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Ramlal Hariram Agarwale Vs. Ratanlal Balchand Agarwale - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 53 of 1940
Judge
Reported inAIR1943Bom1; (1942)44BOMLR830
AppellantRamlal Hariram Agarwale
RespondentRatanlal Balchand Agarwale
Excerpt:
indian limitation act (ix of 1908), article 185--step-in-aid of execution--decree--transfer--attachment of decree--application to decreeing court for re-transfer of decree--whether such application is step-in-aid of execution.;the plaintiff obtained on july 2, 1927, a decree in the akola court for sale of mortgaged property situate within the jurisdiction of the jalgaon court, he next applied to the akola court for transfer of the decree to the jalgaon court, and obtained a copy of the decree and a certificate of non-satisfaction of the decree. on september 3, 1928, he applied to the jalgaon court for execution of the decree by sale of the property, but no bidders turned up at the court auction, and the darkhast was disposed of on march 22, 1933. the plaintiff's pleader at jalgaon took..........v. jitmal : (1929)31bomlr1105 , mr. justice madgavkar held that where the court passing a decree transfers the decree to another court for execution, and the latter court dismisses the darkhast on the application of the decree-holder, it is permissible to the decree-holder to apply to the court passing the decree to execute it, even before the receipt of the execution proceedings from the court to which the decree was transferred. in that case the application made to the transferee court was for sale of the property covered by the decree and the application made to the court which passed the decree, which mr. justice madgavkar held to be a valid application, was for the arrest of the judgment-debtor. the learned judge doubted the correctness of the decision in ragaswami v......
Judgment:

Broomfield J.

1. This is an appeal in execution proceedings which raises an interesting point of limitation.

2. The respondent obtained a decree against the appellants in a suit for sale on a mortgage for Rs. 54,000 and odd. The suit was filed in the Court of the Additional District Judge of Akola. The preliminary decree was made on September 30, 1926, and the final decree on July 2, 1927. As the mortgaged property was in the jurisdiction of the First Class Subordinate Judge of East Khandesh, the respondent applied in October, 1927, for transfer of the decree to that Court. An order of transfer was made on December 22, 1927, and the documents required by Order XXI, Rule (5, i.e. a copy of the decree and certificate of non-satisfaction, were sent to the Court at Jalgaon on September 3, 1928. A darkhast was filed to recover the amount of the decree by sale of the property, but there were no bidders and on that ground the darkhast was disposed of on March 22, 1933.

3. On May 12, 1934, the decree was attached at the instance of Banabai, the mother of the respondent, who had obtained a decree for Rs. 2,100 against him in the Court of the First Class Subordinate Judge of Akola. On December 4, 1935, the respondent made an application to the Akola District Court for a fresh certificate and order of transfer. The application referred to the previous transfer order and to the fact that the darkhast had been disposed of by the Jalgaon Court on March 22, 1933. The reason for applying for a fresh order was not stated in the application and the attachment of the decree was not mentioned. But the attachment was reported by the Court's execution clerk and the respondent's application was at first refused. However a notice appears to have been issued to the attaching creditor Banabai and her pleader appeared) and stated that she was not in a position to execute her decree as the matter was in the hands of the Collector and she had no objection to the respondent's decree being executed provided that the money realised was applied towards satisfaction of her decree. Ultimately on March 10, 1936, an order re-transferring the decree to the Jalgaon Court was made.

4. Another darkhast was filed in that Court on April 25, 1936, which was disposed of on August 18, 1936, as process fees were not paid. On December 18, 1936, there was another darkhast, which was withdrawn on November 15, 1938. Finally on December 22, 1938, the respondent filed the darkhast No. 10 of 1939 which has given rise to this appeal. The judgment-debtors pleaded that the darkhast was barred by limitation. That plea was negatived by the trial Court which ordered execution to proceed and the judgment-debtors have come in appeal to this Court.

5. The question whether the darkhast is barred by limitation depends on whether the application of December 4, 1935, which the respondent made to the Akola Court was an application in accordance with law to the proper Court to take a step-in-aid of execution within the meaning of Article 182 of the Indian Limitation Act. The gist of the argument for the appellant is that as the Akola Court had transferred the decree for execution to the Jalgaon Court and the latter Court had not returned the papers with a certificate under Section 41 of the Civil Procedure Code, the former Court had no jurisdiction to order re-transfer to the Jalgaon Court, and therefore the application made to the Akola Court was not made to the proper Court and could not save limitation.

