Copyright
Chas. A. Stevens & Bros.

The Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) online

. (page 114 of 155)
Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 114 of 155)
Font size
QR-code for this ebook


Sayyid Akbar Hussain Khan, Subordinate Judge, the preciding Judge of 13 * 8 *
this Court in the presence of Lala Gursahai Lai, the pleader for the (F.B.) =
petitioner, and Lala Dargahi Lai, Eai Bahadur, and Munshi Sham Lai, 13 A.W.N,
the pleaders for the opposite parties (1893) 36.

It is ordered that the application be disallowed."

The order should have been dated as of the date when the judgment
was pronounced. The date of the order does not correspond with the date
mentioned in the body of it, nor does either of those dates correspond
with the date at the foot of the judgment. What may be the explanation
of this 'discrepancy in dates I am not aware. [88] It is from the last-
mentioned order of the Subordinate Judge that this appeal has been
brought.

It is obvious from the judgment of the Subordinate Judge, dated the
9th of June, 1891, that he was of opinion that the order of the 3rd of April
1888 was an order dismissing the application for execution of the 21st of
February 1888, and was an order deciding that application, and that it
was passed by the Court under circumstances which entitled the Court on
the 3rd of April 1888 to proceed by analogy under s. 158 of the Code of
Civil Procedure to decide forthwith the application of the 21st of February
1888 for execution of the decree and the right of the decree-holder to
have his decree executed.

The only ground stated in the memorandum of appeal is entirely
inapplicable to the facts. It was based on the mistaken assumption that
the Subordinate Judge passed the order now under appeal on the view
that the application of the 21st February, 1888 had been withdrawn under
s. 373 of the Code of Civil Procedure. There had been in fact no
withdrawal of the application of the 21st of February, 1888.

On behalf of the appellant it has been contended by Pandit Sundar
Lai that Chapter XIII of the Code of Civil Procedure, which contains
s. 158, does not apply to applications or proceedings for the execution of
decrees, and that no procedure is provided by the Legislature under which
the order of the 3rd of April 1888 could have been passed. On behalf of
the respondents, who are the legal representatives of the deceased
judgment-debtors, it has been contended by Munsbi Ram Prasad that the
application of the llth of February 1891 was barred by limitation as ifc
was made more than three years after the date of the decree ; that the
application of the 21st of February 1888 was not an application " in
accordance with law" within the meaning of art. 179, of the second
schedule of the Indian Limitation Act, 1877, as not having been in
compliance with s. 236 or s. 237 of the Code of Civil Procedure ; and
that the issuing of the order under s. 248 of the Code of Civil Proce-
dure on the 25th of February 1888, was on an application which
[89] was not in accordance with law, and consequently was not such an
order as was contemplated by art. 179. We can dispose of this contention
at once. That order, whether or not it ought to have been made or issued,
was in fact an order under s. 248 of the Code of Civil Procedure, and kept
the decree alive for the purpose of execution. Munshi Ram Prasad also
contended that Chapter XIII of the Code of Civil Procedure does apply

773



15 All. 90 INDIAN DECISIONS, NEW SERIES [Yol

1893 to applications or proceedings for the execution of decrees, and that the
PBB. 9, order of the 3rd of April 1888 was an order dismissing the application of
the 21st of February 1888, and determining finally the right of the
FULL decree-holder to have his decree executed, and that Court on the
BENCH. 3rd of April 1888 had proceeded under a. 158 of the Code to decide
forthwith the application of the 21st of February 1888. Munshi Bam
15 A. 81 Prasad contended from a passage in the judgment of their Lordships of
the Privy Council in the case of Maharajah Dheeraj Mahtab Chund,
13 A.W.N. Bahadoor v. Bulram Singh (1) that the order of the 3rd April, 1888 was
(1893) 36, ca p a bla of being considered as a final order determining the decree-holder's
right to get bis decree executed. Munshi Ram Prasad further contended
that having regard to the order of the 3rd of April 1888 the decree- holder
could not now maintain an application for the execution of his decree, and
that the order of the 3rd of Aprill888 was of as much an effect in determining
the decree-holder's right to get his decree executed as was the order of
Mr.Probyn in the execution proceedings in the case of Earn Kirpal Shukulv.
Musammat Hup Kuari (2), in determining what was the construction of the
decree in that case, as to which their Lordships of the Privy Council are
reported to have said at page 41 of L.K. 11 I. A., that " the matter decided
by Mr. Probyn was not decided in a former suit, but in a proceeding of
which the application in which the orders reversed by the High Court
were made was merely a continuation. It was binding between
the parties and those claiming under them as an interlocutory judgment
in a suit is binding .upon the parties in every proceeding in that
suit, or as a final judgment in a suit is binding upon them in carrying the
[90] judgment into execution. The binding force of such a judgment
depends not upon s. 13, Act X of 1877, but upon general principles of
law. If it were not binding there would be no end to litigation. The
judgment or order of Mr. Probyn was an interlocutory judgment ; he
merely held that according to the proper con&truct'on of the decree of the-
Sadder Court, mesne profits were awarded by it."

