SRIPATRAO SADASHIV UPRE Vs. SHANKARRAO SARNAIK

JUDGEMENT

(1.) The plaintiff prays for a declaration that the defendant is liable to pay to him such moneys as the plaintiff is liable to pay under or in respect of a decree referred to in the plaint, and certain costs incurred by the plaintiff. The plaintiff further prays that the defendant may be decreed to pay to him the moneys mentioned in the previous prayer, the costs of the suit and interest on judgment.

(2.) Two preliminary objections have been raised to the suit as framed. It is contended on behalf of the defendant that the plaint discloses no cause of action and that the suit is not maintainable.

(3.) Prayer (a) of the plaint asks for a declaratory decree. For a declaratory decree to be maintained it must fall within the provisions of Section 42 of the Specific Belief Act. That section provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right. There is no question in this suit as to any legal character or any right as to property. According to the ruling of this High Court in Bai Shri Vaktuba V/s. Thakore Agarsinghyi Raisinghji (1910) 1. L.R. 34 Bom. 676, s.c. 12 Bom. L.R. 697, the section is exhaustive. Scott C. J. remarks (p. 680):- It has long been established that the general power vested in the Courts in India under the Civil Procedure Code to entertain all suits of a civil nature excepting suits of which cognizance is barred by any enactment for the time being in force, does not carry with it the general power of making declarations except in so far as such power is expressly conferred by statute.