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Ramprosad Surajmull Vs. Motilal - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Reported inAIR1936Cal53
AppellantRamprosad Surajmull
RespondentMotilal
Cases ReferredMunna Lal v. Sarat Chunder
Excerpt:
- .....on behalf of the plaintiffs in the suit to set aside a previous order which had been made by the learned judge, purporting to act under rule 8, chapter 26, reference rules, of this court whereby the plaintiffs' suit was dismissed for want of prosecution. an examination of the history of the litigation between the parties demonstrates very clearly that neither the plaintiffs nor the defendant have any merits in the matter. the suit was instituted as long ago as 13th december 1918 for the recovery of the sum of rs. 12,665-11-9 alleged to be due on a mutual, open and current account. the written statement was filed on 14th february 1919 and the defence taken by the defendant was to this effect: the current account referred to in the plaint was admitted but defendant claimed to be entitled.....
Judgment:

Costello, J.

1. This is an appeal against two orders made by Panckridge; J., one on 23rd January 1934 and the second on 14th December 1934. The latter order was made as the result of an application on behalf of the plaintiffs in the suit to set aside a previous order which had been made by the learned Judge, purporting to act under Rule 8, Chapter 26, Reference Rules, of this Court whereby the plaintiffs' suit was dismissed for want of prosecution. An examination of the history of the litigation between the parties demonstrates very clearly that neither the plaintiffs nor the defendant have any merits in the matter. The suit was instituted as long ago as 13th December 1918 for the recovery of the sum of Rs. 12,665-11-9 alleged to be due on a mutual, open and current account. The written statement was filed on 14th February 1919 and the defence taken by the defendant was to this effect: the current account referred to in the plaint was admitted but defendant claimed to be entitled to credit by way of set off for the sum of Rs. 3,343-12-0 said to be due to the defendant from the plaintiffs on account of certain dealings in silver bars. The defendant also claimed to be entitled to a half share of the profits of a joint venture in connection with a transaction concerning 75 bales of Grey Shirting material. On 9th January 1920 Greaves, J., made a decree in favour of the plaintiffs. That decree was for the amount claimed loss the set off claimed by the defendant on the silver bar account and less such profits as the defendant might be entitled to arising out of the joint transaction in Grey Shirting material. It is important to observe the precise form of the decree. The operative part reads as follows:

It is ordered and decreed that the defendants do pay to the plaintiff firm the sum of Rupees 12,665-11-9 less the sum of Rs. 3,343-12-0 and also the amount representing the half share of the defendant's firm in the net profits accrued in respect of the joint venture in respect of 75 bales of Grey Shirting to be agreed upon between the parties in the pleadings in this suit mentioned with interest to run after 7 days on the ascertained amount if the amount is agreed at the rate of 6 per cent per annum until realisation thereof; otherwise the question of interest be reserved until after the Assistant Referee of this Court shall have made his report as hereinafter directed.

2. And then comes the direction:

And it is further ordered and decreed that the further hearing of this suit be adjourned and that it be referred to the said Assistant Referee to take an account of the profits as were made by the joint venture in respect of 75 bales of Grey Shirtings in the pleadings in this suit mentioned.

3. Then there is a direction with regard to costs. So that on 9th January 1920 the position was that the plaintiffs obtained a decree for a certain amount less one definite sum and less an unascertained amount, and the further hearing of the suit had been adjourned until after the reference. From that decree the plaintiff appealed on 9th February 1920. On 16th June of that year there was a decree made by the Court of appeal remanding the suit to the Court of first instance in order that there might be a clear finding with regard to the alleged existence of an agreement for the dealings and transactions between the parties to form part of the one current account in connexion with which the plaintiff was making his claim in the suit.

4. The matter again came before Greaves, J. and on 26th July 1920 there was a further finding by him on the issue which was sent back to him by the Court of appeal. Greaves, J. held that the agreement which was set out in para. 2 of the written statement had been satisfactorily established. Greaves, J. also made an order that the costs of the further hearing on remand were to be dealt with by the Court of appeal when the matter was further considered by that Court. For some reason or other, which has not been satisfactorily explained, nothing more happened until virtually nine years later. On 3rd July 1929 the plaintiffs' appeal appeared in the peremptory list. The plaintiffs, it seems, did not appear and the appeal was then dismissed with costs for want of prosecution. It appears that after that there was some kind of negotiation of a settlement. Be that as it may, the reference was never in fact proceeded with, but on 15th July 1929 the plaintiffs made an application for the restoration of the appeal to the list. That application was dismissed with costs. Nothing of any consequence was done by the plaintiffs for the space of a further five years. Accordingly on 6th January 1934 a summons was taken out by the defendant returnable on 9th January 1934 asking for an order that the suit should be dismissed with costs for want of prosecution. The plaintiffs secured an adjournment until 23rd January 1934 and they were directed to file an affidavit by 19th January. Apparently however nothing was done prior to 23rd January. On that date the matter came before Panckridge, J. and an attorney appeared on behalf of the plaintiffs and sought a further adjournment which was refused, and the learned Judge thereupon made an order dismissing the plaintiff's suit for want of prosecution. That is one of the orders now complained of.

