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That judgment indicates that all the authorities which were then existing,
including the Full Bench ruling of this Court in Ram Dial v. Ram Das (1),
as also the ruling of the Calcutta High Court in Baijnath Sahai v.
Moheep Narain Singh (2), were cited and considered by the learned
Chief Justice and the late Mr. Justice Brodhurst. In that judgment
they distinctly differed from the view [207] taken in the Full Bench case



(1) 1 A, 181, (S) 16 0, 535.



(3) 10 A.W.N. (1890), 85, (4) 12 A. 397.
502



VII] DEOKI NANDAN RAI V. TAPESBI LAL 14 All. 208

of Ram Dial v. Ram Das (1), and also from the Calcutta Division Bench 1893
ruling in Baijnath Sahai v. Moheep Narain Singh (2). MARCH 10.

Such, then, ia the case-law upon the subject, and having considered

not only these but numerous other cases which have been cited during FULL
the course of the argument, I have no doubt that the rule laid down in BENCH.
Rahim Bakhsh v. Dhuri (3) is a sound rule of law. In saying so, I maintain
that, although s. 293 of the Oode of Civil Procedure renders rules ** * M *
applicable to recovery of money in execution of decree applicable also to UMM "
recovery of money from the defaulting purchaser, yet rules which are ia
intended only to -apply to the modus operandi of the recovery of money
cannot give any right of appeal. I take it to be an undoubted doctrine of
interpreting statutes that the maxim ubi jus ibi remedium does not include
a right of appeal. It must be expressly granted by the Legislature, and
it is not a right which arises out of common law. If the Legislature
intended that quarrels such as those arising under s. 293 of the Code
should be appealable, there could be nothing easier than adding another
clause immediately above clause (16) of s. 588 granting a right of appeal.
But there is no such clause to be found. There is no other provision
in the Code to show that an appeal lies.

It has been contended that to apply rules which are so stringent as
those required by the Chapter of the Code relating to the execution of
decrees to a defaulting purchaser and not to give him a right of appeal is
a hardship upon him. This argument I have weighed in my mind. At
first sight it appears that there is hardship, but as a matter of fact the law
intends that imprudent bidders at auction must not have those rights, and
that the functions to be discharged by the Courts of justice such as those
contemplated by s. 293 should be peremptory and final, subject of
course to such rights as the defaulting purchaser may otherwise have in
regard to the recovery of money which he has paid up. I therefore hold
that the principle of the Full Bench ruling in Ram Dial v. Ram Das (1)
[208] is erroneous ; that the views expressed in Division Bench ruling in
Sov.da.gar Mai v. Abdul Rahman Khan (4) and in the recent case of Rahim
Bakhsh v. Dhuri (3) are correct ; and that the judgment of my brother
Tyrrell, from which this appeal has been laid, was correct, and I would
therefore dismiss this appeal.

KNOX, J. The order which was before my brother Tyrrell in appeal
purported to have been an order passed under s. 293 of the Code of Civil
Procedure. Whether an order is not necessary, or can or cannot be passed
under s. 293, may be open to question. The section itself does not in terms
provide for an order. All that it says is that when a re-sale has been
made under the Code by reason of a purchaser's default and the result of
such re-sale shows that there is a deficiency of price, and that there are cer-
tain expenses which have to be recovered from someone, that deficiency and
those expenses shall be certified to the Court by the officer holding the
same. It may well be conceived that numerous instances would arise
when no order of any kind would be passed upon such certificate, and, as
I said before, I do not find that s. 293 requires a Court to pass an
order upon such certificate. If there is a decision passed by the Court
under s. 293, in my opinion such a decision cannot at the highest
amount to anything more than an order, and as s. 588 of the Code of
Civil Procedure makes no provision for appeals from such orders, no
appeal will lie, and the judgment of my brother Tyrrell is in that view

(1) 1 A. 181, (2) 16 C, 535. (3) 12 A. 307. (4) 10 A.W.N, (1890) 85.

