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Munshi Kali Sankar Sahay and ors. Vs. Maharajah Protap Udai Nath Saha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.708
AppellantMunshi Kali Sankar Sahay and ors.
RespondentMaharajah Protap Udai Nath Saha
Cases ReferredSharoda Moyee v. Wooma Moyee
Excerpt:
execution of decree - decree when fully executed no application for execution to be entertained--delivery of possession after order for stay of execution, whether effectual in law--decree-holder's right to apply for delivery of possession again--attachment--extent of attachment-attachment for mesne profits to be assessed in future, whether legal. - .....an appeal has also failed. it is clear, therefore, that there is no answer to the prayer of the decree-holder for delivery of possession. but it is objected that possession was delivered as directed by the decree, on the 1st september 1911, and that, consequently, upon the authority of the decision in hassan raja v. kailas chindra singht s.c.w.n. 49 there cannot be a second delivery of possession. there is, in our opinion, no substance in this argument. it need not be disputed that a decree can be executed only once, and if there has been a complete execution, a second application in that behalf cannot be maintained this doctrine, however, has no application to the circumstances of the present case. during the pendency of a previous application for execution, the matter was brought up.....
Judgment:

1. This appeal is directed against an order made on the 12th May 1912, in proceedings for execution of a decree for possession, costs and mesne profits. The decree, in so far as it directs delivery of possession, has now become absolutely final. An application for leave to appeal to His Majesty in Council against the decree has been refused, and an application to the Judicial Committee for special leave to present such an appeal has also failed. It is clear, therefore, that there is no answer to the prayer of the decree-holder for delivery of possession. But it is objected that possession was delivered as directed by the decree, on the 1st September 1911, and that, consequently, upon the authority of the decision in Hassan Raja v. Kailas Chindra Singht S.C.W.N. 49 there cannot be a second delivery of possession. There is, in our opinion, no substance in this argument. It need not be disputed that a decree can be executed only once, and if there has been a complete execution, a second application in that behalf cannot be maintained this doctrine, however, has no application to the circumstances of the present case. During the pendency of a previous application for execution, the matter was brought up to this Court by way of appeal and an order was made on the 24th August 1911 for a stay of proceedings. Before this order could be communicated to the Court below, possession was delivered to the decree-holder on the 1st September 1911, and an order was recorded to that effect. This order forms the foundation of the contention of the judgment-debtors. It is argued that as possession has been delivered, there cannot be a second delivery of possession. But it is pointed out on behalf of the decree-holder that as possession was delivered to him after an unconditional order for stay of proceedings had been made by this Court, according to the decision in the case of Hukum Chand Baid v. Kamalanand Singh 33 C. 927 at p. 935 : 3 C.L.J. 67 the delivery is not effectual in law, that it is open to the judgment-debtors to challenge its validity, and, that, as a matter of fact, they have successfully assailed it in certain criminal proceedings between the parties. It appears that after delivery had been effected, disputes broke out between the parties as to the possession of crops, whereupon proceedings were taken under Section 144, Criminal Procedure Code. In these proceedings, the question arose, whether the decree holder or the judgment-debtors were in possession of the property. Questions were put to the judgment-debtors, as to whether they challenged the delivery of possession made on the 1st September 1911, aid whether or not they were, notwithstanding that order, still in possession of the property. The judgment-debtors took time and subsequently answered the questions in the manner following: 'We are still in possession of the villages by collecting rent and appropriating the crops grown on the khas lands; the possession given to the decree-holder after the issue of the rule by the High Court was not valid.' Upon this, the decree-holder withdrew the case and stated that he would apply for fresh execution of the decree. The Magistrate thereupon directed that the judgment-debtors, now appellants before us, do get the crops attached. The judgment-debtors plainly cannot take inconsistent positions in Court, to the detriment of the decree holder. They established their possession in the Criminal Court by a two-fold assertion; namely, first that the delivery of possession on the 1st September 1911, after the order for stay had been made by the High Court, was illegal; and secondly, that notwithstanding that order, they had retained possession of the property. It is clear, therefore, that the decree-holder is entitled to ask for fresh delivery of possession. The first ground thus fails.

2. The second ground taken is that the decree-holder has attached whatever properties are owned by the judgment-debtors. This is not denied on behalf of the decree-holder. But it is urged that there is nothing to render illegal the course adopted. It is clear that the decree-holder is entitled under the Code of Civil Procedure to attach the properties of the judgment-debtors and there is no restriction, in Section 60 or in any other provision as to the extent to which attachment may be effected. Under Rule 64 of Order XXI, it is provided that when property has to be sold, only such portion should be sold as may be sufficient to satisfy the decree. There is no rule, however, to the effect that the properties of the judgment-debtor are to be attached only to the extent that may be necessary for the satisfaction of the decree. The second ground, consequently, fails.

3. The third ground urged on behalf of the appellants is that although the decree-holder may be entitled to attach properties in execution of his decree for costs, he cannot effect an attachment on account of mesne profits which have not yet been assessed. This contention is clearly erroneous. Rule 42 of Order XXI shows that where a decree directs an inquiry as to mesne profits, the property of the judgment-debtor may, before the amount due from him is ascertained, be attached, as in the case of an ordinary decree for the payment of money. This in fact has been the rule in this Court ever since the decision in Sharoda Moyee v. Wooma Moyee 8 W.R. 9. It is worthy of note that the same result may be attained by an order for attachment before judgment under Rule 5 of Order XXXVIII. The only difference between the two methods is that in the case of an order for attachment before judgment, the judgment-debtor may offer security and the attachment is effected only upon his failure to furnish such security. In the case of Rule 42 of Order XXI, there is no express provision for security. But it does not follow that if security is furnished to the satisfaction of the Court, the Court may not, in view of the principle recognized in Rule 55, refuse to effect an attachment under Rule 42 or release the property already attached. The purpose for which an attachment is effected is identical with the object for which security is taken, namely, to ensure to the decree-holder the fruits of his decree; consequently, if security is furnished, attachment need not, as a matter of principle, be affected. In this connection, it has been suggested that the property which was at one stage offered by way of security was of sufficient value. That is obviously a matter which we cannot determine in this Court. If the judgment-debtors think that they have a substantial grievance, in so far as execution for costs is concerned, they can save themselves from trouble by payment of what is due to the decree-holder; in so far as mesne profits are concerned, if they offer security to the satisfaction of the Court below, it will, no doubt, accept the security and Release the property attached. Subject to these observations, we affirm the order of the Court below and dismiss the appeal with costs. In view of the policy of obstruction pursued by the judgment-debtors, we make a special order for costs and assess the hearing fee at twenty gold mohurs.


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