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1904 DIGILAW 166 (ALL)

Godu Ram v. Surajmal

1904-12-05

AIKMAN, BURKITT

body1904
JUDGMENT : BURKITT, J. This case is connected with Execution First, Appeal No. 55 of 1903 in which we have just pronounced judgment. A preliminary objection is raised to the hearing of this appeal. It is contended by the learned Advocate for the respondents that no appeal lies. We are constrained to say that in our opinion that contention is correct. The proceedings which formed the subject matter of Execution First Appeal No. 55 of 1903 were not proceedings in execution of a decree. They were proceedings by the court in the exercise of its inherent power to punish for contempt of court. The proceedings did “not come under section 244 of the Code of Civil Procedure, and no order, to which the definition of “decree” as given in section 2 of the Code applies, was passed. We must therefore uphold the objection raised by the respondents. But we think this is a case which we might take up under section 622 of the Civil Procedure Code, and we have accordingly heard the parties as if this were an application under that section. In the present case the question before us for decision is one of costs. When the order for the arrest of one Godu Ram, as mentioned in the previous case, was passed in default of his paying in the amount he had improperly collected, the amount, he was ordered to pay, included, not merely the sums which he had so improperly collected, but also the costs, which he had recovered in the execution of his decrees against the debtors of the firm of Sundar Das, that is to say, he has been compelled to pay in, not only the cash he collected, but also, the money which he spent in instituting suits against those debtors, which costs were recovered by him in execution of decrees against them. 2. In that matter the court below was wrong, and it acted beyond to jurisdiction. The court below, undoubtedly, had no jurisdiction to order Godu Ram to pay anything beyond the actual debts he had collected from the debtors whose debts had been attached. The court had no power to direct him to pay-into court the costs he had received to recoup his own expenses in instituting suits and executing decrees against the debtors mentioned above. We think so far the order of the court below must be modified. The court had no power to direct him to pay-into court the costs he had received to recoup his own expenses in instituting suits and executing decrees against the debtors mentioned above. We think so far the order of the court below must be modified. We refer this issue to the court below for finding and report, namely what sum of money was paid into court by the appellants on account of costs which they had realised in execution of decrees obtained by them against the debtors of the firm of Sundar Das, There is a further claim by the appellants that they should be allowed to deduct from the amount paid by them into court the sum spent in instituting suit and executing decrees against the debtors of the firm of Sundar Das and not recovered by them in execution of decrees. In that matter we cannot help the appellants. That is a matter over which the court below had jurisdiction, and whether it exercised its jurisdiction rightly or wrongly, we cannot interfere. The lower court is requested to submit its finding on the above issue with as much speed as possible, allowing both the parties to adduce evidence. On receipt of the finding ten days will be allowed for objections.