PHULCHAND RAM MARWARI Vs. NAURANGI LAL MARWARI

JUDGEMENT

(1.) The Subordinate Courts of this province seem inclined from time to time to interpret Section 151, Civil Procedure Code, as giving them power which under the general law they do not possess; in other words, there is a tendency to do what is sometimes called, and erroneously called, substantial justice1 though as a matter of fact it often amounts to injustice. In this case the learned Judge in the Court below has exercised what he believes to be his powers under the section in giving compensation to the decree-holder under the following circumstances. The decree- holder, i.e. the respondent to this application, obtained a decree against the father and sons. I should have stated that the decree was a compromise decree. The conditions of the compromise not having been complied with, the decree-holder exercised his rights by putting the decree into execution, and in pursuance of that, put up for sale the joint property of the father and of the sons. In due course, the property was sold and the decree-holder respondent having had leave to bid purchased the property for upwards of Rs. 7,000. Then in due course, after the statutory period had elapsed, the sale was confirmed and full satisfaction was entered.

(2.) Then there started an action by the minors claiming that (for reasons which perhaps need not be gone into in this appeal) the compromise decree was not binding upon them. That action succeeded. The result of that was that their eight annas interest in the property which had been put up for sale was released. But the decree stood, that is to say, the decree stood against the father as a joint and several decree and the sale stood as a whole: the sale itself was not affected--I use the expression sale in contradistinction to property although eight annas of the property was necessarily released. Then this application was made by the decree- holder respondent for compensation to the extent of half of the amount purchased by him. I should have stated, however, that before this application was made, an application had been made for execution which resulted in an appeal from the decision of the Subordinate Judge of Bhagalpur to this Court. The appeal came on for hearing before my Lord the Chief Justice and my learned brother Varma (Miscellaneous Appeal No. 285 of 1934 reported in Phulchand Ram V/s. Nauranji Lal 16 PLT 906 : 164 Ind. Cas. 1073 : 2 BR 795(1) : 9 RP 144. There it was decided, to use the words of the head-note, that The decree-holder could not take out farther execution of the decree which had already been satisfied. It was immaterial that in his capacity as auction-purchaser he had purchased the property of some one which was not liable under the decree.

(3.) I would add to my statement that there was an observation in that case which fell from the learned Chief Justice to the effect: It Would be for the decree-holder, if he had some other remedy, to pursue that remedy, as he might be advised.