Dwarkanath Adhikuri and Others; Kishore Bun Mohunt vs Kishore Bun Mohunt; Prosonnocoomar Adhikari

Morris, J. 1. Both these appeals have been argued before their Lordships ex parte. 2. In the appeal of Kishore Bun Mohunt v. Dwarkanath Adhikari and others a judgment of the High Court at Calcutta, is impeached, which reversed a judgment of the District Judge of Chittagong, who had upheld, with a variation, a judgment of the Munsif of Sitakund. 3. The facts of the case are shortly as follows: In the year 1880 the respondents, who are officiating priests in the temple of a deity called Sumhhu Nath Deb, instituted a suit in the Munsif''s Court against the appellant for the purpose of establishing their right to perform certain offices at the shrine and to receive certain offerings from the votaries. On the 31st March 1881 a decree was made by the Munsif, by which the claim of the respondents was allowed, and the appellant was ordered to deliver to the respondents certain articles necessary for the performance of the offices in question, and the right of the respondents to the offerings claimed was decreed. This decree was not complied with, and in the year 1885 respondents applied to the Munsif for leave to execute it under Section 260 of the Civil Procedure Code. The appellant contended that the decree was merely declaratory and was not capable of execution as prayed. 4. Section 260 provides as follows: ''When the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for the performance of or abstention from any other particular act, has been made, has had an opportunity of obeying the decree or injunction and has wilfully failed to obey it, the decree may be enforced by his imprisonment, or by the attachment of his property, or by both." 5. The Munsif gave judgment on the 25th May 1886, ordering the decree to be executed. There was an appeal from the Munsif to the District Judge of Chittagong, who, on the 24th March 1887, modified the Munsif s judgment, and directed the decree to be executed in part only. Both parties appealed to the High Court, and the High Court, on the 19th December 1887, delivered judgment in these terms: "The order of the lower Court appealed against in the appeal from Appellate Order No. 112 of 1887 will he set aside, and that appealed against in the appeal from Appellate Order No. 194 of 1887 will stand confirmed. We express no opinion as to whether or not the decree is capable of execution." 6. On the 1st February 1888 the respondents again petitioned the Munsif for execution of the decree, stating in their petition that they had, since their first action, served the appellant with notice, and had presented themselves at the temple at certain times specified in the notice, in order that they might be allowed the opportunity of performing a certain ceremony, and receiving certain articles necessary for its performance, and so afford the appellant an opportunity of complying with the decree. 7. The appellant did not supply the articles in question, and objected to the petition on the ground that it was barred as being res judicata. The Munsif held that the matter was res judicata and dismissed the petition. The respondents appealed to the District Judge of Chittagong, who affirmed the decision of the Munsif on the question of res judicata, while reversing it in another respect. Both sides appealed to the High Court, who reversed the decision of the District Judge, and declared that the respondents were entitled to enforce their decree under Section 260 of the Civil Procedure Code, and ordered execution to issue accordingly. 8. The High Court pointed out in their judgment that their decree, in the first suit was only intended to determine that the particular application for execution, then the subject of appeal, could not be allowed. The respondent had not at that time placed themselves in the position of having the right to have their decree executed, inasmuch as they had not given notice to the appellant, and so afforded him an opportunity of complying with it. They had not gone to the temple so as to be ready to receive the articles necessary for the performance of the ceremony if they were offered to them. That matter of fact distinguished the second suit entirely from the first. 9. It is therefore quite plain, in their Lordships'' opinion, that the question was not res judicata. Their Lordships think that the respondents were properly non-suited in the first action, because they had not then shown that there was a demand made by them on the appellant, and an opportunity thus given him of complying with the decree. In the second action they remedied this defect, and stated in their petition that they had given the appellant notice of their demand, and had duly presented themselves at the temple. The appellant in his petition of objection does not deny this merely taking the formal objection that the notice was illegal and improper; but the fact of the notice having been given, and of the respondent having presented themselves at the temple in pursuance of it, was never denied, and was in fact, taken for granted throughout the trial. Indeed, those fresh facts constituted the difference between the two actions. 10. An objection was taken on the part of the appellant before their Lordships that the notice was not properly before the High Court, and that the High Court was not warranted in assuming its existence. But it is necessary, in considering such an objection, taken at so late a stage, to look carefully at the proceedings in the Courts below; and it is clear to their Lordships that throughout the whole course of the trial the fact of the notice having been given was admitted. 11. On these grounds their Lordships are clearly of opinion that the judgment of the High Court should be affirmed, and they will humbly advise Her Majesty accordingly. 12. In the appeal of Kishore Bun Mohunt v. Prosonnocoomar Adhikari, the question of res judinata does not arise at all; but it is said that the decree was merely a declaratory one, which could not be executed under Section 260 of the Civil Procedure Code. Their Lordships have no doubt that it is a decree which can be executed, and that the High Court were right in dismissing the appeal from the District Judge who has directed the execution to issue. Indeed, it has not been substantially argued that if the first appeal fails this appeal can succeed. 13. Their Lordships will therefore humbly advise Her Majesty to dismiss this appeal.