Tara Chand Ghose Vs Anand Chandra Chowdhry

Macpherson, J.@mdashThat the lower Appellate Court has erred in allowing these decrees to be set off, the one against the other, I have no manner of doubt. For the decrees are not "Cross-decrees between the same parties," within the meaning of Section 209 of Act VIII of 1859, or indeed in any other sense. Even if the facts were as stated by the Judge, I think the decision at which he arrived would be quite wrong, for so long as the parties on the record are different, it is impossible to say that the decrees are "cross-decrees between the same parties," whatever may be the position of trust or benamiship which exists among any of the parties. But the record shows clearly that the facts are not as stated by the Judge, and that it is not the case that "Bhagwan obtained a decree against Anand."

2. The facts, stated accurately, are as follows: Haran Mehaldar and Ramjiban Mehaldar held a decree against Anand Chandra Chowdhry and Madhusudan Mittra. Haran and Ramjiban sold a 15-anna share of their rights as decree-holders to Chandranath Dutt, who thus became jointly interested in the share as decree-holders. Subsequently the interest of Chandranath became vested in Bhagwan, who thereupon, jointly with Haran and Ramjiban, held the decree against Anand and Madhusudan.

3. One Jagat Chandra Chowdhry, the son of Anand, held a decree against Bhagwan.

4. Shamacharan Ghose also had a decree against Bhagwan, and, in execution of that decree, the right, title, and interest of Bhagwan, as one of the holders of the decree against Anand and Madhusudan, was sold, and was purchased by the present appellant, Tara Chand.

5. Tara Chand having thus placed himself in Bhagwan''s position as one of the holders of the decree against Anand and Madhusudan, applied to have the decree executed. Thereupon Anand applied to have the decree held by Jagat Chandra against Bhagwan set off as a "cross-decree between the same parties" u/s 209¹ of Act VIII of 1859, upon the ground that his son Jagat Chandra really held that decree against Bhagwan merely benami for him, Anand.

6. The parties to the decrees were not the same in any possible sense, and if Anand and Bhagwan had been the only parties to the one suit, and Jagat Chandra and Bhagwan had been the only parties to the other, I should still have held that the decrees could not be set off u/s 209, whether Jagat was or was not merely a trustee or a benamidar for Anand. I say nothing of the very special circumstances in this case, which also tend towards the same conclusion. But the respondent contends that no appeal will lie.

7. On the 31st of March 1868, the Subordinate Judge of Jessore held that the decrees could not be set off. On the 9th of June, the Zilla Judge reversed this decision, the appeal being heard ex parte, as the respondent did not appear. Subsequently an application was made for a re-hearing, which was rejected by the Judge on the 1st of August. Thereupon the special appeal now before us was brought, being an appeal from the decision of the 9th of June. It is argued that u/s 37 of Act XXIII of 1861,² a rule similar to that provided by Section 119³ of Act VIII of 1859, in the case of applications for the re-hearing of a suit which has been disposed of ex parte, should be applied; and that as u/s 119 no appeal will lie from a judgment passed ex parte against a defendant who has not appeared, so in the present case no appeal will lie. But section 119 is inapplicable. Section 37 of Act XXIII in no way indicates in what cases appeals will he. It merely relates to the powers which the Appellate Court can exercise when they are dealing with appeals, i.e., when an appeal does lie, and is before the Court. It appears to me that the sections of the CPC which apply, are Sections 346, 347, and 372.

8. Section 346 enacts that if the appellant fails to appear, his appeal shall be dismissed for default; and that if the respondent fails to appear, the appeal shall be heard ex parte in his absence. Section 347 provides that if an appellant whose appeal has been dismissed for want of prosecution applies (within thirty days from the date of the dismissal) for the re-admission of the appeal, the Courts may re-admit it. But nothing is said as to re-hearing the case upon the application of the respondent against whom an ex parte decree has been passed. No provision is made for any re-hearing in the latter case; nor is it declared that there shall be no appeal from the ex parte decision of the Appellate Court. Then comes Section 372, which says that "unless otherwise provided by any law for the time being in force, a special appeal shall lie from all decisions passed in regular appeal," &c. An ex parte decree is none the less a "decision passed in regular appeal," because ex parte, and it is nowhere provided by any law that there shall be no appeal from a decree because ex parte.

9. I am, therefore, of opinion that a special appeal does lie from an ex parte decision passed by an Appellate Court in regular appeal.

10. The present appeal arises out of an order made in execution of a decree, but, under Sections 11⁴ and 38 ⁵ of Act XXIII of 1861, the ordinary rule of procedure applicable to civil suits before final judgment will apply. I think this appeal will lie, and that the decision of the lower Appellate Court ought to be reversed with costs, and that the original order of the Subordinate Judge declaring that these decrees cannot be set off u/s 209 ought to be affirmed.

The above rules shall apply to decrees sent to a Court for execution as well as to decrees in the same Court.

Whenever a suit shall be pending in any Court against the holder of a decree of such Court, by the person or persons against whom the decree was passed, the Court may, if it appear just and reasonable to do so, stay execution of the decree either absolutely or on such terms as it may think just, until a decree shall be passed in the pending suit.