Munahi Ram Prasad also relied upon a judgment of this Court in
the case of Pheku v. Pirthi Pal Singh and others (3).

That it is absolutely necessary in the interests of the public, any
one of whom may be a party at sometime or other to proceedings in
execution of a decree, that a Civil Court should have some power by
which to compel parties to put the Court in a position to proceed to
a determination of applications and proceedings in execution of decrees
by producing their evidence, causing the attendance of their witnesses,
when evidence is necessary, or by performing any other act necessary
to the further progress of the proceeding in execution, and, in case of
default, to finally decide the application and the proceedings in accordance
with the materials upon the record cannot, I imagine, be questioned. It
ia not consistent with sound principles of jurisprudence or with the
interests of the public that a decree-holder should ba entitled to harass his
judgment-debtor and to encumber the files of a Court with applications
for the execution of his decree which he takes no steps to proceed with,
and which he never intended to proceed with, and which in many cases
are made with the sole object of preventing the execution of the decree
becoming barred by limitation, or of saddling the judgment-debtor with
additional costs and harassing him. It has come to my notice that cases

(1) 13 M.I.A. 479 = H W,B. 21, P,C. (2) 11 I,A. 37 = 6 A. 269,

(3) 12 A.W.N (1892) 222.

774



YII] DHONKAL SINGH V. PHAKK4R SINGH 15 All. 92

have occurred where a decree-holder or his pleader for his own purposes 1893
or to suit his own convenience has withdrawn an application for the FEB. 9.

execution of a decree, and the judgment-debtor was left by the order

of the Court to bear his own costs incurred in the application. It FULL
has also come to my notice that, when an application for the execu- BENCH,
tion of a decree has been struck off the file of pending cases in con-
sequence of the decree-holder failing to proceed with his application
[91] or failing to take some step necessary for the further progress of
the application or proceeding in execution, the judgment-debtor, who was 13 &-W.N,
in no way responsible for the laches of the decree-holder, has had to pay ( 18 93) 36.
the decree- holder's costs of the application. I may say that in such cases
as those to which I have referred the Court should, in my opinion, have
awarded the judgment-debtor his costs to be paid by the decree-holder.
The fact remairrs that such cases do occur, and I attribute their occurrence
mainly to the uncertainty in which Courts are left as to the procedure to
be followed. Ic has also, I regret to say, come to my notice that some
Subordinate Judgea and Munsifs, in abuse of their powers and in order
to make their returns show a small file of pending cases and a large
disposal of applications for the execution of decrees, have not hesitated to
strike off their files of pending cases applications for the execution of decrees
which had uot been decided or judicially disposed of.

All aueh cases as those to which I have been alluding afford exam-
ples of the danger of allowing Courts to invent a procedure for themselves,
or leaving them in uncertainty as to the procedure to be followed.

It appears to me that in this case we have to ascertain if possible
whether the Court, when making its order of the 3rd of April 1888, was
acting under what, having regard to Act No. VI of 1892, we can consider
as a procedure authorised by the Legislature ; or if not, under what proce-
dure it acted ; and further we must ascertain what was the effect, if any
of the order of the 3rd of April 1888 ou the rights ot the decree-bolder
and of the legal representatives of the judgment-debtors, respectively.

