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IN THE HIGH COURT OF MARAS
Oldfield, S Aiyar
Ramalinga Rowthan
Versus
Sheik Ibrahim Sahib
Decided On : 2 March, 1920
Code of Civil Procedure - Applicability to Decree - Court's Decision based on Order for Execution
Fact of the Case:
The decree was passed in November 1908, with the time for payment expiring in May 1909. The appellant contended that the new Code of Civil Procedure, which came into force in January 1909, should be applicable to the case. There was a conflict of opinion in the Court on this point. However, the Court did not decide on this issue, as it found the decree-holder bound by the order passed on March 13, 1917, on his application for execution. The Court held that the appellant could have appealed against the order but as he submitted to the adjudication, he could not ignore it. As no final order had been obtained as directed in the order of March 1917, the present application for execution was deemed incompetent.
Finding of the Court:
The Court reversed the order of the lower Courts and remanded the application to the 1st Court for disposal in the light of the above observations. The respondent was directed to pay the costs of the appellant in this Court as he failed to carry out the direction of the Court made in March 1917.
Issues: Applicability of the new Code of Civil Procedure to the case, binding nature of the order passed on the application for execution, competency of the present application for execution.
Ratio Decidendi: The Court held that the decree-holder was bound by the order passed on his application for execution and as no final order had been obtained as directed in the order of March 1917, the present application for execution was incompetent.
Final Decision: The Court reversed the order of the lower Courts, remanded the application to the 1st Court for disposal, and directed the respondent to pay the costs of the appellant in this Court.
1. This decree was passed in November 1908; the time fixed for payment would expire in or about May 1909. It is contended that the new Code of Civil Procedure, which name into force in January 1909, is applicable to this ease. Upon that point there is a conflict of opinion in this Court: Vide Ramasami Reddi v. Sokkappa Reddi 48 Ind. Cas. 782 : 35 M.L.J. 194 and Nimmala Mahankali v. Kallakuri Subba Rao 41 Ind. Cas. 268 : 32 M.L.J. 455. But it is not necessary to decide this question, as, in our opinion, the decree-holder is bound by the order passed on the 13th March 1917 on his application for execution. That decision is clearly binding on him: Vide Vyapuri Goundan v. Chidambara Mudaliar 18 Ind. Cas. 607 : 37 M. 314 : 24 M.L.J. 26. He might have appealed against it, but as he Submitted to the adjudication, it is not open to him to ignore it. It is admitted that no final order has yet been obtained as directed in the order of March 1917; consequently, the present application, for execution is incompetent. It may be open to him, if he is so advised, to apply to the lower Court to amend his present application so as to make it one for an order absolute or to present a fresh application for a decree absolute before applying for execution. We think the application, in its present form, is not maintainable. We reverse the order of the lower Courts and remand the application to the 1st Court for disposal in the light of the above observations.
2. Respondent must pay the costs of the appellant in this Court as he failed to carry out the direction of the Court made in March 1917.
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