PURUSOTTAM GOHIL Vs. RAJAPUR COLLIERY CO

JUDGEMENT

(1.) It appears that the appellant had instituted a title suit, namely. Title Suit No. 9 of 1951, against the respondents in the Court of the Subordinate Judge of Dhanbad, alleging that the road to his colliery had been blocked by the respondents and there had been subsidence of the road and the appellant, therefore, prayed for a declaration of his title to the road and for recovery of damages and certain other reliefs. The suit was decreed on the 28th August, 1951, in favour of the plaintiff. It was ordered in the decree that the defendants should provide an alternative route to the plaintiff within a period of two months from the date of the decree and it was further stated that on failure of the defendants to do this it will be open to the plaintiff to construct a road in accordance with the terms of the decree at his own cost and recover the same from the defendants through Court. The plaintiff also was granted a decree for damages to the extent of Rs. 1200/-. The plaintiff put the decree into execution in Execution Case No. 13 of 1952. But the defendants had preferred an appeal before the High Court, being First Appeal No. 434 of 1951, and in that First Appeal the defendants prayed for stay of the execution proceedings. On the 29th. April, 1952, the High Court made an order of stay of the execution on condition that the defendants should deposit Rs. 2Ooo/- in the executing Court within a month from the date of the order. The deposit was duly made by the defendants and subsequently a further amount of Rs. 2000/- was ordered to be deposited by the High Court on the 24th August, 1957. The appeal was dismissed by the High Court on the 19th December, 1958, and thereafter the plaintiff-decree-holder applied before the executing Court for payment of the sum of Rs. 4000/- which had been deposited by the defendants in accordance with the direction of the High Court. This petition was rejected by the Subordinate Judge, 1st Court, Dhanbad, on the ground that the order of the High Court did not by itself constitute a decree or order for payment of the money deposited by the judgment-debtors during the pendency of the appeal and as such the decree-holder has got to bring a separate suit for the amount claimed on account of the damages sustained by him as a result of the stay of execution. The decree-holder preferred an appeal to the District "Judge of Dhanbad, but the appeal has been dismissed.

(2.) The order of the High Court dated the 29th April, 1952, states as follows :-

(3.) It was submitted by the learned Government Advocate on behalf of the respondents that the provision of Section 47 of the Code of Civil Procedure has no application to this case and the remedy of the decree-holder-appellant was to recover the damages claimed on account of the stay of the execution of the decree by way of a separate suit and not in the proceedings for the execution of the decree itself. We are unable td accept this argument as correct. In our opinion the claim of the decree-holder for payment of the money deposited by the judgment-debtors in this case by the orders of the High Court dated the 29th April, 1952, and the 24th August, 1957, raises a question which relates to the execution, discharge or satisfaction of the decree arising between the parties to the decree within the meaning of Section 47 of the Code of Civil Procedure. The view we have expressed is borne out by the decision of the Madras High Court in Subramania Chettiar v. Raja Rajeswara Sethupathi, AIR 1918 Mad 442. In that case immovable property was given by the Judgment-debtor as security for the duo performauce of the decree pursuant to an order of the Court under Order 41, Rule 5 (3) of the Code of Civil Procedure, and it was held by Wallis, C. J., and Kumaraswami, J., that the property can be realised by the decree-holder in execution and no separate suit was necessary or maintainable for such realisation. A similar view has been expressed by the Judicial Committee in Sadasiya Pilial v. Ramalinga Pillai, 2 Ind App 219 (PC) where security of immovable property given for mesne profits which were not awarded by the decree was held to be realizable in execution for such mesne profits instead of leaving the parties to recover them in a separate suit. In that case the defendant had during the pendency of the appeal executed certain security bonds to the Court in which he had undertaken to account in respect of subsequent mesne profits in the suit. It was held by the Judicial Committee that such obligation made the accounting in respect thereof "a question relating to the execution of the decree" within the meaning of Section II of Act XXIII of 1861, and in any case it estopped the defendant from saying that such mesne profits were not payable under the decree. A similar view has been expressed by the Patna High Court in Narottam Das v. Krishna Prasad, AIR 1936 Pat 289. In that case a money decree was ordered to be paid in instalments on the judgment-debtor executing a security bond hypothecating immovable property for the satisfaction of the decree. But default was committed by the judgment-debtor in the payment of the instalments. It was held by the Division Bench in these circumstances that the hypothecated property can be sold in execution of the decree and a fresh suit was not necessary. The view that we have expressed is also borne out by a decision of the Madras High Court in Desikachariar v. Ramchandra Reddiar, AIR 1951 Mad 56 where it was pointed out that an order in a stay petition pending an appeal relates to execution of a decree within the meaning of Section 47 of the Code of Civil Procedure. In the course of his judgment Subba Rao, J., has observed as follows at page 58 of the report: