Skip to content


The Agra Bank Limited Vs. Dhuronidhur Sen and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal380
AppellantThe Agra Bank Limited
RespondentDhuronidhur Sen and anr.
Cases ReferredMoran v. The River Steam Navigation Co.
Excerpt:
injunction to restrain decree-holder from executing decree - court of co-ordinate jurisdiction--erroneous order of substitution--limitation act (ix of 1871), schedule in, clause 15--specific relief act (i of 1877), remedy by injunction under. - .....in december 1874 an application was made by the defendants to execute the decree against the bank. the bank then appeared to oppose the application, but execution was ordered to proceed. the manager then applied to this court under 24 and 25 vict., c. 104, section 15, to set aside the order by which the bank was substituted as judgment-debtors. that application was refused. the bank then brought this suit wherein they pray to have it declared that the order of substitution was illegal, and that the same with all proceedings taken thereunder be set aside, and also that an injunction be issued restraining the defendant from taking any further proceedings against the plaintiffs under the decree.3. the suit was instituted in the court of the subordinate judge of jessore, the same court.....
Judgment:

Markby, J.

1. The facts of this case are fully set out in the Judgment of Mr. Justice Mitter delivered in Court below. They are shortly as follows:One Brojonath having obtained a decree for damages against the executors of a surviving partner in an indigo concern, sold it to one Giridur, from whom it passed to the defendants. The executors then sold the indigo concern with dena and powna to the Agra Bank. In 1871 the then decree-hold or applied to the Court in which the decree was passed to substitute the Agra Bank in the place of the original judgment debtors. A notice was issued and duly served upon the Manager of the Bank, who did not think fit to appear upon the notice, and the application was granted.

2. In December 1874 an application was made by the defendants to execute the decree against the Bank. The Bank then appeared to oppose the application, but execution was ordered to proceed. The Manager then applied to this Court under 24 and 25 Vict., c. 104, Section 15, to set aside the order by which the Bank was substituted as judgment-debtors. That application was refused. The Bank then brought this suit wherein they pray to have it declared that the order of substitution was illegal, and that the same with all proceedings taken thereunder be set aside, and also that an injunction be issued restraining the defendant from taking any further proceedings against the plaintiffs under the decree.

3. The suit was instituted in the Court of the Subordinate Judge of Jessore, the same Court as that in which the original decree was passed, and in which the order for substitution was made. The Subordinate Judge dismissed the suit.

4. On appeal to this Court, the learned Judges differed in opinion. Mr. Justice White thought that the suit, so far as it sought to set aside the order of substitution, was barred by limitation; but that an injunction against further proceeding to execute the decree ought to be granted. Mr. Justice Mitter agreed as to the first point, but thought that the plaintiffs were not entitled to an injunction. A decree for an injunction having been drawn up in accordance with the opinion of the senior Judge, the defendants have now appealed from that decree. I entirely agree in the view expressed by Mr. Justice White in the Court below that the Subordinate Judge had no power whatever to make the order of substitution against the Agra Bank. 1 know of no statutory provision or principle of law upon which such an order could be made. But I do not think it follows from this that the injunction prayed for ought to be granted; and upon consideration I think that it ought not to be granted.

5. There are several methods by which an erroneous order, which has been improvidently issued, may be set aside or its effect nullified. Thus, if an appeal lies, the order may be appealed against, or the order may be reviewed by the Court which made it. In some cases a suit to reverse the order, treating it as a summary order, may be brought. Moreover, if the order be one which has been made without jurisdiction, it may be set aside by this Court under its powers of superintendence: so, too, if any person ventures under color of an order made without jurisdiction to do that which would be otherwise unlawful, the order would not afford him any protection.

6. But for one Judge to issue an injunction against a decree-holder to restrain him from executing the decree of another Judge exercising co-ordinate jurisdiction, upon the ground that the proceedings by which the decree was obtained were altogether illegal, is, as far as I am aware, a proceeding entirely without precedent, and one which it seems to me very dangerous to introduce. It has already been found difficult enough to bring litigation in this country to a termination, and if we were to grant this injunction, I am very much afraid that advantage would be taken of the precedent to prolong litigation very much further.

7. The cases in which injunctions are granted by the Court of Chancery against proceedings in other Courts in England appear to me to rest upon a totally different principle. They proceed upon the assumption that the rights of the parties cannot be fully inquired into except in the Court of Chancery itself. But it is significant that as soon as all the Courts of Westminster Hall came to be Courts of co-ordinate jurisdiction under the new Judicature Acts, this proceeding by way of injunction was abolished.

8. The Specific Relief Act (Act I of 1877) is not applicable to this case, but it may be observed that under that Act no injunction to stay proceedings can be granted unless the Court in which the proceedings are to be stayed is subordinate to that in which the injunction is sought.

9. Of course, what I have now said has no application to cases in which the order itself being admitted to be valid and binding, the plaintiff alleges that circumstances have occurred since the order was made which render it inequitable that the order should be enforced. I am now dealing with cases in which the suit is brought to prevent a decree being enforced upon the ground that the order by which the defendants were made judgment-debtors was itself ab initio illegal.

10. In the case of Moran v. The River Steam Navigation Co. (14 B.L.R., 352) on the Original Side, I issued an ad interim injunction directing certain parties not to proceed with a suit in the District Court of Hooghly. The Court of Appeal thought this went too far, but ordered that the decree of that Court when obtained should not be executed. But that case proceeds upon the assumption that the District Court of Hooghly is subordinate to this Court, and that this Court has power to remove the suit from that Court and to try it here. A suit relating to the same matter had been brought here before the suit had been brought in the Hooghly Court, and unless the injunction had been granted there might have been a conflict of jurisdiction, between the two Courts. That case appears to me, therefore, to be quite distinguishable.

11. The conclusion I have come to is that the injunction prayed for is not one which the Subordinate Judge was empowered to grant, and that the suit was, therefore, rightly dismissed.


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