JAMINI NATH ROY Vs. DHARMA DAS SUR

JUDGEMENT

(1.) This suit has already entered upon its tenth, year, and has not yet been decided- So for as is material for the purpose of our decision today, I may usefully take the facts as appear in the judgment of this Court, dated the 9 of May 1902. It appears from that statement that one Jamini Nath Roy brought "a suit against Dharma Das Sur and others for money, and before judgment attached a sum of money belonging to the defendants, which was in the hands of the Executive Engineer. The plaintiff obtained a decree, and in execution, withdrew a sum of about Rs. 2,300 of the attached money. Subsequently that decree was reversed with costs, on appeal to the High Court. The original defendants, the Surs, assigned that decree to the present respondent, Debi Prasad Agarwalla, who applied to the Subordinate Judge of the 24- Parganas for execution of the same, and for restitution of the said sum of Rs. 2,300. In that state of facts the only question for our consideration is whether Debi Prasad, as the assignee of the Surs, is entitled to recover the sum of Rs. 2,300 under the decree to which I have referred. The learned Subordinate Judge has held that he is, but the judgment-debtor, the present appellant, contends that he is not entitled to obtain the money in this summary way, and that he can only get it by bringing a suit and obtaining a decree in that suit. That is the sole question we have to decide; and it depends upon what is the true view of Section 583 of the Civil P. C. coupled with Section 244 of the same Code. Section 583 provides "when a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this chapter, desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred," and, such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits." It is contended for the appellant that the term "party" means only the actual party to the suit and not his representative.

(2.) It can scarcely be disputed that the Stirs themselves would have been entitled to proceed in a summary way to obtain the benefit of the decree, which had passed in their favour, and the respondent says he stands in their shops. We must read Section 583 with Section 244.

(3.) There can be no question that, if there had been no assignment, the Stirs themselves, under the conjoint operation of Section 583 and Section 244, could have successfully made (he application; and, as the. present applicant is the representative of the Surs, within the meaning of Section 244. it seems to us that he can do so, and ought not to be driven to an independent suit. There is no decision in the Indian Courts so far as we are aware, which is contrary to the view that the respondents in the circumstances of the case, are entitled to proceed in a summary way, and in the absence of any such contrary authority we think he is so entitled.