503



II All. 209 INDIAN DECISIONS, NEW SERIES [Yol,

1892 a judgment which, in my opinion, must be upheld. I might therefore leave

MARCH 10. the cage at this stage, but it has been pressed before us by Mr. Conlan,

who appeared for the appellants, that much injustice might arise to the

FULL defaulting purchaser, if he can in no way appeal from the decision of the

BENCH. Court, if there be any, under s. 293 and the consequences which flow from

that decision. We are not called upon to determine in the present case

11 A. 201 t ne question whether an appeal does or does not lie from decisions resulting
fF.B.)= a f{; er thQ proceedings have passed the stage contemplated in s. 293. But it

12 i.W.N. geems to me that when such a question arises for argument hereafter, and
(1892)74. w ben the judgment-creditor or the judg-[209]ment-debtor proceeds to

recover from the defaulter the deficiency mentioned in s. 293, the follow-
ing facts will have to be considered. Such judgment-creditor or judgment-
debtor, as the case may be, will have to follow the rules contained in
Chapter XIX for the execution of a decree for money. His first step will
be probably to take the certificate to the Court through whom he wishes
to recover, and put it in as the foundation of proceedings in execution.
Such proceedings will, in the ordinary course of things, lead up to an
adjudication, if any question arises, and that adjudication, it appears to
me, subject to what I have said above, would be a decree. For these
reasons I would dismiss this appeal with costs.

EDGE, C.J. I am still of the opinion which I expressed in my judg-
ments in the case of Soudagar Mai v. Abdul Rahman Khan (l) and Bahim
Bakhsh v. Dhuri (2). I would only add that the order passed under
8. 293 of the Code of Civil Procedure, which is questioned here, if it is not
a decree, must be an order within the meaning of that word as defined in
s. 2 of the Code. For I find that an order is defined as "the formal expres-
sion of any decision of a Civil Court which is not a decree as above de-
fined. " Consequently, if it is an order, it was an order within the mean-
ing of that word as used in the Code of Civil Procedure, and no appeal lies
under s. 588 from such an order made under s. 293 of that Code. It can-
not, in my opinion, be considered to be a decree which decides the suit or
appeal. It is not in fact the decree in the suit, and no other suit, as that
word is used in the Code of Civil Procedure, ever was commenced. A suit,
as that word is used in the Code of Civil Procedure, has a definite mean-
ing. It is a proceeding commenced by the filing of a plaint; written state-
ments have to be filed, and certain specific procedure is applicable to it.
Then again, as I have said in my judgment in one of the former cases, I
fail to see how a defaulting purchaser at an auction-sale can be considered
as a party to the suit in which the decree was passed, or as a representa-
tive, as such, of any parties to the suit within the meaning of s. 244 of
the Code. For these reasons I am of opinion that, [210] although the
facts may have been correctly found by tha Subordinate Judge in this
case, the appellant here, whatever remedy he may have, has not got a
remedy by way of appeal. If he has any other remedy, he would not ap-
parently be debarred from it by reason of s. 244, which, in my judgment,
does not apply to his case. I would therefore dismiss this appeal with
costs.

STRAIGHT, J. I am strongly inclined to hold that an appeal does lie.
But as four members of the Court are of the contrary opinion and as I am
shortly to leave the Court, I do not think that any useful purpose will be
served by my entering at length into the reasons that lead mo to that view

(1) 10 A, W.N. (1890)85. (2) 12 A, 397,

504



VII] KASBI BAM V. MANI BAM 14 All. 211

I therefore simply say I do not; concur in the judgments that have been 1892
delivered. MARCH 10.

OEDER OF COURT. F ~ L

The order of the Court is, consequently, that this appeal is dismissed BHNOH.
with costs.

Appeal dismitsed. ** * ^*
(F.B.)-

141. 210 = 12 i.W.N. (1892) 86.

APPELLATE CIVIL.
- Before Sir John Edge, Kt., Chief Justice and Mr. Justice Blair.



KASHI RAM (Petitioner} v. MANI RAM (Opposite party.)*
[7th April, 1892.]

Execution of decree Order dismissing application under s. 295s//fo Civil Procedure
Code for participation in as? els Civil Procedure Code, ss. 2, 244, 295 Appeal.

No appeal will lie from an order under s, 295 of the Code of Civil Procedure dis-
missing, on the ground that the decree was barred by limitation, a decree holder's
application to share in the assets realized under another decree against the same
judgment-debtor. Such an order cannot be regarded as a decree under 8. 244
read with s. 2 of the said Code.

[F., 12 Bom. L.E. 365 (366) = 6 Ind. Cas. 522 ; R., 27 M. 504 ; 65 P.R. 1906 = 130
P.L.B. 1905 5 D., 6 O.L.J. 437 = 11 C.W.N. 433.]

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

Pandit Mali Lai Nehru for the appellant.

Babu Rajendra Nath Mukerji for the respondent.

JUDGMENT.

