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Basheer Ahamed Vs. G. Padmanabha Kamath - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal No. 185 of 1949-50
Judge
Reported inAIR1953Kant37; AIR1953Mys37
ActsDebt Law; Mysore Agriculturists Relief Act, 1928 - Sections 2, 3, 4, 4(1), 10, 11, 12, 14, 23 and 24; Code of Civil Procedure (CPC), 1908 - Sections 38, 40, 42, 43, 60 and 122; N.W.P. Rent Act - Sections 9; Bihar Money-Lenders Act - Sections 13 and 14; Bengal Money-Lenders Act
AppellantBasheer Ahamed
RespondentG. Padmanabha Kamath
Appellant AdvocateH. Lakshmanaswamy, Adv.
Respondent AdvocateS.V. Subramanyam, Adv.
Excerpt:
.....light of the facts and circumstances of the case, the compensation rs.75,000/- was granted. - 8. it is now a well settled rule that the jurisdiction of the transferee court is limited to the execiition of the decree transferred to it. subramaniyam further contends that in cases like the present the transferee court must execute the decree in accordance with the law of procedure obtaining in the place of the transferee court and cannot seek to determine the rights of the parties according to any substantive law of that place and apply the incidents of such law to the decree in the course of execution......of the act and jurisdiction of courts' can only refer to mysore courts and decrees passed by these courts in suits referred to in section 3 which is also dealt with in the same chapter.6. but it is contended by the appellant's counsel that the reference in sections 13 and 14 to 'any decree or order passed whether before or after the act' are sufficiently wide to cover decrees even of courts outside mysore, but he has not been able to support his arguments by any clear rule of law or by any decided cases in this matter.7. for the respondent sri. s. v. subramaniam, his learned counsel, has argued that if a decree is transferred to our courts then under section 43, civil p. c. the transferee court has merely to execute the decree as it stands in the manner provided by our code. it cannot in.....
Judgment:

Vasudevamurthy, J.

1. The respondent obtained a money decree for Rs. 15,000 against the appellant with costs and current interest, in Civil Suit No. 148/1946 on the file of the High Court of Madras and got it transferred in September 1947 to the Court of the District Judge, Bangalore for execution. He seems to have filed Ex. 142/47-48 in the latter Court and got some immoveable properties of the judgment-debtor attached. In his present execution application he has sought for the sale of these attached properties. The judgment-debtor has filed objections pleading that he is an agriculturist within the meaning of Section 2, Mysore Agriculturists' Relief Act; that he should therefore be permitted to pay the decree amount by annual instalments as provided by Section 12, Agriculturists' Relief Act and that his immoveable properties cannot be attached or sold except under conditions contained in Section 14 of that Act. He therefore wanted his status as an agriculturist to be determined before execution was proceeded with.

2. The District Judge overruled his objections holding that the transferee-executing Court cannot consider the questions and the judgment-debtor has appealed.

3. It is contended by Sri H. Lakshmanaswamy, learned counsel for the appellant that though the decree was passed in 1946 his client has applied to the District Court for relief under the Agriculturists' Relief Act, raising the question of his status, at the earliest possible opportunity as allowed under Sub-section 1(a) of Section 4 of that Act and that the provisions of that Act must be held to affect and govern the terms of the decree though the same has been passed by the Madras High Court.

4. Prima facie this argument does not appear to be sound. The Agriculturists' Relief Act is applicable only within the area of the Mysore State, Section 3 of that Act is made to apply to certain suits in which the defendant is an agriculturist and these suits can only be suits filed in the Mysore Courts. Section 4 provides that where in any suit under Section 3 a question is raised as to the status of the party as an agriculturist, the Court shall try the question as a preliminary issue and Sections 10, 11 and 12 provide for the terms including grant of instalments in which decrees can be passed in suits where one of the parties is an agriculturist.

