Daudbhai v Karim (C.A. 38/1931. .) [1932] EACA 34 (1 January 1932)

## APPELLATE CIVIL.

### Before Dickinson, J.

AKBERALLI DAUDBHAI (Appellant) (Original Defendant)

HASHAM KARIM (Respondent) (Original Plaintiff).

### C. A. $38/1931$ .

# Civil Procedure Ordinance, section 34 (2)-Execution of decree-Order treating suit as a proceeding—Right of appeal from.

Held (18-12-31): - Where after a decree has been obtained and before execution of it new matters are introduced and a final settlement reached between the parties, that new contract cannot be enforced<br>as a proceeding under the original decree by virtue of section<br>34 (2), Civil Procedure Ordinance.

Burke for Appellant. $\Box$

#### Inamdar for Respondent.

Respondent obtained judgment under Order XXXIII, Rule 2, and a decree for Sh. 423/87 in 1928. On 24-4-30 he applied for execution of this decree for Sh. 484/79 inclusive. Appellant stated he had paid the decretal amount. While the application for execution was pending there was an agreement to settle out of Court and two persons were appointed to go into differences and found appellant should pay Sh. 265. On his agreement respondent abandoned proceedings in execution in Civil Case No. 989/28. Appellant further agreed to report to the Court that the claim was settled. On the date fixed for the hearing of the application respondent was absent. Appellant failed to report as agreed and the Court passed an Order "Judgment for defendant with costs." Appellant failed to pay the Sh. 265 and respondent instituted a suit claiming Sh. 265 and costs, or (a) to treat the suit as proceedings in execution and set aside the Resident Magistrate's judgment "for defendant with costs," or $(b)$ to treat the suit as an application for execution of the decree and proceed as if it were a notice to show cause why defendant should not be committed to jail on failure to pay the amount of the decree.

Respondent argued that it could be turned into a chamber application under section 34 (2), Civil Procedure Ordinance, and that appellant must either satisfy this suit for Sh. 265 or satisfy the original decree for Sh. 423/87. Appellant replied that before plaintiff could come into Court and say that this was a step in execution he must return all necessary papers and stand on the original decree—which he was unable to do since other matters had been brought in and a general settlement arrived at. Respondent could file an action for balance on the promissory note and generally owing him, but not on this decree.

The fact that other matters had been brought into the settlement was not denied.

The Resident Magistrate held that this was a step in execution to be treated as an application to set aside the final Order in Civil Case No. 989/28 and that the application to show cause in that suit must be proceeded with.

The defendant appealed.

The appellant was not called on.

Inamdar.—The Magistrate was right in converting this suit into a proceeding under section 34 (2), Civil Procedure Ordinance. Jhamman Lal v. Kewal Ram (1900), 22 Allahabad 121, and Daulat Singh v. Maraj Raja Ramji (1926), 48 Allahabad 362. The Indian Procedure Code, section 47 (2) and notes (Mulla). It is merely a matter of procedure: 11 Bengal Law Reports, 149 at p. 155. I also challenge the right of appeal.

JUDGMENT.—This is an appeal from an Order made by the learned Resident Magistrate, Mombasa, by which he ordered that Action 1597 of 1930 should be treated as Execution Proceedings in Action No. 989 of 1928.

The learned Magistrate, in my opinion, was wrong in making the Order without hearing evidence. It is asserted by the respondent's counsel, Mr. Inamdar, that this is merely a procedural act and therefore should not be reversed by an Appellate Court.

With that submission I do not agree as I consider the defendant (in both actions) is prejudiced in that in the earlier action there is, as a result of this Order, an application for his immediate arrest, whereas if the present action, which purports to be a claim on a new contract, entered into between the parties after judgment in the earlier action, is tried and judgment goes against him, he will be entitled to the extra time to find the money, and not be liable to instant imprisonment.

I allow the appeal and I send the action back to the Resident Magistrate's Court for trial.

I give the defendant his costs to date here and in the Court below.