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Major A.Y. Reily Vs. Golap Khan and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal645,72Ind.Cas.38
AppellantMajor A.Y. Reily
RespondentGolap Khan and anr.
Cases ReferredDino Bundhu Nundy v. Hari Mati Dassee
Excerpt:
execution of decree - satisfaction out of court--satisfaction not certified--suit to restrain decree-holder from executing decree, maintainability of--execution, if can be stayed--civil procedure code (act v of 1908), section 47, order xxi, rules 2(3), 29. - .....within the time allowed and that court accordingly refused to recognise the satisfaction of the decree. a suit was, therefore, instituted by the opposite party for declaration that the rent-decree had been fully satisfied and for a perpetual injunction restraining the petitioner from executing the decree and also for a temporary injunction. there was a further grayer that it might be declared that the petitioner was bound to refund a certain amount deposited by the plaintiff.2. the court below has held that a suit for perpetual injunction restraining the defendant from executing the rent-decree and for a declaration that the decree had been adjusted, was not maintainable and that, therefore, the prayer of the plaintiff-opposite party for a temporary injunction could not be granted......
Judgment:

1. This Rule was directed against an order passed under Order XXI, Rule 29, Civil Procedure Code. The petitioner obtained a decree against the opposite party and in execution fealized a part of the decretal amount. He again applied for execution of the decree and the opposite party, therefore, set up an agreement for satisfaction of the decree. The alleged satisfaction of the decree, however, was not notified to the Court of execution within the time allowed and that Court accordingly refused to recognise the satisfaction of the decree. A suit was, therefore, instituted by the opposite party for declaration that the rent-decree had been fully satisfied and for a perpetual injunction restraining the petitioner from executing the decree and also for a temporary injunction. There was a further grayer that it might be declared that the petitioner was bound to refund a certain amount deposited by the plaintiff.

2. The Court below has held that a suit for perpetual injunction restraining the defendant from executing the rent-decree and for a declaration that the decree had been adjusted, was not maintainable and that, therefore, the prayer of the plaintiff-opposite party for a temporary injunction could not be granted. The learned Judge, however, held that he could under Order XXI, Rule 29, Civil Procedure Code, stay execution of the decree on taking security from the plaintiff.

4. In the case of Azizan v. Matuk Lal Sahu 21 C. 437 : 10 Ind. Dec. (N.S.) 922, it was held by Pigot and Macpherson, JJ., Banerji, J., differing, that 'Section 244 is not limited by Section 258 and that the suit was not maintainable. Where a decree is satisfied by an agreement out of Court and such satisfaction is not certified to the Court, a subsequent suit on the agreement is not maintainable if the object of the suit is to restrain the decree-holder from executing his decree in contravention of the agreement.' Piggot, J., observed. 'Section 244, Civil Procedure Code, does not absolutely bar a suit, but prohibits in a separate suit between the same parties to a decree any relief being granted which interferes with the conduct of the execution proceedings by the Court executing the decree.' See also the case of Dino Bundhu Nundy v. Hari Mati Dassee 31 C. 480 : 8 C.W.N. 395.

5. That being so, whatever other relief may be granted by the Court in such a suit, it cannot restrain the decree-holder from executing the decree.

6. Order XXI, Rule 29 provides that 'Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person, against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until, the pending suit has been decided.'

7. The language, no doubt, is very wide and if the rule stood alone, the Court would have the power to stay execution of a decree, as provided in the rule. But Section 47 of the Code lays down that all questions relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit: and under Order XXI, Rule 2(3) the Court cannot recognise any uncertified payment or adjustment of a decree.

8. We must give effect to the provisions of Section 47 and Order XXI, Rule 2(3) as well as to Order XXI, Rule 29, Civil Procedure Code.

9. Now, if the Court has no power to make a declaration that the decree has been satisfied by an uncertified adjustment or payment out of Court and if the Court cannot grant, a permanent injunction restraining the decree-holder from executing the decree, we do not see how the Court can stay execution of the decree for a period during which the suit may be pending, although it cannot grant the same relief by its final decree. The Court below also has held that a temporary injunction cannot be granted. But the stay of execution of a decree practically stands on the same footing as a temporary injunction; and, as stated above, the Court cannot grant relief for a temporary period which it cannot decree by its final judgment. The provisions of Order XXI, Rule 29 must, therefore, apply to cases not coming under Order XXI, Rule 2 (3) read with Section 47 of the Code. We think, therefore, that the provisions of Order XXI, Rule 29 are inapplicable to a case like the present.

10. The order of the Court below must be set aside and we direct accordingly.

11. The Rule is made absolute with costs one gold mohur.

12. Let the record be sent down without delay.


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