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Bal Mukunda Bisseswarlal Vs. Bengal-nagpur Railway Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal652,103Ind.Cas.740
AppellantBal Mukunda Bisseswarlal
RespondentBengal-nagpur Railway Co. Ltd.
Cases Referred and Bansilal Abirchand v. Ghulam Mahbub Khan
Excerpt:
- .....court, 1883, to which our attention has been drawn, contemplates a decree directing payment of money or delivery of properties, and under that rule, in the case of such a decree, no demand would be necessary but the defendant against whom it is passed is bound to obey. the principle of that rule therefore cannot be invoked in the present case. if the decree had directed the defendants to deliver the articles within a specified time and provided that, in default of such delivery, the plaintiffs would be entitled to recover the money, the decree-holders would have been entitled to maintain an application for execution for recovery of the money on such default having happened. but the case of a decree which follows order 20, rule 10, civil p.c., is specifically provided for, so far as.....
Judgment:

Mukerji, J.

1. This appeal has been preferred from an order passed by the Subordinate Judge, 1st Court, Alipore, dismissing the appellant's application for execution of a decree.

2. The decree was passed in a suit in which the plaintiffs prayed that they might be given a decree for Rs. 5,000 as compensation for destroying certain godown and buildings and for Rs. 500 as compensation for wrongfully taking away certain articles which were kept therein. The Subordinate Judge who tried the suit passed a decree in this form:

It is ordered and decreed that the suit be and the same is hereby decreed in part after contest for the recovery of Rs. 3500 as damages and for the recovery of the moveables claimed in the Schedule Ka of the plaint; that if the moveables be not delivered the plaintiffs shall recover Rs. 500 as price thereof; that the said decretal amount and the sum of Rs. 490-5-0 only being the proportionate costs of this suit be paid by the defendants to the plaintiffs with interest at the rate of 6 per cant par anna from this date to date of realization.

3. It was passed on the 21st June 1919. From this decree, the defendants appealed to this Court. They valued the appeal at Rs. 2,500 and challenged that part of the decree which related to the compensation for destroying the godown and buildings. This Court dismissed the appeal with costs on the 20th February 1923.

4. The decree-holders applied for execution on the 9th August 1924. In this application they stated that they had demanded delivery of the articles by a letter dated 22nd July 1919 and payment of the money, viz., Rs. 500, by a letter, dated 23rd February 1923 and failed to obtain either, and as the articles had become spoilt and unfit for use, they asked for realization of Rs. 500 by attachment of the judgment-debtors' moveables. This application being refused the present appeal has been preferred. The findings of fact arrived at; by the Subordinate Judge and the view of the law taken by him have bean challenged before us on behalf of the appellant and the appeal has been argued in great detail on both sides.

5. On the facts it mast be held that the evidence as regards the non-receipt of the letter of the 22nd July 1919 addressed to the Sub-divisional Officer of the B.N. Railway at Gondia by the latter is extremely unsatisfactory, but, on the other hand, the evidence as to its posting is not such as would warrant the presumption that it reached its destination. We are not prepared to agree with the Subordinate Judge in the suspicion which he seems to have entertained as to the genuinenesss of the copy (Ex. A) of this letter that has been filed on behalf of the appellants, or of the letter (Ex. B) that was received by the appellants from Abdul Karim Haji Abdul Shakoor. The contents of the letter, however, have not been duly proved. In the circumstances it must be held that the demand alleged to have been made by the letter of the 22nd July 1919 and the non-compliance with it on the part of the judgment-debtors have not been proved. It is not necessary therefore to go into the question whether the letter addressed to the Sub-divisional Officer, who is the head of the department at Gondia, was sufficient or not for the purpose of a demand on the judgment-debtors.

