned to the petitioner a decree for the recovery of certain immoveable property, and had also obtained an order that an enquiry should be made with the view of ascertaining what, if any, mesne profits were due from the decree-holder to the judgment-debtor, and upon that state of things the subordinate judge, acting under section 232 of the code of civil procedure, refused, as we have said before, to allow the assignee to execute the decree, because he considered that it would be unfair and inequitable that he should do so by reason of the.....
Judgment:

W. Comer Petheram, C.J.

1. This rule comes before this Court for the purpose of our revising an order of the Subordinate Judge of Bhagulpore, refusing to allow the assignee of a decree to execute the decree in her own name. The facts of the case appear to be that the decree was obtained some time ago, and was partially executed; but a considerable amount of the decree still remained to be realized when the decree-holder assigned the decree for valuable consideration to the person who has now petitioned the Subordinate Judge for execution. Upon the hearing of that application, it appeared that the judgment-debtor had obtained against the decree-holder who had assigned to the petitioner a decree for the recovery of certain immoveable property, and had also obtained an order that an enquiry should be made with the view of ascertaining what, if any, mesne profits were due from the decree-holder to the judgment-debtor, and upon that state of things the Subordinate Judge, acting under Section 232 of the Code of Civil Procedure, refused, as we have said before, to allow the assignee to execute the decree, because he considered that it would be unfair and inequitable that he should do so by reason of the cross-claims existing between the decree-holder and the judgment-debtor.

2. We think that he was wrong in the conclusion at which he arrived, and we think that under the circumstances the assignee ought to have been allowed to execute the decree in her own name.

3. The discretion given to Judges as to allowing execution of decrees by assignees is a discretion which must be exercised reasonably, and it is perfectly clear that, unless there is a reasonable cause for refusing the assignee to issue out execution in his own name, the Judge ought not to exercise his discretion in that way and refuse to allow execution to proceed in the assignee's name; and we do not think that the mere existence of an order that an enquiry shall take place to ascertain whether anything is or is not due from the decree-holder to the judgment-debtor is any reason whatever for such refusal. We do not say any reasonable excuse, but we do not think it is any reason that ought to induce the Subordinate Judge to refuse to allow the decree to be executed in the name of the assignee; and, consequently, we are of opinion that, both as a matter of discretion and as a matter of law, the Judge was wrong in the view that he took, and that he ought to have allowed execution to go in the name of the assignee.

4. But then comes a very different and more difficult question, and that is the question whether this order can be revised by the Court under Section 622 of the Code of Civil Procedure. This is a section which has been a good deal enquired into.

5. In our opinion it is a section of very limited operation. What the section says is that the High Court may revise a decision of the Court by which the case was decided if the Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

6. Now, it seems to us, that the meaning of this section is that, whenever a Court has jurisdiction to decide a question, whether it is a question of law or a question of fact, its decision on that question is not revisable by this Court.

7. Unless it is a matter in which there is an appeal, its decision on that matter is final, and that decision cannot be reviewed by this Court because it is wrong either on the question of law or on the question of fact. It is perfectly clear that in this case the question whether the Subordinate Judge was wrong in not allowing execution to issue in the name of the assignee was a question which he had jurisdiction to decide. It was a matter either of absolute discretion, in which case of course he might act as he thought fit, or it was a matter of discretion controlled by legal principles, in which case it comes to be a question of law, and the Subordinate Judge has decided that question of law, and has decided it in favour of the judgment- debtor. That being so, his decision cannot, in our opinion, be revised by the Court under Section 622 of the Code, notwithstanding the fact that, in our opinion, the conclusion he came to on the question of law is erroneous.

8. In this particular case we do not see that any injustice is likely to arise, because, so far as we can ascertain, there is no reason why this application by the assignee should not be repeated, and if the application is repeated, and is accompanied, as no doubt it will be, with a note or report of the views expressed by this Court, in all probability justice will be done in this matter and no hardship will be done in this case.

9. In our opinion the view which we have expressed of the meaning of Section 622 of the Code is in accordance with the view which has been taken of it by the Privy Council in the case of Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6.

10. In the result the rule will be discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //