Annoda Prasad Banerjee vs Nobo Kishore Roy on 30 June, 1905

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Calcutta High Court
Annoda Prasad Banerjee vs Nobo Kishore Roy on 30 June, 1905
Equivalent citations: (1906) ILR 33 Cal 560
Author: Sale
Bench: Sale


Sale, J.

1. The plaintiff in this case sues to recover the amount of costs due under an allocator issued by the Registrar of this Court dated the 7th September l902 in respect of certain costs, which were awarded by this Court in its Insolvency Jurisdiction on the 1st of June 1892.

2. The order of the 1st June 1892 directed the present defendant and another person now deceased, who were the adjudicating creditors of the present plaintiff, to pay the costs of the application to set aside that adjudication. The learned Judge acting as Commissioner of the Insolvent Court was satisfied that the adjudication had been wrongly made and accordingly by the order above mentioned the adjudication was set aside, the adjudicating creditors being directed to pay the costs of the proceedings.

3. The order for payment of costs remained unsatisfied and eventually the plaintiff instituted the present suit to recover these costs. There is no dispute as regards the facts.

4. The objection taken is that the suit is not maintainable and in the next place that, if maintainable, the suit is barred by the law of Limitation. Now in support of the argument that the suit is not maintainable Section 244 of the Civil Procedure Code has been relied upon. I think that Section 244 is clearly inapplicable. That section deals only with matters relating to the execution of decrees. The suit is instituted on an unsatisfied order of the Insolvent Court and is now concerned with or relates to the execution of that order.

5. The suit is based on the judgment or order as affording a new cause of action, and if there is no other bar to the suit statutory or otherwise, there is nothing in Section 244 to take away any such right of suit.

6. It is next said that the order of the Insolvent Court is not a judgment of the High Court and that therefore it cannot be made the basis of a suit in the Civil Jurisdiction of the Court. I think that an order for costs made by this Court in its Insolvency jurisdiction is a judgment of the High Court and that such judgment is made by the Court in the exercise of its ordinary jurisdiction as opposed to its extraordinary jurisdiction. The High Court exercises the powers of an Insolvent Court under a special jurisdiction vested in it by the Insolvency Act. But though this jurisdiction is a special one, the High Court none the less exercises it as a part of the ordinary jurisdiction with which it is vested by law.

7. Sufficient support for these propositions is afforded by the judgment of the Privy Council in the case of Nairvahoo v. Turner (1889) I.L.R. 13 Bom. 520 : L.R. 16 I.A. 156. If then the order of the Insolvent Court is a judgment of the High Court, it follows that the suit based upon such judgment is maintainable. It is the general rule that a suit is maintainable on a judgment of a Court of competent jurisdiction and there is nothing in the Civil Procedure Code which interferes with or restricts this rule. This has been the practice of this Court. Attermoney Bossee v. Hurry Doss Dutt (1881) I.L.R. 7 Calc. 74. This Court in its Insolvency Jurisdiction exercises the power of awarding costs under the Insolvency Act and under Rule 30 of the Bengal Insolvency Rules. Execution of these orders is obtained by a proceeding in contempt initiated on a petition against the parties in default. This is the practice usually adopted. But I see no reason why the party entitled to costs should not be permitted to sue upon the order, and thus be enabled to avail himself of the execution procedure provided by the Code of Civil Procedure.

8. If the suit is maintainable the period of limitation applicable is provided by Article 122 of the Limitation Act, and this suit was instituted within that period, and accordingly therefore the defence based upon the plea of limitation fails.

9. The plaintiff asks for interest from the date of the order. It is not the practice of the Court to allow interest upon the decree or order sued upon, unless such decree or order provides for the payment of interest. That is not the case here.

10. The plaintiff is also entitled to the costs of this suit, although the decree is for a sum under Rs. 1,000, inasmuch as Section 19 of the Small Cause Court Act prohibits the Small Cause Court from entertaining a suit of the present character.

11. The result is that there must be a decree in favour of the plaintiff for Rs. 489 and costs.

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