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Mathuranath Ray Chaudhuri Vs. Janakinath Ray Chaudhuri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal804
AppellantMathuranath Ray Chaudhuri
RespondentJanakinath Ray Chaudhuri and ors.
Cases ReferredRaghubar Doyal Sukul v. Jadunandan Misser
Excerpt:
- .....and the first thing we find is an ex parte order made 'by the subordinate judge, by which the decree-holder was to file a copy of the decree within three weeks. the terms of the settlement, which were embodied in the decree, were indeed extraordinarily lengthy, as appears from the fact that the charge for taking only a copy of the decree amounted to rs. 4,118 and also from the fact that the decree-holder was ordered to supply a big tin box, for holding the copy of the decree, to the office of the court and it is beyond my conception how the decree-holder could be asked to file a copy of such a voluminous decree, within such a short period of three weeks and when, as we are informed, the office of the court had been busy in making a copy of this decree for a considerable portion of.....
Judgment:

Rankin, C.J.

1. In this case, the plaintiff brought a partition suit and, after certain terms of settlement had been arrived at, obtained a final decree. This final decree was to the effect that the possession, delivered over to each of the parties after making separate allotments of the moveables and immovables according to a certain award, be declared as the final delivery of possession to the parties and that the parties do respectively bear all kinds of costs incurred in the suit up to 30th June 1923 : that the value of the stamp to the extent of Rs. 5,013-12-0 for the preparation of the decree, which the plaintiff had put in, be borne by the plaintiff to the extent of his share, namely Rs. 1,641-4-0, and of the balance Rs. 1,671-4-0 be borne by each of the defendants 1 and 2 respectively. That decree was made in 1923 and it appears that certain execution proceedings were taken in 1926. Until August 1928, neither defendant 1 nor defendant 2 put in his share of the decretal amount which he should have done in 1923v The plaintiff accordingly took steps in execution and the first thing we find is an ex parte order made 'by the Subordinate Judge, by which the decree-holder was to file a copy of the decree within three weeks. The terms of the settlement, which were embodied in the decree, were indeed extraordinarily lengthy, as appears from the fact that the charge for taking only a copy of the decree amounted to Rs. 4,118 and also from the fact that the decree-holder was ordered to supply a big tin box, for holding the copy of the decree, to the office of the Court and it is beyond my conception how the decree-holder could be asked to file a copy of such a voluminous decree, within such a short period of three weeks and when, as we are informed, the office of the Court had been busy in making a copy of this decree for a considerable portion of the previous two years.

2. It appears that, in 1926, the decree-holder filed an application in execution and the Court then made an order that a copy of this decree be made. Time after time having been given by way of adjournments, the execution case was finally struck off. As I have pointed out, for the purpose of executing the decree, there was no necessity whatsoever for taking a copy of the whole decree. All that was necessary was the ordering portion of the decree, which is contained in a few lines of the present paper-book, which I have already cited, about the payment of one-third share of Rs. 5,013-12-0, for the preparation of the decree. In support of this view, our attention has been drawn to the provisions of Rule 11, Order 21, Civil P.C. and to what was said by this Court in the case of Raghubar Doyal Sukul v. Jadunandan Misser [1911] 13 I.C. 365. It was pointed out in that case that an order for a copy of the decree was wholly needless, because the Court, in which the application for execution was made, was the very Court which had made the decree and, if any reference to the decree was needed, the original could easily have been examined, That being the position we have to consider what happened upon this extraordinarily unfortunate order. The decree-holder appears to have asked for time to file a copy of the decree on 25fch August and his prayer was granted. On 30th August, judgment-debtor 1 prayed for permission to deposit the decretal amount with half of the costs of the execution case and this was allowed.

As copy of the decree had not yet been filed, no cost of the copy is allowed at this stage.

3. But that does not mean that the cost of the copy was going to be allowed at a further stage and it is also wrong on the basis of that order to hold that judgment-debtor 1 would no longer be liable to pay the cost. On 31st August an order was made:

Let the amount be credited to the decree-Inform the decree-holder accordingly. Defendant 1's due is fully satisfied.

4. That is very ambiguous. But it cannot be supposed to be a decision upon the question which was postponed on a previous occasion, as the copy of the decree had not then been filed.

5. On 10th September judgment-debtor 2 filed a petition for permission to deposit the decretal amount with costs in Court. He also objected to pay anything by way of cost for the copy of the decree. The petition is before us and in that petition he points out that it is unnecessary to put in a copy of the decree and that the copy is required by the decree-holder for his own purposes and that, as the decree-holder has not yet filed a copy of the decree, there is no necessity for ordering payment of coot for the copy. Finally, on 11th September the decree-holder filed in instalments a copy of the decree, that is to say, he put in a copy in part and he was directed to file copies of other parts of the decree. It appeared later that the decree had not yet been fully copied and the question that has come for argument is whether the judgment-debtors should be made to pay anything for the copy of the decree. As to that, the question stands thus : judgment-debtor 2 has not appealed to this Court, In his case on 10th September he does seem to have complained that a copy of the decree was wholly unnecessary. Judgment-debtor 1 has appealed to this Court and I am bound to say that the objection that 'he has taken has not been based on the ground that the order requiring the copy is entirely wrong and unnecessary. The plaintiff is in this position. In 1926 he had to submit to an ex parte order requiring him to file a copy of the decree. He did not resist though he might have resisted the order, possibly because ha wanted the copy for his own use at the expense of somebody else. The decree-holder was again ordered to file a copy at the commencement of this proceeding. In the circumstances one would expect that the decree-holder was, by this time, himself unwilling to forgo such an expense, because he had been spending money in trying to obtain a copy of this extraordinary decree. The fact remains that judgment-debtor 1 does not really challenge that order, judgment-debtor 2 opposed after a fashion and both judgment-debtor 1 and judgment-debtor 2 are responsible in part for putting this cost upon the decree-holder by the fact that they have not paid even in 1928 what they were ordered to pay in 1923, In the circumstances, we cannot we think, omit to say that a part of this entirely unnecessary order as to cost of the copy is due to the fault of the Court and, in the circumstances, it is quite clear that, while the plaintiff ought not to get the whole of the cost, at the instance of the judgment-debtors he ought not to be treated on the footing that we can disregard the order requiring him to file a copy. If judgment-debtor 2 had appealed I think I might have been able to do more for him than I am disposed to do at the moment. But, looking at the matter as it stands, I think the best order to make is to make these parties pay this cost in equal thirds. The order of the Court below is therefore varied. The plaintiff will be entitled to recover from each of the judgment-debtors one-third of the cost of the copy of the decree and judgment-debtor 1 will be entitled to get a refund of two-thirds of the amount of cost for the copy of the decree, if it is found that he has paid the whole amount of cost for the copy of the decree.

6. I have no doubt that the entry in the tabular statement has reference to the matter of costs and it is perfectly clear that the costs of execution will, in the ordinary way, be paid by the judgment-debtors. The appellant is entitled to realize from the decree-holder respondent the amount of costs which he says, he has paid for the preparation of the respondent's portion of the paper-book. There will be no order for costs in this Court. Let the record be sent down at once.

Patterson, J.

7. I agree.


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