Kalyan Singh vs Kamta Prasad

Mahmood, J.—The facts of this case are the following:--

Kalyan Singh, plaintiff-appellant, obtained a money-decree for arrears of rent against one Bhurwa, who is stated to have been a tenant of the said Kalyan Singh. This decree was for a sum of Rs. 9 s. 15 p. 2, and dated the 11th July 1882. It is then stated that for the money due upon that decree and some other money due by Bhurwa to Kalyan Singh, the former transferred certain trees to the latter.

Against the aforesaid Bhurwa, the defendant-respondent Kamta Prasad also obtained a simple money-decree. This was some time in 1885. In execution of his decree Kamta Prasad attached the trees now in dispute. Thereupon Kalyan Singh objected to the attachment, upon the allegation that he was the owner of the trees and that the aforesaid Bhurwa no longer possessed any attachable or saleable interest in the trees. The Court executing the decree allowed the objections by its order dated the 14th January 1888; but on appeal that order was set aside on the 28th March 1888. The objections were thus disallowed and the attachment maintained.

Kalyan Singh thereupon instituted the present regular suit under s. 283 of the Code of Civil Procedure, suing to set aside the order of the 28th March 1888. This suit was filed on the 9th April 1888, and was decreed by the first Court; but upon appeal the lower appellate Court reversed the first Court''s decree on the 27th August 1889, thus dismissing the suit.

By an oversight the learned Judge in delivering his judgment and decree wrongly used the name of Kalyan Singh, the plaintiff-appellant, instead of Kamta Prasad, the defendant-respondent, in whose favor he was passing the judgment. This matter, however, was brought to his notice, and the learned Judge, acting under the provisions of s. 206 of the Code of Civil Procedure, amended the judgment and the decree by his order dated the 20th November, 1889.

Whilst the matter stood thus, this second appeal was filed by Kalyan Singh to this Court on the 26th November 1889. The appeal was preferred against the decree of the lower appellate Court of the 27th August 1889, and in the grounds of appeal objection was taken to the error the Judge had made and afterwards corrected by the order of the 20th November 1889.

Mr. Mehdi Hasan has raised a preliminary objection that the Appeal cannot prevail, because it has not been preferred from the final decree of the 20th November 1889. In view of this objection Mr. Gobind Prasad, the learned pleader for the appellant, has amended his memorandum of appeal by striking out the first and the fourth grounds of appeal and by inserting reference to the amendment as made by the order of the 20th November 1889. This he has been allowed to do under rule 22 of the rules of this Court. The preliminary objection is thus disposed of.

Upon the merits of the case the learned Judge has held that because the alleged transfer of the trees by Bhurwa to Kalyan Singh was made in satisfaction of the decree of the 11th July 1882, it was necessary, under s. 258 of the Code of Civil Procedure, that the aforesaid transfer and satisfaction should have been certified; that no such certification took place, and that therefore the alleged transfer cannot be taken into account even in the regular suit.

This view of the law is erroneous, and it is enough for me to refer to the case of Sam Ghulam v. Janki Rai I.L.R., 7 All. 124 to show that the prohibition to take cognizance of payments in execution of decrees is limited to the Court which has to deal with the execution of the decrees and does not extend to Courts that have to try the allegations of the parties on the merits. In delivering my judgment in that case I expressed my dissent from some of the Bombay rulings therein referred to.

Sellamayyan v. Muthan I.L.R., 12 Mad. 61, Pat Dasi Vs. Sharup Chand Mala and Another,

In support of my view Mr. Gobind Prasad has drawn my attention to the cases noted in the margin. I need not enter into a detailed consideration of these cases, because what I said in the case reported in I.L.R., 7 Allahabad, is enough to show that the prohibition to take cognizance of adjustments and payments referred to in s. 258 of the CPC relates only to Courts executing the decree and to no others, Such, indeed, is the clear effect of the last few words of the section itself as they now stand.

In my opinion the learned Judge of the lower appellate Court, by reason of his having taken an erroneous view of the law, precluded himself from deciding the case upon its merits. The learned Judge has not considered the nature of the alleged transfer of trees by Bhurwa in favor of Kalyan Singh, nor has he considered whether the transfer is valid with reference to the rules of the Transfer of Property Act and the requirements of the Registration Law. It was further necessary to ascertain whether, notwithstanding such transfer, Bhurwa still possesses rights and interest in the said trees, and the nature and extent of such rights.

A proper adjudication of all these various points would be trial upon the merits. The learned Judge did not do so, having disposed of the case on a preliminary point, and having taken an erroneous view of the provisions of s. 258 of the Code of Civil Procedure. I think the case should be tried on the merits as indicated above. I decree the appeal, set aside the judgment and decree of the Court below, and remand the case to that Court under s. 562 of the CPC for disposal upon the merits. Costs to abide the result.