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Nilawwa Komm Malashiddappa and anr. Vs. Virupaxappa Mahantappa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 301 of 1957
Judge
Reported inAIR1959Kant99; AIR1959Mys99; ILR1958KAR874; (1958)36MysLJ865
ActsCode of Civil Procedure (CPC), 1908 - Sections 50, 99 and 141
AppellantNilawwa Komm Malashiddappa and anr.
RespondentVirupaxappa Mahantappa and anr.
Appellant AdvocateV.S. Malimath, Adv.
Respondent AdvocateH.B. Datar, Adv.
Excerpt:
.....there will be no change in the court fee payable in the appeal filed by the plaintiff against the decree passed by the trial court . the court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. -- karnataka court fees & suits valuation act, 1958.[k.a. no. 16/1958]. section 41: regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) dismissal of suit appealed against - payment of court fee of rs.200/- in the appeal office objection specific finding by the trial court as to ouster of the plaintiff from the suit schedule property whether plaintiff..........if a judgment-debtor dies during execution, it is irregular for the court which has not passed the decree to proceed with the execution, against the representatives of the deceased judgment-debtor, without a fresh order from the court which passed the decree, as under section 50 the application for such execution is to be made to the court which passed the decree. this is no doubt the usual procedure. it may be noted that their lordships in that case relied on the decision of the privy council reported in 55 ind app 227: (air 1928 pc 162), in arriving at their conclusion.if the decree-holder moves the executing court to proceed under section 50, c. p. c., it is no doubt an irregular proceeding. but what we are concerned with in this appeal is whether such an irregularity can be made the.....
Judgment:

K.S. Hegde, J.

1. The appellants arc the respondents in Darkhast No. 313/44 in the Court of the Civil Judge, Senior Division, Bijapur. The decree under execution was one passed by the Bombay High Court on its original side. It was transferred to the Court of the Civil Judge, Senior Division, Bijapur, for execution. Pending execution the original judgment-debtor died. The decree-holders moved the Executing Court as per Exhibit 62 dated 28-9-1951 to implead the present appellants as the legal representatives of the deceased judgment-debtor and to proceed with the execution against them.

The decree-holders no doubt represented to the Executing Court that the judgment-debtor died six months prior to the said application though in fact he had died on 9-10-1947. The appellants were duly notified about the execution against them. They did not object to their being impleaded as the legal representatives of the deceased judgment-debtor, nor to the jurisdiction of the Executing Court to proceed with the execution against them. The first appellant bad raised certain other objections which bad been duly considered.

The execution was pending for about it period of 6 years before the present objections were raised. On 17-10-1957 the appellants moved the Court below to dismiss the execution petition on the grounds that the Executing Court had no jurisdiction to proceed against them as no orders bad been obtained from the Court which passed the decree as required by Section 50, C. P. C., and that they were brought on record more than 3 years after the death of the judgment-debtor and consequently the execution is barred by limitation.

The Court below rejected both these objections, Relying on the decision reported in Jang Bahadur v. Bank of Upper India Ltd., 55 Ind App 227: AIR 1928 PC 162, it came to the conclusion that though ordinarily the decree-holder should have moved the Court that passed the decree for obtaining necessary orders under Section 50, C. P. C., the proceedings before the Executing Court for the same purpose was at the most only irregular and not without jurisdiction.

It further came to the conclusion that the appellants bad waived their rights to object to the execution by their conduct during the pendency of the execution petition from 1951 to 1957. As regards the question of limitation, the Court below held that there was no bar of limitation and even if there is any substance in that contention, the same should have been urged when the execution was directed to be proceeded against them and that having not done, the order in question is binding on them and precludes the present objection.

These conclusions were challenged in the grounds of appeal filed before this Court. But the learned Counsel appearing for the appellants did not press the ground of limitation and was content to rest his case on the question of jurisdiction.

