Maulvi Abdul Jabbar Palwan Vs. Moulvi Azizar Rahaman Mea - Court Judgment

Nasim Ali, J.

1. This is a judgment-debtor's appeal from the order of the District Judge of Mymensingh dated 26th August 1935, whereby the learned Judge has directed execution to proceed against him. On 8th August 1927, the respondent decree-holder obtained an order for costs in his favour against the appellant from the Governor of this Province on the report of the Commissioners appointed to inquire into an election-petition. He put this order into execution in the Court of the District Judge, Mymensingh, but the execution case was dismissed after service of notice in 1929. On 12th June 1931 he filed another application in the same Court for the execution of the order. This petition was dismissed by an order of the learned Judge dated 10th October 1931. The material portion of this order is as follows:

The order is not a decree of this Court; nor has it been transferred for execution to this Court by the Court which passed it. This Court has no jurisdiction to execute the order. Application for execution dismissed as not maintainable.

2. The decree-holder did not appeal against this order. In July 1934, he filed another application before the District Magistrate of Mymensingh for execution of the order. While this petition was pending, he discovered that under the provisions of Section 12, Act 39 of 1920 of the Indian Legislative Council the order for costs awarded on an election petition could be executed in the Court of the District Judge, and on 6th October 1934, he filed another application in the Court of the District Judge of Mymensingh for execution of the order for costs. The application before the District Magistrate was dismissed on the ground that it was not maintainable and notice was issued by the District Judge upon the judgment-debtor to show cause why execution should not proceed against him. On 16th February 1935, the judgment-debtor objected to the execution of the order on the ground that the order of the District Judge dated 10th October 1931, operated as a bar to the maintainability of the petition and the application for execution was barred by res judicata by operation of that order. On 14th March 1935, the decree-holder applied for setting aside this order to the successor of the learned Judge who made it under Order 47, Rule 1 and Section 151 of the Code on the ground that there was a mistake on the face of the order. The appellant opposed the application for review on two grounds: viz. (1) that it was barred by limitation, (2) that it was not maintainable in law. The learned District Judge has overruled these objections of the judgment-debtor. He has set aside the order of his predecessor dated 10th October 1931, in review and under 8. 151 of the Code and has ordered the execution to proceed. Hence this appeal by the judgment-debtor. A preliminary objection was taken to the competency of this appeal by the learned advocate appearing for the decree-holder respondent. His contention is that as no appeal lay against the order for costs, no appeal can lie against an order passed in the course of the execution of that order. The relevant portion of Section 12, Act 39 of 1920 is as follows:

Any order made by a Governor on the report of the Commissioners regarding the costs of inquiry may be produced before the principal civil Court of original jurisdiction within the local limit of whose jurisdiction any person directed by such order to pay any sum of money has a place of residence or business, and such Court shall execute such order or cause it to be executed in the same manner, and by the same procedure as if it was a decree for the payment of money made by itself in a suit.

3. The procedure for the execution of the order for costs under execution is therefore the same as that of a decree for the payment of money made by the Court of the District Judge of Mymensingh within the local limits of whose jurisdiction the judgment-debtor admittedly resides. Therefore, it imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision attaches: see National Telephone Co., Ltd. v. Post-master General (1913) A C 546 at p. 552; Hem Singh v. Basant Das at p. 189. The order of the District Judge granting the decree-holder's application for review is appealable if it has been made in contravention of the provisions of Rule 2, Order 47, Civil P.C. The order directing the execution to proceed against the appellant is an order under Section 47 of the Code and is also appealable. I am therefore unable to give effect to the preliminary objection taken by the respondent.

4. The next question for determination is whether the application for review made by the respondent decree-holder is maintainable in law. The ground for review is this: that at the time when the order sought to be reviewed was made, the District Judge, the pleaders of the parties, as well as the parties themselves, were not aware of the existence of Section 12, Act of 1920: on account of this ignorance of law the decree-holder's application was not entertained by the District Judge and consequently this is an error of law apparent on the face of the record. Rule 2, Order 47 lays down that an application for review upon some ground other than the existence of a clerical or arithmetical mistake apparent on the face of the record, shall be made only to the Judge who made the order. If the mistake is clerical or arithmetical the application can be made to his successor. The application for review by the decree-holder on the ground that there is a mistake of law on the face of the record could not therefore be entertained by the successor of the Judge who made the order. The application for review must therefore be rejected as not maintainable in law. The question whether it is barred by limitation does not therefore arise for our consideration. The learned Judge appears to have set aside the order of 10th October 1931, also under Section 151. This order was appealable; but the decree-holder did not appeal against it. An order which can be set aside in appeal cannot be set aside under the inherent power of the Court. The order dismissing the decree-holder's application for execution on 10th October 1931 is therefore final and the present execution petition is not maintainable.

5. The result therefore is that this appeal is allowed. The order of the learned Judge allowing the decree-holder's application for review and directing execution to proceed against the appellant is set aside. The decree-holder's application for execution is dismissed. But there will be no order for costs in this Court as well as in the lower Court.

R.C. Mitter, J.

6. I agree.