BISHESHWAR NATH Vs. NARMADESHWAR PRASAD UPADHIA

JUDGEMENT

(1.) This is a judgment-debtor objector's appeal. The appellant Sahu Bisheshwar Nath obtained a simple money decree for a large sum, about two lakhs, against Kunwar Suraj Singh and Dalip Singh. The defendants had a decree against Ram Phul Kunwar who deposited a sum of Rs. 50,000 in Court for payment, if the Court so ordered, to Sahu Bisheshwar Nath, the decree-holder. Sahu Bisheshwar Nath applied for attachment of this sum and was resisted by the defendants. Their objections were upheld by the High Court and they got a decree for costs for Rs. 764-15-0. The decree-holders of this decree for costs transferred their decree to Pt. Narbadeshwar Prasad the respondent in the present appeal. He applied for execution of this decree for costs and was met by objections by Bisheshwar Nath, decree-holder in the original suit, asking for a set off of this decree for costs against him against the balance of the amount due to him under his decree in the suit. The lower appellate Court has dismissed his objections and he now appeals. It is noticeable that the judgment of the lower Court deals only with Order 21, Rule 18, and manifestly as the Court held, that rule has no application. Whatever else may or may not be clear in this matter it is manifest that the decree in the suit and the decree for costs were not decrees in separate suits.

(2.) Before I had heard counsel for the appellant I had not unfortunately read the judgment of the lower Court, or I should have found that the rule on which counsel based his argument here was never mentioned to the lower Court. Counsel assured me that the objection to the application for execution had been based on Rule 19, Order 21 as well as other provisions of the law; but this is not the case. I have looked at the objection and it is headed as made under Rule 18 and Rule 18 only.

(3.) Had that come to my knowledge before, I should have hesitated much about allowing the appellant to rely on Rule 19 now. It is not fair, and this had been constantly stated by one Judge or another of this Court, to ask that a lower Court's decision should be upset when the provisions of law relied on in this Court were never brought to the attention of, much less pressed upon, and the lower Court has therefore been given no opportunity of acceding to such argument.