[211] EDGE, O.J., and BLAIR, J. The appellant here put his decree
in execution in the Court of the Subordinate Judge of Cawnpore. The
respondent had a decree against the same judgment-debtor, and was pro-
ceeding in execution of his decree in the Court of a Munsif. The respond-
ent got his execution proceedings transferred to the Court of the Subordi-
nate Judge, and applied under s. 295 of the Code of Civil Procedure to parti-
cipate in the assets. The Subordinate Judge, holding that the respondent's
decree was time-barred, made an order refusing him participation in the
assets. On that the respondent here appealed against that order to the
Court of the District Judge. The District Judge entertained the appeal, set
aside the order of the Subordinate, Judge, and remanded the case to the
Court of the Subordinate Judge. From that order of remand this appeal has
been brought. An order passed .under s. 295 is not an order appealable.
Section 588 of the Code prohibits an appeal against any order passed
under s. 295. The question then remains, was the order of the Subordinate
Judge appealable as a decree, reading "decree" as defined in s. 2 of the Code.
Unless the order in question was an order under s. 244 of the Code, it
would not be a decree as defined in s. 2. The parties to the appeal below were
the respondent here, a decree- holder, and the appellant here, another
decree-holder. The judgment-debtor was not a party to the appeal below.
Consequently we have only to consider whether the question decided below

* First Appeal No. 77 of 1891 from an order of A. McMillan, Esquire, District
judge of Cawnpore, dated the 25th May 1891.

505
A VII 64



15 All. 212 INDIAN DECISIONS, NEW SERIES [Vol.

1892 was a question which arose between the parties to the suit in which the

APHID 7. decree was passed or their representatives within the meaning of ol. (c) of

a. 244. The parties to the appeal below were not parties to any common

APPEL- suit. Each was a decree-holder in his own separate suit, and the only parson

LATE common to both suits was the judgment-debtor. Now in those prooeed-

CIVIL * Q 8 fch 986 decree- holders could not be treated as representatives of each

' other or of the judgment-debtor; consequently we cannot treat the order

11 A. 210 of the Subordinate Judge as one which was made or capable of being made

12 A.W.N, under s. 244 of the Oode. A*n appeal is a creation of statute. There is,
(1892) 56, so far as we can see, no section in the Code of Givil Procedure which

gave an appeal from the order of the [212] Subordinate Judge, bub
there is a provision in s. 295 allowing a party a right of suit in a case of
this kind. For these reasons we are of opinion that the appeal below
did not lie. We accordingly allow this appeal with costs here and in the
lower appellate Court, and, setting aside the order of remand, we rein-
state the order of the Subordinate Judge with costs.

Appeal decreed.



14 A. 212 = 12 A.W.N. (1892) 63.

EXTRAORDINARY ORIGINAL CRIMINAL.
Before Mr. Justice Knox.



QUEEN-EMPRESS v. G. W. HAYPIELD AND ANOTHER.
[18th April, 1892.]

Practice Sessions trial Adducing evidence for the defence Documents produced for
cross examination of crown witness Right of reply Criminal Procedure Codt,
ss. 289, 292 Witness for Crow* tendered at Sessions trial who had not been exa-
mined by the comm ! ltwg Magistrate.

In a trial before a High Court or a Court of Session evidence for the defence
cannot be adduced until the close of the case for the prosecution; but counsel
for the defence may, while a witness for the Grown is under cross-examination,
put documents to him, and if in so doing counsel reads or causes to be read to
the Court such documents, he thereby impliedly undertakes to put those docu-
ments in as evidence at the proper time. When such documents as aforesaid
are filed in Court as evidence, or any other documentary evidence is put in by
the defence, the defence has " adduced evidence " within the meaining of ss. i289
et stq. of the Code of Griminial Procedure, so as to give the prosecution a right
of reply, though no witnesses may be called for the defence.

In a trial at the Criminal Sessions of the High Court, during the cross-
examination of one of the witnesses for the Crown, counsel for the defence put
certain documents to the witness, and these were read to the Court and jury and
marked as exhibits as evidence for the defence, and were filed with the
record in the samo way as the evidence for the prosecution had been marked and
filed. During the cross-examination of the next witness a simitar course was
pursued, and after the cross examination had continued for some time, counsel
for the defence applied to the Court for a ruling as to whether t-ho fact of docu-
ments having been used during cross-examination in the manner above stated
would, under s. 292 of the Coda of Criminal Procedure, entitle the Crown to a
reply, in the event of the accused not calling witnesses.

Held that although, aa a matter of order, such a question would be better
raised either when the first document intended to be used in this way was
put to a witness, or when the accused was asked if he meant to adduce evidence,
yet there was nothing in the Code of Criminal Procedure to prevent the Court
[213] from deciding the question at any other stage, and that, under the special
circumstances of the case, it might be considered then.

