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Fatechand Rampratap Marwadi Vs. Jitmal Rupchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1046 of 1927
Judge
Reported in(1929)31BOMLR1105
AppellantFatechand Rampratap Marwadi
RespondentJitmal Rupchand
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 41-decree-execution-transfer of execution proceeding to another court-jurisdiction of the court which passed the decree to extcule the decree-indian limitation act (ix of 1908), article 182-step in aid of execution-application to the court of transfer to remit execution to the court pasting the decree.;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, with a certificate under section 41 of the civil procedure code..........to the tasgaon court. as the proceedings in execution were infructuous in taegaon, they had execution transferred from tasgaon to nasik on march 9, 1924, and withdrew it for non-satisfaction of march 18, 1924. the darkhast they filed in the tasgaon court on january 25, 1924, had been dismissed similarly on their own application. in 1928 the decree-holder applied to the tasgaon court again to transfer the execution proceedings to the court of kolhapur. it was thus transferred accordingly on february 18, 1925. on april 6, 1926, the decree-holder asked the tasgaon court to reoall the darkhast and that application was granted on the same date. the proceedings were not, however, returned from kolhapur till august 30, 1926. on april 15, 1926, the respondent filed the present darkhast at.....
Judgment:

Madgavkar, J.

1. The questions in this appeal are, jurisdiction and limitation.

2. The respondents obtained a decree for money in the Court of Tasgaon in the Satara district on October 29, 1921, and had it transferred for execution to the Court of the Native State of Kolhapur. They were unable to obtain satisfaction there, and on December 8, 1928, they applied to have the execution there stopped and the decree to be returned to the Tasgaon Court. As the proceedings in execution were infructuous in Taegaon, they had execution transferred from Tasgaon to Nasik on March 9, 1924, and withdrew it for non-satisfaction of March 18, 1924. The darkhast they filed in the Tasgaon Court on January 25, 1924, had been dismissed similarly on their own application. In 1928 the decree-holder applied to the Tasgaon Court again to transfer the execution proceedings to the Court of Kolhapur. It was thus transferred accordingly on February 18, 1925. On April 6, 1926, the decree-holder asked the Tasgaon Court to reoall the darkhast and that application was granted on the same date. The proceedings were not, however, returned from Kolhapur till August 30, 1926. On April 15, 1926, the respondent filed the present darkhast at Tasgaon and applied for execution by arrest of one of the judgment-debtors. He was arrested, and on May 16, 1926, he paid the decretal debt into Court. On June 8 1926, the appellants appeared in the Tasgaon Court under Order XXI, Rule 22, Civil Procedure Code, and resisted the darkhast, firstly, on the ground that the Tasgaon Court had no jurisdiction before the return from Kolhapur of the proceedings with the certificate of non-satisfaction under Section 41 of the Code of Civil Procedure, and, secondly, on the ground of limitation, and applied for a refund of the amount paid by the judgment-debtor arrested.

3. The trial Court upheld the objection on the ground of jurisdiction but did not record a finding on the question of limitation. In appeal the District Court held that there was no bar of jurisdiction or limitation and set aside the order of the trial Court. The judgment-debtors appeal.

4. It will be convenient to take each ground separately. On the question of jurisdiction, it is argued for the appellants, firstly, that under Rs. 38 to 43 of the Code of Civil Procedure only one Court has jurisdiction at a time in execution. Secondly, and in any case, a decreeing Court, which has transferred execution proceedings to another Court, has no jurisdiction left until the return of the decree from the second Court with a certificate under Section 41 of the Code of Civil Procedure, and reliance is placed for this proposition on the observations of their Lordships of the Privy Council in Maharajah of Bobbili v. Narasaraju Peda Srinhulu and the decisions and the observations of in Rangaswami v. Sheshappa I.L.R(1922) . 47 Bom. 56 and Shivlingappa v. Shidmallappa : AIR1924Bom359 for the respondent it is contended that neither proposition is correct, and that the Tasgaon Court continued to have jurisdiction in respect of the present darkhast.

5. The first proposition that in execution one Court alone can have jurisdiction at a time is not maintainable in regard to a darkhast, whatever the case might be in regard to a emit. It has been held that a decree may be executed in more than one Court simultaneously t Saroda Prosaud Mullick v. Luchm.ee-put Sing Doogur (1872) 14 M.I.A. 529 and Krishtekshore Dutt v. Rooplall Dass (1812) I.L.R. 8 Cal. 687. In Maharajah of Bobbili v. Narasaraju Peda Srinhulu . relied upon for the appellants, it appears from page 239 that the Madras High Court in that case held that although concurrent execution of a decree was possible, it could be carried out only under an order permitting it. There remains, therefore, to consider only the second proposition, namely, that a decreeing Court which transfers execution is deprived of all its jurisdiction until the Court to which it has transferred the decree has returned it with a certificate under Section 41, Civil Procedure Code.

