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Deno Bundhu Nundy Vs. Hari Mati Dassee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal480
AppellantDeno Bundhu Nundy
RespondentHari Mati Dassee
Cases ReferredBairagulu v. Bapanna
Excerpt:
civil procedure code (act xiv of 1882) section 244 and section 258 - separate suit--uncertified adjustment--suit for staying execution and declaration of satisfaction--injunction--specific relief act (i of 1877) section 56. - .....254.maclean, c.j.11. by a consent decree dated the 9th of june 1879, in which the plaintiff in the present suit was the defendant and the defendant in the present suit was the plaintiff, it was ordered and decreed by consent that upon, the death of a certain lady named khama moyee dassee, the defendant should pay to the plaintiff, if then alive, which event happened, for her absolute benefit, the sum of rupees ten thousand in addition to a monthly allowance of rupees one hundred, secured to her by the agreement of bhadro 1272 b.s. khama moyee dassee died on the 11th of september 1896, and on the 20th of may 1898 the plaintiff in the suit, to which i have just referred, took proceedings to execute the decree for the said 10,000 rupees, and certain arrears of maintenance, as to which there.....
Judgment:

Francis W. Maclean, C.J.

1. You have to satisfy the Court that the operation of Section 244 is controlled by Section 258. If your (sic) contention is correct then the position of a judgment-debtor, who (sic) has neglected to enter satisfaction under Section 258, is better than (sic) that of any other person.

2. That section does not preclude any Court from granting; equitable relief if, as a matter of fact, the decree has been satisfied. I rely upon the judgment of Banerji J. in the case cited by me. The decision of Pigot J. also involves the admission that the Court other than the executing Court could give relief.

Hill, J.

4. See the provisions of Section 56 of the Specific Relief Act. If the statute gives the right to enforce a, decree how can a Court restrain one from doing so?

5. That section of the Specific Relief Act does not exclude the power of any other Court to give adequate relief, if the Court executing the decree cannot go into the question of satisfaction.

Maclean C.J.

6. See Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Calc. 683 which is a Privy Council case.

7. That is a case of a different class altogether. It does not appear from the judgment that the effect of Section 248 on the operation of Section 244 was considered in that case.

8. If the Court holds that the plaintiff has erred in the relief sought by him, then I ask that, inasmuch as there is a prayer for compensation for the wrongful conduct of the defendant and the arrangement come to with her is stated in the plaint, leave may be granted to the plaintiff to amend the plaint and proceed with the suit as one for compensation for breach of agreement.

9. See Nubo Kishen Mookerjee v. Debnath Roy Chowdry (1874) 22 W.R. 194, Gunamani Dasi v. Prankishori Dasi (1870) 5 N.L.R. 223, Ishan Chunder v. Indro Narain (1883) I.L.R. 9 Calc. 788, Ram Doyal Banerjee v. Ram Hari Pal (1892) I.L.R. 20 Calc. 33 and Iswar Chandra Dutt v. Haris Chandra Dutt (1898) I.L.R. 25 I.L.R. 718.

10. The Advocate-General (Mr. J.T. Woodroffe), and Mr. Chakravarti for the respondent were not called upon, but they cited the following cases in support of the defendant's case: Haji Abdul Rahiman v. Khoja Khaki Aruth (1886) I.L.R. 11 Bom. 6, Bairagulu v. Bapanna (1892) I.L.R. 15 Mad. 302, Laldas Narandas v. Kishordas Devidas (1886) I.L.R. 22 Bom. 463, and Jaikaran Bharti v. Raghunath Singh (1898) I.L.R. 20 All. 254.

Maclean, C.J.

