Back
1924 Supreme(SC) 39
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD PHILLIMORE, SIR JOHN EDGE, AND MR. AMEER ALI.
LACHMI NARAIN MARWARI - Appellant
Versus
BALMAKUND MARWARI - Respondents
On appeal from the High Court at Patna.
Decided On : July 10, 1924.
Solicitors for appellants : Watkins & Hunter.
Solicitors for first respondent: Barrow, Rogers & Nevill.
A suit cannot be dismissed for non-appearance after a decree has been passed, as the decree fixes the rights and liabilities of the parties. Order xvii, Rule 2 of the CPC applies to the hearing of the suit, not to the execution of a decree.
Headnote:(A) Code of Civil Procedure, 1908 - Section 115 - Order xvii, r. 2 - Order ix, rr. 3 and 8 - Dismissal of suit after decree - Once a decree has been passed in a suit, the suit cannot be dismissed for non-appearance of the plaintiff unless the decree is reversed on appeal - Upon the making of a decree, parties acquire rights or incur liabilities which are fixed until the decree is varied or set aside - A court lacks jurisdiction to nullify a consent decree by dismissing the suit for want of further prosecution.
(B) Code of Civil Procedure, 1908 - Order xvii, r. 2 - Scope of "hearing" - The power to dispose of a suit when parties fail to appear on a day to which the hearing is adjourned applies to the hearing of the suit in the sense of taking evidence, hearing arguments, or coming to final adjudication - This does not extend to occasions when interlocutory orders are sought or when the court is taking steps to effect a partition pursuant to a decree.
Facts of the case:
A suit for partition was filed among brothers, resulting in a consent decree by the High Court for the division of property into four equal shares. The case was remitted to the lower court to effect the partition and value the shares. On a scheduled date for hearing, the plaintiff and their pleader failed to appear. The lower court dismissed the suit for want of further prosecution. The High Court, in exercise of its revisional powers under Section 115 of the Code of Civil Procedure, set aside the order, holding that the lower court had exercised jurisdiction not vested in it. The defendants appealed this decision.
Findings of Court:
The lower court's order of dismissal was without jurisdiction. While courts possess powers of discipline to check neglect and delay, such powers cannot be used to nullify a decree. An appropriate order would have been to adjourn the proceedings sine die with liberty to restore the suit upon payment of costs.
Issues: Whether a lower court has the jurisdiction to dismiss a suit for want of prosecution after a decree has already been passed and whether the provisions of Order xvii, r. 2 apply to the execution of a decree.
Ratio Decidendi: After a decree is made, the suit cannot be dismissed because the rights and liabilities of the parties are fixed. Order xvii, r. 2 applies to the "hearing" of the suit (final adjudication or evidence) and not to interlocutory matters or the execution of a decree. Therefore, the lower court had no jurisdiction to dismiss the suit.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
-
family law
- partition
-
practice and procedure
-
civil procedure
-
decrees
- dismissal after decree
-
adjournments
- non-appearance
-
decrees
-
civil procedure
Judgement
Appeal (No. 4 of 1923) from an Order of the High Court (June 8, 1924) reversing an Order of the Subordinate Judge of Ranchi.
The facts material to the question of procedure raised by the appeal, and the decisions thereon by the Courts in India, appear from the judgment of the Judicial Committee.
1924. June 24. E. B. Raikes for the appellants referred to Order xvii., rr. 2, 3 ; Order ix., rr. 3, 8; Government of India Act, 1915, s. 107; and Amir Hassan Khan v. Sheo Baksh Singh . (( 1884) L. R. 11 I. A. 237.) Dube for the first respondent was not called upon.
July 10. The judgment of their Lordships was delivered by
LORD PHILLIMORE. This is a suit for partition brought in 1913 by the youngest of a family of brothers against two of his brothers and the children of a third brother.
The eldest brother of all was omitted from the suit, because it was suggested that he was already separate in estate. The original defendants, however, disputed this; and he was at their instance made a defendant party.
At the hearing the Subordinate Judge took the view that he was separate and dismissed him from the suit.
Appeal was thereupon taken to the High Court at Patna, and ultimately the following consent decree was made "It is agreed by all the parties that if the property which is now in possession of Shew Narayan Marwari is brought into the hotch-pot, they will accept a partition on any terms that the Court shall direct.
" These appeals are accordingly dismissed in terms of the following Order The whole property will be divided into four equal shares, of which the plaintiff will get one. Shew Narayan Marwari, however, will be entitled to retain the property which is now in his possession on payment in cash of any amount by which his share will be found by the lower Court to exceed the value of one-fourth share of the whole property. In the event of the property now in possession of Shew Narayan being found to be less than the value of one-fourth share of the whole property, he will be entitled to receive an amount by which this property is found less than the value of one-fourth share. Each party will bear its own costs throughout. Patna, June 26, 1919."
The suit was thereupon remitted to the Subordinate Judge in order that the necessary steps for effecting the partition of the undivided property into fourths and that the valuation of the eldest brothers share might be taken.
After decree it is open to any party to a suit, to whose interest it is that further proceedings be taken, to initiate the supplementary proceedings ; but in the ordinary case it is the plaintiff who moves.
The Subordinate Judge accordingly fixed a day for hearing the parties and gave them notice. But when the day came neither the plaintiff nor his pleader appeared. The defendants, or some of them, were represented, but took no steps ; and the judge, after waiting all day, made the following order "5.11.19. I have been waiting for plaintiff and his pleaders till 4.20 p.m., but no one appeared on repeated calls. Defendant is present. The suit is dismissed for want of further prosecutions."
This was an unfortunate order. It appears from a subsequent judgment delivered by the learned judge that it was rather made in terrorem, and in the expectation that the plaintiff after this sharp reminder would put himself in order by applying within the prescribed period of thirty days to have the order set aside, submitting to the necessary consequence of having to pay the costs thrown away by reason of his neglect.
The plaintiff, however, was again dilatory, and his pleader does not seem to have been well versed in the procedure, with the result that no such application was made in time, and recourse had to be had to the High Court; and even then the first application was irregular.
The High Court was, however, fortunately in the interests of business and of justice, able to mould the application into one for the exercise of its powers of revision under s. 115 of the Code
