ABDUL HAQ Vs. SHEO RAM

JUDGEMENT

(1.) This is an application in revision under Section 115 of the Civil Procedure Code, made by one Abdul Haq against an order of Mr. L.S. White, District Judge of Cawnpore, on the 6 March 1926, allowing an appeal against an order of the Subordinate Judge of Cawnpore who refused to make a complaint under Section 476 of the Criminal Procedure Code, for the prosecution of the present applicant Abdul Haq on the ground of perjury. The facts are as follows: Three brothers claimed certain property. They had not sufficient means to bring and prosecute a suit for the same. Accordingly they made an arrangement with Abdul Haq that he would finance them. The arrangement was recorded in a sale-deed of a share of the interest of the three brothers in the property claimed. There was a stipulation in this deed that Abdul Haq, in the event of the suit being successful, would not be entitled to any share of any costs that might be awarded by the Civil Court. A decree was passed on the 22 January, 1925 in favour of the three brothers and of Abdul Haq and the decree provided for the plaintiffs getting their costs.

(2.) No appointment was made of these costs and no stipulation in the decree was entered that Abdul Haq should not be entitled under the decree to any share in these costs. Subsequently by an application dated the 30 April 1925, Abdul Haq asked to be allowed to realise the whole of the costs which had been deposited in Court saying that he was himself entitled to one-half of them. Presumably this application must be interpreted to mean that as a joint decree-holder he was entitled under the decree to realize the whole costs but that under some arrangement with the other decree-holders he would only be entitled to retain one-half of those costs and would be bound to pay the other half over to the decree-holders. The execution Court, whose attention had been drawn by this time to the sale-deed by the three brothers in favour of Abdul Haq which resulted in Abdul Haq being a plaintiff in the civil Court, asked Abdul Haq to explain how in view of the stipulation in that sale-deed he could be entitled to any costs. Apparently his explanation was satisfactory or else the execution Court ultimately considered that it could not go into the matter as an execution Court. Any way, an order was passed allowing Abdul Haq to take the costs deposited.

(3.) Now one of the three brothers had gone to South Africa. One of the other two put in an application to the Subordinate Judge complaining that Abdul Haq had committed perjury in his application of the 30 April 1925, which application was verified by an affidavit, in stating that he was entitled to half the costs and asking the Subordinate Judge to make a complaint to the criminal Court for his prosecution in respect of this perjury. The Subordinate Judge rejected this application but the District Judge of Cawnpore on appeal passed an order allowing the appeal and stating that he would himself make a complaint to the District Magistrate. It is against this order that this application in, revision is filed.