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Ashwini Coomar Banerjee Vs. Ram Gopal Mukherjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal975,95Ind.Cas.179
AppellantAshwini Coomar Banerjee
RespondentRam Gopal Mukherjee and ors.
Cases ReferredJasimuddin Biswas v. Bhuban Jelini
Excerpt:
civil procedure code (act v of 1908), section 104, order xxi rule 34, order xliii, rule 1(1) - compromise decree--decree providing for execution of patta and kabuliyat, execution of--procedure--appeal, second, whether lies. - .....was, if the execution of the pottah was refused by the plaintiff, to be the subject of a separate suit--a suit for a specific performance of contract. it is only sufficient to look at the solenama itself to realize that it is quite clear that the parties did not contemplate anything of the sort. the particular portion of the solenama to which our attention has been drawn by sir provash chandra mitter is clause. (4) and the concluding words of clause. (4) were that 'in case any of the parties does not complete the work of execution of the pottah and kabuliyat within the said time, then any of the parties shall be competent to have that executed on taking the protection of a competent court'. sir provash chandra mitter would contend that this must mean by way of a suit for specific.....
Judgment:

Cuming, J.

1. The facts of the case out of which this appeal has arisen are briefly these : One Mr. A.C. Banerjee instituted a Suit No. 49 of 1921 to eject the-defendants from certain lands under realization of wasilat. This suit ended in a compromise, and the suit was finally decreed in terms of this compromise on the 10th July 1922. The terms of the compromise so far as the present appeal is concerned were that the defendants were to relinquish possession of the lands in suit and that the plaintiff would grant to the defendants in the suit a settlement of a certain portion of the lands in suit. It was agreed thata pottah and a kabuliyatrelating to the settlement were to be executed within a month from the date of the decree, costs of the documents being borne by the defendants. There was a further condition by which the defendants agreed to pay a sum of Rs. 200 as costs and wasilat. The defendants apparently did not give up possession, and the plaintiff applied to the Court and obtained possession by executing the decree. Then on the 4th of August 1923 the defendants in their turn sought to execute the decree by getting a pottah axecut-ed by the plaintiff as provided in the solenama. The plaintiff filed various objections. These objections were disallowed by the Executing Court and the order of the Executing Court was affirmed on appeal.

2. The plaintiff has appealed to this Court, and three points have been raised on his behalf--first, that the decree being properly construed will show that the portion of the decree relating to the execution of the pottah was not a subject of execution but was, if the execution of the pottah was refused by the plaintiff, to be the subject of a separate suit--a suit for a specific performance of contract. It is only sufficient to look at the solenama itself to realize that it is quite clear that the parties did not contemplate anything of the sort. The particular portion of the solenama to which our attention has been drawn by Sir Provash Chandra Mitter is clause. (4) and the concluding words of clause. (4) were that 'In case any of the parties does not complete the work of execution of the pottah and kabuliyat within the said time, then any of the parties shall be competent to have that executed on taking the protection of a competent Court'. Sir Provash Chandra Mitter would contend that this must mean by way of a suit for specific performance of contract. It seems to me that the words are sufficiently wide and general to cover an application for execution of the decree itself to the competent Court. This point is decided against the appellant.

3. The next point urged by the appellant is that the law does not provide for the execution of a decree of this nature. I admit I am not quite able to follow exactly the difficulty in the way of executing a decree of this nature. The machinery for it will be found in O. XXI, rule. 34 of the Code. Sir Provash Chandra Mitter has referred us to the case of Jasimuddin Biswas v. Bhuban Jelini (1) as an authority for the proposition which he would ask us to accept and he refers us specially to page 463* of the report where the learned Judges remarked: 'The Court executing that decree would not have been empowered under it to compel the defendants to execute a kabuliyat in favour of the plaintiffs or to* accept a lease on the terms agreed to.' Incidentally it may be pointed out that this remark of the Court with due respect to the learned Judges, is obiter dictum, because we find at page 465* of the report that 'The real questions for determination in the suit were whether the defendants were bound by the terms of the salenama executed in the suit in 1893, and whether after that solenama they were in possession as tenants of the jalkar...under the plaintiffs.' Therefore the learned Judges were not required to decide in that case the particular point with which we are now concerned, namely, whether the provision in the solenama, which solenama had been embodied in the decree, that one of the parties was to execute a pottah in favour of the other could or could not be executed. There is, moreover, a difference in the two cases, namely, in the case of Jasimuddin Biswas v. Bhuban Jelini (1) the suit was one for damages and the Court was not in seisin of the property which was the subject-matter of the agreement to execute a lease. This point must, therefore, be decided against the appellant.

4. The next point urged by the appellant is that an Executing Court cannot extend the time for executing the pottah. I admit that I had some difficulty in understanding the point in this objection. No doubt the solenama provided that the pottah should be executed within one month and on the appellants failing to execute this pottah within one month the defendants have been obliged to seek the assistance of the Court to compel the plaintiff to execute the pottah. Admittedly the application for execution of the decree has been made within the period of limitation. Therefore I do not understand how it can be urged that the Court has extended the time for execution.

5. The result is this appeal fails and is dismissed with costs. Hearing fee three gold mohurs.

Ghose, J.

6. I agree.

7. In Appeal No. 262 of 1924.

Cuming, J.

8. The respondent has contended that no second appeal lies in this case. It would appear that after the objections by the plaintiff to which I have referred in my judgment in Appeal No. 261 had been disposed of by the learned Subordinate Judge the present appellant put in an objection to the execution on the ground that the draft of the pottah to be executed had not been served on him. The learned Subordinate Judge rejected this objection apparently on the ground that he considered this objection when the plaintiff's other objections were considered. It is quite clear from the Subordinate Judge's judgment that he was dealing with the petition of objection put in on the 8th September 1923. This objection, it will be seen, must have been made under O. XXI, rule. 34, the rule which deals with the execution of a document by the Court when a party who is bound to execute a document refuses to do so, and, therefore, it is clear that the order of the learned Subordinate Judge was passed under O. XXI, rule. 34, C. P. C. Against an order made under this rule a first appeal lies under the provisions of O. XLIII, rule. 1 (i), and this matter was dealt with on appeal by the learned District Judge. Against his order clearly no second appeal lies to this Court under Section 101,C.P.C.

9. This appeal, therefore, must be dismissed as being incompetent. Hearing fee three gold mohurs.

Ghose, J.

10. I agree.


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