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Rung Lall and anr. Vs. Hem NaraIn Gir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal166
AppellantRung Lall and anr.
RespondentHem NaraIn Gir
Cases ReferredDandekar v. Dandekar I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, section 258--certifying part payment of decree--'to show cause,' meaning of. - .....establish their allegation, rejected their petition without taking any evidence upon the disputed question of fact.2. we are of opinion that the lower courts are in error in not allowing the parties opportunity to establish their respective allegations. the section says that, if the decree-holder fails to show cause why the payment should not be recorded as certified, the court shall make the rule absolute. it appears to us that in determining whether the cause shown is sufficient or not, it is incumbent upon the court to investigate and decide any question of fact, upon which the parties may not be agreed, upon such materials as they may legally place before it. in investigating this matter, the court may take oral evidence, or may, under chapter xvi of the civil procedure code, allow.....
Judgment:

Mitter and Norris, JJ.

1. In this case the judgment-debtors, appellants, informed the lower Court that they had paid out of Court to the decree-holder, respondent, Rs. 1,000 in part satisfaction of the decree, and applied, under Section 258 of the Civil Procedure Code, for the issue of a notice upon the respondent to show cause why the said payment should not be recorded as certified. The respondent appeared and denied the receipt of the money. The lower Courts, being of opinion that, under the section in question, the appellants were not entitled to go into evidence to establish their allegation, rejected their petition without taking any evidence upon the disputed question of fact.

2. We are of opinion that the lower Courts are in error in not allowing the parties opportunity to establish their respective allegations. The section says that, if the decree-holder fails to show cause why the payment should not be recorded as certified, the Court shall make the rule absolute. It appears to us that in determining whether the cause shown is sufficient or not, it is incumbent upon the Court to investigate and decide any question of fact, upon which the parties may not be agreed, upon such materials as they may legally place before it. In investigating this matter, the Court may take oral evidence, or may, under Chapter XVI of the Civil Procedure Code, allow the disputed fact to be proved by affidavit according as the one or the other course may appear to it convenient.

3. The language of Section 526 is similar to that of Section 258 and in Dandekar v. Dandekar I.L.R. 6 Bom. 663 it was held that the term 'to show cause' in Section 526, 'does not mean merely to allege causes, nor even to make out that there is room for argument, but both to allege cause and to prove it to the satisfaction of the Court.' Following this decision, we think that the same construction should be put upon the term 'to show cause' in Section 258.

4. We reverse the decisions of the lower Courts and remand the case to the Court of First Instance to decide upon evidence whether the cause shown is sufficient and satisfactory. The costs will abide the result.


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