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application for the execution of the decree, their Lordships were considering
the reasons stated in the order for directing the petition " to be sent to the
record-room," and that if those reasons had shown an adjudication on the
merits they would have held that tbe order had barred the subsequent
application notwithstanding tbe informal conclusion directing the petition
" to be sent to the record-room " having been used instead of a formal con-
clusion in legal language dismissing it.

The decision of their Lordships of the Privy Council in The Delhi
and London Bank, Limited v. Orchard (2), was considered by White
and Field, JJ., in Hurrosoondary Dassee and another v. Jugobundhoo
Dutt and others (3), and in reference to it they said at page 205 of
the report : "The precise ground upon which their Lordships' decision
proceeded is not stated. Possibly it may have been that the refusal of the
application was not to be considered as an adjudication on the point." It
is obvious that White and Field, JJ., were of opinion that tbe order direct-
ing tbe petition "to be sent to the record-room" was to be considered as
an order refusing the application. That decision of their Lordships of the
Privy Council was also considered by Sir M. Westropp, C. J., and Melvill, J.,
in [99] Manjunath Badrabhatv. Venkatesh Govind Shanbhog (4), and after
quoting the exact words of the order of the 10th of December 1869, the
effect of which had been considered by their Lordships of the Privy Council,

(1) 9 M. I. A. 324 (328). (2) 4 I.A. 127 = 30. 47.

(3) 6 C. 2C3. (4) 6 B. 54.

779



15 All. 100 INDIAN DECISIONS, NEW SERIES [Yol.

1893 those learned Judges, at page 60 of the report, said : " It appears to
FEB. 9. us that the above order was not in the nature of an adjudication at all,

and that the description of it in the head-note to the report in the Indian

FULL Appeals, and still more the description in the head-nobe to the Calcutta
BENCH. Eeport, is incorrect and gives an erroneous idea of the meaning of the
Judicial Committee's observations. The Deputy Commissioner did not,
in fact, decide that the application was time-barred, nor did he decide any-
^ ^w~ fc king. ^ e s i m Ply said that, as he could not execute the decree without
13 A.W.N. fo Q Commissioner's sanction, and as the Commissioner had not given the
893) 36. sanc ti on which had been applied for, nor made any other order, it was not
within his power to execute the decree, and therefore the application must
go to the record-room. The Judicial Committee might well say that thia
was not an adjudication within the rule of res judicata or within s. 2 of Act
VIII of 1859. We do not think that the question, whether a decision
that an application is time-barred is res judicata, is in any way concluded
by the observation of the Privy Council in The Delhi and London Bank v.
Orchard (1), but we Jbhink that it is concluded by necessary inference from
the judgment of the same tribunal in Mungul Pershad Dichit v. Grija
Kant Lahiri Ghowdhry (2)." It will be noticed that Sir M. Westropp, C.J.,
and Melvill, J., in giving that explanation of the decision of their
Lordships of the Privy Council, sought for the explanation in the
reasons given by the Deputy Commissioner for ordering the petition
to " be sent to the record-room," and did not lay any stress upon
the words used having been " be sent to th : record-room" instead
of the words " be dismissed." I think the explanation given by Sir
M. Westropp and Melvill, J., of the views which may have influ-
enced their Lordships of the Privy Council is probably correct, and
if it be, ib follows that in considering the effect of an order passed
[100] by a Court in a proceeding for the execution of a decree we must be
guided by the reason stated for making the order and not by the mere
phraseology employed in the formal direction which concludes the order. In
other words, that we must in such cases ascertain whether an order that
an application " be dismissed," " be struck of," " be shelved " or " be sent
to the record-room" was based on a judicial adjudication that the appli-
cant's right to have his decree executed at all was gone by reason of
limitation or some other ground, which, if it existed, would disentitle
him to have execution of the decree on any application which he might
make, or was made on some ground which did not go to the merits and to
his right to execute his decree, as for instance, his application not having
been made in compliance with s. 235 or s. 236 or s. 237 of the Code of Civil
Procedure, or his having failed to deposit talbana, or to procure the attend-
ance of his witnesses, or to perform any other act necessary to the further
progress of the application. Even in the three latter cases there might
possibly be in my opinion an adjudication on the merits on the materials
before the Courb which might finally decide the rights of the parties so far
as any question relating to the execution of the decree was concerned.
When such an order in proceedings for the execution of a decree is
based on an adjudication, whether erroneous or not.on the merits, whether
the phraseology employed is " be dismissed," " be struck off " or " be
shelved " it is, in my opinion, until it is reversed or set aside, a bar to any
subsequent application for the same purpose, but when it is not based on
an adjudication on the merits, it is not to be considered as a bar.