5. On 5th February 1934 there was an application on behalf of the plaintiffs for a re-consideration of the matter, as they said, in view of the plaintiffs' inability to attend the Court on 23rd January. That application originally came before an acting Judge of this Court who took the view that the matter ought to stand over until after the return of Panckridge, J. at the end of the long vacation in 1934. Ultimately the matter was dealt with by Panckridge, J. on 14th December 1934, when the application was heard by him and ultimately dismissed by a judgment of that date, and that is the judgment we have now to consider. The learned Judge said:

This is an application on behalf of the plaintiffs to set aside an order I made purporting to act under Rule 8, Chapter 26 of the Reference Rules dismissing the plaintiffs' suit for want of prosecution.

6. Then he set out some of the history of the matter. Then he states:

No steps were taken with regard to the reference, although it was prima facie incumbent on the plaintiffs to take such steps in terms of Rule 4. The reason for the plaintiffs' failure to take any action in the matter is said to be the fact that negotiations were in progress for an amicable arrangement between themselves and the defendant. The defendant took out a summons which was returnable on 9th January. The plaintiffs appeared on that day and at their request I adjourned the application until 23rd January in order that they might have an opportunity of placing before me materials as grounds of opposition to the order asked for in the defendants' summonSection 23rd January arrived and on that occasion no materials in opposition were forthcoming and I made an order in terms of the summons taken out by the defendants and dismissed the suit.

7. The present appeal, as I have said, is directed against the two orders of 23rd January 1934 and 14th December 1934 and it was filed on 4th January 1935, that is to say, very nearly 12 months after the making of the first of those two orders. No satisfactory explanation has been put forward by Mr. Ghose for no appeal against the order of 23rd January being preferred at the proper time. Mr. Ghose merely says in extenuation rather than in explanation that in the circumstances no appeal was filed because on 5th February there was the application for a reconsideration of the matter by the learned Judge himself. In my view the filing of that application for a review affords no protection to the plaintiffs in answer to the contention that so far as the order of 23rd January 1934 is concerned this appeal was filed out of time, in that it was lodged long after the lapse of twenty days from the date of the order. We are therefore in this position: We can only concern ourselves with the judgment and order of 14th December 1934. There is one further passage in that judgment which I desire to quote. The learned Judge said:

The first point taken by learned Counsel for the plaintiffs is that Rules 4 and 8 have no application. He points out that the reference was directed with a view to reducing the defendant's liability under the decree and that therefore the defendant should take the necessary steps in the reference. He also submits that the reference rules cannot contemplate the dismissal of a money decree already passed. I think with regard to that it is sufficient if I say that no reason has been shown why these legal arguments could not have been advanced when the matter was before me on the former occasion, and I do not think that I should be justified in entertaining them now.

8. In my opinion the only matter the learned Judge had to consider on 14th Dec. 1934 was whether there was sufficient cause or excuse for the plaintiffs in not appearing on 23rd January 1934 and putting whatever contention they then desired to make. Upon a consideration of the facts of the case and after examining the affidavits which have been put in, in connexion with this matter I think we ought to come to the conclusion that the learned Judge was quite justified in holding as he did that there was no reason why he should re-open the matter or reconsider the order which he had made on 23rd January 1934. And even if we go behind that order and consider the merits of the ease I should say that the learned Judge was, in the circumstances of this case, quite right in holding that the matter was governed by the provisions of Rule 4 and Rule 8, Chapter 26 of the Rules of this Court. Mr. B.C. Ghose has contended that the plaintiffs were in this position they obtained a decree made on 9th January 1920 which was still subsisting and therefore it was not competent to the learned Judge to dismiss the suit and in that connexion Mr. Ghose put before us the decision in Lachmi Narain Marwari v. Balmukund Marwari 1924 P C 198 and the relied upon the judgment of Lord Philli-more. It is to be observed however at the outset that that judgment was given in connexion with a case which was originally filed not in this Court or any other Chartered High Court but in one of the Courts of the Mofussil. Therefore it was not a case which fell within the purview of any rules analogous to Rule 4 or Rule 8, Chapter 26 of the Rules of this Court. In my opinion these two rules are applicable to the, present case, and the only question which arises is whether or not the terms of the two rules are such as would enable the learned Judge to make the order which he made on 23rd January 1934. Rule 4 provides that:

An office copy of every decree or order directing a reference shall be filed in the Account Department of the Registrar's office by the party having the carriage of the reference within a week after the filing of the decree or order, and in default, may be filed in the Account Department by any other party within a week thereafter.