506



YII] QUEEN-EMPRESS V. G. W. HAYFIELD IS All. 214

Held also that the use of the documents in the manner above stated gave the \ QQO
prosecutior a right of reply. Queen-Emptess v. Grees Chunder Banetji (1),
Empnss cf India v. Kalipraonno Dass (2.i. Queen- Empress v. Sofomon (3), and
Queen Empress v. Erishnaji Baku Rav Bulcll (4), dissented from,

A.t a trial before the High Court or the Court of Session, the Crown cannot
demand as of right that any witness who was not examined by the committing ORDINARY
Magistrate either before commitment or, und=r ?. 219 of the Code, after it, should ^
be called and examined. The Court may call and examine such a witness if it ORIGINAL
considers it necessary in the interests of justice. ClVIL.

[R., 4 L.B.R. 5 (7) = 6 Cr. L.J. 115.]

14 A 212 =

THIS was a trial before Knox, J., and a jury at the Criminal Ses- 12 A.W.N,
sions of the High Court. The accused, George William Hayfield, was (1892) 63.
charged with offences punishable under ss. 420, 420 read with 511, and
436 read with 107 of the Indian Penal Code. During the course of the
case for the prosecution an application was made to the Court by the
Public Prosecutor that a certain Mr. Garstin might be examined as a
wit-ness for the Crown. Mr. Garstin was not examined as a witness by
the committing Magistrate either at the time of the inquiry in the Magis-
trate's Court or subsequently under s. 219 of the Code of Criminal
Procedure. The defence objected to the proposed examination of
Mr. Garstin.

The Public Prosecutor (The Hon. G.T. Spankie), for the prosecution.

Mr. W. M. Colvin, Mr. A, Strachey and Mr. T. E. Strachey, for the
prisoner.

KNOX, J. With reference to the application of yesterday that
Mr. Garstin might be examined as a witness for the Crown, my ruling
is as follows :

Mr. Garstin was not examined as a witness by the committing
Magistrate : he was not examined by the Crown under the supplementary
provisions of s 219 of the Code of Criminal Procedure, and up to the
present the accused have no knowledge of the nature [214] of the evidence
which he may give, how it may affect them, and therefore cannot say
whether or not, if it had been given at the preliminary inquiry, they would
have cited evidence to rebut it.

It was the intention of the law, so far as can be gathered from the
provisions of the Code, that an accused should not be put on his trial
until all the evidence that was forthcoming, and of the existence of which
the Crown might reasonably be supposed to be aware, had been put on
record and in his presence, if possible ; and further, it is provided that if
the accused so require a copy of all such evidence so recorded be givan to
him before his trial commenced.

There was, in my opinion, no intention, and therefore no provision
made for the purpose, that the Crown could demand of right that any
witness not examined by them in the preliminary inquiry should be called
and examined at the trial. It is true that in the present instance certain
witnesses, among them Mr. Garstin, have been summoned by order of
the Court, but no notice was given to the accused, and I therefore regard
their being summoned as a purely ministerial act and in no way binding
upon myself in the sense that the witness so summoned is, as a matter
of course, to be examined.

I therefore rule that Mr. Garstin cannot give evidence on the part of
the Crown to-day. This will not preclude the Court, if, it considers it
necessary in the interests of justice, from calling and examining him as a

(1) 10 C. 1024. (2) 14 0. 245. (3) 17 C. 930. (4) 14 B. 436.

507



14 All. 215 INDIAN DECISIONS, NEW SERIES [Yol.

1892 witness cited by the Court ; and to prevent any hardship to the accused, I
APRIL 19. dirQok that tn9 papers to which his evidence and that of Kamta Prasad
are supposed to refer be placed to-day at the disposal of the counsel for
EXTRA- the accused.

ORDINARY [The case for the prosecution then proceeded. Daring the eross-

ORIGINAL axaQama ki a f ae f 'he witnesses, counsel for the defence put certain
letters and other documents to the witness, some for the purpose of contra-
__T' dieting his testimony and others for the purpose of proving that he was an
14 A. 212 accomplice in the commission of the offences charged against the accused,
12 A.W.N. so as k l av fche foundation for argument that his evidence should not be
(1892) 63. acted upon without corroboration. These documents were read to the Court
and jury and [215] marked as exhibits as evidence for the defence, and
were filed with the record in the same way as the evidence for the prosecu-
tion had been marked and filed. Daring the cross-examination of the next
witness a similar course was pursued, and, after the cross-examination had
continued for some time, counsel for the defence applied to the Court
for a ruling as to whether the fact of documents having been used during
cross-examination in the manner above stated would, under s. 292 of
the Code of Criminal Procedure, entitle the Crown to a reply in the
event of the defence not calling witnesses. The Public Prosecutor
objected that the point was prematurely raised at the present stage of
the trial.]

