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Prabhakara Rao H. Mawle Vs. Hyderabad State Bank - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 12 of 1963
Judge
Reported inAIR1964AP101
ActsCode of Civil Procedure (CPC) , 1908 - Sections 24 and 38 - Order 6, Rule 17 - Order 22, Rule 10; Hyderabad Civil Courts Act, 1954 - Sections 12(1); State Bank of Hyderabad Act, 1956 - Sections 79(3)
AppellantPrabhakara Rao H. Mawle
RespondentHyderabad State Bank
Appellant AdvocateParty in person
Respondent AdvocateN. Narasimha Ayyangar, Adv.
DispositionAppeal dismissed
Excerpt:
.....raised in regard to the entertainment of the execution petition by the fourth additional judge, city civil court. we are satisfied that the transfer of the execution proceedings to the fourth additional judge was proper and valid and that the fourth additional judge had jurisdiction to entertain the execution proceedings. we have no doubt that the fourthadditional judge was perfectly right in allowing the application for amending the name of the decree-holder-bank. moreover, in the absence of any order distributing the business of the court among the various judges thereof in such a manner as to preclude the fourth additional judge from entertaining the execution petition, the judgment-debtor cannot complain of any irregularity on the part of the fourth additional judge in..........passed against the appellant-judgment-debtor on 9-2-1952 in 0. s. 294 of 1951 on the file of the city civil court, hyderabad.2. it is necessary to trace briefly the history of these execution proceedings. the then hyderabad state bank instituted a money suit, 0. s. 294 of 1951, against the appellant and obtained a decree on 9-2-1952 for rs. 6,377-7-9 with interest at 6% per annum from the date of decree. the judge who passed the decree, was the second judge of the hyderabad city civil court. the decree granted a period of six months for payment of the decretal amount. this period expired on 8-8-1952. the judgment-debtor did not pay. therefore the decree-holder-bank tiled execution petition no. 183/3 of 1952-53 for recovering the amount by attachment and sale of certain moveable.....
Judgment:

Gopalakrishnan Nair, J.

1. This Letters Patent Appeal is from the appellate judgment dated 19th January, 1963 of our learned brother, Munikannaiah, J. The matter relates to proceedings in execution of a money decree passed against the appellant-judgment-debtor on 9-2-1952 in 0. S. 294 of 1951 on the file of the City Civil Court, Hyderabad.

2. It is necessary to trace briefly the history of these execution proceedings. The then Hyderabad State Bank instituted a money suit, 0. S. 294 of 1951, against the appellant and obtained a decree on 9-2-1952 for Rs. 6,377-7-9 with interest at 6% per annum from the date of decree. The Judge who passed the decree, was the Second Judge of the Hyderabad City Civil Court. The decree granted a period of six months for payment of the decretal amount. This period expired on 8-8-1952. The judgment-debtor did not pay. Therefore the decree-holder-Bank tiled execution petition No. 183/3 of 1952-53 for recovering the amount by attachment and sale of certain moveable properties of the judgment-debtor. The judgment-debtor thereupon filed an application under the Hyderabad Money Lenders' Act for payment of the decree debt in monthly instalments of Rs. 100/-. That application was dismissed on 5-12-1952, the judgment-debtor filed another application under Order 21, Rule 2 C. P. C. setting up an agreement between himself and the decree-holder for payment of the decree debt in monthly instalments of Rs. 10/- and also claiming payment of some instalments in pursuance of this agreement. MB COmplained that the instalments so paid have not been credited by the decree-holder towards the decree debt. The decree-holder Bank in its objections denied the existence of any such agreement and stated that a third person had paid certain amounts into the Bank to the account of the judgment-debtor and that the Bank was willing to give credit to the Judgment-debtor for those amounts.

3. This application was posted for enquiry to 7-2-1953;. but the judgment-debtor was absent on that day, and therefore, the executing Court ordered that the sum of Rs. 110/- admitted by the decree-holder be credited towards the decree and that a warrant for attachment of the moveables of the judgment-debtor he issued for the balance payable under the decree. It was further ordered that the execution petition be celled on 20-2-1953. On 9-2-1953, the judgment-debtor filed another application in the executing Court stating that he did not appear on 7-2-1953 because he was given to understand that the decree-holder would move for an adjournment and that therefore the ex parte order was passed against him on 7-2-1953 should be set aside and his application under Order 21, Rule 2, C.P.C., enquired into and disposed of on the merits. The decree-holder did not raise any serious objection to this application, with the result that the application under Order 21, Rule 2, C.P.C. was posted for enquiry.

After some adjournments, the judgment-debtor examined himself and another witness on 16-4-53 and closed the evidence on his side. The proceedings were then adjourned to 254-1953 and thereafter to 15-6-1953 for recording evidence on behalf of the decree-holder. On 15-6-1953, one witness on behalf of the decree-holder was examined. The judgment-debtor, however, refused to cross-examine the witness and asked the Court for time to move the High Court for transfer of all the proceedings pending before the particular Judge (now Kumarayya, J.). It appears that by 29-6-1953 (the judgment-debtor had obtained a stay of proceedings from the High Court on 23-11-1953) the judgment-debtor's application for transfer was dismissed by High Court. On 13-2-1954 the judgment-debtor applied to the executing Court for summoning the decree-holder's witness whom he had previously declined to cross-examine. That application was rejected. The judgment-debtor thereupon preferred Appeal No. 158/1 of 1953-54 to the Hyderabad High Court against that order.

