Balmukunda Bisseswarlal v. Bengal-Nagpur Railway Co. Ltd.

Mukerji, J.:— This appeal has been preferred from an order passed by the Subordinate Judge, First Court, Alipore, dismissing the appellant's application for execution of a decree.

The decree was passed in a suit in which the plaintiffs prayed that they might be given a decree for Rs. 5,000 as compensation for destroying certain godown and buildings and for Rs. 500 as compensation for wrongfully taking away certain articles which were kept therein.

The Subordinate Judge, who tried the suit, passed a decree in this form: “It is ordered and decreed that the suit be and the same is hereby decreed in part after contest for the recovery of Rs. 3,500 as damages and for the recovery of the moveables claimed in the. Schedule Ka of the plaint, that if the moveables be not delivered, the plaintiff shall recover Rs. 500 as price thereof; that the said decretal amount and the sum of Rs. 490-5 only being the proportionate costs of this suit be paid by the defendants to the plaintiffs with interest at the rate of 6 per cent, per annum from this date to date of realization”. It was passed on the 21st June, 1919.

From this decree, the defendants appealed to this Court. They valued the appeal at Rs. 3,500 and challenged that part of the decree which related to the compensation for destroying the godown and buildings. This Court dismissed the appeal with costs on the 20th February, 1923.

The decree-holders applied for execution on the 9th August, 1924. In this application they stated that they had demanded delivery of the articles by a letter dated the 22nd July, 1919 and payment of the money, viz., Rs. 500, by a letter dated the 23rd February, 1923 and failed to obtain either, and as the articles had become spoilt and unfit for use, they asked for realization of Rs. 500 by attachment of the judgment-debtors' moveables. This application being refused, the present appeal has been preferred.

The findings of fact arrived at by the Subordinate Judge and the view of the law taken by him have been challenged before us on behalf of the appellant and the appeal has been argued in great detail on both sides.

On the facts, it must be held that the evidence as regards the non-receipt of the letter of the 22nd July, 1919, addressed to the Subdivisions Officer of the B.N Railway at Gondia by the latter is extremely unsatisfactory, but, on the other hand, the evidence as to its posting is not such as would warrant the presumption that it reached its destination. We are not prepared to agree with the Subordinate Judge in the suspicion which he seems to have entertained as to the genuineness of the copy (Ex. A) of this letter that has been filed on behalf of the appellants, or of the letter Ex. B that was received by the appellants from Abdul Karim Haji Abdul Shakoor. The contents of the letters, however, have not been duly proved. In the circumstances, it must be held that the demand alleged to have been made by the letter of the 22nd July, 1919, and the non-compliance with it on the part of the judgment-debtors have not been proved. It is not necessary, therefore, to go into the question whether the letter addressed to the Subdivisional Officer, who is the head of the department at Gondia, was sufficient or not for the purpose of a demand on the judgment-debtors. The next demand was by the letter of the 23rd February, 1923 (Ex. C-1), and in answer to it the judgment-debtors paid the decree-holders' claim in fall, except as regards the Rs. 500, by a cheque for Rs. 5,311-5 as some time in July, 1923. They took up the attitude that they were ever ready to deliver the articles and that accordingly under the terms of the decree, they were not liable to pay the said Rs. 500. This appears from Ex. 3, dated the 2nd August, 1925, which refers to a letter dated the 14th July, 1923, as also from Ex. 1(d), dated the 7th August, 1923. It may be mentioned here that the defendants, in their written statement, expressed their readiness to make over such of the articles as they had to the plaintiffs or their authorised agents (vide paragraph 16 thereof). It may also be stated that in the judgment of the trial Court in the suit it was observed that the schedule in the plaint was proved and that the articles had not deteriorated in value.

These being our findings, the question that arises is, whether, in the circumstances, the application for execution of the decree, in so far as it relates to the recovery of Rs. 50U is maintainable. The decree is in the form suggested by Order XX, r. 10, C.P.C Order XLII, r. 1 of the Rules of the Supreme Court, 1883, to which our attention has been drawn, contemplates a decree directing, payment of money or delivery of properties and, under that rule, in the case of such a decree, no demand would be necessary, but the defendant against whom it is passed is bound to obey. The principle of that rule, therefore, cannot be invoked in the present case. If the decree had directed the defendants to deliver the articles within a specified time and provided that in default of such delivery the plaintiffs would be entitled to recover the money, the decree-holders would have been entitled to maintain an application for execution for recovery of the money on such default having happened. But the case of a decree which follows Order XX, r. 10, C.P.C, is specifically provided for, so far as its mode of execution is concerned, in Order XXI, r. 31, C.P.C, and that procedure has not been adopted by the decree-holders. That the holder of such a decree cannot execute the money portion of it without taking recourse to the procedure prescribed by Order XXI, r. 31, C.P.C, has been held in the case of Manavikraman v. Moyankutti. Whether the procedure prescribed in that rule is so rigid that it must be followed in a case where the moveables are admittedly not in existence is a question which does not arise here, but, in the circumstances of the present case, in our opinion, the application to realize the money in the first instance does not lie. The history of the rule, Order XX, r. 10, C.P.C, is to be found in the case of Kashee Nath Kooer v. Deb Kristo Ramanooj Doss, in which it has been said that the words of the rule “are in strict accordance with the provisions of the English Law, that a certain amount of money should be allowed as an alternative if delivery of the chattel in dispute cannot be had; if the goods are capable of delivery they must be delivered; if they are not capable of delivery, then assessed damages should be paid”. It does not appear that there is any authority for the view that the plaintiff has an option not to take delivery but to fall back upon the money part of the decree.

A high ground has then been taken on behalf of he appellants and it has been urged that it is the judgment-debtors who should have offered the articles immediately as the decree was passed and they not having done so, the appellants were entitled to maintain this application for execution. The principle that it is the duty of a judgment-debtor to find, out that judgment-creditor and pay him the amount of judgment-debt so long as the latter is within the realm “is found in very old authorities, Coke upon Littleton and Shephard's Touchstone, and has been undoubtedly affirmed and reiterated in more modern authorities” [In re a Debtor Bansilal Abirchand v. Ghulam Mahbub Khan], but it relates to a judgment-debt capable of beding discharged by payment,—a principle that has to a certain extent been adopted in Order XXI, r. I, C.P.C, in which modes of paying money under a decree are prescribed.

On behalf of the decree-holders has been urged that the execution is barred as the part of the decree now sought to be executed was not the part of it that was appealed from, and that the appeal that was preferred not having imperilled this part of the decree, there was no reason why the decree-holders should not have applied for execution within 3 years from the date of the decree. The objection, on the face of it, does not appear to be a frivolous one, but we do not think it necessary to pronounce any definite opinion on it, because we do not think that the judgment-debtors will care to take shelter under this plea, having all along expressed their willingness to deliver the articles which admittedly belong to the decree-holders, and also because this objection has been put forward only as an alternative argument in order to support the order of the lower Court.

In our opinion the order of the Court below is right and we accordingly dismiss the appeal with costs, hearing fee being assessed at 2 gold mohurs.

Roy, J.:— I agree.

S.M

Appeal dismissed.