(1)4 I. A. 127= 30. 47. (3) 8 I.A. 123.

780



YII] DHONKAL SINGH V. PHAKKAR SINGH 15 All. 102

Although there is no provision in the Code of Civil Procedure author- 1893
izing the form of the order of the 3rd of April 1888, i.e., an order that FEB. 9,
a case be struck off the file of ponding cases, and although I am strongly
of opinion that Courts should not use ambiguous and unauthorized words FULL
in their judicial orders, we must ascertain what the intention of the Court BENCH,
was when it made the order of the 3rd of April 1888. Having regard to the
position in which Courts are left by not being'able to apply the procedure of, 1S * ^*
for [101] example, s. 99 or s. 108 of the Code of Civil Procedure, to cases ( F -B.)=-
arising under applications for the execution of decrees, and further having 18 *- w -N.
regard to the results which may follow in some cases from the erroneous ^893) 86.
procedure of passing orders striking execution cases off the flies of pend-
ing cases followed in some Courts in these Provinces, and apparently in
Courts elsewhere, I feell bound to hold as I now do that in the case of
orders striking execution cases off the files of pending cases, or dismissing
them on grounds other than a distinct finding that the decree is incapable
of execution, that the decree-holder's right to get the decree executed is
barred by limitation, or by any other rule of law, or on-some similar ground
on which the application has clearly been dismissed on the merits, whe-
ther the word "dismissed or the words "struck off th'e file," or any other
similar words have been used in the order, the decree-holder is not barred
by the force of any such order from presenting and prosecuting a fresh
application for the execution of his decree.

I had not present to my mind the full effect of section 4 of Act
No. VI of 1892 when I delivered my judgment in Pheku v. Pirthi Pal Singh
and others (1).

Now, to apply the opinion which I have above expressed to this case
it is necessary to see if the order of the 3rd of April 1888 was one by which
the Court on the merits dismissed the application for execution.

That application was dismissed not on any finding that the decree
could nob be executed, or that the decree- holder, by limitation or other-
wise, had lost his right to have his decree executed, but on a ground which
did not go to the merits, i.e., to the right of the decree-holder to have his
decree executed at all.

The application was "struck off," the order should have said
"dismissed," on the ground that the applicant had not filed within
the time granted to him for that purpose an inventory, which
apparently should in law have been annexed to the application at
the time it was presented, assuming as I do that s. 23t> of the
Code of Civil Procedure applied to the application. Consequently,
[102] according to the opinion which I now entertain, the decree-holder,
appellant here, was not by the order of the 3rd of April 1888 barred from
presenting and prosecuting the application out of which this appeal has
arisen. I would allow this appeal, but without costs, and direct the
Court below to proceed to hear and dispose of the application of the llth
of February, 1891. It may ba that that application must also be dis-
missed as not being in compliance with ss. 236 and 237, or one of them,
of the Code of Civil Procedure, if they or either of them apply. That,
however, is a nutter for the Court below to deal with, as the materials
are not before us which would enable us to say whether or not both or
either of those sections apply, The reason why I would nob allow the
appellant his costs of this appeal is that I consider that the application out
of which this appeal has arisen would not have been necessary if it had

(1) 12 A.W.N. (1892) 222.

781



15 All. 103



INDIAN DECISIONS, NEW SERIES



[Yol.



1893

FEE 9,

FULL
BENCH.

15 A. 81
(F.B.) =

13 A.W.N.

(1893) 36.



not been for the negligence of the appellant or the pleader who acted for
him in making the application of the 21st of February, 1888.

TYRRELL, J. I fully concur in the judgment and decretal order of
the learned Chief Justice.

ENOX, J. I have had the opportunity of seeing the judgment of the
learned Chief Justice and I fully concur in the Judgment and decretal order
proposed by him.

BLAIR. J. I entirely concur in the judgment and decretal order of the
Chief Justice.

BURKITT, J. I fully concur in the exhaustive judgment just pronounc-
ed by the learned Chief Justice and in the reasons given by him for the
conclusions at which he has arrived. I desire to add a few words only.
The " striking off " or " shelving " of an execution application is an order
which may admit off different interpretations according to the circumst-
ances under which it has baen passed. (Hurronath Bhunjo v. Chunni Lai
Ghose) (1).

