Abdul Hamid Khan vs Dhani Dusadh and Others

Wort, J.—Had I fully appreciated the facts in the first instance when this matter was referred to a Divisional Bench, I should have pronounced judgment there and then and thus disposed of the appeal. In the circumstances of the case I think the appeal quite clearly succeeds. Mr. Sarju Prasad''s client brought an action to recover an alleged over, payment in circumstances which are stated in the judgment of the trial Court. They are best set out by the expression in the judgment to this effect:

But In spite of all these assurances, defendant 1 did not give credit either for the sum paid before the decree or after it and the whole decree was executed against him by the execution case.

Now the arrangement which is dearly set out in that statement by the learned Judge is an arrangement by which the decree-holder undertook to give credit for certain payments, but in spite of that a decree was passed. The short answer to the argument addressed to us by the respondent is that these matters should have been raised as a defence to the action; failing to do it is res judicata. Now, it was suggested in the case to which I referred when making the order of reference to a Divisional Court, namely Hassan Ali v. Gauzi Ali Mir 1904. 31 Cal. 179, that in certain circumstances the plaintiff might bring an action claiming as a part of his relief an injunction to restrain the decree-holder from executing the decree. But it is perfectly obvious that that stage has long since passed as the decree-holder has executed a perfectly valid decree.

So far as regards the question whether be has a cause of action for money had and received, that is to say, for money overpaid, their Lordships of the Judicial Committee of the Privy Council dealt with the matter in Bommadevara Nagann Naidu v. Ravi Venkatappaya AIR 1923 P.C. 167. Lord Carson in delivering the opinion of their Lord, ships of the Judicial Committee makes this statement:

It is clear and settled law as stated In the former case, that "money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force; but this rule of law rests, as their Lordships apprehend, upon this ground that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding".

The cause of action suggested in the case reported in Hassan Ali v. Gauzi Ali Mir 1904. 31 Cal. 179, as I under, stand the judgment of Maclean, C.J., is the cause of action which questions the validity of the decree. But the whole answer to the case is the decision of the Judicial Committee of the Privy Council reported in Bommadevara Nagann Naidu v. Ravi Venkatappaya AIR 1923 P.C. 167, in which they clearly lay down that in circumstances of this kind, indeed stronger circumstances, no action lies.

Another case referred to in the argument was Skinner v. Skinner AIR 1973 Lah 537. It was a case in which ah application was made u/s 47, Civil P.C., but it was held that that Section dealt with only those matters which arose after the decree.

For these reasons the appeal succeeds and the plaintiff''s claim is dismissed with costs throughout.

Manohar Lall, J.

I agree.