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Lakshman Hari Kanhere Vs. V.G. Virkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 260 of 1938
Judge
Reported inAIR1939Bom258; (1939)41BOMLR481
AppellantLakshman Hari Kanhere
RespondentV.G. Virkar
Excerpt:
.....of the code and is appealable. - - allowed only in exceptional cases and that it is absolutely in the discretion of the original..........it may be prejudicial to the judgment-debtor that while the execution proceedings are shifted from poona to bombay and while the sale of the bombay property is taking place, the properties in poona, which are attached, may suffer and the judgment-debtor might be put to loss on account of execution in the poona court being suspended. if the court has to apply its mind as to whether simultaneous execution should go on in these peculiar circumstances, the standpoint of the judgment-debtor must be present before the court's mind. i think, therefore, that this order is a judicial order and that it also comes under section 47 of the civil proceduce code. that being so, in my opinion, the judgment-debtor was bound to be heard, and as it was passed without hearing him, i think it is an illegal.....
Judgment:

Divatia, J.

1. This is an appeal in execution proceedings against the order of the First Class Subordinate Judge at Poona. The appellant was the original judgment-debtor and defendant No. 1. The plaintiff had applied for a decree in a suit which was in the nature of a redemption suit and his case was that on taking accounts of the mortgaged property an amount would be found due to him from the mortgagees. A decree was passed in the plaintiff's favour as against defendants Nos. 1 and 2 for a certain amount due by them to the plaintiff under the mortgage. The plaintiff had been declared insolvent and his receiver applied for execution of that decree to recover that amount by attachment and sale of the judgment-debtor's properties situated at Poona. It appears that one house and two cinemas in Poona belonging to the judgment-debtors had been attached and a sum of Rs. 7,500 had been recovered. Thereafter the properties were sought to be sold and notices were issued under Order XXI, Rule 66, to show cause why a proclamation should not issue. While those proceedings were pending in that Court, the receiver appointed in the insolvency proceedings applied to the Poona Court, which was the same which had passed the decree and which was the executing Court, for a certificate to him for taking out execution of the decree against the immoveable property of defendant No. 1 and against him personally with regard to the properties situated within the ordinary original civil jurisdiction of the High Court at Bombay. In that application he stated the facts that I have mentioned above, that Rs. 7,500 had already been recovered in execution from the Poona properties and that a final notice under Order XXI, Rule 66, had been served upon the judgment-debtor. It was stated in that application that in view of the notice having already been given to the judgment-debtor, it was not necessary to issue a notice of that application to defendant No. 1. On that application the Court passed an order directing a certificate to issue to the decree-holder on condition that the decree should not be proceeded to a sale under all the attachments at once, and that before proceeding to a sale in the transferee Court, i.e. the High Court, the decree-holder must state how the matters in the darkhast stood. It is against this order that defendant No. 1 has come to this Court in appeal, and his principal point is, apart from the merits, that this order was a judicial order and was passed by the learned Judge without any notice having been issued to him and without hearing him.

2. A preliminary objection has been urged on behalf of the respondents that this appeal is not maintainable as the order appealed from does not come under Section 47 of the Civil Procedure Code. The argument is that the order appealed from is an order merely issuing a certificate for the transmission of the decree to the Bombay High Court, that such an order is merely a ministerial order and falls under Order XXI, Rule 6, of the Civil Procedure Code, that execution proceedings could not be said to have been taken with regard to the Bombay properties, that they would begin only after the decree begins to be executed in Bombay, and that therefore this order cannot be said to be an order in execution. In support of the proposition that this order is merely a ministerial order the respondents rely upon a decision of the Calcutta High Court in Chutterput Singh v. Salt Sumari Mull I.L.R. (1916) Cal. 903, which has been approved of by the Privy Council in Banku Behari Ohatterji v. Naraindas Dutt .