6. The next demand was by the letter of the 23rd February 1923 (Ex. C-1) and in answer to it the judgment-debtors paid the decree-holders' claim in full except, as regards the Rs. 500, by a cheque for Rs. 5,011-5-0 some time in July 1923. They took up the attitude that they were ever ready to deliver the articles and that accordingly, under the terms of the decree they were not liable to pay the said Rs. 500. This appears from Ex. 3, dated the 2nd August 1925, which refers to a letter, dated the 14th July 1923, as also from Ex. 1(d), dated the 7th August 1923. It may be mentioned here that the defendants in their written statement expressed their readiness to make over such of the articles as they had to the plaintiffs or their authorized agents : (vide para. 16 thereof) It may also be stated that in the judgment of the trial Court in the suit it was observed that the schedule in the plaint was proved and that the articles had not deteriorated in value.

7. These being our findings the question that arises is whether in the circumstances the application for execution of the decree, in so far as it relates to the recovery of Rs. 500, is maintainable. The decree is in the form suggested by Order 20, Rule 10, Civil P.C. Order 42, Rule 1 of the Rules of the Supreme Court, 1883, to which our attention has been drawn, contemplates a decree directing payment of money or delivery of properties, and under that rule, in the case of such a decree, no demand would be necessary but the defendant against whom it is passed is bound to obey. The principle of that rule therefore cannot be invoked in the present case. If the decree had directed the defendants to deliver the articles within a specified time and provided that, in default of such delivery, the plaintiffs would be entitled to recover the money, the decree-holders would have been entitled to maintain an application for execution for recovery of the money on such default having happened. But the case of a decree which follows Order 20, Rule 10, Civil P.C., is specifically provided for, so far as its mode of execution is concerned, in Order 21, Rule 31, Civil P.C., and that procedure has not been adopted by the decree-holders.

8. That the holder of such a decree can-net execute the money portion of it without taking recourse to the procedure prescribed by Order 21, Rule 31, Civil P.C., has been held in the case of Manavikraman v. Moyankutti [1903] 13 M.L.J. 444. Whether the procedure prescribed in that rule is so rigid that it must be followed in a case where the moveables are admittedly not in existence is a question which does not arise here; but in the circumstances of the present case, in our opinion, the application to realize the money in the first instance does not lie. The history of the rule Order 20, Rule 10, Civil P.C., is to be found in the case of Kashee Nath Kooer v. Deb Kristo Ramanuj Doss [1971] 16 W.R. 240, in which it has been said that

the words of the rule are in strict accordance with the provisions of the English Law that a certain amount of money should be allowed as an alternative if delivery of the chattel in dispute cannot be had; if the goods are capable of delivery they must of delivered; if they are not capable of delivery then assessed damages should be paid.

9. It does not appear that there is any authority for the view that the plaintiff has an option not to take delivery but to fall back upon the money part of the decree.

10. A high ground has then been taken on behalf of the appellants, and it has been urged that it is the judgment-debtors who should have offered the articles immediately as the decree was passed, and they not haring done so, the appellants were entitled to maintain this application for execution. The principle that

it is the duty of a judgment-debtor to find out the judgment-creditor and pay him the amount of the judgment-debt so long as the latter is within the realm

is found in very old authorities, Coke upon Littleton and Shephard's Touchstone, and has been undoubtedly affirmed and reiterated in more modern authorities : In re a Debtor (1912) 1 K.B. 53 and Bansilal Abirchand v. Ghulam Mahbub Khan , but it relates to a judgment-debt capable of being discharged by payment, a principle that has to a certain extent been adopted in Order 21, Rule 1, Civil P.C., in which modes of paying money under a decree are prescribed.

11. On behalf of the decree-holders it has been urged that the execution is barred as the part of the decree now sought to be executed was not the part of it that was appealed from, and that the appeal that was preferred not having imperilled this part of the decree there was no reason why the decree-holders should not have applied for execution within three years from the date of the decree. The objection on the face of it, does not appear to be a frivolous one, but we do not think it necessary to pronounce any definite opinion on it, because we do not think that the judgment-debtors will care to take shelter under this plea, having all along expressed their willingness to deliver the articles which admittedly belonged to the decree-holders and became this objection has been put forward only as an alternative argument in order to support the order, of the lower Court.

12. In our opinion, the order of the Court below is right, and we accordingly dismiss the appeal with costs, hearing-fee being assessed at two gold mohurs.

Roy, J.

13. I agree.


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