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Vithu Daulata Patil Vs. Ganesh Ramchandra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 131 of 1920
Judge
Reported in(1923)25BOMLR453
AppellantVithu Daulata Patil
RespondentGanesh Ramchandra
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 41 - decree-execution-decree sent to another court for execution-certificate by executing court.; the court to which a decree is sent for execution retains its jurisdiction to execute the decree until the execution has been withdrawn from it, or until it has fully executed the decree and certified that fact to the court which sent the decree, or has executed it so far as that court has been able to execute it within its jurisdiction and certified that fact to the court which sent the decree, or until it has failed to execute the decree and certified that fact to the court which forwarded the decree.; abda begam v. muzaffar husen khan (1897 i.l.r.20 all. 129, followed.; the court to which a decree is sent for execution is not bound to certify..........it was held that the court to which a decree was sent for execution retained its jurisdiction to execute the decree until the execution had been withdrawn from it, or until it had fully executed the decree and had certified that fact to the court which sent the decree, or had executed it so far as that court had been able to execute it within its jurisdiction and had certified that fact to the court which sent the decree, or until it had failed to execute the decree and certified that fact to the court which forwarded the decree. it does not follow that because one application for execution fails in a court to which the decree has been sent, that court is bound to send a certificate to the court in which the decree was passed. the judgment-creditor might still be anxious to execute his.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is an attempt by the judgment-debtors to evade execution of the decree passed by the Satara Court in Suit No. 162 of 1901, which was transferred by the Satara Court to the Islampur Court for execution. It is contended that the jurisdiction of the Islampur Court under the certificate which had been issued by the Satara Court had exhausted itself. Section 41, Civil Procedure Code, is relied upon. It was urged that because the certificate was not sent by the Islampur Court, as ought to have been done, therefore its jurisdiction is gone. Bat the jurisdiction of the Islampur Court would continue until it had sent a certificate under Section 41, Civil Procedure Code. In Abda Begam v. Muzaffar Husen Khan I.L.R. (1897) ALL. 129, which was a case under the corresponding Section 223 of the Code of Civil Procedure of 1882, it was held that the Court to which a decree was sent for execution retained its jurisdiction to execute the decree until the execution had been withdrawn from it, or until it had fully executed the decree and had certified that fact to the Court which sent the decree, or had executed it so far as that Court had been able to execute it within its jurisdiction and had certified that fact to the Court which sent the decree, or until it had failed to execute the decree and certified that fact to the Court which forwarded the decree. It does not follow that because one application for execution fails in a Court to which the decree has been sent, that Court is bound to send a certificate to the Court in which the decree was passed. The judgment-creditor might still be anxious to execute his decree in the former Court, and if that interpretation which is now sought to be placed on Section 41 is correct, it would result in the decree being transferred from one Court to another without any corresponding advantage to the judgment-creditor. It is only when the Court to which the decree is sent has executed it, or has failed to execute it that that Court is bound to send a certificate under Section 41. It seems it was intended that there should be complete failure such as would result in no benefit to the judgment-creditor for one reason or another, and not merely a partial failure.

2. It is also urged that the Darkhast of 1912 was illegal, and, therefore, would not save time. Gopal, one of the judgment-creditors, having died in 1912, the Darkhast proceeded against his sons as his legal representatives. The Islampur Court, it is urged, would have no power to put the representatives of Gopal on the record, and we are asked to assume that such an application was made to the Islampur Court, which was not competent, instead of to the Satara Court, which was the proper Court. But it was for the appellants to prove the fact they contended for. An issue on that point was never raised in the trial Court. It was never suggested that all the proper steps were not taken to place the legal representatives of Gopal on the record, and whatever the actual facts may be, the appellants cannot ask us to assume that proper steps were not taken to put Gopal's representatives on the record. The appeal is dismissed with costs.


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