MATHURANATH RAY CHAUDHURI Vs. JANAKINATH RAY CHAUDHURI

JUDGEMENT

(1.) In this case, the plaintiff brought a partition suit and, after certain terms of settlement had been arrived at, obtained a final decree. This final decree was to the effect that the possession, delivered over to each of the parties after making separate allotments of the moveables and immovables according to a certain award, be declared as the final delivery of possession to the parties and that the parties do respectively bear all kinds of costs incurred in the suit up to 30 June 1923 : that the value of the stamp to the extent of Rs. 5,013-12-0 for the preparation of the decree, which the plaintiff had put in, be borne by the plaintiff to the extent of his share, namely Rs. 1,641-4-0, and of the balance Rs. 1,671-4-0 be borne by each of the defendants 1 and 2 respectively. That decree was made in 1923 and it appears that certain execution proceedings were taken in 1926. Until August 1928, neither defendant 1 nor defendant 2 put in his share of the decretal amount which he should have done in 1923v The plaintiff accordingly took steps in execution and the first thing we find is an ex parte order made "by the Subordinate Judge, by which the decree-holder was to file a copy of the decree within three weeks. The terms of the settlement, which were embodied in the decree, were indeed extraordinarily lengthy, as appears from the fact that the charge for taking only a copy of the decree amounted to Rs. 4,118 and also from the fact that the decree-holder was ordered to supply a big tin box, for holding the copy of the decree, to the office of the Court and it is beyond my conception how the decree-holder could be asked to file a copy of such a voluminous decree, within such a short period of three weeks and when, as we are informed, the office of the Court had been busy in making a copy of this decree for a considerable portion of the previous two years.

(2.) It appears that, in 1926, the decree-holder filed an application in execution and the Court then made an order that a copy of this decree be made. Time after time having been given by way of adjournments, the execution case was finally struck off. As I have pointed out, for the purpose of executing the decree, there was no necessity whatsoever for taking a copy of the whole decree. All that was necessary was the ordering portion of the decree, which is contained in a few lines of the present paper-book, which I have already cited, about the payment of one-third share of Rs. 5,013-12-0, for the preparation of the decree. In support of this view, our attention has been drawn to the provisions of Rule 11, Order 21, Civil P.C. and to what was said by this Court in the case of Raghubar Doyal Sukul V/s. Jadunandan Misser [1911] 13 I.C. 365. It was pointed out in that case that an order for a copy of the decree was wholly needless, because the Court, in which the application for execution was made, was the very Court which had made the decree and, if any reference to the decree was needed, the original could easily have been examined, That being the position we have to consider what happened upon this extraordinarily unfortunate order. The decree-holder appears to have asked for time to file a copy of the decree on 25 August and his prayer was granted. On 30 August, judgment-debtor 1 prayed for permission to deposit the decretal amount with half of the costs of the execution case and this was allowed. As copy of the decree had not yet been filed, no cost of the copy is allowed at this stage.

(3.) But that does not mean that the cost of the copy was going to be allowed at a further stage and it is also wrong on the basis of that order to hold that judgment-debtor 1 would no longer be liable to pay the cost. On 31 August an order was made: Let the amount be credited to the decree-Inform the decree-holder accordingly. Defendant 1's due is fully satisfied.