In pursuance of this appeal, the High Court called for the records of the lower Court by letter No. 1192 dated 17-2-1954. The next day all the records in the execution proceedings were transmitted to the High Court. The appeal eventually came up for hearing before the present High Court (High Court of Andhra Pradesh at Hyderabad) and was dismissed for default. The appellant-judgment-debtor thereafter moved the High Court for restoration of the appeal and the High Court by order dated 6th January 1959, directed restoration on condition of the appellant paying to the respondent's advocate a sum of Rs. 50/- as costs within a time specified. The appellant-judgment-debtor did not comply with this condition and consequently the application for restoration was dismissed on 21st January, 1959. Thereafter the execution records which had been transmitted to the High Court were returned to the 1st Additional Judge, City Civil Court, who renumbered the execution petition as E. P.. 20/59 on 12-3-1959 and directed notice to the parties returnable by 6-4-1959.

4. Meanwhile the judgment-debtor had moved the High Court by C. M. P. No. 2313 of 1959 for setting aside the order dated 21st January, 1959 already referred to. This led the High Court to issue on 17-3-1959 a letter to the executing Court calling for !he records. This communication from the High Court occasioned the passing of the following order by the executing Court on 19-3-1959:

'In view of the High Court's letter, file be struck off from the roll and transmitted to High Court.'

The High Court on 28-8-1959 dismissed C.M.P. No. 2313 of 1959 filed by the judgment-debtor. Thereafter, the High Court returned the records to the City Civil Court. The 1st Additional Judge of that Court passed the following order dated 3-12-1959 :

'Admit as E. P. No. 121 of 1959. issue notices tothe parties. Call on 18-1-1S60.'

On 18-1-1950, the First Additional Judge passed in order to the effect that he did not wish to near the case because he was acquainted with the judgment-debtor and that therefore the execution case be put up before the Additional Chief Judge for hearing er for being' transferred, to some other Judge. He also directed the parties to appear before the Additional Chief Judge on 19-1-1960. The execution petition was accordingly sent by the First Additional Judge to the Additional Chief Judge. The latter adjourned the execution petition till 28-1-1960, on which date he heard the counsel for the decree-holder arid directed as follows:

'Address the B.C., Chief Judge for Order and await 8.2.'

On 29-1-1960, the Additional Chief Judge addressed a formal communication to the Chief Judge suggesting that steps be taken to transfer the execution case to another competent Judge and intimating that the case stood posted to 8-2-1960.

On 1st February, 1960, the Chief Judge purporting to act under Section 24, C.P.C. withdrew to his file E.P. No. 121 of 1959 from the file of the First Additional Judge City Civil Court, Hyderabad and transferred it to the file of the Fourth Additional Judge, City Civil Court. This order does not appear to have reached the Additional Chief Judge on 8-2-1960 and consequently he adjourned the execution petition to 18-2-1960 by which date he had received the order. The execution petition was transferred to the Fourth Additional Judge, City Civil Court on 18-2-1960. The Fourth Additional Judge on the execution petition being so transferred to him, assigned to it a fresh number, E.P. No. 25 of 1960, by his order dated 14-3-1960 and purported to proceed with It. But the judgment-debtor filed an application supported by an affidavit to strike -off the execution petition or post it for hearing in the second week of July 1960 on the ground that the decree had been fully satisfied by him and further that the had filed an application for leave to appeal to the Supreme Court against the decision of the High Court in his appeal No. 158/1 of 1953-54. In view of this application, the Fourth Additional Judge adjourned the execution petition from time to time till 27-7-1980.

5. While the first execution petition filed by the decree-holder was pending as indicated above, the decree-holder filed E. P. No. 49 of 1960 dated 8th July, 1960 before the Fourth Additional Judge for attachment and sate of the house of the judgment-debtor. In this second execution petition, the decree-holder expressly stated that his previous execution petition stood posted to 27-7-1960 and that the second execution petition was necessitated by the circumstance that the amount due under the decree has swollen up by efflux of time and that by the attachment and sale of the movables sought in the earlier execution petition only a small portion of the decree debt would the realised. The decree-holder therefore prayed for simultaneous execution against the movable and the immovable properties of the judgment-debtor. It was further alleged by the decree-holder that il was apprehended that the judgment-debtor was trying to dispcse of his immovable property. The Fourth Additional Judge ordered attachment, despite the objections of the judgment-debtor, of the house on 20-7-19EO and attachment was effected on 10-8-1950.