9. Mr. B.C. Ghose has argued that in the present case the plaintiffs had not the carriage of the reference because the effect of the decree of 9th January 1920 was to entitle them to a certain sum less an unascertained sum which might be deducted for the benefit of the defendant after the matter had been considered by the Assistant Referee. Mr. Ghose contended that in the circumstances it was the duty of the defendant to set in motion the machinery, necessary for the taking of the account in connexion with.the Gray Shirting business. If that was the position no doubt it could be said that the defendant was the party having the carriage of the reference, but in my opinion nothing occurred in this case which could rightly be said to have the effect of relieving the plaintiffs from the duty of proceeding with their suit so as to put themselves into the position of being able to obtain a decree which they could eventually put to execution. The plaintiffs instituted the suit and they were seeking to recover a sum of money from the defendant. They could not recover any sum whatever from the defendant until after the reference had taken place. Therefore it seems to me that in the circumstances of this case the learned Judge could come to the conclusion that it was the duty of the plaintiffs and not that of the defendant to file the decree in the Account Department of the Registrar's office. Admittedly that was not done. In fact no steps were taken within thirty days to apply for and file the decree or order of reference and no office copy was filed in the Account Department within the time prescribed by Rule 4. Therefore it was not unreasonable for the learned Judge to come to the conclusion that the defendant could properly apply under the provisions of Rule 8 for the dismissal of the suit for want of prosecution as contemplated by that rule. Mr. Ghose has put! forward somewhat the extravagant and indeed startling proposition that it was open to the plaintiffs to rest content with the decree which they had obtained (which, said Mr. Ghose, was merely a preliminary decree) and do nothing towards putting themselves into the position of being able to enforce that, decree for an indefinite and indeed infinite period of time. That is a proposition which cannot be accepted. As I pointed out to Mr. Ghose in the course of the argument it seems to me that the plaintiffs in this case are in a dilemma for either they obtained a decree or they did not. If they did not obtain a decree in the strict sense of the term then quite clearly it was open to the learned Judge to dismiss the suit for want of prosecution seeing that some 16 or 17 years had elapsed since the date of the institution of the suit and some five or six years since the plaintiffs had made any active move in the matter. If on the other hand it can rightly be said that the plaintiffs did obtain a decree, then the position was that the decree, even if it was merely a decree in the nature of a preliminary decree, was subject to the provisions of Article 183 of the Schedule of the Limitation Act, for the language of that Article is sufficiently wide to cover the position which the plaintiffs had created for themselves. That Article prescribes that the period of limitation within which a judgment, decree or order of a Court established by Royal Charter can be enforced is a period of 12 years and that period begins to run from the time when

the present right to enforce the judgment, decree or order accrues to some person capable of enforcing such right.

10. Now, as I see it, in the year 1920. the position was this: the plaintiffs ought to have filed a copy of the decree in the Account Department as being the parties having the carriage of the Reference, but even if the defendant was the party having the carriage of the Reference because it was to his advantage to have a Reference held on the chance of being able to set off a certain amount against the plaintiffs' claim, then the defendant not having taken any steps within 30 days it would have been open to the plaintiffs under the 2nd part of the provisions of Rule 8 to ask that all further proceedings under the Reference should be stayed and thereupon to obtain a final decree in the suit, that is to say, a decree in such form as the plaintiffs could proceed to put it into execution. The plaintiffs however did nothing whatever. Therefore it seems that it must be taken that after the lapse of 30 days the plaintiffs had a present right to enforce the decree seeing that they could have applied to have the Reference stayed and a final decree made. That they did not do. The position seems to have been very analogous to that of a mortgagee who has obtained a preliminary decree and then does nothing towards putting himself into the position of being able to obtain a final decree before the lapse of 12 years from the date of the preliminary decree. In connection with this point I may refer to the case of Munna Lal v. Sarat Chunder 1914 P C 150 which was a case which ultimately came before the Judicial Committee of the Privy Council. Their Lordships dismissed an appeal from the decision of this Court which was to the effect that where the Court in the exercise of its ordinary original civil jurisdiction passes a preliminary mortgage decree under Section 88, T. P. Act, 1882, an application under Section 89 of the Act for an order absolute for sale of the mortgaged property made after 12 years from the date of the preliminary decree would be barred by Article 183, Schedule 1, Lim. Act, 1908. In all the circumstances of this case I am of opinion that the judgment given by Panckridge, J., on 14th December 1934, was correct and therefore this appeal should be dismissed with costs.

Derbyshire, C. J.

11. I agree and I have nothing to add.


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