6. It is admitted that there is nothing in the relevant provisions of the Code, Sections 38, 39, 41 and 42, which supports this argument either expressly or by necessary implication. Mr. Dixit relies on the case law and has cited first of all Maharajah of Babbili v. Narasaraju Peda Srinhulu on appeal from I.L.R. (1912) Mad. 231. There a decree had been made by the Court at Vizagapatam which sent it for execution to the Court at Parvatipur. The latter Court attached certain properties and then dismissed the execution application made to it. Subsequently two applications were made to the Court at Vizagapatam for sale of the properties attached by the Court at Parvatipur. It was held that these applications were not made to the proper Court. The Madras High Court in its judgment expressed the view that although there may be concurrent execution of a decree, that should only be allowed in exceptional circumstances. There ought to be an order of the Court which passed the decree allowing such execution. In the case before them no such order had been made. The only application to the Court which had passed the decree was one for execution which it was held could only be made to the transferee Court. This decision was affirmed by the Privy Council. But it is clear from the judgment of their Lordships that they were influenced by the fact that the application was for sale of property attached by the transferee Court and not in the jurisdiction of the Court which passed the decree. Sir John Edge said (page 242):--

As the decree of April 5, 1904, had by order of the Court of the District Judge been sent on September 30, 1904, to the Court of the Munsif of Parvatipur for execution by the latter Court, and as the copy of the decree with the non-satisfaction certificate was not returned to the Court of the District Judge until August 3, 1910, and as the petition of December 13, 1907, was for execution of the decree by sale of the immoveable property of the respondents which was within the local limits of the jurisdiction of the Munsif's Court, their Lordships, having regard particularly to Sections 223, 224, 228, and 230 of the Code of Civil Procedure, 1882, (corresponding to Sections 38, 39, 41 and Order XXI, Rule 10, of the present Code), are satisfied that when that petition of December 13, 1907, was presented to the Court of the District Judge that Court was not the proper Court to which the application to execute the decree by sale of immoveable property which had been attached by the Court of the Munsif should have been made,...

7. It is by no means clear that the decision would necessarily have been the same if the application to the Court which passed the decree had been to get an order which that Court could make and the transferee Court could not.

8. Mr. Dixit's main reliance, however, is on a decision of this Court, Rangaswami v. Sheshappa I.L.R. (1922) 47 Bom. 56. In that case the facts were these. The Salem Court in the Madras Presidency passed a decree which was transferred in 1914 to the Sirsi Court in the Bombay Presidency. In 1916 the decree-holder applied to the Salem Court for transfer of the decree to the District Munsif at Sagaram in the Mysore State. The Sirsi Court returned the decree unexecuted to the Salem Court in 1918 and that Court re-transferred it in 1919 to the Sirsi Court. An application to execute the decree was made to the Sirsi Court on June 9, 1919, but that was held to be barred. It could only be brought in time if the application made to the Salem Court in 1916 was an application to the proper Court, and it was held that it was not. The Court relied on the Maharaja of Babbili's case. With reference to that Sir Norman Macleod in his judgment said (page 63):--

In that case the application to the District Judge was for execution of the decree by sale of immoveable properties whereas in this case there was an application to the Court of Salem for the transfer of the decree to another Court. It seems to me to make little difference whether there is an application for execution or only an application to take a step-in-aid of execution.

9. That may be so. But when the question is which of two Courts is the proper Court to which an application should be made, it must surely be material to consider which of the two Courts has power to grant the application. The jurisdiction of the transferee Court under Section 42 is limited to the execution of the decree. It cannot transfer the decree for execution to another Court. (That was held in Shib Narain Shaha v. Bepin Behary Biswas I.L.R. (1878) Cal. 512 and that proposition has never been disputed.) Assuming that the Court which passed the decree cannot make a second order of transfer until the return of the records to it with a certificate under Section 41, the natural result of that would seem to be that the Court should call for the papers and postpone passing orders until receipt of them. It would still be the only Court that could pass the order and the application made to it, though possibly premature, would still be an application to the proper Court. Mr. Justice Shah did not dissent from Sir Norman Macleod's judgment, but it is quite clear that he only agreed with great hesitation.