5. Sections 23 and 24 provide for these suits being tried only as original suits and for special periods of limitation for such suits. The other provisions which relate to decrees such as Sections 12, 13 and 14 which are included in Chap, II of the Act which deals with 'the scope of the Act and jurisdiction of Courts' can only refer to Mysore Courts and decrees passed by these Courts in suits referred to in Section 3 which is also dealt with in the same Chapter.

6. But it is contended by the appellant's counsel that the reference in Sections 13 and 14 to 'any decree or order passed whether before or after the Act' are sufficiently wide to cover decrees even of Courts outside Mysore, but he has not been able to support his arguments by any clear rule of law or by any decided cases in this matter.

7. For the respondent Sri. S. V. Subramaniam, his learned counsel, has argued that if a decree is transferred to our Courts then under Section 43, Civil P. C. the transferee Court has merely to execute the decree as it stands in the manner provided by our Code. It cannot in the execution proceedings before it go behind that decree or seek to alter its terms in any way. He urges on the strength of the ruling in -- 'M. S. Singleys v. Ma To' AIR 1934 Rang 166 that, therefore, the transferee Court cannot direct payment of the decree amount by instalments when the decree provides for the recovery of the decree amount in a lump sum.

8. It is now a well settled rule that the Jurisdiction of the transferee Court is limited to the execiition of the decree transferred to it. It cannot for instance transfer it to another Court, or entertain any objections as to its correctness or that it is defective or that it was obtained by fraud. It cannot entertain an objection that it directs a sale of property which is not saleable under Section 60, Civil P. C. or Section 9, N.W.P. Rent Act. (See--'Sadashiv Lalit v. Jayantibai', 8 Bom 185 and -- 'Madholal v. Katwari', 10 All 130. It cannot alter, vary or add to the terms of the decree. See Mulla's C. P. C., 11 Edn., p. 170; see also --'Gajadhar Prasad v. Manulal Jagarnath', 93 I. C. 257: AIR 1925 Pat 807.

9. Sri S. V. Subramaniyam further contends that in cases like the present the transferee Court must execute the decree in accordance with the law of procedure obtaining in the place of the transferee Court and cannot seek to determine the rights of the parties according to any substantive law of that place and apply the incidents of such law to the decree in the course of execution. For this position he has strongly relied on a case reported in -- 'Inderchand v. Bansropan' AIR 1048 Pat 245. In that case a decree for money of the Calcutta High Court was being executed on transfer in a Court in Bihar. In the latter Court the judgment-debtors applied under Sections 13 and 14, Bihai' Money-Lenders Act for some special reliefs available to them under that Act viz., for the valuation by Court of the properties to be proceeded against and the sale only of a sufficient portion in accordance with the provision of Section 14 of that Act. Sinha and Meredith JJ. of the Patna High Court refused to grant such relief holding that the rights and liabilities of the parties to the decree were to be governed, not by the Bihar Money-Lenders Act, but by the Bengal Money-Lenders Act which regulated the transactions of money-lending in Bengal and the Bihar Court had merely to execute the decree in accordance with the law of procedure obtaining in the Courts in that Province.

In the course of his judgment Sinha J. observes that the rules referred to in Section 40, C.P.C. have reference to the rules framed under the Code by the different High Courts in pursuance of Section 122 of the Code and have not the larger significance of rules of law inclusive both of adjectival and substantive law; and that the 'powers' of the transferee Court referred to in Section 42, C.P.C. are the powers of that Court in relation to the procedure to be followed and not in relation to the substantive law to be administered in executing the transferred decrees. Meredith J. who agreed with him was also of the view that Sections 13 and 14, Bihar Money-Lenders Act taken together did not merely prescribe rules of procedure. A substantive right was created by these sections for the protection of the judgment-debtor and the same was a matter of substantive law. In such a case it was the substantive law of the Province where the decree was passed which would be applicable and not that of the Province to which the decree-was transferred for execution.

10. We are inclined to agree with that reasoning in relation to the concerned provisions of theAgriculturists' Relief Act. In this view, we seeno grounds to interfere with the order of the Courtbelow and this appeal is accordingly dismissedwith costs. Advocate's fees Rs. 50.

11. Appeal dismissed.


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