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Shivlingappa Mallappa Sadalgi Vs. Shidmallappa Nurandappa Kapali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 341 of 1922
Judge
Reported inAIR1924Bom359; (1924)26BOMLR345
AppellantShivlingappa Mallappa Sadalgi
RespondentShidmallappa Nurandappa Kapali
Excerpt:
.....by the court to which the decree has been transferred for execution to the court which passed the decree.;a decree passed by the civil court at chikodi was transferred to gokak court for execution. applications to execute the decree were made to the latter court, which notified to the chikodi court from time to time payments made in execution. no formal certification, under section 41 of the civil procedure code, was ever made. when the decree-holder applied again to the gokak court for execution, it rejected the application on the ground that no certificate of non-satisfaction of the decree had been produced from the chikodi court; and when the creditor applied to the chikodi court for a certificate the application was refused. the decree-holder once more applied to the gokak court to..........to the gokak court on january 11, 1907. the gokak court would continue to have jurisdiction to execute the decree until it certified to the chikodi court that the decree had been executed, or where it failed to execute the same, the circumstances attending such failure. there is no evidence whatever in this case that the gokak court certified as required by law either the execution of the decree or the failure to execute it, to the chikodi court, and once that fact has been realised, it will be seen how the lower courts have fallen into error.2. certain payments were made under an instalment order of november 26, 1908, and those payments appear to have been noted in the register of suits in the chikodi court. it was suggested apparently in argument that the fact of such entry was.....
Judgment:

Norman Macleod, C.J.

1. These are execution proceedings in a decree passed on December 13, 1906. We are now in 1924. It might be suggested that the law of procedure was at fault and has been the cause of delay. But that is not the fact. The relevant provisions of the Code are quite adequate but they have not been complied with, as they have not been understood by the Judges in the Courts below. The decree was originally passed by the Chikodi Court, and was transferred for execution to the Gokak Court on January 11, 1907. The Gokak Court would continue to have jurisdiction to execute the decree until it certified to the Chikodi Court that the decree had been executed, or where it failed to execute the same, the circumstances attending such failure. There is no evidence whatever in this case that the Gokak Court certified as required by law either the execution of the decree or the failure to execute it, to the Chikodi Court, and once that fact has been realised, it will be seen how the lower Courts have fallen into error.

2. Certain payments were made under an instalment order of November 26, 1908, and those payments appear to have been noted in the register of suits in the Chikodi Court. It was suggested apparently in argument that the fact of such entry was proof of certification. The lower Courts have rightly declined to accept that argument. It may very well be that the Gokak Court informed the Chikodi Court that certain payments had been made in satisfaction of the decree, and in consequence of such notification certain entries were made in the register of suits in the Chikodi Court showing those payments. But such notification would not be certification under Section 41 of the Code. Thereafter Darkhast No. 340 of 1911 was filed. That darkhast was struck off for non-prosecution on June 11, 1912. The result of the execution is found to have been recorded in the register of suits in the Chikodi Court. Both the lower Courts have now come to the conclusion that the proper inference to be drawn from that is that the Gokak Court had made certification to the Chikodi Court. We think that such inference is not permissible. Certification is a very important step when a decree has once been transferred to another Court, for its consequence is that the latter Court ceases to have jurisdiction to execute the decree. We are, therefore, clearly of opinion that there must be a formal certification by the Court to which the decree has been transferred for execution to the Court which passed the decree. Another Darkhast No. 370 of 1914 was filed but met the same fate as the previous darkhast. When Darkhast No. 294 of 1917 was filed, it was struck off by the Gokak Court on the ground that no certificate of non-satisfaction of the decree had been produced from the Chikodi Court. That was an error which has not been in any way explained. That error resulted in another mistake being made because when the unfortunate creditor applied in 1919 to the Chikodi Court for a certificate it was refused. Not knowing what he ought to do, he filed the present darkhast on September 13, 1920, in the Gokak Court. The Judge represents his actions as being 'reminiscent of a sheep, which failing to mind or rather find a gap in a wall, attempts to ram its way through.' The simile is hardly a happy one as it invites the remark that the applicant could not be expected to find the gap which had been closed by the decisions of the Courts. In our opinion the decree has been resting throughout in the Gokak Court and the applicant is entitled to execute it there provided he is within time. The order of the lower Court will be set aside and the darkhast allowed to proceed with costs throughout on the respondent.


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