LAKSHMINARAYAN HIRALAL Vs. LADURAM ONKAR AGARWALA

JUDGEMENT

(1.) In order to understand this appeal, it is necessary to set out the facts in some detail. The present respondent Laduram obtained a decree against the present appellant and his partners in Suit No. 474 of 1919 on September 6, 1921. The decree was for Rs. 3,307 principal, and Rs. 295 for interest, and Rs. 24 for commission, in all Rs. 3,626, and the costs of the suit, to be paid by the defendant to the plaintiff, and it was provided that the said amount should be a charge on nineteen bales of cotton belonging to the defendant which were lying with the plaintiff, who was a commission agent for sale. The value of the nineteen bales was not stated. In execution of this decree the plaintiff presented a darkhast in which he gave credit to the defendant for Rs. 143-2-6, being the price of the nineteen bales of cotton which he had sold. The defendant objected to this price, and in execution proceedings an issue was framed regarding the value of the nineteen bales of cotton, and it was held in 1925 that the value of the bales was Rs. 1,830. Against this decision an appeal was presented by another partner of the defendant's firm, and ultimately it was held by the District Court on February 12, 1927, that the value of the bales was Rs. 5,511-11-0. It so happened that in the interval between 1921 the date of the first dar khast, and 1927 the date of the final determination of the value of the bales by the District Court, the decree- holder plaintiff had recovered various sums under the decree from the defendants, and ultimately this amounted to Rs. 3,152 odd. Therefore, when the appellate Court finally found that the value of the bales was over Rs. 5,500, it was obvious that the decree-holder had recovered from the judgment-debtor considerably more than the amount of the decree, and an application was made by the pre-sent appellant to the executing Court for restitution. In the course of those proceedings accounts were taken, and the objections raised by the respondent in those proceedings were as to certain items of figures and interest. But he did not contend that the judgment-debtor should be referred to a separate suit, and both parties joined in a purshis, which is Exhibit 9, dated January 25, 1930, agreeing to the appointment of a commissioner to take the accounts. Accounts were taken. The contention regarding interest was overruled, and ultimately the Subordinate Judge found on the Commissioner's report that Rs. 2,099-4-6 were due for principal, and Rs. 49-1-9 for interest, in all Rs. 2, 193-6-3 to be paid by the decree-holder to the judgment-debtor. It is to be noted that this order is based on the calculation that the nineteen bales of cotton were sold by the decree-holder for Rs. 5,511. Against this order the decree-holder lodged an appeal to the District Court, in which it was contended that the order passed by the Subordinate Judge could not be said to be an order under Section 144 as the original decree was neither varied nor reversed, so that the appellant (plaintiff) could not be called upon to restore to the applicant (defandant) what he had erroneously recovered under the decree. The District Judge accepted this contention, and held that it was not an order under Section 144, although it was an order more properly speaking under Section 47, and he held that the order so far as it called upon the plaintiff to refund Rs. 1,098-3-3, which is the difference between the decretal amount and the price of the bales as found by the District Judge, viz., Rs. 5,511 odd, which sum could not in any sense be said to form part of the decree, cannot be sustained. The order, therefore, could not be sustained either under Section 47 of the Civil Procedure Code or under Section 144, and that under the latter section the only restitution that the defendant could get was as regards the sum recovered by the plaintiff in execution of the decree and in support of that proposition, the learned District Judge relied on the case of Hukum Chand Boid v. Kamalanand Singh 1905) I.L.R. 33 Cal. 927, and therefore he set aside that part of the order which includes the sum of Rs 1,098-3-3 and the interest thereupon. The judgment-debtor has appealed, and it is contended by the learned counsel on his behalf, first, that it was not open to the decree-holder to raise that contention in appeal, because the whole of the execution proceedings in the lower Court had proceeded on the basis that the price of the nineteen bales was to form part of the proceedings in execution, and that no objection was taken before the Subordinate Judge to that sum or whatever sum the bales were found to be worth being taken into account, the only objection being as regards certain figures, matters of calculation, and, secondly, on the merits, it is contended that on the rulings of the Privy Council Section 144 is not to be narrowly construed, and that it would cover the present case, and, thirdly, it is contended that in any case this case clearly falls under Section 47, and any balance due by one party to the other can be recovered in execution proceedings without a separate suit. The learned counsel for the respondent has very fairly admitted that the objection taken by his client is a technical objection, and he commenced by saying that the decree only gave a charge on the nineteen bales, and that ordinarily speaking a charge-holder has no power to sell. I have no hesitation in holding that the decree-holder is estopped from raising this contention, because as a matter of fact he has sold the bales. He has credited the price towards the decretal amount, and the whole execution proceedings have proceeded qn that basis, viz., that the price of the bales was to form part of the payment towards the decree. I am unable to accept the contention of the District Judge that this sum of Rs. 1,089, which represents the difference between the decretal amount and the amount for which the bales were held to be sold, does not form part of the decree. The decree itself gives the decree-holder a charge on the nineteen bales, and therefore these nineteen bales are directly covered by the decree. It is quite true that the decree did not lay down what the value of the bales was to be, but that was subsequently ascertained in execution proceedings, and it cannot be said that the executing Court has varied the decree when it finds what the value of the charge is, a matter which was left open, or rather I may say, undisposed of by the original decree. Throughout these years from 1921 to 1929 the execution of the decree has been going on on the basis that the price of the nineteen bales, which were sold by the decree-holder, forms part of the amount recovered in execution of the decree. Section 141 of the Civil Procedure Code says:-- Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as "will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed;...