If such an order be passed on the merits of the application (e.g.,
by a finding that the decree has already been fully satisfied or that
the execution is barred by limitation or by some previous order which
[103] would operate as a res judicata) then, so far as the Court executing
the decree is concerned, the application must be held to have been finally
disposed of in a manner adverse to applicant's right to have the decree
executed and no further application for execution of the same decree can be
entertained unless in pursuance of a suoaeaful appeal to a superior Court.

But if such order has been passed in consequence of some default of
applicant's not going to the merits of his right to have satisfaction of hia
decree (e.g., default in appearance, failure to pay process-fees or to put in
copies of papers called for, &c., &3.) in such cases, though the order may
put an end to the particular application in which it was passed, it does
not bar a subsequent application for execution if the latter be made within
the time allowed by the Indian Limitation Act (Act No. XV of 1877).

I entirely concur with the learned Chief Justice in holding that the
matter to be inquired into respecting such an order is whether or not
the Court which passed it intended to and did judicially decide that; the
decree holder's right to have satisfaction of his decree was barred by some
rule of law. If the Court did so decide, then the decree-holder's only
remedy is by appeal, a fresh application for execution being barred. But
in other cases another application for execution is admissible, subject
always to the law of limitation. The rule laid down in the judgment of
the learned Chief Justice is a reasonable and an intelligible rule. I am
glad that it has been unanimously adopted by this Court.

AlKMAN, J. I fully concur in the conclusions arrived at in the judg-
ment of the learned Chief Justice and also in the observations made by my
brother Burkitt.

In each case the effect of the Court's order by which an applica-
tion for execution is disposed of has to be considered. The order
may have the effect merely of killing the particular application with-
out any adjudication on the merits ; on the other hand, the effect of
the order may be to render the decree dead and incapable of execu-
tion. In the former case there is nothing to prevent the deorea-
holder putting in a fresh application within the period allowed by
(1) 4 C. 877.

782



ABDUL BAHIM KHAN V. KHABAG SINGH 15 All. 105

the law of limitation : in the latter case, the order, if allowed to become 1893
final, puts an end to the decree-holder's rights under his decree. FEB. 9.

For instance, in the case before us, I have no hesitation in holding
that the order of the 3rd of April 1888, by which the application of the FULL
21st of February 1888 was struck off the file of pending cases owing to BENCH,
the failure of the decree- holder to file a list of the property to be attached,
merely put an end to that particular application and decided nothing on 18 A. 84
the merits. (F.B.).=

But the order of the 9tb of June 1891 was of different nature. It ISA.W.N.
held that the effect of the order of the 3rd of April 1888 was to bar any (1898) 36.
subsequent application to execute. Had this order of the 9th of June
1891 been allowed to become final instead of being impugned, as it now is,
in appeal, Ik would have been fatal to any rights the decree-holder had
under his decree.

Appeal decreed.



15 A. 104 = 12 A W.N. (1892) 240.

APPELLATE CIVIL.
Before Mr. Justice Knox and Mr. Justice Burkitt.



ABDUL BAHIM KHAN (Plaintiff) v. KHABAG SINGH AND ANOTHEB

(Defendants).* [7th December, 1892.]
Pre-emption Muhammaian law Vi.inage Separate mahals.

Where an estate, originally one, has been divided into two separate mahals, no
right of pre-emption under the Muhammadan law will subsist on behalf of one
of such mahals in respect of the other merely by reason of vicinage : nor will
any right of pre-emption arise from the fact that certain appurtenances to the
original mahal are still enjoyed in common by the owners of the separated
mahals.

[R., 33 A. 28 |84) = 7 A.L.J. 679 (885! =7 Ind. Gas. 404 ]

THE facts of this case sufficiently appear from the judgment of the
Court.

Pandit Moti Lai, for the appellant.
Pandit Sunder Lai, for the respondents.

JUDGMENT.

[105] KNOX -and BURKITT, JJ. In the suit out of which the second
appeal arises the appellant before us was the plaintiff, and the respondents,
defendants. The plaintiff brought a claim to pre-empt a certain amount
of land, and the claim was based both upon the wajib ul-arz and also
upon the general principles of the Muhammadan law. In order to un-
derstand the case it will be necessary to go into the following facts. The
appellant and Musammat Sahira Bibi, who is one of the respondents,
were brother and sister. They were children to and successors of one
Ohulam RasulKhan, who was the original and sole owner of the village
Bahramand Nagar. In connection with that village a wajib-ul-arz had

__

* Second Appeal, No. 949 of 1899, from a decree of A.M. Markham, Esq., District
Judge of Meerut, dated the 12th August 1890. confirming a decree of Rai Piari La],
Subordinate Judge, of Meerut, dated the 29th August 1589.

