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Vishwanath Keshav Joshi Vs. B.M. Sukhadwalla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 700 of 1948
Judge
Reported inAIR1949Bom250; (1949)51BOMLR276
AppellantVishwanath Keshav Joshi
RespondentB.M. Sukhadwalla
DispositionApplication dismissed
Excerpt:
.....the word includes execution proceedings.;the word 'proceedings' in section 18 of the bombay city civil court act, 1948, includes execution proceedings.;proceedings to execute a decree passed by the bombay high court for a sum exceeding rs. 2,000 but not exceeding rs. 10,000, rued after the coming into force of the bombay city civil court act, 1948, lie in the bombay city civil court, and not in the bombay high court. - - diwan to argue the matter per amicus curiae and he was good enough to do so and presented the arguments before me at the adjourned hearing of this application today. even though the expression 'suits and other proceedings' has been used in the sections of the bombay city civil court act which i have noted above, proceedings in suits as well as proceedings of a..........on september 22, 1948.2. a point was raised as to whether in view of the passing of the bombay city civil court act, xl of 1048, this court had jurisdiction to entertain this application for execution of the decree. the bombay act xl of 1948 was enacted by the legislature and received the assent of the governor general on may 10, 1948. it came into force by a notification in the official gazette from august 16, 1948. section 3 of that act provided that notwithstanding anything contained in any law, the bombay city civil court was to have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding rs. 10,000 in value and arising within the greater bombay, except for certain exceptions therein laid down which are not relevant for the.....
Judgment:

Bhagwati, J.

1. The matter comes up before me for trial of issue as to the jurisdiction of this Court to entertain proceedings in execution of a decree passed by this Court, the decree being for an amount above Rs. 2,000 and below Rs. 10,000. The decree was passed in the suit on April 2, 1948, and this application for execution was made by the judgment-creditor on September 22, 1948.

2. A point was raised as to whether in view of the passing of the Bombay City Civil Court Act, XL of 1048, this Court had jurisdiction to entertain this application for execution of the decree. The Bombay Act XL of 1948 was enacted by the Legislature and received the assent of the Governor General on May 10, 1948. It came into force by a notification in the official Gazette from August 16, 1948. Section 3 of that Act provided that notwithstanding anything contained in any law, the Bombay City Civil Court was to have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value and arising within the Greater Bombay, except for certain exceptions therein laid down which are not relevant for the determination of the present issue before me. Section 12 of the Act provided that notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court. Section 18 of the Act further provided that all suits and proceedings cognizable by the City Court and pending in the High Court, in which issues had not been settled or evidence had not been recorded on or before the date of the coming into force of this Act shall be transferred to the City Court and shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction thereof as if they had been originally instituted in that Court. These are the relevant provisions of this Act which have got to be borne in mind for the purposes of the determination of this issue.

3. The jurisdiction of the Bombay City Civil Court was to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value. The ban of the jurisdiction of the High Court also was in respect of the trial of suits and proceedings cognizable by the City Court, and what had got to be transferred to the City Civil Court were also suits and proceedings cognizable by the City Court and pending in the High Court in which issues had not been settled or evidence recorded on or before August 16, 1948. The question, therefore, which has to be determined is what is included in the suits and proceedings cognizable by the City Court; and the whole difficulty in this particular matter has arisen because the suit has been already determined, a decree has been passed therein, and what is sought to be done is the execution of that decree. The question, therefore, which arises is whether an application for execution of the decree already passed by the High Court having had jurisdiction to do the same, can be said to be proceedings cognizable by the City Court, because the suit has certainly ended in so far as it has resulted in a decree being passed in favour of the plaintiff. It has been contended that the proceedings which are mentioned in these three sections are by analogy with Section 141 of the Civil Procedure Code and according to the decision of the Privy Council in Thakur Prasad v. Faldrullah I.L.R. (1894) All. 106 original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and not execution proceedings. In so far as this was a matter which was important and would lay down the principle for all proceedings in execution in similar suits where decrees have been passed by this Court before August 16, 1948, I requested Mr. B.J. Diwan to argue the matter per amicus curiae and he was good enough to do so and presented the arguments before me at the adjourned hearing of this application today. It was pointed out by him that the word 'proceedings' in Section 141 of the Civil Procedure Code no doubt has come to be interpreted in this manner by the Privy Council, but execution proceedings are also to be regarded as proceedings though they are subsequently adopted by the party after the decree in a suit has been passed. They are separate from the proceedings adopted by the parties in furtherance of the progress of the suit or what may be otherwise described as the previous steps in the suit. As has been laid down in Deb Narain Dutt v. Narendra Krishna I.L.R. (1889) Cal. 267 execution has to be regarded as separate proceedings from the previous steps in the suit. Even though the expression 'suits and other proceedings' has been used in the sections of the Bombay City Civil Court Act which I have noted above, proceedings in suits as well as proceedings of a civil nature which are contemplated after the decree in a suit is passed are nonetheless proceedings within the expression as used therein. Those proceedings may be proceedings which are contemplated within Section 141 of the Civil Procedure Code and which have been interpreted by the Privy Council as original matters in the nature of suits such as proceedings in probate, guradian-ship and so forth. These proceedings can also be proceedings by way of execution proceedings which have been held in Deb Narain v. Narendra Krishna as separate proceedings from the previous steps in the suit, which may be taken by a party after the suit has materialised into a decree. There is no warrant to read 'proceedings of a civil nature' which has been used in the Bombay City Civil Court Act in a restricted or limited sense as is contended on behalf of the judgment-credtior.

