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Muhammad Hasan Askari vs Niaz Husain And Ors.

High Court Of Judicature at Allahabad|25 February, 1915


JUDGMENT George Knox, J.
1. The Munsif of Allahabad passed a decree in the following terms: "it is ordered and decreed that the plaintiff's claim, for pre-emption, be dismissed with costs as against all the defendants with the exception of defendants Nos. 5 and 6, that the plaintiff's claim for pre-emption, in respect of the shares of defendants Nos. 5 and 6, if any in the property in dispute, be decreed; and that if the plaintiff deposits for payment to defendants Nos. 5 and 6, within one year from this date, the proportionate amount of the consideration money, equal to the price of the shares of defendants Nos. 5 and G, with reference to the entire consideration money, Rs. 780, specifipcl in the sale-deed, then on his so depositing the aforesaid money, he (the plaintiff) shall be entitled to get possession over the shares of defendants Nos. 5 and 6, if any, in the property in dispute."
2. That decree was neither taken into appeal nor has it in any way been altered since it passed.
3. The decree-holder applied to execute the decree, and in his application he asks that he may be put into actual and formal possession of the shares in the zemindari property sought to be pre-empted, being the share of Musammat Sakina Bibi and Kaniz Bano Bibi specified below. He then goes on to say that under the orders embodied in the decree, he had deposited in Court Rs. 102-14-9, and he sets out, as the share over which he asks to be put in possession, a share amounting to 17 karanls in Mauza Manauri, Patti Hub-bun-misa, Pargana Chail.
4. The Munsif of Allahabad, in whose Court this application was filed, at once found himself face to face with objections. These objections were several in number. One of them was that the decree-holder sought to execute the decree not against the property of Sakina Bibi and Kaniz Bano Bibi, but against the property of the heirs of Abid Husain; and further that the ladies above-mentioned had no interest in the property pre-empted, this share had not been set apart or specified in the decree; also that their share could not be determined in the execution department and the decree was not a decree which could be executed.
5. The learned Muusif went into the questions raised and the nature of the questions which he had to determine will be seen from the issues which he framed. He set himself to decide whether a Mubam-madan father or a Mubanmiadan son had died first? Whether certain shares had been transferred before the pre-emption by an award of arbitrators F Whether an application to have the award filed in Court was rejected? Whether the proportionate amounts of consideration which the decree-holder had to pay, were matters to be considered in execution proceedings?
6. After wading through these troubled waters he arrived at the conclusion that the plaintiff was entitled to a decree for possession over 125 sihams out of 1152 sihams of the whole property inherited by these ladies provided the pre-emptor deposited Rs. 84-10-2 within a certain time. One has only to contrast the decree passed by the Munsif of Allahabad on the 31st of January 1911 with the order passed by the Munsif of Allahabad on the 3rd October 1912, to see that the real decree in the suit was that passed on the 3rd of October 1912 and not that passed on the 31st January 1911. The decree passed in January 1911 was not an adjudication conclusively determining the rights of the parties with regard to matters m controversy between the parties in suit, it left many of those matters undecided and the decree-holder, armed with the decree of the 31st January, had a decree wlftch the learned Subordinate Judge before whom the matter went in appeal afterwards found incapable of execution.
7. The appeal before me contests the finding of the Subordinate Judge, and says that that Court was in error when it held that the decree passed in January was a decree incapable of execution. The learned Counsel for the decree-holder in support of the first plea taken by him in appeal, i.e., that the decree in question was a decree capable of execution, cited in support of his argument the case of Pirbhu Narain Singh v. Rup Singh 20 A. 397 : A.W.N. (1898) 93. The decree before the Court in that case was a decree for sale of property in which the decree-holder and the Courts were at arm's length as to whether the decree gave or did not give the decree-holder interest after a certain date. This Court held that the decree was clear and unambiguous on this question and that the executing Court was bound to execute it according to its terms.
8. I was next referred to the case of Liladhar v. Chaturbuj 21 A. 277 : A.W.N. (1899) 64. That was a case in which the Court executing the decree took upon itself to decide whether the decree, as it stood, was or was not a valid decree, whether it was or was not rightly passed. In both cases the Courts had before them a decree and there can be no question that when a Court is asked to execute a decree, its business is to execute that decree according to the terms contained in the decree, and not to question whether the decree was a decree, passed by a Court having jurisdiction or whether some of the terms of the decree had not been erroneously entered in the decree. What the Court did in this case was to take up an incomplete decree, the terms of which were ambiguous, and to proceed to complete the decree and to give a definite expression to the ambiguity. I know of no provision of the Civil Procedure Code which allows the executing Court to do this.
9. The case before me seems to be in accord with the case of Barn Lapit Ram v. Chooaram 4 G.L.R. 97. That was a decree passed under a sulehnama and the Court passed its decree blindly on the sulehnama without ascertaining matters which had been left unascertained by the sulahnama. As the learned Judges pointed out, disputes naturally arose when the decree was pnt into execution, and they held that a Court executing the decree was bound by the terms of the decree and it was only ii cases provided for by Sections 211 and 212 of the Civil Procedure Code then in existence (now Order XX, Rule 12) that the Court is at liberty to determine the rights of litigants in proceedings taken after decree. As regards those rights the Calcutta High Court held that they could not in execution go into the question at all. The result is that this appeal is dismissed with costs.
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Muhammad Hasan Askari vs Niaz Husain And Ors.


High Court Of Judicature at Allahabad

25 February, 1915
  • G Knox