Jadunandan Singh vs Sheonandan Prasad Singh and Another

Jwala Prasad, J.—This appeal arises out of an order of the District Judge of Patna dated the 8th August 1921 whereby he dismissed an appeal preferred before him against an order of the Subordinate Judge dated the 20th April 1921. The appellant is the judgment debtor before us against whom an execution of a decree was levied In the course of this execution he filed an application under Order XXI, Rule 2 of the CPC in which he stated and prayed that a certain sum be duty recorded and certified as payment of the decree in question. He also filed a receipt granted by the decree-holder, Sukhan Singh, purporting to bear his thumb impression, his (Sukhan''s) grandson, Sheonandan Singh having signed the said receipt for him. The decree-bolder denied having received the money or granted the receipt in question. He also stated that the thumb impression on the receipt was not his In order to prove that the thumb impression was that of the decree-holder, the judgment-debtor applied for examination of a finger print expert. The expert wag accordingly examined who took sample thumb impressions of the decree-holder, but he could not give any definite opinion, inasmuch as the impression on the receipt appeared to be blurred. He got the impression enlarged and photographed and then the thumb impressions of the decree-holder which were taken by him were compared in the Government Finger Print Bureau and a report was submitted to the Court by the Inspector General of Grimes. The report stated that the thumb impression on the receipt in question was similar to those on the bonds B and C which were the admitted thumb impressions of the decree holder. The judgment debtor then applied to the Court for summoning an expert from the Government Finger Print. Bureau who could prove the opinion embodied in the report of the Inspector-General: and accordingly summons was served upon the Inspector-General to Bend the expert who could prove the opinion stated in the report. But unfortunately the person sent from the Bureau was not able to give any opinion and he does not appear to be connected with the examination of the thumb impressions upon which the report was based. He was not able to give any opinion in the ease and accordingly his evidence was useless. The judgment-debtor then applied for summoning the proper person, namely, the person who was competent to prove the opinion set forth in the report of the Inspector-General. The learned Subordinate Judge refused this application in the following words:

"The applicant then put in a petition for time to take further steps to call another witness from the Bureau. The petition cannot be granted. The expert was here and has been examined and he does not prove the applicant''s case. There is no reason for adjourning the case again. The applicant is called upon to examine his other witnesses but he does not examine any witness and his Pleader informs that he has no further instruction after the petition for time is rejected as no further adjournment will be given ac prayed for by him, The application is, therefore dismissed for want of prosecution."

Against this order the judgment-debtor appealed to the District Judge of Patna. He was of opinion that no appeal lay from the order of the Subordinate Judge inasmuch as the application of the judgment-debtor was dismissed for default. He also held that the application of the judgment-debtor under Order XXI, Rule 2, Clause (3) could not be entertained in execution proceedings inasmuch as the alleged payment was not certified.

Both these grounds upon which the learned District Judge dismissed the appeal appear to me to be untenable. The application of the judgment-debtor for certifying payment under order XXI, Rule 2, Clause (2) could not be dismissed for default inasmuch as some evidence was given in Court and the Court held that the evidence was useless and dismissed the application. It is obvious that the learned Subordinate Judge is wrong in using the words " for want of prosecution." Virtually his order amounts to a dismissal of the application for the reason that the evidence adduced was worthless. The application of the judgment debtor for certifying payments by him to the decree-holder out of Court was au application in course of the execution of the decree obtained by the decree-holder. That application wan, therefore, an application u/s 47, Civil Procedure Code, for it raised the question as to the execution and satisfaction of the decree sought to be executed. The dismissal of that application certainly gives rise to a right of appeal to the judgment-debtor. If an order of dismissal for want of prosecution is passed in a suit, it is conceded that an appeal does lie; but it is contended that an order of dismissal for default in execution proceedings in unappealable. That may be so, but here is the dismissal of an application for certifying payment said to have been made by the decree holder out of Court; the order amounts to a decree passed in a proceeding u/s 47 of the Code and as such it is appealable. In any case the order in the present case disposed of the application on merits upon the findings that the evidence adduced by the judgment-debtor was useless and of no avail to him. Undoubtedly such an order is appealable.

