Wednesday, 27 May 2015

Whether court is entitled to take in to consideration pleadings of parties for construction of ambiguous decree?


In Topanmal Chhotamal Vs. M/s. Kundomal Gangaram
reported in AIR 1960 SC 388, the Supreme Court held that when an
ambiguous decree is passed, it is the duty of the executing court to

interpret the decree and for this purpose, the court is entitled to look
into the pleadings and the judgment. Similar observation was made in
Bhavan Vaja Vs. Solanki Hanuji Khodaji Mansang reported in AIR 1972
SC 1371, where the Apex Court made the following observation.
“19. It is true that an executing court cannot go behind the decree under
execution. But that does not mean that it has no duty to find out the true
effect of that decree. For construing a decree it can and in appropriate cases,
it ought to take into consideration the pleadings as well as the proceedings
leading upto the decree. In order to find out the meaning of the words
employed in a decree the Court, often has to ascertain the circumstances
under which those words came to be used. That is the plain duty of the
executing Court and if that Court fails to discharge that duty it has plainly
failed to exercise the jurisdiction vested in it. Evidently the execution court
in this case thought that its jurisdiction began and ended with merely
looking at the decree as it was finally drafted. Despite the fact that the
pleadings as well as the earlier judgments rendered by the Board as well as
by the appellate Court had been placed before it, the execution Court does
not appear to have considered those documents. If one reads the order of
that Court, it is clear that it failed to construe the decree though it purported
to have construed the decree. In its order there is no reference to the
documents to which we have made reference earlier. It appears to have been
unduly influenced by the words of the decree under execution. The appellate
Court fell into the same error. When the matter was taken up in revision to
the High Court, the High Court declined to go into the question of the
construction of the decree on the ground that a wrong construction of a
decree merely raises a question of law and it involves no question of
jurisdiction to bring the case within Section 115, Civil Procedure Code. As
seen earlier in this case the executing Court and the appellate Court had not
construed the decree at all. They had not even referred to the relevant
documents. They had merely gone by the words used in the decree under
execution. It is clear that they had failed to construe the decree. Their
omission to construe the decree is really an omission to exercise the
jurisdiction vested in them.”
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRP No. 440 of 2006
Illiasuddin Ahmed,

-Versus-
Md. Hachnian Ahmed,
S/O Late Mominuddin,

BEFORE
THE HON’BLE MR. JUSTICE HRISHIKESH ROY
Date of Hearing & Judgment :
20th January, 2015
Citation;AIR 2015 Gauhati 49
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Whether court can review its own judgment on the ground that it has not considered judgment of Supreme court?


Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Where there is a decision of the Supreme Court holding the field and the High Court takes a contrary view, it needs no elaborate argument to point to the error. The error is self-evident. It is held in M/s. Thungabhadra Industries Ltd. v. The Govt. of Andhra Pradesh, AIR 1964 SC 1372 that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.
 In view of the analysis made in the preceding paragraphs we hold that failure of the Court to take into consideration an existing decision of the Supreme Court taking a contrary view on a point covered by its judgment would amount to an error apparent on the face of the record.
Orissa High Court
Collector Cuttack And Others vs Bharat Chandra Bhuyan on 11 December, 2014
Citation;AIR 2015 (NOC) 379 Orissa
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Whether state is liable to pay compensation for injuries caused due to accidental firing by police?

It is now well settled that violation of fundamental right of any citizen by the State agency could be a cause for award of compensation to the aggrieved person as the State has the obligation to ensure safety of the life and limb of the citizen which is guaranteed under Art. 21 of the Constitution.
 In the present case, the limb of the petitioner was grievously injured affecting his peaceful enjoyment of life without any contributory negligence on his part and the State respondents have already admitted that the said injury was caused by firing of the police personnel. It may be also observed that even if it is accidental firing as held by the authorities, it was the responsibility of the police personnel to handle such a deadly weapon in public place with utmost care so as not to cause any injury to any civilian without any just cause.

IN THE HIGH COURT OF MANIPUR AT IMPHAL
Writ Petition(C) No. 130/2009
Decided On: 31.07.2014
Appellants: Thokchom Ranjit Singh
Vs.
Respondent: The State of Manipur
Hon'ble Judges/Coram:N. Kotiswar Singh, J.
Citation;AIR 2015(NOC)382 Manipur
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Whether circular issued by Reserve bank of India are binding on banks and financial institutions?

The Master Circular being issued under Section 35A of the Banking Regulation Act, 1949, has a binding effect on a bank or a financial institution. When a Master Circular has such binding effect to try and find out portions of it and that too crucial portions and hold that such portions are directory, would be against the intention of the legislature when the legislature prescribes that a Circular issued by the Reserve Bank of India under Section 35A of the Banking Regulation Act, 1949 is binding on a bank and financial institution governed by it.

Calcutta High Court
Kingfisher Airlines Limited & Ors vs Union Of India & Ors on 24 December, 2014
Author: Debangsu Basak
Citation;AIR 2015 (NOC)337 CAl
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