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Report No. 27

66. Order XXI and 'garnishee' proceedings.-Under the existing law, if a "garnishee" denies the debt, the executing court has no power to determine whether the debt exists or not. This position is not satisfactory. Certain High Courts have framed rules under section 128(2)(d), whereunder if a "garnishee" denies the debt, an issue about the existence of the debt can be framed and decided by the executing court itself. A right of appeal is however provided in such a case. In pursuance of the recommendation made in the Fourteenth Report1, we have proposed a provision2 on the lines of Order XXI, rules 46A to 46H inserted by the Calcutta High Court on the subject.

1. 14th Report, Vol. I.

2. Appendix I, Order 21, rules 46A et seq.

67. Order XXIII, rule 1 and minor plaintiff.-Under Order XXIII, rule 1, the next friend of a minor can, in collusion with the defendant, withdraw a suit filed on behalf of a minor although such withdrawal is not in the interests of the minor. No suit to which a minor is a party can be compromised except with the leave of the Court. (Order XXXII, rule 7). A fortiori such leave should be necessary when a suit is withdrawn on behalf of a minor.

We, therefore, recommend1, that the necessary amendment may be made in Order XXIII, rule 1.

1. Appendix I, Order XXIII, rule I.

68. Order XLI, rule 11 and appeals against orders in execution of money decrees.-The Law Commission in its Fourteenth Report1-2 recommended that certain conditions should be imposed before an appeal arising from an order made under section 47 in execution of a money decree is admitted at the stage of preliminary hearing under Order XLI, rule 11. The Law Commission gave the following reasons in support of its recommendation:-

"The Civil Justice Committee proposed that in the case of orders of execution of money decrees restrictions should be placed on the right of appeal by requiring the appellant judgment-debtor to deposit or at least give security for the decretal amount as a condition precedent to the admission of an appeal. We recommend the acceptance of this proposal by an amendment of the Code."

This recommendation was made with a view to discouraging the filing of frivolous execution appeals and the delaying tactics often resorted to by judgment-debtors. The Civil Justice Committee also took the view, that it seemed only just that after trial this protection should be given to the successful decree-holder. On further consideration, it seemed to us that such a provision might prove, at least in some cases, to be so onerous that it may render the right of appeal wholly illusory. The mere filing of an appeal, or even its admission, does not automatically operate as a stay of execution proceedings (See Order XLI, rule 4). It is the order of stay and not the filing of an appeal which may defeat the ends of justice. Under Order XLI, rule 5, the Appellate Court is required before granting stay to exercise its discretion in accordance with principles which are well recognised. Order XLI, rule 5(3) provides that no order for stay of execution shall be made unless the court making it is satisfied-

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) .................

(c) that security had been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

In our opinion, the provisions of Order XLI, rule 5, particularly sub-rule (3), read with Order XLI, rule 8, are sufficient to safeguard the interests of the decree-holder when an appeal is filed from an order made in execution proceedings in respect of a money-decree.

1. 14th Report, Vol. I.

2. See also Civil Justice Committee (1924-25), Report p. 401.

69. Order XLI, rule 23 and remand.-The power of the Appellate Court to remand a case is at present confined to the circumstances mentioned in Order XLI, rule 23. The Law Commission in its Fourteenth Report observed1:-

"In practice, cases often arise in which a remand is necessitated for some other reason (than the reversal of the finding on a preliminary point). In such cases in order to make a remand the Courts have resorted to their inherent power under section 151 of the Code. This is not a satisfactory position. Further, an order of remand under the inherent power of the Court is not appealable like an order under rule 23."

We recommend, that a provision may be added2 to Order XLI under which the Appellate Court can remand a case in circumstances other than those mentioned in rule 23.

1. 14th Report, Vol. I.

2. Appendix I, Order 41, rule 23A.

70. Order XLI, rule 27.-Order XLI, rule 27 prescribes the circumstances in which an Appellate Court may take additional evidence. The provisions of this rule are stringent and have been strictly construed1-2-3-4. The Law Commission in its Fourteenth Report stated as follows:-

"Thus the right to adduce additional evidence (under rule 27) is strictly limited. A party who has discovered new evidence of high probative value which he could not, with due diligence, have produced in the lower court, will be unable to produce it in the Appellate Court as a matter of right. It is true that Order XLVII, rule 1 gives a right of review in such cases, but that right cannot be availed of in an appeal.

The High Courts of Madras, Allahabad, Patna, Orissa and Andhra Pradesh have amended Order XLI, rule 27 so as to permit a party to an appeal to adduce additional evidence if he satisfies the Appellate Court that he could not, in spite of due diligence, produce such evidence at the time of original hearing or that it was not within his knowledge at that time. We are not aware of this amendment having resulted in an increase in the number of applications to receive additional evidence. In our view, it makes a very necessary improvement in the appellate procedure and we recommend its general adoption by a suitable amendment to the Code.5"

We recommend6 that Order XLI, rule 27 should be so amended as to give effect to the recommendation made in the Fourteenth Report. Such an amendment would avoid multiplicity of proceedings. We may add, that in England the corresponding rule7 is couched in very wide terms.

1. Mulla CPC, 1953, p. 122.

2. Parsotim v. Led Mohan, 58 IA 254: ILR 10 Pat 654: AIR 1931 PC 143, criticising Indrajit's case, 50 IA 183: ILR 2 Pat 674: AIR 1923 PC 128.

3. Bombay Sizing Co. v. Kusumgar, ILR 47 Born 674: AIR 1923 Born 227.

4. As to misconstruction of a document, see Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd., (1964) 1 MLJ, Notes of recent cases, 60 (Supreme Court).

5. 14th Report, Vol. I.

6. Appendix I, Order 41, rule 27.

7. Order 58, rule 9(2), R.S.C. which continues after the 1962 Revision.

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