11. By a consent decree dated the 9th of June 1879, in which the plaintiff in the present suit was the defendant and the defendant in the present suit was the plaintiff, it was ordered and decreed by consent that upon, the death of a certain lady named Khama Moyee Dassee, the defendant should pay to the plaintiff, if then alive, which event happened, for her absolute benefit, the sum of rupees ten thousand in addition to a monthly allowance of rupees one hundred, secured to her by the agreement of Bhadro 1272 B.S. Khama Moyee Dassee died on the 11th of September 1896, and on the 20th of May 1898 the plaintiff in the suit, to which I have just referred, took proceedings to execute the decree for the said 10,000 rupees, and certain arrears of maintenance, as to which there is no dispute. 1 On the 25th of June 1898, the present suit was instituted, and on the 7th of September 1898 an injunction was granted restraining the defendants, their servants and agents, from executing the decree of the first suit, to which I have referred; and it was ordered that the Registrar of this Court do out of certain Government securities of the nominal value of rupees sixteen thousand, deposited with him by the plaintiff, retain in his hands a portion of the securities of the actual value of rupees ten thousand, and endorse and deliver over the balance to the plaintiff.

12. By the present suit the plaintiff asked for a declaration J that the said sum of rupees ten thousand, payable under J the said consent decree of the 9th of June 1879, has been paid and satisfied, and for an injunction to restrain the defendant from executing the said decree for rupees' ten thousand and for an interim injunction. He also asked that the defendant might be ordered to pay to him such compensation as might be thought fit for her wrongful conduct.

13. The defence is that the suit will not lie, having regard to Section 244 of the Civil Procedure Code. It is urged for the defendant that this is a question relating to the execution, discharge or satisfaction of the decree or to the stay of the execution thereof; and that that must be decided in the execution proceedings and no separate suit would lie. If the matter rested there, I do not suppose there could be any reasonable doubt but that the case ought to have been dealt with under Section 244.

14. It is, however, contended for the plaintiff that Section 244 is controlled by Section 258, The plaintiff sets up an adjustment of the matters in dispute between the plaintiff and the defendant in the first suit, and that under that adjustment the present defendant agreed that 10,000 rupees should he used in defraying a portion of the expenses of the shrad ceremony of Khama Moyee Dassee. That adjustment was not certified in accordance with the provisions of Section 258; and he contends that, inasmuch as that adjustment has not been certified, and as the Court executing the decree cannot recognize any such adjustment, the Legislature could not have intended that the matter should be decided under Section 244, when it would be impossible for the present plaintiff to show, having regard to Section 258, that the adjustment had been made. In other words that justice could not be done him, if the matter be determined under that section.

15. If the matter had been res Integra, I should have thought that that argument could not properly prevail; but the matter has been the subject of much judicial decision, and we have been referred to many cases dealing with the question. It is unnecessary for present purposes to review those authorities. In my opinion the view expressed. by the majority of the Court in the case of Azizan v. Matuk Lal Sahu (1893) I.L.R. 21 Calc. 437, where all the authorities were reviewed, is correct. I may, however, point out that I cannot see how the present contention can successfully prevail, having regard to the view expressed by the Privy Council in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Calc. 683. In that case it appears from the record that the adjustment had not been certified under Section 258, and I can scarcely think, seeing that Sir Richard Couch was a member of the Committee, that if it had been considered that Section 258 controlled, in the manner urged by the present appellant, the operation of Section 244, so important a point would have been overlooked either by the learned Counsel, who argued for the appellant or by their lordships who decided the case. The point was pithily dealt with in the case of Bairagulu v. Bapanna (1892) I.L.R. 15 Mad. 302. Section 244 is therefore a bar to the present suit, so far as relates to the question of whether or not the 10,000 rupees had been paid and satisfied. This being so it is unnecessary to decide whether, having regard to Section 56 of the Specific Relief Act, an injunction could have been properly granted.

16. On the question of damages we are asked to allow an amendment of the plaint. This was refused by the Court below, and. it is very late now to ask for it. There is no allegation of any damage in the plaint, and we have felt some difficulty in ascertaining what amendment is really asked for. It is by no means apparent that the plaintiff as yet has sustained any damages: the 10,000 rupees has not been paid to the defendant. To allow the plaintiff now to amend would virtually amount to allowing him at this late stage to make a new case. We therefore refuse this application.

16. The appeal fails and must be dismissed with costs.

Hill. J.

17. I am of the same opinion. I shall only add that in so far as the suit seeks for an injunction to restrain the defendant from proceeding with the execution of the decree in question, it conflicts in my opinion with the provisions of Section 56 of the Specific Relief Act of 1877.

Stevens, J.

18. I also concur.


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