2. According to the learned Counsel for the appellants, the language of Section 50, C. P. C., is clear and unambiguous and it makes it incumbent on the holder of the decree to move the Court which passed the decree for obtaining orders to proceed with the execution against the legal representatives nf the deceased judgment-debtor. Reliance was placed on the decision reported in Official Trustee of Bengal v. Basdeo Bhagar, AIR 1937 Pat 239.

In that case a Bench of the Patna High Court observed that if a judgment-debtor dies during execution, it is irregular for the Court which has not passed the decree to proceed with the execution, against the representatives of the deceased Judgment-debtor, without a fresh order from the Court which passed the decree, as under Section 50 the application for such execution is to be made to the Court which passed the decree. This is no doubt the usual procedure. It may be noted that their Lordships in that case relied on the decision of the Privy Council reported in 55 Ind App 227: (AIR 1928 PC 162), in arriving at their conclusion.

If the decree-holder moves the Executing Court to proceed under Section 50, C. P. C., it is no doubt an irregular proceeding. But what we are concerned with in this appeal is whether such an irregularity can be made the ground of attack in the appeal, particularly when necessary objections had not been raised at the appropriate stage. The decision in question lends no assistance to decide that point.

3. Read by itself, the language employed in Section 50, C. P. C., may give room for an interpretation that the only court which could direct the execution to proceed against the legal representatives of the deceased judgment-debtor is the Court which passed the decree. But this section will have to be read with the other provisions of the Code,

The scope of Section 50, C. P. C., has been considered by the Privy Council in the aforesaid case reported in 55 Ind App 227: (AIR 1928 PC 162). On analysing the relevant provisions of the Civil Procedure Code, their Lordships came to the conclusion that once the decree is transferred to another Court for execution, the transferee Court gets jurisdiction to deal with that particular execution proceedings until such execution is withdrawn or stayed or satisfied.

On such transfer the former Court does not altogether lose seisin of the decree. There is no question of any abatement of execution proceedings on the ground that the Judgment-debtor or judgment-debtors have died pending execution nor does the transferee Court lose its jurisdiction over the proceedings. But before execution can proceed against the legal representatives of the deceased judgment-debtor, the decree-holder must obtain an order of substitution from the Court which passed the decree.

In the opinion of the Privy Council this is a matter of procedure and not jurisdiction. The jurisdiction over the subject-matter continues as before but a certain procedure is prescribed for the exercise of that jurisdiction. Their Lordships further held that if there is non-compliance with the procedure laid down the defect may be waived. The defective procedure merely touches the form and not the substance of the matter.

This decision has been uniformly followed by the Courts in India. The learned Counsel for the appellants attempted to distinguish this decision on the basis that the facts of that case disclose that the legal representatives therein have definitely waived their right to object to the proceedings. He contends that there is no such waiver in the present case and the Court below erred in construing the conduct of the appellants during the pendency of the execution as tantamount to waiver.

We do not think it necessary to decide the question of waiver as this appeal can be disposed of on another ground. The defect in the procedure in moving the transferee Court to proceed against the appellants, is as we have held earlier, an irregularity. It is not shown that this irregularity in the proceedings has affected the merits of the case. It is admitted that the appellants are legal representatives of the deceased judgment-debtor. Hence the appellate Court is precluded from interfering with the order in question in view of Section 99 read with Section 141 of the Civil Procedure Code.

This is also the view taken by a Bench of the Plan High Court in the case reported in Debendra Nath v. G. A. Aratoon, AIR 1941 Pat 139. A similar view was taken in the case reported in Sham Lal Pal v. Modhu Sudan Sircar, ILR 22 Cal 558, and in a number of other decisions. We would like to make it clear that we have not considered as to what would have been the position if objection to the forum had been taken at the earliest possible opportunity and the Court below had ignored the same.

4. In the result, the appeal fails and the same is dismissed with costs.

N. Sreenivasa Rau, J.

5. I agree.

6. Appeal dismissed.


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