(2.) Now, strictly speaking, there has been a variation of the decree in this case, because the original decree, as I have said, merely gave the decree-holder a charge on nineteen bales of cotton. Subsequently when he sold those bales and the amount is brought into account in the execution proceedings, the first Court held that the value of those bales was Rs. 1,800 odd, but in appeal that decree was varied by finding that the value of the bales was upwards of Rs. 5,000. Now, if at the presentation of the first darkhast the decree-holder had mentioned in his ap-lication that he had sold the bales, and their value was Rs. 5,500, it is obvious that the decree would have been completely satisfied, and that the judgment- debtor would have been entitled under Section 47 to recover the excess of the amount received by the decree-holder above the decretal amount. As a matter of fact, Section 144 has been held by the Privy Council not to be one which is to be strictly construed. That is laid down in Jai Berham V/s. Kedar Nath Marwari, s.c. 25 Bom. L.R. 643, and a reference has been made to the dictum of Cairns L.J. as to the expression act of the Court", meaning not merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is quite true that the facts in that case were not on all fours with the present case, but in view of the opinion expressed by their Lordships as to the section being read in a liberal manner, I have no doubt that these principles will apply to the facts of the present case. The case which the learned District Judge has quoted in Hukum Chand Boid V/s. Kamalanand Singh (1905) I.L.R. 33 Cal. 927 rather supports the appellant The penultimate paragraph of the head-note says:-- The Civil P. C. binds all Courts so far as it goes. It is not however exhaustive and does not affect previously existing powers, unless it takes them away ; in matters with which ib does not deal the Court will exercise an inherent jurisdiction to do that justice between the parties, which is warranted under the circumstances and which the necessities of the case require.

(3.) Now if we apply that to the facts of the present case, it will be seen that the amount which the decree-holder credited to the judgment-debtor on account of the sale of the bales has been found on appeal to be an extreme under-estimate, and it is also apparent that by reason of the decree-holder having received the sum of Rs. 5,500 by his sale of the bales plus a sum of some Rs. 3,000 which he has recovered in other ways from the judgment-debtor, he has as a matter of fact been overpaid. Quite apart from Section 144,'s 47 of the Civil Procedure Code strictly applies to the facts of the present case, which lays down that all questions between the parties to the suit or their representatives--there are no representatives in, this case--relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. This section directly relates to the discharge and satisfaction of the decree, because the point which we have to consider is what is the amount which the decree-holder has received in excess of that to which he was entitled under the decree. Lastly, no such point was taken in the first Court when the Commissioner was appointed with the consent of both the parties, who have put in a purshis, and the only objections raised were as to some questions of arithmetical calculation.