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Ss. 2 (2), 96 & 100 Appeal dismissed for non‑payment of process fees and omitting to file vakalatnama‑Dismissal not a decree but operates as if no appeal had been filed.

[Case‑law referred to.]

(c) East Bengal State Acquisition and Tenancy Act (XXVIII of 1951),

Ss. 69 (1) & 70 (1)‑Costs decreed before 7‑4‑1948, held to be debt‑Execution application barred.

S. K. Sen for Appellant.

B. N. Chowdhury for Respondents 1, 2 & 5.

S. A. Chowdhury for Deputy Registrar.

These Miscellaneous Appeals at the instance of the petitioner No. 1 (judgment‑debtor No. 1) are directed against the same judgment of the Subordinate Judge, Chittagong, in two Miscel laneous Appeals reversing the decision of the Munsif, 1st Court, Sadar, Chittagong, in two Miscellaneous cases tried analogously. This judgment will govern the orders in both the appeals.

2. The facts which have led to these appeals, are shortly as follows: Opposite‑party (decree‑holders) got two decrees in two Title Suits against the petitioner No. 1 and some others on 29‑6‑1945. There are appeals against both the decrees and the appeals were dismissed by the first Appellate Court on 28‑2‑1946. Against the decrees of the first‑Appellate Court, there were two second appeals to this Court and the second appeals were dismissed on 30‑6‑1955, as vakalatnamas and process‑fees were not filed. After taking delivery of possession on the basis of the decrees, opposite‑party has started other class Execution Cases Nos. 97 of 1957 and 98 of 1957 on 9‑12‑1957 for realisation of costs allowed by the decrees. Petitioner No. 1 and another judgment‑debtor filed objections under section 47 of the Code of Civil Procedure against the maintainability of the execution cases. The case of the petitioners is that as they are rent‑receivers and their interests have been acquired by the Government under the East Bengal State Acquisition and Tenancy Act,. 1950 (herein after to be called the Act), the execution cases for realisation of the costs of the decrees are barred under section 69 of the Act, as the amount of costs decreed before the 7th of April 1948, is a debt and is liable to be scaled down under section 70 of the Act. Further case of the petitioner is that the execution cases are not maintainable, as there were execution applications previously and movables of the petitioners were attached in those cases.

3. The learned Munsif allowed both the miscellaneous cases and held that the amount of costs allowed by decrees before the 7th of April 1948, is a debt and that the execution cases are barred under section 69 of the Act. The learned Munsif did not make any decision as to the point whether the execution cases were barred because of the attachment of movables in two previous execution cases. On appeal, the learned Subordinate Judge reversed the decision of the Munsif and held that as there were appeals to the High Court and the High Court confirmed the decrees of the lower Court on 22‑6‑1957, the execution cases were practically for execution of decrees of 1957 and were not barred under section 69 of the Act. In support of this view, the learned Subordinate Judge relied on the case of Sudhindra Chandra Singha Sarma and others v. Ajit Kumar Singha Sarn;a and others (P L R 6 Dac. 803). The learned Subordinate Judge also held that the execution cases were not barred, because of the previous execution cases, as the attached movables were not sold, and the execution cases were dismissed for default. So these appeals by petitioner No. 1.

4. Mr. Sisir Kumar Sen, the learned Advocate for then appellant, contends firstly, that the execution cases are note maintainable, as the movables of the petitioner were attached in the two previous execution cases. It appears that although the movables were attached, these were not sold and ultimately the A execution cases were dismissed for default. As the dues of the execution cases were not satisfied, for the mere fact that the movables of the petitioner were attached, it cannot be held that the execution cases are not maintainable.

