BHARAT CHANDRA DAS Vs. PRANGOPAL CH. DAS

JUDGEMENT

(1.) AN important question that is posed before us in this revision application is what the executing Court would do in case two conflicting decrees are passed by two competent Courts on the same subject matters. To avoid the situation of this type, two provisions viz. Section 10 and Section 11 have been incorporated in Civil Procedure Code. This revision petition which has arisen out of an order of the executing Court appears to be a peculiar one and of uncommon nature as a result of which a peculiar position has arisen. To appreciate the position that has been involved in this revision application it would be necessary on our part to narrate the facts of the case briefly which has been set out below. The petitioner of this revision petition was the defendant in Money Suit No. 11560 filed by the opposite party claiming a sum of Rs. 1,000 as damages for malicious prosecution in the court of Munsiff. Barpeta. The defendant contested the suit. On trial the learned Munisff decreed the suit for only a token sum of Rs. 50 in favour of the opposite party. The plaintiff felt himself aggrieved in decreeing such a token amount by the learned Munsif, preferred an appeal in the Court of Assistant District Judge. The said appeal was numbered as Money Appeal No. 25 of 1964. The petitioner who was the defendant not only contested the said appeal but he also preferred an appeal in the Court of Assistant District Judge challenging the legality and validity of the decree and the said appeal was numbered as Money Appeal NO. 22/64. In Money Appeal No. 22/64 as well as Money Appeal No. 25 of 1964 of the respective parties both the parties appeared and hotly contested both the appeals. The appeal preferred by the defendant namely. Money Appeal No. 22 of 1964 was disposed of by Assistant District Judge No. 1 Shri G.C. Phukan on 7-12-68 whereby the learned Assistant District Judge allowed the defendant's appeal and dismissed the plaintiff's suit. The other Money Appeal No. 25 of 1964 was however heard by Shri R.C. Bora, Assistant District Judge No. 2 at Gauhati, who by the order and decree dated 30-9-69 allowed the appeal of the plaintiff and decreed the suit for a sum of Rs. 700 by modifying the decree passed by the learned Munsiff. Thus it is found that the above Money Appeal No. 25 of 1964 was disposed of about after nine months from the date of disposal of Money Appeal No. 22 of 1964.

(2.) IT is really surprising that both plaintiff and the defendant (i.e. the present petitioner and the opposite party) contested the matter in dispute in trial Court as well in appellate Courts tooth and nail but it is not understood as yet as to why both the parties were silent in not bringing to the notice of the Court about the result of Money Appeal No. 22 of 1964 which was disposed of earlier while the appeal No. 25 of 1964 was taken up for hearing by another Assistant District Judge relating to the same subject-matter of the suit. It is however stated at the Bar that this fact might have been brought to the notice of the Court in course of the hearing of Money Appeal No. 25 of 1964 but it is not known as to why the matter was not pursued either by the party or by the Court itself at the time of disposal of Money Appeal No. 25 of 1964. It is further noted that even though there were two conflicting results in two different money appeals, neither party moved the higher court against the said two conflicting decrees passed by two competent courts on the same subject matter.

(3.) THE learned Munsiff being the executing Court, on hearing the parties on legal points, by his order dated 6-9-76 came to the conclusion that the decree in Money Appeal No. 25 of 1964 is executable in law. The learned Munsiff therefore rejected the objection filed by the petitioner judgment-debtor and by the said order allowed the decree-holder to proceed with the execution case for realisation of the decretal amount. The learned Munsiff came to the conclusion that the executing Court is not competent to say that the decree in money Appeal No. 25 of 1964 is not executable because of the existence of a conflicting decree of Money Appeal No. 22 of 1964, when both the appeals were decided on merits and on contest. The petitioner has challenged this order in this revision petition.