KNOX, J. Upon the conclusion of the examination-in-ohief of one
of the witnesses for the Crown, Mr. Strachey, on the part of the defence,
raised the question whether, if certain documents were tendered to witnesses
for the Crown with the intention of using those documents as evidence
hereafter, the Crown would be entitled to the right of reply. The Public
Prosecutor questioned the right of tbe counsel for the defence to raise this
question at the present stage of the trial. Counsel for the defence
referred me to the cases Queen- Empress v. Solomon (1), Empress of India v.
Kaliprosonno Doss (2) and Queen- Empress v. Krishnaji Baburav Buleli (3),
and contended that this question might be raised at any point during the
progress of the trial. The Public Prosecutor suggests that those cases estab-
lished nothing further than that there were two stages at which this ques-
tion might be raised. First, when the first document intended to be used
in this way was put to a witness, and secondly, when the accused is asked
if he means to adduce evidence. I am clearly of opinion that these two
stages would b j the preferable ones in which as a point of order such a
question should be raised, but there are special circumstances in this case,
one being that the trial will probably have to be adjourned, and the counsel
for the defence assures me that my ruling on the point will probably deter-
mine whether the witnesses are to be put to the inconvenience of staying
[216] over such adjournment. On this ground, therefore, and seeing
nothing in the Code of Criminal Procedure which would prevent me
from deciding the question at any other stage beyond those named, I rule
that the question may be considered now.
[The question was then argued.]

RULING.

KNOX, J. The question on which I am asked to rule is as follows :
"Can counsel for the accused^during the cross-examination of a witness
called for the prosecution at a Sessions trial and before the close of the

(1) 17 C, 930. (2) 14 C. 245. (3) 14 B. 436,

508



YII] QUEEN-EMPRESS V. Q. W. HAYPIELD 14 All. 217

evidence for the prosecution, read or cause fco be read to the Court and 1892
Jury a letter or other document written by the witness which has not APBIL 18.

been pub in evidence by the prosecution or by the judge presiding, without

giving a right of reply to counsel for the prosecution." As this was a ExiRA-
question involving procedure, I thought it best to take counsel with my ORDINARY
brother Judges in the matter before ruling. It was contended for the ORIGINAL
prisoner that the tendering of such documents does not entitle counsel n
for the prosecution to a right of reply, and in support of that con- 1^1
fcention I was referred to the following cases: Queen-Empress v. HA. 212-
Grees Chunder Banerji (1), Empress of India v. Kaliprosonno Doss (2), 43 A.W.N,
Queen-Empress v. Solomon (3) and Queen- Empress v. Krishnaji Baburav (i892> 83.
Bulell (4). In Queen-Empress v. Grees Chunder Banerji (1), in which an
accused during the cross-examination of a witness used certain documents
and those documents were tendered in evidence and marked as exhibits ;
at the same time it was intimated by counsel for the defence that he would
contend that by so doing he did not give counsel for the prosecution a right
of reply on the case in the event of no witnesses for the defence being called,
Mr. Justice Field held that the prosecution was not entitled to a reply. In
Empress of India v. Kaliprosonno Doss (2), Mr. Justice Trevelyan gave
a similar ruling, following the ruling already quoted. In Queen- Empress
v. Solomon (3), Mr. Justice Wilson also held to the same effect after it
had been pointed out to him that the Madras High Court had decided to a
[217] contrary effect. This case is of some importance, as therein it was
pointed out to Mr. Justice Wilson by Mr. Pugh, who appeared for the
prosecution, that he had been informed that it was the practice of the
North- Western Provinces High Court under such circumstances to allow
a reply. In Queen-Empress v. Krishnaji Baburav Bulell (4), Mr. Justice
Farran followed the rulings of the Calcutta Court. No precedent of this
Court has been pointed out, but an allusion has been made to the pro*
oedure which is said to have taken place during the trial of Queen-Empress
v. Trotter (5) ; but it is admitted that in that case the question was not
argued, and that when the point was raised the documents were put on
the record by the presiding Judge and not by counsel for the defence.
Upon these authorities it was contended by counsel for the defence



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 76 of 155)