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Bombay High Court
Gopal Hanmant Deshka vs Kondo Kashinath on 16 December, 1884
Equivalent citations: (1885) ILR 9 Bom 328
Author: West
Bench: West, N Haridas


JUDGMENT

West, J.

1. The judgment of the District Court of the 5th October 1863, does not deal explicitly with the claim to future payments set up by the plaintiff as hereditary gumasta. It does, however, deal with his hereditary right, and pronounces in favour of it, while it rejects the claim for arrears of salary. If the judgment and decree did not constitute between, the parties a relation in which the one Was commanded by the Court to do or permit something in favour of the other, the mere circumstance that the thing was in fact done in part from time to time would not and could not, create the supposed relation or give by a mere repetition of errors a right which had not been given by the adjudication. This would be equally so when the execution had been ordered by the Court on an ex-park application, though when the opposite party had been called on to appear, an adjudicative character would thus be acquired by the order then passed. The cases cited by Mr. Grhanasham, compared with Mangal Pershad’s Case L.R. 8 I.A. 123 and that of Ram Kirpal Shukul v. Mussumat Rup Kuari L.R. 11 I.A. 37 show this and the dicta in Jenkins v. Robertson L.R. 1 S.C. Ap. 123, 123 and Langmed v. Maple 18 C.B. (N.S.); 255 show that a mere order of a Court without contest is not necessarily res judicata. This is especially so in the case of executions-proceedings which are primarily executive, though questions may arise in them for judicial decision. But in the present case though the District Judge did not deal explicitly with the question of future payments, it may well be that he thought this sufficiently provided for by his order as to the hereditary right. This judgment has already been construed by this Court as ordering future payments, and by the District Court of course in the same way when it ordered execution on the decree. This being so, we think it safest, though the matter is not res judicata, not to give effect to our doubts as to the proper construction of the judgment and decree by declaring it incapable of execution after execution has so long been submitted to, but to accept the view taken before and heretofore acquiesced in. We accordingly pronounced the decree one capable of execution.

2. The Collector’s certificate under Section 10 of the Vatandars Act III of 1874 (Bombay) was exhausted in operating on the execution which it stopped.

3. The Court below should have dealt with the present case apart from that certificate. The Collector can effectually protect the vatan against any injurious claim and he can register the plain-tiff as a vatandar. He has not, it seems, done either. In these circumstances, the Court below must consider whether can proceed on the present application, and the Collector whether he can prevent it, and, if he can, whether he ought to do so, We therefore reverse the decree, and remand the case for re-trial and new decree, awarding costs.


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