An application for the execution of a decree is an application in the
suit in which the decree was obtained. That was decided by their Lord-
ships of the Privy Council in the case of Mungui Pershad Dichit and
another v. Grija Kant Lahiri Choivdhry (1). Similarly an appeal from a
decree obtained in a suit is an appeal iu the suit. In that sense the word
"suit" is used generically as including all the stages of thelitigation. from the
presentation of a plaint to the final execu- [92] tion of the ultimate decree.
The word " suit " has sometimes, as for example in some of the sections of
the Code of Civil Procedure, been used in a more restricted sense. For in-
stance, in s. 647 of the Code of Civil Procedure, as it stood before Act No. VI
of 1892 was passed, the word " suits " was used no5 as inclusive of an appeal
bub in contradistinction to an appeal and to express a stage of litigation
prior to an appeal; or at any rate, as distinguished from the stage of litiga-
tion included in the term " appsals." Again, for example, in Chapter XIII
of the Code of Civil Procedure the word "suit" is used to express and refer
to a stage of litigation prior to an appeal from a decree in the suit. No
lawyer would understand the words " adjourn the hearing of the suit, "
which are in s. 156, of the Code of Civil Procedure, as referring to the
hearing of an appeal from a decree in the suit. That the Lagislature did
not understand that the procedure provided by, for instance, Chapter XIII
for suits Applied of itself, or by reason of any section contained in the

(1) 8 L A. 123.
775



15 All. 93 INDIAN DECISIONS, NEW SERIES [Yol.

1893 chapters of the Code expressly relating to procedure in suits to appeals

FEB. 9, from decrees in suits is obvious -from a consideration of Chapter XL of

the Code, and particularly from s. 582. Chapter XXIII, and s. 583 of the

FULL Code of Civil Procedure, contain examples of the use of the words " suit"

BENCH. an< ^ " 8U ^ 8 " 1Q t ne restricted sense.

This Court, reading the word " suits " in s. 647 of the Code of Civil

IS 1. 81 Procedure in its restricted sense, as it appears to have been there used,

(P.B.)= had held that s. 647 made the procedure prescribed by the Code for suits

13A.W.N, applicable, so far as it could be made applicable, to proceedings in exeou-

(1893) 36. tion of a decree, and treated s. 647 as having an effect, in proceedings in
execution of decrees, analogous to the effect of s. 582 in appeals from
original decrees, and to the effect of s. 587 in appeals from appellate
decrees. As far back as the 14th of February 1884 McDonell and Field, JJ.
in Biswa Sonan Chunder Gossyamy v. Binanda Chunder Dibingar Adliikar
Gossyamy (l) held that s. 647 of the Code of Civil Procedure made s. 108
applicable to proceedings in the execution of decrees. Referring to s. 108
they said : " This section applies to regular suits, but under the [93] provi-
sions of s. 647 it is equally applicable to all proceedings other than suits
and appeals. " If that view of the law was correct, and if Acfc No. VI of
1892 had not passed, Chapter XIII could, by reason of s. 647, be applied
to applications and proceedings for the execution of decrees.

By reason of s. 4 of Act No. VI of 1892, s. 647 of the Code of Civil
Procedure can no longer be held to make applicable to proceedings for the
execution of decrees the procedure provided for suits at the hearing stage,
as s. 4 of Act No. VI of 1892 enacts : " To s. 647 of the said Code the
following explanation shall be added, namely :

% " Explanation. This section does not apply to applications for the
execution of decrees, which are proceedings in suits. "

It is not material to inquire whether in s. 4 of Act No. VI of 1892
the word " suits " is used in the restricted sense in which it is used in
the first paragraph of s. 647 and other sections of the Code of Civil Pro-
cedure, or in its wider and generic sense. Whichever be the sense the
effect of s. 4 of Act No. VI of 1892 is the same. It has, by making
s. 647 of the Code of Civil Procedure inapplicable in proceedings for the
execution of decrees, deprived the Civil Courts of the power to apply by
analogy to proceedings for the execution of decrees the procedure specifi-
cally prescribed for proceedings in suits at a stage prior to decree, and:has
limited the procedure which can be applied under the Code of Civil Pro-
cedure in proceedings for the execution of decrees to the procedure which
is expressly, as in Chapter XIX of the Code, or by implication, prescribed
for proceedings for the execution of decrees or for proceedings at the exe-
cution of decree stage of a suit.