3. It is indeed true that a mere order transmitting a decree for execution to another Court might be said to be a purely ministerial order in the sense that it is an order that the decree should be sent to the transferee Court. In my opinion, however, the order appealed from in this case is not merely a ministerial order, nor can it be said that it is not passed in execution proceedings. The order is a conditional order and amounts to the grant of a certificate and allowing simultaneous execution proceedings to go on in both the Courts, i.e. in the Poona Court and in the Bombay High Court on certain conditions. It has been held in several cases that ordinarily simultaneous execution should not be allowed, that it should be; allowed only in exceptional cases and that it is absolutely in the discretion of the original Court. The two cases that have been relied upon on behalf of the respondents in support of the preliminary objection do not touch, in my view, the exact point to be decided here because in both of them there was no question of simultaneous execution of the decree proceeding in two different Courts. As I said before, the execution proceedings in the Poona Court are going on and the notices that have been issued under Order XXI, Rule 66, of the Civil Procedure Code, are still pending. So that the decree is being executed and certain conditions had been laid down by the Court while granting a certificate about the transfer of the decree to Bombay. Such an order cannot be regarded as purely ministerial. Where the Court has to exercise its discretion in passing an order and especially where the judgment-debtor is affected by the exercise of such discretion, it must, in my opinion, be regarded as a judicial order before the making of which the judgment-debtor is entitled to be heard. For instance, it may be prejudicial to the judgment-debtor that while the execution proceedings are shifted from Poona to Bombay and while the sale of the Bombay property is taking place, the properties in Poona, which are attached, may suffer and the judgment-debtor might be put to loss on account of execution in the Poona Court being suspended. If the Court has to apply its mind as to whether simultaneous execution should go on in these peculiar circumstances, the standpoint of the judgment-debtor must be present before the Court's mind. I think, therefore, that this order is a judicial order and that it also comes under Section 47 of the Civil Proceduce Code. That being so, in my opinion, the judgment-debtor was bound to be heard, and as it was passed without hearing him, I think it is an illegal order and must be vacated. Even if this order could not have been regarded as an order under Section 47, I would have allowed the appellant to convert this appeal into a revision application in order that the order may be set aside on the ground that it had been passed without hearing him. But I do not think it is necessary to do so, because in my opinion the order is appealable.

4. With regard to the question as to whether the judgment-debtor has a right to be heard in such cases or not, there is a recent decision of the Calcutta High Court in the case of Gurudas Adhya v. Jnmmdra Narain Bagchi (1934) 39 C.W.N. 165, which bears on the point to be decided in the present appeal. There also the decree was sought to be executed simultaneously in both the Courts and the order of transfer was passed without hearing the judgment-debtors, and the Court set aside that order among other reasons on the ground that it was made without giving any opportunity to the judgment-debtors to state what they had to state in opposition to such an order of transfer, and the final order passed by the Court was that notice should issue to the judgment-debtors so that they may have an opportunity of showing cause as to why an order should not be made under Order XXI, Rule 6, and after hearing the judgment-debtors' objections, if any, as regards the order to be made, the Judge was to proceed further to consider whether sufficient cause had been made out justifying the issue of simultaneous execution under the provisions of Section 39 of the Code, and if he decided to make such an order, the Judge was to consider, having regard to the provisions of Order XXI, Rule 26, as to whether any, and if so, what further order should be made as regards the limitation to be put upon the execution that would take place in the Court in which the decree was sought to be executed.

5. I agree with the reasoning adopted in this case, and I accordingly hold that the order in the present case being illegal as it was passed without hearing the judgment-debtor, must be set aside. It is true that it is not specifically provided in Section 39 of the Code that the judgment-debtor must be heard before an order for transfer of the decree or for a certificate is made, but that is not conclusive. On the general principle of law, whenever any judicial order is to be made by the Court, it cannot be made without hearing the party to be affected by that order, and indeed the order that the learned Judge has made is such as would affect the present appellant at least in so far as the execution proceedings which are going on in Poona are concerned.

6. In the result, therefore, the appeal is allowed, the order of the lower Court is vacated, and the case is sent back to the Court of the First Class Subordinate Judge at Poona with the direction that notice must be issued to the judgment-debtor of the application made by the plaintiff on September 2 last and that a legal and valid order should be passed after hearing the appellant as to what he has to say about the issue of a certificate and transfer of the decree to the Bombay High Court.

7. The appellant is entitled to his costs of this appeal.


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