Ishan Chunder Roy vs Ashanoollah Khan on 10 June, 1884

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Calcutta High Court
Ishan Chunder Roy vs Ashanoollah Khan on 10 June, 1884
Equivalent citations: (1884) ILR 10 Cal 817
Author: Field
Bench: Mcdonell, Field


Field, J.

1. This is an appeal against an order of the Subordinate Judge of: Tipperah, dated 18th August 1883, refusing to stay the execution of a decree. The facts of the case are briefly these: The decree-holder obtained a previous; decree for enhancement of the rent of certain taluqs. That decree, together with other decrees for the rents of these taluqs for subsequent years, is at present under appeal to the Privy Council. The years, the rents of which are thus sub judice, are 1279-1283, inclusive. In the case now before us an ex-parte decree was obtained for the rents of 1285, 1286, 1287 and 1288. Against that decree no appeal was preferred, and the time for preferring an appeal has now expired. Under these circumstances, the question arises whether the Court of First Instance had any jurisdiction to refuse to execute the decree. There is no express provision in the Code of Civil Procedure for such a case. But it has been contended that there are sections in the Code which appear to contemplate the existence of such a discretion in a Court of First Instance as regards a decree against which no appeal has been preferred. Sections 239 and 250 have been referred to, and the words in the latter section–“unless he sees cause to the contrary”–have been relied upon as indicating the existence of such a discretionary power. It appears to us that these words are sufficiently explained by a reference to express provisions contained in other sections of the Code, (see, for example, Section 246) which provide for setting off cross decrees against each other, the effect being that no execution of the decree for the smaller amount will take place. We may also refer to Section 243, and we may bear in mind that when a decree-holder dies, while execution proceedings are pending, the Court may properly see cause not to issue its warrant until a proper person has been substituted on the record in the place of the deceased decree-holder. We are therefore unable to say that there are any provisions in the Code which indirectly empower a Court of First Instance to refuse to execute a decree against which no appeal has been preferred, and the time for appealing against which has expired; and we think that we would not be justified in importing into the Code a provision which the Legislature has not thought fit to insert expressly or by necessary implication. We are of opinion, therefore, that the Subordinate Judge had no power to refuse execution of this decree. It must be borne in mind that even if the judgment-debtor succeeds in his appeal to the Privy Council, inasmuch as the present decree is not under appeal and would therefore not be directly affected by the result of the appeal in the Privy Council case, the decree-holder would still be entitled to demand execution, unless and until proceedings were taken either to obtain an injunction or to obtain a modification of the decree upon review. We must therefore dismiss this appeal, but, having regard to the circumstances, we think it should be without costs. The order passed as to costs when this appeal was dismissed on the previous occasion will stand.

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