10. Shivlingappa v. Sidmallappa : AIR1924Bom359 was also cited, but that case was not directly concerned with the jurisdiction of the Court which passed the decree and may merely be said to have laid down that the jurisdiction of the transferee Court continues until certification under s, 41. The same remarks apply to Vithu v. Ganesh : (1923)25BOMLR453 .

11. In Fatechand v. Jitmal : (1929)31BOMLR1105 , Mr. Justice Madgavkar held that where the Court passing a decree transfers the decree to another Court for execution, and the latter Court dismisses the darkhast on the application of the decree-holder, it is permissible to the decree-holder to apply to the Court passing the decree to execute it, even before the receipt of the execution proceedings from the Court to which the decree was transferred. In that case the application made to the transferee Court was for sale of the property covered by the decree and the application made to the Court which passed the decree, which Mr. Justice Madgavkar held to be a valid application, was for the arrest of the judgment-debtor. The learned Judge doubted the correctness of the decision in Ragaswami v. Sikeshappa and his decision cannot really be reconciled with it. Much the same view of the effect of the Privy Council case has been taken by a bench of the Calcutta High Court in Jateendra kumar Das v. Mchendrachandra Banikya I.L.R. (1933) Cal. 1176. We, however, are in agreement with Mr. Justice Madgavkar in doubting whether the decision in the Maharajah of Bobbili's case really does go as far as has been supposed in Rangaswami v. Sheshappa and Jateendrakumar Das v. Mahendrachanda Banikya, and whether it has very much bearing on the question of the jurisdiction of the Court which passed a decree to make orders which a transferee Court is not competent to make.

12. There is a special feature in the present, case which distinguishes it from the authorities on which Mr. Dixit relies, viz. the fact that the decree had been attached. The procedure for the attachment of decrees is laid down in Order XXI, Rule 53. That rule so far as is material provides as follows:--

(1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made,--

(a) if the decree were passed by the same Court, then by order of such Court, and

(b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until--

(i) the Court which passed the decree sought to be executed cancels the notice, or

(ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.

(2) Where a Court makes an order under Clause (a) of Sub-rule (1), or receives an application under Sub-head (ii) of Sub-clause (b) of the said Sub-rule, it shall, on the application of the creditor who has attached the decree of his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

(3) The holder of a decree sought to be executed by the attachment of another decree of tha nature specified in Sub-rule (i) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

13. We know that the Akola Court had been notified of the attachment and we may take it that the proper procedure was followed and that execution had been stayed, although the record does not show whether any intimation was sent to the Court at Jalgaon. The stay of execution remained in force under the rule until one or other of the events mentioned in Clause (1) (b) of the rule happened. There was in this case no cancellation of the notice and no application for execution by the holder of the decree sought to be executed by attachment of the other decree. The only manner therefore in which the way could be prepared for further execution was an application by the judgment-debtor under the attached decree, that is to say the respondent, for execution of that decree. Having regard to the language of the rule as it stands, it is very difficult to avoid the conclusion that his application had to be made to the Akola Court.

14. Most of the High Courts have made rules providing that the notice under Clause (1) (b) of the rule is to be' sent also to any Court to which execution has been transferred. One of these High Courts is the Nagpur High Court to which the Akola Court is subordinate. The following changes have been made in the rule. After the word 'judgment-debtor' in Sub-clause (ii) of Clause (b) of Sub-rule (I) the words 'with the consent of the said decree-holder expressed in writing or with the permission of the attaching Court' have been inserted. The words 'the attached' have been substituted for the words 'its own' and after the words 'to such other Court' the words 'and to any other Court to which the decree has been transferred for execution' have been inserted. It seems, however, that this rule of the Nagpur High Court can hardly have been in operation at the material time, as the date of the Letters Patent of that High Court is January, 1936. Even if the rule was in force, it seems to be doubtful whether the amendments made are sufficient to make the Jalgaon Court the proper Court to which to apply, or at any rate sufficient to make it clear that that was the only Court to which application could be made. No amendments to Order XXI, Rule 53, have been made by the Bombay High Court, and the Subordinate Court at Jalgaon would be bound by the rules of this High Court and not by any rules made by the High Court of Nagpur. If therefore the respondent had applied to the Jalgaon Court for execution of the attached decree, it seems probable that that Court could have done nothing in the matter except refer the applicant to the Court which passed the decree. It may be noted that Order XXI, Rule 26, shows that the transferee Court cannot stay execution except for such time as may be necessary to enable an order to be obtained from the Court which passed the decree.

