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Lalta Prasad And Anr. vs Sadiq Husen

High Court Of Judicature at Allahabad|15 February, 1902


JUDGMENT John Stanley, C.J. and Burkitt, J.
1. This is an appeal against the decree of the Subordinate Judge of Bareilly dismissing plaintiffs' suit with costs.
2. It is unnecessary that we should set out the facts of this case at length; they will be found fully detailed in the reported case of Sadiq Husain v. Lalta Prasad (1897) I.L.R. 20 All. 139 of which this case is a sequel.
3. Suffice it to say that in that case the present appellants failed in their attempt to have execution of the decree of Her late Majesty in Council against Sadiq Husen, the respondent here. It was in that case held by a Bench of this Court, of which one of us was a member, that as Sadiq Husen was no party to the decree made by Her late Majesty in Council, that decree could not be executed against him. Being thus foiled in their attempt to proceed against the respondent by way of execution, the appellants have had recourse Do this regular suit, by which they seek to recover from him Rs. 4,820-13, the amount of the costs in the Court of the Subordinate Judge in the suit of 1888, which they paid into Court in July, 1891, when the original decree of the High Court was reversed by this Court on March 16th, 1891, and they were ordered to pay that sum as their appellants' costs, and it was-paid, to the respondent Sadiq Husen pursuant to an alignment to him from the successful defendants-appellants Aziz-ud-din and Hafiz-ud-din. The plaintiffs here further ask for Rs. 4,068-11-6 interest by way of damages on the Rs. 4,820-13.
4. In our opinion the decree of the lower Court dismissing the suit is right. The appellants appear to us to be on the horns of a dilemma. If they sue the plaintiff as a party to the litigation, which ended with Her late Majesty's order in Council, the answer is complete and is twofold, namely, firstly, that in that case their suit is barred by the provisions of Section 244 of the Code; and, secondly, that it is barred as a res judicata by the decree in the reported case mentioned above. If, on the other hand, they sue defendant as a stranger to that litigation, it is difficult to see what cause of action they have against him. The appellants seem to have perceived this difficulty, for all they say is that "they are entitled under the law and equity to recover." We fail to see what are the facts on which the appellants can found their cause of action. What happened is, that the respondent Sadiq Husen purchased for consideration (as found by the learned Subordinate Judge in this case) the right to receive from the Court a sum of money, being the costs due from appellants to Aziz-ud-din and Hafiz-ud-din, and he received those costs in cash from the present appellants through the Court in due process of execution. Now if Aziz-ud-din and Hafiz-ud-din, instead of assigning to Sadiq Husen before execution, had themselves executed the decree for costs, and on receipt of the money had handed it over to respondent there and then, would the appellants here have had any cause of action against Sadiq Husain when the decree, in execution of which those costs had been paid, was subsequently reversed? We think not, and we cannot see what difference it makes that Sadiq Husen, acting under the assignment of those costs to him, asked the Court to pay them to him; for we must assume that Sadiq Husen did not thereby become a party to the suit or a representative of a party. As the learned Subordinate Judge finds that consideration passed for the assignment, it may well be that Hafiz-ud-diu and Aziz-ud-din were in debt to Sadiq Husen, and discharged the debt by the payment made to Sadiq Husen through the Court, on the authority conveyed by their assignment. But how does that give any cause of action to the appellants against Sadiq Husain? The order of Her late Majesty in Council gave the appellants a decree against Hafiz-ud-din and Aziz-ud-din for the costs incurred by them in all three Courts. We cannot understand why, having that decree in their hands, the appellants prefer to proceed against Sadiq Husen for a considerable portion of those costs instead of against Hafiz-ud-din and Aziz-ud-din. The appellant's decree is against the latter and not against Sadiq Husen, and that decree gives them a right to recover from Hafiz-ud-din and Aziz-ud-dia the very sum which they now seek to recover from Sadiq Husen.
5. In our opinion the appellants have not shown any tangible cause of action against the respondent. We therefore dismiss this appeal with costs.
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Lalta Prasad And Anr. vs Sadiq Husen


High Court Of Judicature at Allahabad

15 February, 1902
  • J Stanley
  • Burkitt