Babu Chhuni Lal and Others vs Sia Chaudhury and Others

Manohar Lall, J.—This is an appeal by the decree holder against an order of the learned Subordinate Judge of Muzaffarpur, dated June 2, 1936, setting aside a sale held at the instance of the decree holder in execution of a money decree which he had obtained on June 5, 1933.

It appears that the decree-holder filed a suit on the basis of a hand-note being Suit No. 151 of 1931 against the widow and daughter of the executant as well as certain other defendants Nos. 3 to 7, who were the agnates of Ram Sunder Chaudhury. Defendants Nos; 3 to 7 were expressly made defendants! because it was uncertain whether the assets of Ram Sunder would come into the hands of defendant No. 1 or her daughter or in the hands of defendants Nos. 3 to 6. The learned Subordinate Judge in the judgment which he gave expressly had in his mind that if as a result of the suit which was then pending between defendant No. 1 and her daughter on the one hand, and defendants Nos. 3 to 8 on the other, Ram Sunder and defendants Nos. 3 to 6 are held to be joint, then the plaintiff''s decree against the defendants first party would become infructuous and therefore, the learned Subordinate Judge proceeded, as he expressly mentions "to safeguard the interest of the plaintiffs in this suit", by directing:

It is proper to order that in case the assets left by Ram Sunder legally come into the hands of defendants No 3 to 6 after the passing of this decree, plaintiff will be entitled to execute the decree against defendants Nos. 3 to 6 so far as those assets are concerned.

Accordingly the decree which was prepared practically in the same terms directed:

That the plaintiffs will be entitled to execute the decree against defendants Nos. 3 to 6 so far as the property left by Ram Sunder came into the hands of defendants Nos. 3 to 6 by right of survivorship.

Now, interpreting the decree with aid of the judgment, it is clear to our minds that the learned Subordinate Judge did expressly intend to fasten the liability of the money decree against the properties which may, he loosely called, the properties left by Ram Sunder. In this view of the matter we think it was not open to the learned Subordinate Judge now in the execution department to hold that this decree was wrong. The duty of an executing Court is to execute a decree as it stands whether right or wrong, unless the decree was passed without jurisdiction.

The result is that the appeal is allowed, the order of the Subordinate Judge is set aside and he is directed to deal with the application under Order XXI, Rule 90, on its merits. In the circumstances, there will be no order as to costs.

The attention of the learned Subordinate Judge is drawn to the well-known observations of the Privy Council that it is a serious evil to the parties litigant, when the Courts below in appealable cases forbear from deciding on all the issues joined: Tarakant Banerji v. Puddomoney Dossee 10 MIA 476 : 5 WR 63 : 2 Sar. 184 : 1 Sut 631 (PC) at p. 488 Page of 37 C.W.N.-[Ed.] To the same effect is the observation of Sir George Lowndes in. AIR 1933 33 (Privy Council) :

It has been repeatedly pointed out by this Board that it is the duty of the Courts below to pronounce their opinion on all the important points in an appealable case, and that a failure to do so not infrequently necessitates a remand with the consequences of heavy additional costs.

It is much to be desired that subordinate Courts in appealable cases must pronounce their opinion upon all matters in controversy between the parties to prevent an order of remand as we are forced to do in this case. Had the learned Subordinate Judge dealt with the application on its merits, we would have been able to dispose of this litigation finally which has now to be prolonged for some time more.

Courtney-Terrell, C.J.

I agree.