The second ground urged by the learned District Judge is equally unsubstantial, for an application for certifying a payment, in the present case was made under Order, XXI Rule 2, Clause (2) within the period prescribed for making such an application; the application may be made either to the Court which passed the decree or to the Court, whose duty is to execute the decree, as is expressly stated in Clause (1) Rule 2 of that Order. The judgment-debtor could, therefore, make his application either to the Court which passed the decree or to the Court which was executing the decree. In the present case the decree was under execution and the application was properly made to the Court which was executing the decree. In the present cage the Court executing the decree was the Court that passed the decree. The enquiry was, therefore, invited by the judgment-debtor as to the payment alleged to have been made by him to the decree holder during the pendency of the execution proceedings; therefore, his application could not be thrown out upon the ground that it was not certified under Clause (3) of that rule. The application was made for the purpose of having the payment certified and until that question was decided, the stage of Clause (3) did not arise. The learned District Judge was, therefore, wrung in throwing out the application on the above technical grounds. He ought to have gone into the merits of the appeal. The appeal before him was, therefore, not legally disposed of and he failed to exercise the jurisdiction vested in him by law. The decision of the District Judge is, therefore, set aside.

Now, the District Judge has not gone into the merits of the case, and the issue before him was whether the application was properly and legally disposed of by the Subordinate Judge; in other words, whether the Subordinate Judge was right in refusing the application of the judgment-debtor for the adjournment of the case and for gammoning the proper person from the Finger Print Bureau in order to prove the opinion set forth in the report of the Inspector-General as to the indentity of the thumb impressions on the receipt in question and on the bonds B and C. The judgment debtor bad been �, making strenuous efforts and taking all possible step] in order to have a definite opinion and evidence of a Finger Print Expert as to the thumb impression of the decree-holder on the receipt in question. He paid the necessary expenses and the expert who first came was not able to give definite opinion unless the impressions were enlarged and photographed. To this also the judgment-debtor submitted and paid all the necessary expenses. This was done with the result that an opinion decidedly in his favour was obtained. He was, therefore, naturally anxious to place upon the record the testimony of the witness who could prove the opinion contained in the report. He put in all the necessary expenses and necessary summons was issued upon the department to send the person cognizant of the opinion expressed in the letter. Through no fault of his the man sent from the Bureau turned out to be not the proper person and was not able to give any relevant evidence in the case. He accordingly applied to the Court and expressed his willingness to defray all the necessary expenses for summoning the proper person from the Bureau. When once the Court issued the summons it was the duty of the Court, unless the judgment-debtor was guilty of gross laches, to assist the judgment-debtor and to enforce the attendance of the proper person who could "give evidence relevant to the case. The refusal to grant the prayer of the judgment-debtor on the 30th April was a grave irregularity and contravened the recognised principles embodied in the CPC regarding the enforcement of the attendance of witnesses. The order of the Subordinate Judge, therefore, contra vend the rules of procedure in the Coda and the recognised principles which produced error in the decision of the case on the merits.

The question before the lower Appellate Court was whether the discretion was properly used by the Subordinate Judge in refusing the application of the judgment-debtor for enforcing the attendance of the witness from the Bureau. This question was, as observed above, left undecided by him. The question affects the merits of the case and we are entitled in second appeal u/s 103 of the CPC to determine the question which the District Judge ought to have determined. We, therefore, hold that the order of the District Judge dismissing the appeal was illegal. We also hold that the order of the Subordinate Judge dismissing the application of the judgment debtor and refusing him an adjournment of the case so as to enable him to produce evidence was also improper.

We, therefore, set aside both the judgments of the Courts below and remand the case to the Subordinate Judge for disposal of the original application of the judgment-debtor u/s 47 and Order XXI, Rule 2 of the CPC in accordance With law.

The judgment-debtor in this case, however, acted indiscreetly and foolishly in not examining witnesses present on the date when the Court called upon him to give evidence after having rejected his application for adjournment. The practice of not going on with the case after the rejection of an application of this kind is fast creeping into the Courts below and must be put a stop to. The judgment-debtor would have been in a far better petition, and so also the Courts, if he had examined the witnesses present in Court on the 30th April. Perhaps, much of the time and harassment of the opposite party would have been paved. I have no hesitation in holding that the conduct on the part of the judgment-debtor or his legal representative was improper in refusing to go on with the case when the witnesses were present, simply because the Court rejected the application for summoning the expert. Besides the costs awarded to the decree-holder by the Courts below, the judgment-debtor must pay to the decree-holder Rs. 64 as costs of hearing in this Court, as a condition precedent to the hearing of the ease in the Court below, within a fortnight from the notice given to the judgment-debtor by the Subordinate Judge on the arrival of the records in his Court.

Bucmuix, J.

I agree.