5. Mr. Sen next contends that as no decree was passed by the High Court and the second appeals were dismissed for non- filing of vakalatnamas and non‑payment of process‑fees, the prin ciple laid down (2) will not apply to the facts of the case. In that case, against the decree for costs passed on S 0‑12‑1944, there was an appeal to the High Court. The High Court dismissed the appeal and allowed further costs. The decree of the High Court was passed on 13‑6‑1952. After this, execution case was started in April 1953 for the entire amount of costs, namely, the costs decreed by the lower Court and the costs allowed by the High Court. The objection was raised that the execution case was barred under section 69 of the Act, as the decree for costs was passed before the 7th of April 1948 and the amount of costs allowed by such a decree was not a debt. This objection was overruled, and it was held that the execution case was not barred under section 69 read with section 70 of the Act, as the decree of the lower Court merged in the decree of the High Court which was passed long after the 7th of April 1948, and that the amount of costs allowed by such a decree could not be a debt. In‑ the present case, there were appeals to the High Court but the appeals were dismissed for nonpayment of process‑fees and non‑filing of vakalatnamas. As there was no decree by the High Court, the question of merger of the decree of the lower Court in the decree of the High Court does not arise in this case. So, the principle laid down in the above‑mentioned case will not apply to the facts of the present case.

6. Mr. Sen also referred to the case of United Bank of India Ltd. v. Krishna Pada Pal (P L R 7 Dacca 106), in support of the contention that the amount of costs decreed before the 7th of April 1948, is a debt and the execution is barred for realisation of such amount under section 69 of the Act. In that case, it has been laid down that where a mortgage‑debt was incurred by a rent‑receiver prior to the 7th of April 1948, but a decree for principal and interest as well as for costs was passed after that date, the decree for principal and interest would come within the terms of section 69 (1) read with section 70 (1) of the Act and could not be executed, but that the decree for costs having been passed after the 7th of April 1948, could not come within the meaning of section 69 (1) of the Act. In the present case, the amount of costs being decreed before the 7th of April 1948, is a debt and the execution case is barred under section 69 (1) read with section 70 (1) of the Act.

7. In support of the contention that the order of dismissal for non‑payment of process‑fees and non‑filing of vakalatnamas, does not amount to a decree. Mr. Sen referred to the cases reported in I L R 36 All. 350 and A I R 1924 Cal. 830. In the case of Abdul Majid v. Jawahir Lal and others (I L R 36 All. 350), their Lordships of the Privy Council held that an order of the Privy Council dismissing an appeal for want of prosecution, did not deal judicially with the matter of the suit, and could in no sense be regarded as an order adopting or confirming the decision appealed from, and that it merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and, therefore, he was in the same position if he had not appealed at all. In the case of Kalimuddin Ahmed v. Esabakuddin and others (A I R 1924 Cal. 830), it has been laid down that where an appeal is dismissed by the High Court on the ground that it cannot proceed in the absence of a particular defendant, or on her death, in the absence of her representative, the result of the order dismissing the appeal is that the decree which remains capable of execution, is the decree of the first Court. In the present case, as the appeal was dismissed for non‑payment of process‑fees and for non‑filing of vakalatnamas, the effect of the order of dismissal passed by the High Court is that the appellant B is in the same position as if he had not filed an appeal at all, and the question that the order of dismissal amounted to a decree, cannot arise.