The procedure prescribed in Chapter XIII of the Code is not
expressly or by implication prescribed for applications or proceedings for
the execution of decrees, although such applications are declared by
the explanation to s. 647 (Act No. VI of 1892, s. 4) to be proceed-
ings in suits. The procedure prescribed by Chapter XIII is pre-
scribed for that stage of a suit when the suit is still at hearing
and before the passing of the decree. Section 156 enables a Court,
[94] in the event therein mentioned, from time to time to adjourn the
hearing of the suit and to fix a day for the further hearing of the suit. "
Section 157 enables the Court to proceed to dispose of the suit in one of

(1) 10 C. 416 at p, (422).
776



VII] DHONKAL SINGH V. PHAKKAB SINGH 15 All. 95

the modes directed in that behalf by Chapter VII, or to make such other J893
order as it thinks fit if on " any day to which the hearing of the suit is p EBi g
adjourned the parties or any of them fail to appear." Section 158
enables the Court " to proceed to decide the suit forthwith " in case of; a FULL
defauft of any party to the suit to whom time has been granted "to pro- BENCH.
duce his evidence or to cause the attendance of his witnesses, or to
perform any other act necessary to the further progress of the suit, for 1S * 8 *
which time has been allowed." There is nothing in Chapter XIII to
suggest that the procedure therein contained or any of it is to be applied 131.W.N,
or can be applied except whilst the suit is still at hearing, or that it is to (1893) 36.
be applied or may be applied after the hearing of the suit, within the
meaning of Chapter XIII, has determined by the making of the decree.

The application of s. 647 of the Code of Civil Procedure having been
prohibited to applications for the execution of decrees, there is nothing in
the Code of Civil Procedure, as amended by s. 4 of Act No, VI of 1892,
which authorises a Court to apply at the stage of the execution of a decree
any of* the procedure enacted in Chapter VII of the Code.

Chapter XIX of the Code of Civil Procedure, obviously to any one
who has read that chapter and is conversant with proceedings for the
execution of decrees, does not contain anything like a complete procedure
for the proceedings for the execution of decrees, and with the exception of
s. 250, does not suggest what procedure should be adopted in cases analo-
gous to those which may occur during the hearing of a suit and which are
provided for by Chapter XIII. In cases to which s. 250 applies a Court
might no* doubt suspend the issue of its warrant for the execution of the
decree, but that course if adopted would not dispose of the application for
execution, which would still remain undisposed of on the register of pend-
ing cases. In my opinion, there are only two ways in which an application
to a Court can be judicially disposed of by the Court, and they are by an
[95] order granting in whole or in part the prayer of the applicant, and by
an order dismissing in whole or in part the prayer of the applicant ; of
course the order might be partly one or partly the other.

Although I am most reluctant to decide questions of procedure on
the basis of Courts having inherent power to invent procedure for them-
selves, yet whan I find that the Legislature has provided no procedure to
be followed in cases which must and do arise, I am compelled to hold in
such cases that such inherent power does exist in the Courts, for other-
wise the work of Courts could not be disposed of, and the Courts would
have no power to bring litigation in such cases to a close.

In my opinion it is as necessary that Courts should, in proceedings
for the execution of a decrea, have power to dispose of applications for the
execution of decrees when on the day fixed for the hearing, or on the day
to which that hearing has been adjourned, the parties or any of them fail
to appear, or when a party to whom time has been granted fails to produce
his evidence, or to cause the attendance of his witnesses, or to perform
any other act necessary to the further progress of the application for which
time has bean allowed, as it is that Courts should have in suits at the
hearing staga the powers conferred upon them by Chapter VII and
Chapter XIII of the Coda of Civil Procedure. A Court must have power
inherent, if not conferred by statute, to dismiss an application when the
applicant fails through his own laches to put the Court in a position to
proceed with his application, as for instance by failing to pay the Court
fees for service of a notice under s. 248 on the judgment-debtor. Similarly,
I consider that a Court must have inherent power, if such power is not

777
A VII-98



15 All. 96 INDIAN DECISIONS, NEW SERIES [Yol.

1893 conferred upon it by statute, to proceed forthwith to decide an application

FEB. 9. for the execution of a decree on the materials before it, when time has

been granted to a party to perform any act necessary for the further

FULL progress of the application and that act has not been done. In such cases,

BENCH, had it not been for s. 4 of Act No. VI of 1892, the procedure provided in

Chapters VII and XIII of the Code of Civil Procedure could be applied by

13 A. 8! analogy [96] under s, 647 of the Code in proceedings upon applications
( B.)= for the execution of decrees.

Although I think that under the circumstances to which I have
93) 86. re f errac i a Oourt in a proceeding upon an application for the execution of
a decree must be held to have inherent power to dismiss the application
or otherwise to decide it, I strongly doubb that a Court can have any
inherent power to sets aside its own order, except possibly on a review of
judgment. I am of opinion that a Court has no inherent power after it
has passed an order of dismissal on the merits to entertain a fresh appli-
cation between the same parties, in tha same rights, seeking the same or
a similar remedy, and dealing with the same subject-matter.