15. In connection with this point we were referred to another decision of Sir Norman Macleod and Mr. Justice Shah, Chanbasappa v. Holibasappa : (1924)26BOMLR317 . It was held in that case that the stay of execution which takes place when a decree is attached under Order XXI, Rule 53, is only a limited stay, which does not prevent the running of limitation if no application is made of the kind contemplated by that rule. The view does no doubt seem to have been expressed in the judgment in that case that after the attachment of a decree; an application to execute it in the manner provided may be made to the transferee Court. There was, however, no discussion of the language of the rule which, apart from amendment, makes it difficult to accept this construction. Anyhow this case is not an authority for holding that an application could not be made to the Court which passed the decree.

16. Although, as I have said, the attachment was not mentioned in the respondent's application of December 4, 1935, and possibly he was not aware of it, it became, in view of the subsequent proceedings, substantially an application to get over the difficulty created by the attachment and to obtain a further direction authorising the transferee Court to execute the decree. Under these circumstances it seems to us to be impossible to say that the application was not one made to the proper Court. The view we take is in accordance with recent rulings of the Lahore and Nagpur High Courts. In Kanti Narain v. Madan Gopal A.I.R. [1935] Lah. 465 it was held by a full bench that when a money decree has been transferred by the Court which passed it for execution to another Court, an application to the first Court (a) to execute the decree, (b) to transfer it to another Court for execution is a valid application and is a step-in-aid of execution so as to save limitation. It was also held by two out of the three Judges that, where a money decree has been transferred by the Court which passed it for execution to another Court, an application to the first Court to transfer it for execution to the same Court is a valid application, even if such an application is made before the proceedings taken in the other Court have first been reported and certified by that Court. This is a decision against the appellant here both on principle and on the particular point which falls for decision. The Lahore High Court referred to Rangaswami v. Sheshappa but agreed with the view taken by Mr. Justice Madgavkar in Fatechand v. Jitmal. The other case is Thakur Vishwanathsingh v. Pandit Mahabir Parshad [1937] Nag. 440. It was there held that execution of a decree can proceed simultaneously in more than one Court. Kanti Narain v. Madan Gopal was followed and Rangaswami v. Sheshappa doubted. Mr. Dixit pointed out a passage in the judgment of Stone C.J. where he said (page 446):--

There is nothing in Section 39 of the Civil Procedure Code to suggest that the decree Court can transfer only once. It may well be that it can transfer only once to one Court until that Court has returned the decree because a second transfer would be idle;

17. But the point was not decided and the reasoning in the judgment would apparently show that in any case where a second transfer would not be idle the decree Court would have power to make the order.

18. The trial Judge has also to some extent relied on the fact that the respondent had not the necessary documents with him to enable execution to proceed. They had been taken away by his pleader who refused to give them up. We think that there is something in this point also. It was suggested that the respondent might have gone to the Jalgaon Court and stated the facts and that Court might then have called upon the pleader to produce the copy of the decree and the certificate of non-satisfaction. It seems, however, that the pleader had not been paid his fees and claimed a lien on the documents. Whether the Subordinate Judge would have taken action against the pleader is somewhat doubtful. It seems more likely that he would have told the respondent to get duplicate copies. Mr. Dixit seemed to be prepared to admit, and anyhow we think it is clear, that if the respondent had applied to the Akola: Court asking for duplicates of these papers that would have been an application to the proper Court and a step-in-aid of execution. That is not precisely the application which he did make, but his application for a fresh order of transfer was calculated to have, and did have, the same effect.

19. For these reasons we are of opinion that the order of the trial Judge is right and should be confirmed. The appeal is dismissed with costs.


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