8. Mr. Choudhury, the learned Advocate for the respon dents, contends in reply that the order of dismissal passed by the High Court in the present case is different from dismissal for default, which is specifically excluded from the definition of decree as given in section 2 (2) of the Code of Civil Procedure and that it amounts to a decree. In support of this contention, he has referred to the cases reported in I L R 24 Cal. 759; A I R 1937 All. 284; 30 C W N 334; 46 C W N 697 and A I R 1935 Lah. 771. In the case of Uma Sundari Deb v. Bindu Bashini Chowdhurani and another (I L R 24 Cal. 759) in connection with the question whether the High Court has power to amend the decree of the lower Appellate Court, it was held that the order dismissing an appeal under section 551 of the Code of Civil Procedure, 1882 was a decree. As the facts of the above‑mentioned case are not similar to the facts of the present case, the principle laid down in that case will not apply to this case. In the case of Syed Muhammadi Husain v. Mst. Chandro and others (A I R 1937 All. 284), an application for postponement of the appeal made by the pleader of the appellant on the ground that for some personal reasons he could not prepare the appeal and argue it, was rejected by the first Appellate Court and the appeal was dismissed for want of prosecution. It was held that the order of dismissal of the appeal amounted to a decree as defined in section 2 (2) of the Code of Civil Procedure. The reason for holding this view was that the order of dismissal was not one for default or for non‑appearance, as the pleader of the appellant was present. But in the present case the order of dismissal for non‑payment of process‑fees and for non‑filing of vakalatnamas amounted to an order of dismissal for default, as there was no application for time and the Advocate of the appellant was not present at the time the order was passed. So, the principle laid down in the above‑mentioned case also would not apply to this case. In the case of Altaf Ali v. Jamsur Ali (30 C W N 334), the appeal was summarily dismissed under Order XLI, rule 11(1) of the Code of Civil Procedure, and it was held that the order of dismissal would operate as a decree and would come within the defi nition of a decree in section 2 (2) of the Code of Civil Procedure. But in the present case, the appeals were not summarily dismissed under Order XLI, rule 11 (1) of the Code of Civil Procedure. In the case of Abdul Majid Mridha v. Amina Khatun (46 C W N 697), it has been held that an appeal lies against an order dismissing an appeal for non‑payment of deficit Court‑fees. In that case, the order was one of dismissal with costs for non‑prosecution and a decree was prepared according to those terms. But in the present case no costs were allowed by the order of dismissal and no decree has been prepared. Mr. Chowdhury has also referred to the case of Bank of Upper India Ltd. v. Sri Krishna Das and others (A I R 1935 Lah. 77), in support of the contention that the order of dismissal for default was a final order and after this order there was no separate existence of the decree of the lower Court. But the facts of that case are distinguishable from the facts of this case, as in that case in connection with the question of limitation, it was held that the order passed under Order XLI, rule 17 of the Code of Civil Procedure was a judicial order. But it would not follow from this that there was merger of the decree of the trial Court with this order. Moreover, the appeal was dismissed for default with costs. So, this case also does not help the respondents.

9. In support of his contention that the order of dismissal in the present case amount to decree, Mr. Choudhury, also referred to the cases reported in I L R 26 Mad. 91 and 31 C W N 262. In the case of Kristnama Chariar v. Mungammal and others (I L R 26 Mad. 91), it has been laid down that when there has been an appeal against a portion of the decree had no appeal against another portion, the period of limitation for the portion not appealed would run from the date of the decree on appeal. In the case of Dewan Abdul Alim v. Syed Abdul Hakim and others (31 C W N 262), it has been laid down that no part of the decree of the first Court can be held to be in separate existence after an appeal in the suit has been decreed and that the time for execution of the part of the decree not appealed against, runs from the Appellate Court's decree. The contention of Mr. Choudhury, is that the principle laid down in the above‑mentioned case also goes to support the view that the order of dismissal amounts to a decree otherwise it would not be held that time would run from the date of the decree of the Appellate Court. This contention cannot be accepted with regard to the facts of the present case, as the principle enunciated in the above‑mentioned cases was with regard to the question of limitation, while in the present case, we are concerned with the date on which the debt was incurred. Moreover, in the above mentioned cases, decrees were prepared by the Appellate Courts, but in the present case no decree was prepared in terms of the order of dismissal passed by this Court.

10. The learned Subordinate Judge held that the decree of the lower Court were confirmed by the High Court on 22‑6‑1957. The learned Subordinate Judge was not correct in holding that the decrees passed by the lower Court were confirmed. Under the impression that the decree of the lower Court were confirmed by the High Court, the learned Subordinate Judge appears to have come to the conclusion that the execution applications were for execution of decrees of 1957.

11. Mr. Choudhury also contends that the amount of costs allowed by the decrees, though passed before the 7th of April 1948, cannot be regarded as a debt. This contention cannot be accepted. The learned Subordinate Judge held that the decree for costs was a debt and there has not been any cross‑objection by the respondents against this finding. The amount of costs being decreed before the 7th of April 1948, is a debt within the meaning of section 70 (1) of the Act. The execution applications for realisation of such dues are barred under section 69 (1) read with section 70 (1) of the Act. The learned Subordinate Judge was wrong in holding that the execution cases were maintainable.

12. In the result, these appeals are allowed and the judgment and order passed by the learned Subordinate Judge are set aside and the order of the Munsif restored.

In the circumstances of the case, I pass no order as to costs. Leave prayed for under Clause 15 of the Letters Patent is refused.

S.B./A.H.

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