In the present case the order of the 3rd of April, 1888, was, that the
application "be " struck off the file of pending cases. " It has been con-
tended that an order " striking off " an application for the execution of a
decree cannot in any case be considered as an order dismissing the appli-
cation. In my opinion that contention goes too far.

With reference to Act No. X of 1877, White, J. t in Baroda Sundari
Dabia v. Fergusson (1), ruled that " striking off is nob in accordance with
any provision in the Code of Civil Procedure, " and McDjnell and Field,
JJ., in Biswa Sonan Chundar Gossyamy v. Binanda Ghunder Dibingar
Adhikar Gossyamy (2) hald that "there is no provision in the Code of
Civil Procedure for striking off a case." No provision has baen introduced
into-Act No. XIV of 1882 enabling a Court to strike off a suit, appeal or
application.

In the case of Ram Kirpal Shukul v. Mussammat Rup Kuari (3), their
Lordships of the Privy Council, referring to certain orders subsequent to
the order of Mr. Probyn of the 20th of December, 1867 and prior to the
application for execution out of which the appeal to Her Majesty in
Council arose, are reported at page 42 of the report to have said : " In
the course of these proceedings the case was, for Marious reasons, several
times " struck off" that is to [97] say, struck off the file of the business
pending in the Oourt of the Subordinate Judge ; but the application for
execution, upon which Mr. Probyn's judgment was pronounced, was not
dismissed or finally disposed of. Mr. Probyn's judgment and the order
passed thereon was not reversed or set aside. It was said that a special
appeal from that judgment did not lie to the High Court. If so, the judg-
ment was final ; if an appeal die lie and none was preferred the judgment
was equally final and binding upon the parties and those claiming under
them." I do nob know what were the reasons for those orders striking off
the execution case, but I think it may be assumed that none of those
orders striking off the case were made on a judgment finally deciding that
the applicant for execution was not entitled to get the decree executed.
In the case of Syam Singh and others v. Baidyanath Rai and others (4),
in which the execution case was, in accordance with a petition presented
to the Court, struck off the file, the attachment being maintained, Prinsep

(1) 11 C. L. R. 17. (2)100.416.

(3) 11 1. A. 37. (4) 13 C. 176.

778



11] DHONKAL SINGH V. PHAKKAR SINGH 15 All. 99

and O'Kinealy, JJ., held : " This striking off could not possibly affect the 1893
proceedings between the parties relating to the continuance of the attach- FEB. 9.
ment, and it can at most be regarded as an order passed for the purposes
of administrative business." In that case the petition embodied an FULL
agreement for postponement of the proceedings in execution which had BENCH,
been made by the applicants for the execution of the decree, and the
judgment-debtors other than Kartick Singh, who subsequently objected
that execution of the decree was barred.

In the case of Rajah Muhesh Narain Sing v. Kishanund Misr and *' A.W.N,
Bughobur Dyal Sing (1) their Lordships of the Privy Council are reported f 189 ') 36.
at page 341 of the report to have said : " It would be contrary to general
principles, and a 'senseless addition to all the vexations of delay in the
course of procedure, to hold that, when, for any reason, satisfactory or not,
the execution of a final decree in a suit fails, or is set aside, and the pro-
ceedings as regards that execution are taken off the file, the whole suit is
discontinued thereby, and the further proceedings for the same purpose
are to be considered a? taken in a new suit."

[98] In the case of the Delhi and London Bank, Limited v. Melmoth
A, D. Orchard (2) their Lordships of the Privy Council held that an order
of the 10th December 1869, that the petition for tbe execution of a decree
should " be sent to the record-room " on the ground that it was not within
the power of tbe Court to execute the decree was not an adjudication
which barred a subsequent application for" the execution of the decree.

Their Lordships did not give their reasons for holding that the order
of thelOth of December 1869 was not an adjudication which would bar a
subsequent application for execution. It is to be observed that they
did not suggest that if tbe order had concluded by expressly dismissing
the petition instead of by ordering it " to be sent to the record room "
the result would have been different, and I conclude that; in holding
that the order was not an adjudication which would bar a subsequent



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 114 of 155)