4. It was pointed out to me that the Act does not contemplate taking away the jurisdiction of this Court in respect of suits which have been already disposed of or decided, and that what was contemplated was only the transfer of the suits which were pending in the High Court at the time when the Act came into operation. My attention was particularly drawn to Section 18 of the Act which provides that except in those cases where issues were settled or evidence was led, all suits and proceedings which were pending in the High Court had got to be transferred to the City Civil Court. It was urged that in execution proceedings there would be no question of any issues being settled or evidence being led. This argument, however, is unsound in so far as it does not take count of the various circumstances which arise in execution proceedings where issues have got to be tried by the Court and evidence led in support of the various contentions arising in execution proceedings. Mr, B.J. Diwan drew my attention to the various provisions of the Civil Procedure Code, Section 47, Section 50(2), Order XXI, Rule 3, Order XXI, Rule 4, O, XXI, Rule 50(2), Order XXI, Rules 58 and 59, Order XXI, Rule 89 and Order XXI, Rule 97 and the subsequent provisions thereof, all of which.go to show that various cases arise in execution proceedings where as between the contesting parties issues have got to be tried by the Court and for the determination of those issues evidence has also got to be led. If any question arose in such cases of execution proceedings and they had been agitated before the High Court before August 16, 1948, Section 18 would have covered those proceedings also and would have prevented them from being transferred to the City Civil Court if issues had been raised therein or evidence had been led by the parties for the purpose. Except, however, in those cases all the proceedings which were validly entertained by the High Court, before August 16, 1948, would have had to be transferred to the Bombay City Civil Court by virtue of the provisions of Section 18 of the Act. Section 18 of the Act therefore does not help the judgment-creditor.

5. My attention was also drawn to the provisions of Section 37 of the Civil Procedure Code where the expression 'Court which passed a decree' or words to that effect are in relation to the execution of decrees deemed to include, where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. It was pointed out that in those cases where pecuniary jurisdiction was curtailed subsequent to a decree passed by a Court, the jurisdiction to execute the decree was not lost and that in spite of the curtailment of the pecuniary jurisdiction in that manner the Court would continue to have jurisdiction to execute the decree. There is no question here of the Court having ceased to exist. The only question which arises is whether by reason of the pecuniary jurisdiction of this Court being altered! in the manner provided in the Bombay City Civil Court Act it can be said that this Court has lost the jurisdiction to execute a decree which has already been passed by it. Reliance was placed in support of this contention on a decision reported in. Abdus Sattar v. Mohini Mohan Das 37 C.W.N. 679 and the note in Mulla's Civil Procedure Code at p. 162. This decision, however, runs counter to a decision of the Calcutta High Court itself which is subsequently reported in Masrab Khanv Deb Nath Mali [1942] 1 Cal. 289 where the effect of Section 37(6) of the Civil Procedure Code is laid down as substituting the Court in which the jurisdiction was subsequently invested as the only Court which can be considered to be the Court which passed the decree for the purposes of this section. Mr. B.J. Diwan also drew my attention to a decision of our High Court reported in Gaushha v. Abdul Kopkha I.L.R. (1892) 17 Bom. 162 where it is laid down that there is no distinction which can be drawn between the nature of the causes which put an end to jurisdiction, so far as the terms of Section 37(6) arc concerned. What one has got to have regard to are the plain terms of Section 37(b) themselves which lay down that where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which passed the decree or words to that effect shall in relation to the execution of decrees be deemed to include the Court which would have jurisdiction to try such suit, if the suit wherein the decree was passed was instituted at the time of making the application for execution. Here by reason of the enactment of the Bombay City Civil Court Act the jurisdiction in respect of suits and proceedings of a civil nature exceeding Rs. 2,000 and not exceeding Rs. 10,000 in value was invested in the Bombay City Civil Court. If the suit had come to be filed after August 15, 1948, which is the relevant date (and the application for execution in this case as I have stated before was made on September 22, 1948), it would have had to be filed in the Bombay City Civil Court. That was the Court which was substituted for the High Court according to the terms of Section 37(6) of the Civil Procedure Code, and it is that Court which can be said to be 'the Court which passed a decree' in relation to the execution of this decree which was passed by the High Court. I am, therefore, of opinion that in respect of these proceedings for execution of the decree 'the Court which passes a decree' should be deemed to include the Bombay City Civil Court which would have jurisdiction to try the suit if it had been filed on September 22, 1948, which was the date of the application for execution. There is no cogent reason urged on behalf of the judgment-creditor which can make me hold that this Court has in spite of the provisions of the Bombay City Civil Court Act which I have mentioned above retained the jurisdiction to execute the decrees which have been already passed by it in those cases where the claim was exceeding Rs. 2,000 and not exceeding Rs. 10,000 in value.

6. I have therefore come to the conclusion that this application for execution does not lie in this Court and must be dismissed. Before concluding my judgment, I feel that I ought to express the thanks of the Court for the help which it has derived from the arguments of Mr. B.J. Diwan who was good enough to argue this point per amicus curiae.


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