LAWS(PVC)-1916-3-22

MUHAMMAD MARUF Vs. SULTAN AHMAD

Decided On March 31, 1916
MUHAMMAD MARUF Appellant
V/S
SULTAN AHMAD Respondents

JUDGEMENT

(1.) This is a decree-holder s appeal in an execution case. One of the questions raised in the litigation was in respect of certain land on which the defendants had constructed a thatched shed and cattle-troughs. The first Court--the Additional Munsif of Azamgarh--gave the plaintiffs a declaration of title in respect of their land, but refused to order the demolition of these constructions. On an appeal by the plaintiffs the District Judge of Azamgarh modified the decree of the first Court in their favour. He gave them joint possession of the plot of land on which stood the thatched shed and cattle-troughs, and ordered the demolition of these constructions. The defendants appealed to this Court, and obtained a decree setting aside the decree of the District Judge and restoring that of the Additional Munsif. The plaintiffs challenged this decree by an appeal under Section 10 of the Letters Patent, but their appeal was dismissed.

(2.) Nevertheless the plaintiffs are now seeking to take out execution of that portion of the decree of the District Judge which ordered the demolition of the thatched shed and the cattle-troughs. It seems to me a complete answer to their claim that the decree of the District Judge is no longer in existence, having been set aside by the decree of this Court. The plaintiffs contend that it can be shown, by a detailed examination of the record of the proceedings in this Court, that the decree passed by the single Judge of this Court has not the effect of setting aside the decree of the District Judge in the matter of the thatched shed and the cattle- troughs. It is not denied that the defendants had appealed against the entire decree of the District Judge in so far as it modified the decree of the Additional Munsif. No ambiguity can be pointed out in the terms in which the decree of the single Judge of this Court is framed. It even appears (though I do not think it lay on the respondents to show this) that the said decree is in strict accordance with the operative portion of the judgment. In order to make out a case the appellants ask the Court to examine the pleadings on which this judgment proceeded. It appears that two pleas were taken in the memorandum of appeal to this Court; the first raised a question as to an alleged right of way and the second challenged the propriety of the District Judge s order directing the demolition of the thatched shed and cattle-troughs. This latter plea was abandoned when the case came to be argued on behalf of the defendants-appellants. From this it is contended that a portion of the appeal itself had been withdrawn and that the learned Judge of this Court must not be understood to have decreed that portion of the appeal. In my opinion an execution Court cannot be permitted to turn the record inside out in this way in order to get round the terms of a decree which is, on the face of it, perfectly clear and unambiguous. I must decline to enter into any speculation as to how or why the learned Judge of this Court, under the circumstances above stated, came to pass a decree which in express terms sets aside the decree of the District Judge and restores that of the Additional Munsif. I presume the appellant s case to be that he did so from inadvertence, not perceiving that the decree as worded purports to set aside the whole decree of the District Judge. If it be assumed, for the sake of argument, that this was so, the plaintiffs were by no means without appropriate remedy. They could have applied for review of judgment to the single Judge of this Caurt, or they could have called in question the form of the decree passed by him when they appealed against the same under the Letters Patent. Having done neither of these things, they are not, in my opinion, entitled to seek relief by asking the Court executing the decree to interpret it in the light of the pleadings and of the record generally, so as to put a meaning upon it inconsistent with its plain and unambiguous terms.

(3.) I ought perhaps to make it clear that I am not ruling that an application for review of judgment would not even now be entertain-able by the Bench of two Judges which decided the appeal under the Letters Patent. I think such an application would be entertain-able, and might or might not be successful but it is not a matter with which the present Bench has any concern.