Hawal Pande vs Sadho Saran And Anr. on 4 January, 1893

Allahabad High Court
Hawal Pande vs Sadho Saran And Anr. on 4 January, 1893
Equivalent citations: (1897) ILR 19 All 98
Author: K Judge Edge
Bench: J Edge, Kt., Tyrrell, Knox, Blair, Kurkitt, Aikman


Judge Edge, Kt., C.J.

1. This is an appeal arising in proceedings for the execution of a decree. The appeal was referred for disposal to the Full Bench of the Court. There are four grounds stated in the memorandum of appeal. No argument has been addressed to us on behalf of the appellant in support of the first, second and fourth grounds. So far as we are concerned those grounds have not been supported. The third ground of appeal raises the question as to whether an order passed on a previous application for execution of the decree was not a bar to the present application. That ground was framed on the supposition that the order referred to decided finally that the decree had been satisfied in full. My brother Judges who are acquainted with the vernacular have considered the application upon which that order was made, and the order, and they tell me that the order related only to the application for execution in the proceedings in which it was made and that the satisfaction therein referred to applied only to the satisfaction of the money part of the decree, i.e., costs and damages. Consequently the third ground of appeal fails. There was however, another ground not taken in the memorandum of appeal, but which was the main reason why this case was referred to the Full Bench. It has been contended that Section 43 of the Code of Civil Procedure applies to proceedings in execution of decrees, and that the present application in execution of a decree for possession of the property decreed cannot be entertained by reason of the plaintiff in a prior application having applied for execution of the decree in respect only of the damages and costs decreed.

2. Broadly speaking, Section 43 of the Code of Civil Procedure applies a well known principle of English law. It is a section which prevents one person harassing another by bringing against him more than one suit in respect of the same cause of action. The third paragraph of the section makes an exception to the general rule dependent on leave being granted by the Court before the first hearing. It is a section which provides the rule to be followed in the inception and framing of a suit by a person having claims against another in respect of one cause of action. Section 43 cannot in my opinion apply to proceedings in execution of a decree, in which the cause of action in respect of which the suit was brought has merged.

3. It must not be assumed that I am of opinion that a plaintiff who had obtained a money-decree would be entitled to apply to have that decree executed in parts. What I mean is that it must not be assumed, in my opinion, that a plaintiff who had obtained a decree, we will say, for Rs. 1,000 would be entitled to execute it by successive applications to execute to the extent of Rs. 10, for instance, I do not say whether he would be entitled to split up the execution of his decree or not. That point can be decided when it arises. I only wish to guard myself against being misunderstood. I may say, however, that I have no doubt that a plaintiff would be entitled to make separate applications for the execution of a decree which provided for different reliefs, as, for example, where he obtained a decree for possession and for mesne profits to be ascertained, be would in my opinion be entitled at once to execute his decree for possession and to execute on a separate and later application his decree for mesne profits when ascertained. In the case of Ram Baksh Singh v. Madat Ali N.W.P. H.C. Rep. 1875 p.95, Sir Robert Stuart, C.J., and Mr. Justice Peaeson Rs. 1,000 would held that where a decree was of a complex character and granted different kinds of relief to be obtained by process of different kinds there was no valid objection to separate applications for partial execution of the decree. In the case of Radha Kishen Lall v. Radha Pershad Sing I.L.R. 18 Cal. 515 Mr. Justice Macpherson and Mr. Justice Ameer Ali held that Section 43 of the Code of Civil Procedure did not apply to proceedings in execution of a decree, and that where a decree gave reliefs of a different character, such as a decree for possession and a decree for costs, there was nothing in the Code of Civil Procedure to prevent separate and successive applications for execution as regards each of them. I would dismiss this appeal with costs.

Tyrrell, J.

4. I concur in all respects.

Knox, J.

5. I fully agree with the learned Chief Justice, that Section 43 is not a section which governs or applies to proceedings in execution.

Blair, J.

6. I concur entirely in the order proposed and the reasons given by the learned Chief Justice.

Burkitt, J.

7. I also concur in the judgment of the learned Chief Justice, and I only desire to add that in my opinion Section 43 of the Code of Civil Procedure is a section which deals with the frame and initiatory stages of a suit, and is not applicable, after judgment and after the rights of the parties have been decided, to proceedings in execution, any more than, for example, Section 44 would be applicable. As to the case now before me I have no doubt that the Munsif, by his order of the 23rd of December 1887, did no more than dispose of the execution application immediately before him, namely, the application for recovery of the amount of costs and damages decreed, and that his order had no effect whatever on that portion of the decree which gave the judgment-debtor a right to possession of certain land. I concur in dismissing this appeal with costs.

Aikman, J.

8. I concur with the learned Chief Justice in thinking that this appeal should be dismissed with costs.

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