AHER RANA UKA Vs. MER VEJA DUDA

JUDGEMENT

(1.) * * * *

(2.) It is interesting to note that even according to the learned appellate Judge provisions of Order 22 regarding withdrawal do not apply to execution proceedings and he accepts the legal position that execution proceedings can be successfully filed for the satisfaction of the decree He however applied the analogy of the law of contract and held that when there is a contract between two parties and one of the parties refuses to perform his part of the contract then other side is discharged from his liability. Applying that principle to a case of this type can we say that when the decree-holder refused to accept delivery of garlic which he was entitled and bound to take as per the decree passed in his favour the judgment-debtor was discharged from that liability? That is the only view that can be taken in a case of this type. The learned appellate Judge however has over-looked one very important circumstance in this connection. If the judgment-creditor refused to take delivery it was perfectly open to the judgment-debtor to present the goods to the execut- ing court which in that case would have issued a notice to the judgment- creditor to go to it and have the delivery. On the goods being delivered to the court satisfaction of the decree would have been recorded and there would have been an end to the whole chapter. What is true of a contract cannot necessarily be true of a decree. Contract merges into a decree which is to be carried to its satisfaction by the process envisaged by Order 21 of the Civil Procedure Code. The law of contract has no place in the picture.

(3.) Reference to the principles of estoppel is also absolutely irrelvant. This principle can have application if and only if by his conduct or representation the judgment-creditor had made the judgment-debtor alter his position substantially to his disadvantage. Had it been so it could have been said that judgment-creditor who had made the judg- ment-debtor change his position to his detriment because of acting on the representation of the judgment-creditor would be estopped from going behind the action of the judgment-debtor. Nothing of the sort is alleged here. Garlic is still in the custody of the judgment-debtor and if the goods are not there at least their price is with him. The judgment-debtor is not in any way prejudiced in his rights. The application of the principle of estoppel therefore is absolutely unwarranted Sec. 115 of the Evidence Act with all of its ingredients is to be borne in my mind when such a plea is raised.