[N.B. In 12 A. W.N (1892) 240 this case is reported as Second Appeal No, 949 of 1690.
The judgment is alleged to have been delivered on 1-13-1892. ED],

783



15 All. 106 INDIAN DECISIONS, NEW SERIES [Yol.

1892 been prepared, and in that paper there were set out certain statements
DEC. 7. with reference to the question of pre-emption, should it ever arise. We

had the extract bearing upon pre-emption read out to us, and we find

APPEL- that, so far from its being a recital of any existing custom of pre-emption,
LATE it contained merely a general expression of the wishes of Ghulam Easul
CIVIL. Khan in the event of the village being hereafter divided amongst his

heirs. Ghulam Easul Khan being the sole owner, there could of

15 A. 101= course be no special contract with reference to the custom. After
12 A W.N. Ghulam Easul Khan's death the estate passed into the hands of Abdul
(1892) 240. Eahim Khan, the son, and his sister, Musammat Sahira Bibi. After it
had devolved upon these two persons a partition took place. It was con-
tended that we must look upon this partition as one which, though per-
fect, yet suffered certain portions of the original estate to remain in the
common enjoyment of Abdul Eahim Khan and Musammat Sahira Bibi or
their representatives. On looking further, however, into the papers it
appears that the alleged community extended only to a common burying
ground and a chaupal. We are not here concerned with the fact whether
these two appendages to the estate were or were not divided. It is clear
to us that perfect partition of the original estate did take place and that
fcwo separate mahals as known to the Eevenue law wore created there-
from. For each of these separate mahals a separate wajib-ul-arz was
prepared. So far as the new papers relate to pre-emption both the
parties are agreed that they are a verbatim repetition of the so-called
conditions which had originally been entered when the whole estate
[106] remained one and undivided. As already pointed out, these so-
called conditions were nothing more than an expression of the wishes of
Ghulam Easul Khan put into the mouths of his descendants, and ib is
both curious and disappointing to find that a paper to which such import-
ance has been attached by law should have been prepared in this perfunc-
tory way. Musmmat Sahari Bibi parted with a portion of her estate to
the father of Kharag Singh, who is now the respondent before us, and on
her doing so, the appellant before us instituted the present claim for pre-
emption. Both the Courts below have found, and found most properly, that
the claim, so far as it rested on the wajib-ul-arz, could not prevail. As regards
the claim based upon the Muhammadan law the Court of first instance,
following the ruling in Chatternath Jha (1), disallowed the claim. The
learned District Judge in appeal held that the ruling in Chatternath Jha (l)
had been misunderstood by the Court of first instance, but dismissed
the claim on the ground that the preliminaries required by the Muham-
madan law had not been observed. In appeal before us an attempt was
made at first to contend that the appellant's claim was good both on the
basis of the wajib-ul-arz and of the Mubammadan law. The former basis
was, however, abandoned and the only serious contention before us was
that under the Muhammadan law the claim for pre-emption was in the
present case a good one. The learned counsel for the appellant was
compelled to admit that under the Muhammadan law vicinage would give
no right of pre-emption whereby the proprietor of one separate mahal
could claim to pre-empt property sold by the proprietor of another and
adjoning mahal. But he attempted to maintain the proposition that
where two mahals had certain appurtenances in common, the fact of both
the proprietors having common appurtenances would give to one of them
as against the other a right of pre-emption. In support of his contention

(1) 6 B.L.R. 41, (P.B.)
784



YII]



JWALA PRASAD V. RAMNARAIN



15 All. 108



he referred us to Mahtab Singh v. Ram Tahal Misser (1) and Jahangheer 1892
Buksh v. Bhickaree Lall (2). We have examined both these cases, but in DEO. 7.
both these cases the parties concerned were not owners of separate mahals
but owners of separate pattis. [107] We were also referred to Shaikh Karrim APPEL-
Buksh v. Kamr-ud-deen Ahmad (3). The precedent upon which the Court of LATE
first instance originally decided the case seems to us directly in point and CIVIL

conclusive, upon the question. The head-note there runs as follows :

"According to the Muhammadan law a partner has a right of pre-emption IS A- 101 =
in villages or large estates. But a neighbour cannot claim such right on the 12 A.W.N.
ground of vicinage." We have examined the judgment and find that it fully (1892) 240
bears out the head-note cited to us. In the present instance the appellant
was really no more than neighbour, and we have not been referred to, nor
have we ourselves found, any authority in the Muhammadan law which
gives such a neighbour a right of pre-empHon in a distinct and adjoining
mahal solely on the ground of vicinage. Under these circumstances it is
unnecessary for us to consider whether or not the preliminaries of the
Muhammadan law were observed. We dismiss the appeal with costs.

