Ram Bakhsh vs Panna Lal and Another

Oldfield, J.—It appears that the defendants-respondents instituted a suit against Khatta Mal and Kashi Nath on a bond for recovery of money due. They succeeded in the Court of First Instance and in the Lower Appellate Court, but their decree was set aside in appeal by the High Court on the 8th March 1871, and their suit dismissed, and Khatta Mal and Kashi Nath obtained a decree for heir costs. On the 17th March 1879, Kashi Nath, the sole surviving defendant in that suit, assigned to the plaintiff-appellant before us his right under the decree of the High Court to costs. On the 10th July 1879, the assignee (i.e., plaintiff-appellant before us) associating with him Kashi Nath, assignor, put in an application to be allowed to execute the decree for costs. This application was made u/s 232, Civil Procedure Code, and was refused by the Court, and it would appear that the judgment-debtor, that is, Panna Lal defendant-respondent before us, objected to the prayer in the application} and the Court referred the decree-holder to a regular suit. The plaintiff-appellant took various proceedings ineffectually. He appealed to the Judge, but his appeal was dismissed, as no appeal could lie under the provisions of the Civil Procedure Code. He applied to the High Court to revise the order of the Court on his application for execution, but without success.

He then brought a suit in the Court of Small Causes to recover the amount of costs; bat it was held that the suit would not lie in that Court. He has now instituted the present suit in the Court of the Munsif of Agra to recover the sum to which he was entitled as costs under the High Court decree assigned to him by Kashi Nath. The Court below has held that he can only recover the amount by exacting the decree, and not by a separate suit. Ram Bakhsh, plaintiff; has appealed against this decree. I am of opinion that the plaintiff, as the holder of the decree by assignment, can only recover the amount under it by exacting the decree, and not by a separate suit; and, so far, I concur with the lower Court but it appears to me that he is entitled to have a decree declaring that the assignment to Mm by Kashi Nath of his rights under the decree of this Court is a valid assignment, and gives him a right to execute it; and that; the Court''s; order u/s 232, which disallowed the execution, was an improper one. A suit for this relief is certainly maintainable, for there is no appeal from orders u/s 232, Civil Procedure Code; and there would be no remedy if a suit was not allowed; and looking at the plaint and the issues on which the parties were divided, and the fact that the Court, which refused his application for execution, referred him to the Civil Court, this relief may, I think, be properly given in this suit, and there is no question as to the fact that the assignment was made by Kashi Nath in favour of the plaintiff. The decree of the Lower Appellate Court will be modified accordingly. The plaintiff will pay Kashi Nath''s costs in all Courts. The other parties will pay their own costs.

Mahmood, J.

I concur in the order proposed by my learned brother Oldfield, and also in the reasons which he has given. I need only add that the reason why this suit is maintainable is, that the present plaintiff never having been accepted on the record as holder of the decree, the questions which were disposed of by the Court executing the decree, as between the plaintiff and the judgment-debtor, cannot be regarded as questions within Section 244 of the Civil Procedure Code. These observations apply to the connected cases also.