SHAMANUND DAS CHOWDHURY Vs. RAM KANT DAS

JUDGEMENT

(1.) These appeals have been preferred by a judgment-debtor against three orders in execution proceedings. The respondents sued to recover possession of a share of an estate of considerable value in Orissa. Their claim was resisted on the ground, amongst others, that the custom of impartibility and primogeniture prevailed in the family. The Subordinate Judge decreed the suit on the 25th September 1899. On the appeal of the defendants, that decree was reversed by this Court on the 21st March 1904, bat only one question was determined in the appeal, namely, whether the custom of impartibility and primogeniture prevailed in the family: Shyamanand Das v. Rama Kanta Das 32 C. 6. The matter was then taken on appeal to the Judicial Committee of the Privy Council. On the 2nd April 1909, the decree of the High Court was reversed and that of the Subordinate Judge restored. Rama Kant Das v. Shyamanand Das 36 C. 590 : 9 C.L.J. 499 : 36 I.A. 49 : 1 Ind. Cas. 754 : 13 C.W.N. 581 : 11 Bom. L.R. 530 : 6 A.L.J. 364 : 19 M.L.J. 239 : 6 M.L.T. 84: Subsequently, the defendants applied to the Judicial Committee for review of judgment. The application was successful and on the 5th March 1910, the order of the 2nd April 1909 was amended. The order was main, tained in so far as the decree of this Court had been discharged thereby; it was set aside in so far as the decree of the Subordinate Judge had been affirmed thereby and, in lieu thereof, their Lordships directed this Court to consider certain issues which had been kept undecided at the original hearing of the appeal. Meanwhile, the decree-holders had applied for execution of the decree and obtained possession of some properties. On the 4th July 1910, the decree- holders made a second application for execution, in which they prayed for realisation, of a large sum of money decreed by the Subordinate Judge as also the costs allowed by the order of His Majesty in Council. The judgment-debtors objected to the execution substantially on the ground that there was no decree capable of execution, and further presented a counter- petition for restitution of the property already delivered to the decree-holders. The Subordinate Judge has overruled the objections of the judgment-debtor and refused his application for restitution. In our opinion, there is no room for coutroversy that the orders of the Subordinate Judge are correct and must be affirmed.

(2.) It is clear that when the appeal to this Court was allowed on the 21st March 1901, the decree of the Subordinote Judge ceased to be operative. When the appeal to the Judicial Committee was allowed on the 2nd April 1909, the decree of this Court was discharged and the decree of the Subordinate Judge was restored and confirmed. The subsequent order of the Judicial Committee, passed on the 5th March 1910, cancelled the previous order in so far as it had affirmed the decree of the Subordinate Judge. The order directed this Court to consider certain issues left undecided at the original hearing. The effect of the order consequently was to revive the decree of the Subordinate Judge as also the appeal preferred against it to this Court; unless there was a decree of the Subordinate Judge in operation, this Court could not very well hear an appeal against it on certain specified issues. To put the matter briefly, the reversal of the appellate decree of this Court and the remand directed by the Judicial Committee operated to revive the original decree of the Subordinate Judge. The position on the 5th March 1910, therefore, was that the decree-holders were entitled to execute the decree of the Subordinate Judge. They were also entitled to execute the decree for costs allowed by the Judicial Committee. Under these circumstances, the application for execution presented on the 4th July 1910 was obviously maintainable. It may be conceded that the application was not expressly framed as an application for execution of the decree of the Subordinate Judge. But in a case of this description, we must look, not so much to the form as to the substance of the proceedings. The decree-holders were entitled to execute the decree of the Subordinate Judge and this was in essence what they wanted. The objection of the judgment-debtor that there was no decree in existence capable of execution was wholly unfounded. It also follows as a necessary corollary that the judgment-debtor cannot claim restitution. No doubt, when a decree has been set aside after execution, the judgment-debtor can claim restitution. Set Umedmal v. Srinath Ray 27 C. 810 : 4 C.W.N. 692. But here the decree of the Subordinate Judge, revived by the order of the Judicial Committee, on. the 2nd April 1909, did not cease to exist by reason of the order of the 5th March 1910. The true position, therefore, is that possession has been taken by the decree-holders under a decree which was in operation at the time when the property was delivered to them and is still in force. Under these circumstances, these appeals must be dismissed with costs. We assess the hearing fee in each appeal at two gold mohurs.

(3.) We may add that since these orders were passed by the Subordinate Judge, the original decree made by him on the 27th September 1893 has been affirmed by this Court on the 6th June 1912. Consequently, the only decree now capable of execution, except the decree for costs, made by the Judicial Committee is the appellate decree of this Court, because, as pointed out in the case of Ram Charan Bysak v. Lakhi Kant Bannik 16 W.R. (F.B.) 1 : 7 B.L.R. 704 even when the decree of the Appellate Court affirms the decree against which the appeal is preferred, it is the final decree in the case and as such the only decree which is capable of enforcement in execution after it is once pronounced. In view of this fact, the decree-holders have intimated that they will now proceed to execute the decree of this Court. But as they are entitled to execute the order of the Judicial Committee about costs, the attachment already effected will be maintained.