Appeal dismissed.



15 A. 107 = 12 A.W.N. (892) 243.
APPELLATE CIVIL.

Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Tyrrell
and Mr. Justice Blair.



JAWALA PRASAD (Decree-holder) v. RAMNARAIN (Judgment-debtor}*
L2nd December, 1892.]

Act I of 1879, s. 46 ; sch i, art. 16 Stamp Sale Certificate Sola subject to incumbrance.

Where property subject to an incumbrance is sold by auction in execution of a
decree, the sale certificate should by stamped according to the amount of the
purchase money, and not according to the amount of the purchase money together
with the incumbrance.

THIS was a reference to the High Court by the Board of Eevenue,
under s. 46 of the Indian Stamp Act, 1879.

In this case in execution of a decree between the above-named parties
a house was sold by public auction for Bs. 550, subject to a lien of Rs. 3,909.
The sale having been confirmed, a certificate was granted to the purchaser
on a stamp of Rs. 6 calculated on the amount of the actual purchase-money.
This document was [108] impounded by the Sub-Registrar of the Agra
Municipality under s. 33 of the Stamp Act, he holding that it was liable to
a duty of Rs. 45 calculated on Rs. 550, the purchase-money, plus the amount
of the incumbrance, namely Rs. 3,909. The Sub-Registrar in due course
submitted the document to the Collector, and that officer being in doubt as
to the correct stamp, owing to the existence of several conflicting rulings of
other High Courts on the point, referred the question to the Board of Revenue.
The Board of Revenue thereupon referred the case to the High Court,
calling attention to certain rulings on the point in question, viz., Meer

* Miscellaneous Application No, 135 of 1892 being a reference by the Board of
Revenue under the Indian Stamp Act, 1879.

(1) 10 W.R. 314. (2) 11 W.R. 71. (3) 6 N.W.P.H.C.R. 377.



A VII 99



785



15 All 109 INDIAN DECISIONS, NEW SERIES [Yol.

1892 Kaisur Khan Murad Khan v. Ebrahim Khan Musa Khan (1), In the

DEC. 2. matter of a reference to the Board of Revenue (2) , and Reference under

Stamp Act, s. 46 (3), (4).

APPEL- On this reference the following opinion was pronounced :

LATB OPINION.

CIVIL.

EDGE, C.J., TYRRELL and BLAIR, JJ. In this case the property

15 A. 107= was sold at an auction sale, subject to an incumbrance. The simple

12 A.W.N. question is whether the stamp on the sale-certificate should be calculated

(1892) 243, on the amount of the purchase money or on the amount of the purchase

money plus the amount of the incumbrance. We have not the slightest

doubt that the stamp must be calculated ou the amount of the purchase

money. The incumbrance constituted no part of the consideration. The

interest which was represented by the incumbrance, that is, the mortgagee's

interest, did not pass by the sale.

Let the Board of Revenue be informed that this is our opinion.



15 A. 108 = 12 A.W.N. (1892) 216.
APPELLATE CIVIL.

Before Mr. Sir John Edge, Kt. t Chief Justice, and Mr, Justice Aikman,



NIAZ-ULLAH KHAN (Defendant) v. NAZIR BEGAM (Plaintiff) .*

[7th December, 1892.]
Civil Prccedure Code, s. 13 Res Judicata.

One Musammat Nazir Begam brought a suit against a lambardar for her share
in the profits of a certain mahal, her claim being based upou an assignment execu-
ted [109] in her favour on the 29ch of July 1839 by one Musamipat Basti Begam
lid heir to one Musimraat Moti Begam, deceased. Prior to that assignment,
namely on the 3rd of June 1887, a suic h*d beeu commenced by the lambardat
against Basti Begam and one Khwajah Bakbsh for possession ot other property
alleged to have been of Moti Brgarn in her life-time, and in this suit it was
ultimately found, but subsequently to tbe above-mentioned assignment in favour



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 115 of 155)