6. The difference between an order which is wrong and an order without jurisdiction has been pointed out by their Lordships of the Privy Council in Malkarjun v. Narhari I.L.R.(1900) 25 Bom. 337 Similarly, because a decreeing Court may not be a proper Court in which a certain step in aid of execution may be taken, it does not follow that it is therefore a Court entirely without jurisdiction in respect of the decree which it itself has made and of a darkhast which it itself has transferred wholly or in part to another Court. Sections S8 to 43 of the Code of Civil Procedure nowhere lay down that a decreeing Court is deprived of its jurisdiction by the mere act of transfer of the darkhast. In Maharajah of Bobbili v. Narasuraju Peda Srinhulu, it is to be noticed that the decree-holder wished to attach and sell certain land which was in the jurisdiction, not of the decreeing District Court but of the Court of the Munsif to which the decree was transferred on his application, and the application relied upon to save limitation and which was made again to sell the land was made not to the Court of the Munsif but to the District Court. It was on these facts that their Lordships of the Privy Council observed (p. 242):-

Their I order ships, having regard particularly to Sections 223,224, 228, and 230 of the Code of Civil Procedure, 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 Madgavhar J. sale of the immoveable property which had been attached by the Court of the Munsif should have been made, and that the proper Court to which that application should have been made was the Court of the Munsif of Parvatipur.

and therefore limitation was held not to be saved by the application in the District Court. On the other hand, in a more recent case, Jang Bahadur v. Bank of Tipper India, Ldw, their Lordships observed on the question of jurisdiction before them that even though the Court to which the decree was transferred was not the proper Court to make an application under Section 50) Civil Procedure Code, to bring the legal representatives on the record, the decreeing Court had not exclusive jurisdiction and the order under Section 50 made by the Court to which execution had been transferred was merely an irregularity in procedure which could be waived.

7. Section 38 merely specifies not two Courts but two classes of Courts in which decrees can be executed, namely, the Court decreeing and the Court or Courts to which the decree is sent for execution. Section 39 specifies the conditions necessary before decrees can be transferred. Section 40 relates to execution in another Province and Section 41 speci6es the procedure for the Courts to which decrees are sent for execution to follow when it has either executed or failed to execute the decree. Under Section 42 the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. None of these sections suffices for the basis of the argument for the appellants that a decreeing Court not merely delegates but also deprives itself of jurisdiction by the mere act of transferring the decree; and the provisions as to certification are meant to safeguard the judgment-debtor against unnecessary harassment and not to deprive the decreeing Court of its jurisdiction-a view in consonance with the Circular Rule 34 of this Court in the Manual of Civil Circulars at page 90. A certification of non-satisfaction is a matter of procedure, and does not necessarily affect; jurisdiction. In Ravgaswami v. Sheshappa the question was whether an application to transfer a decree to a third Court could be made to the decreeing Court or to the Court to which the decree was still under transfer for execution, and it was held by Macleod C.J. that the latter Court was the proper Court the her hand judgment of Shah J. shows that it was with considerable hesitation that the learned Judge agreed with this view; and the argument that the decreeing Court has no jurisdiction derives no support from his judgment. That hesitation, if I may say so with respect, I share. In Shivlingappa v. Shidmallappa the actual decision was merely that the Court to which execution was transferred retained jurisdiction until it had certified under a, 41, Civil Procedure Code, If the decreeing Court retains jurisdiction to make a transfer to a second court even while the first transfer is pending, there appears no reason why, if the decree-holder desires to proceed in execution by arrest as here in the decreeing Court itself, the mere fact that execution by attachment or sale of the property had been pending in another Court and the papers had not been returned, should deprive the decreeing Court of its jurisdiction to order the arrest if so advised, and if it is satisfied that the decree has not been fully executed in the transferring Court. On the question of jurisdiction, therefore, I differ from the trial Court and agree with the lower appellate Court that at least as soon as the Kolhapur Court granted the application of the decree-holder to dismiss the darkhaet in Kolhapur, it was open to the decree-holder to apply again to the Taegaon Court for arrest of the judgment debtor as in this case even before the proceedings were actually received from Kolhapur certifying non-satisfaction on August SO, 1926. The first objection of jurisdiction, therefore, fails, even when the Court to which the decree is transferred is a British Court, and a fortiori when, as here, it is a foreign Court.

8. On the second question of limitation, the lower appellate Court was, in my opinion, right in holding that the respondent's application Exhibit 14 filed on December 8, 1923, to return the decree to Taegaon was a step in aid of execution sufficient to save limitation in respect of the present darkhast. Kolhapur was a foreign Court and though it was held in Kmturdhand Gujar y. Parsha Mahar I.L.R(1887). 12 Bom. 230 that the Courts of British India have no authority to send their decrees for execution to Courts not in British India, it was laid down in Janardan Govind v. Narayan Krishnaji I.L.R(1918) . 42 Bom. 420 that an application made to a British Indian Court to transfer its decrees for execution to the Court of a Native State between whom and the British Government there existed an agreement to execute each other's decrees, was a step in aid of execution within the meaning of Article 182 of the Indian Limitation Act of 1908, differing from the view of the Madras Full Bench in Pierce Leslie v. Perumal I.L.R(1917) . Mad. 1069 . Accordingly, I am of opinion that both the objections of the appellants fail.

9. The appeal fails and is dismissed with costs.


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