KARTAR SINGH Vs. RAMKUMAR BHAGAT

JUDGEMENT

(1.) This application is presented on behalf of Sardar Kartar Singh for leave to appeal to Supreme Court against the judgment and decree of a Bench of this High Court dated 17-4-1952 in F. A. 100 of 1950.

(2.) The opposite party No. 1 had obtained a decree for a sum of Rs. 13,382/13/1 with interest against the opposite party No. 2. There was an appeal preferred to the High Court but the appeal was dismissed on 15-3-1949. On 20-12-1949 opposite party No. 1 applied for execution of the decree in the court of the Special Subordinate Judge of Ranchi. In para 5 of the execution petition the opposite party No. 1 mentioned that there was a sum of Rs. 8000 which was kept in deposit with the Garnishee Sardar Kartar Singh for being paid to opposite party No. 1. Objections were filed to the execution case by various persons. On 5-3-1949 the petitioner filed an objection on the ground that he had paid a sum of Rs. 8000 to the opposite party No. 2 and so he was not liable to pay the amount over again to opposite party No. 1. Later on, on 23-4-1949 an application was filed in the executing court to the effect that opposite party No. 1, viz., the decree-holder, had received a sum of Rs. 8000 from the garnishee and the balance of the amount viz., a sum cf Rs. 5,382. from the opposite party No. 2. The application was Signed by one Sahdeo Prasad, agent of the opposite party No. 1, and by Mr. A.K. Banerji, an Advocate. In the application it was prayed on behalf of opposite party No. 1 that the execution case should be dismissed on full satisfaction, Accordingly the learned Subordinate Judge dismissed the execution case. Five days later, opposite party No. 1 filed an application before the Subordinate Judge alleging that fraud had been practised by Sahdeo Prasad and the petition of satisfaction was forged and did not bear the signature of opposite party No. 1. An enquiry was made into the matter by the learned Subordinate Judge who held that the decree was really satisfied and there was no reason for restoring the execution case. Against this order opposite party No. 1 filed an appeal to the High Court and on 17-4-1952 the High Court allowed the appeal and reversed the order of the Subordinate Judge. Against this judgment, leave is at present sought for appeal to the Supreme Court.

(3.) In the course of argument Mr. B. C. De said that in the present case the petitioner would have a right of appeal under Article 133 (1)(a) of the Constitution even if the value of the subject-matter in dispute was Rs. 13.382 in the court of first instance and still in dispute in appeal in Supreme Court. The argument is based upon the circumstance that the execution case was instituted on 20-12-1948 long before the Constitution of India was promulgated. It was argued that the case would be governed by the valuation mentioned in Section 110, Civil P. C. In support of his contention, Mr. De relied upon a decision of the Bombay High Court in -- 'Dajisaheb v. Shankarrao'. AIR 1952 Bom 303 (A") in which it was held that in all matters where there was a right of appeal under Section 110, Civil P. C., that right continued in respect of all cases filed prior to the coming into force of the Constitution and there was nothing in Article 133 by which the litigant is deprived of that right. It is not necessary for us in the case to pronounce an opinion on the correctness of this argument for we are satisfied alter a consideration of the particular facts in the present case, that the value of the object-matter in dispute so far as the petitioner is concerned was Rs. 8000 in the court of first instance and also at present in dispute in appeal.