A claim petition under Order 21, Rule 58, C.P.C. was then preferrel by the sons of the judgment-debtor. The Fourth Additional Judge heard the earlier execution petition E.P. No. 25 of 1960 on 17-8-1960 and posted it for orders to 19-81960. On 18-8-1960 the judgment-debtor filed E.A. No. 264 of 1960 asking that the proceedings in E. P. No. 25 of 1980 be reopened and objections as to its maintainability be gone into. His contention was that E.P. No. 183/3 of 1952-53 (ultimately renumbered as E.P. 25 of 1960) had long ago come to an end and could net be treated as pending and that therefore the second execution petition E.P. 49 of I960 was time barred. He further alleged that the First Additional Judge of the City Civil Court had no Jurisdiction to entertain E.P. 183/3 of 1952-53 as it was not the Court which passed the decree or the Court to which the decreewas transferred for execution. He also contended that it was not competent for the Chief Judge, City Civil Court to transfer the execution petition to the Fourth Additional Judge under Section 24, C. P. C. and that therefore the Fourth Additional Judge had no jurisdiction to entertain the execution petition.

6. The other application before the Fourth Additional Judge was E.A. 266 of 1960 in which the decree-holder prayed for describing the name of the decree-holder in E. P. No. 25 of 1960 as 'the State Bank of Hyderabad' instead of 'the Hyderabad State Bank'. This application however cited the provisions of law under which it was preferred as 'Order 22, Rule 10 read with Section 49, C.P.C.' In his objections, the judgment-debtor stated that these provisions of law are not applicable and that the decree-holder ought to have applied under Order 21, Rule 16, C.P.C. and got the transfer of the decree duly recognised before seeking to apply for execution. The Fourth Additional Judge disposed of E.A. No. 264 of 1960 of the judgment-debtor, E.A. No. 266 of 1960 of the decree-holder as also the objections preferred by the judgment-debtor in E.P. No. 25 of 1960 and E. P. No. 49 of 1960 by a common order dated 15th October, 1950. He overruled the objections of the judgment-debtor and held that both the execution petitions filed by the decree-holder were competent and that he had jurisdiction to proceed with them and that the decree-holder was entitled to amend the description of the decree-holder, which was in substance the prayer in E.A. No. 266 of 1960. The judgment-debtor preferred an appeal against this order of the Fourth Additional Judge to this Court. That appeal was heard by our learned brother, Munikannaiah, J., who in an elaborate and well-considered judgment dismissed the appeal. The present appeal under Clause 15 of the Letters Patent is directed against that judgment.

7. The first contention urged by the judgment-debtor in support of this appeal is that E.P. No. 183/3 of 1952-53 dated 16-10-1952 has come to an end either by ifs abandonment by the decree-holder or by its having been struck off the file and that therefore it could not have been proceeded with by the Fourth Additional Judge as E. p. No. 25 of 1960. This contention appears to be devoid of substance. From the facts already stated, it is impossible to say that the decree-holder abandoned the first execution petition. The only ground of the judgment-debtor is that the decree-holder did not pay the necessary batta lor getting the judgment-debtor's movables actually attached and that this conduct of the decree-holder amounted to nothing short of relinquishment of the execution petition. But the fact seems to be that even before the decree-holder could get the judgment-debtor's movables actually attached in execution, the judgment-debtor took proceedings first in the executing Court and later in the High Court, which had the effect of hindering the execution proceedings. (After recapitulating the facts his Lordship concluded:) The facts already enumerated by as will amply show that the judgment-debtor cannot succeed in this attempt. E. P. No. 49 of 1960 cannot be said to be barred by limitation for the simple reason that the previous execution petition was pending when it was filed and several orders had also been passed in the earlier execution petition within three years before the filing of the second execution petition. In no event, can it, therefore, be urged that the second executionpetition was time barred. Equally so, it cannot successfully be contended that the earlier execution petition had come to an end prior to the filing of the subsequent execution petition.

8. The second contention advanced by the Judgment-debtor is that the First Additional Judge, City Civil Court had no jurisdiction to entertain the first execution petition because the decree put into execution was passed by tha Second Judge, City Civil Court. His argument is that a decree can be executed only by the Court which passed it or by the Court to which it is duly transferred for execution and as the First Additional Judge, City Civil Court neither passed the decree, nor was the decree transferred to him for execution, he could not have entertained the execution application. It will be remembered that the First Additional Judge dealt with the execution petition only in 1959 after the records were returned by the High Court to which it had been transmitted In connection with the appeal No. 158/1 of 1953-54 and his execution petition remained on the file of the First Additional Judge only for a short period of time. But, the judgment-debtor contends that the fact that this Execution Petition was kept on the file of the First Additional Judge, for however short a time, was fatal and that the execution petition must be deemed to have been entertained by a Court which had absolutely no jurisdiction to do so.

This argument seems to be founded upon a misapprehension, The First Additional judge, City Civil Court, is not a separate Court. He is only one of the Judges of the City Civil Court. The decree was passed by the City Civil Court. Furthermore, the First Additional Judge had the same pecuniary and territorial jurisdiction as the Judge who passed the decree. It is therefore idle to argue that the First Additional Judge had no jurisdiction to entertain the execution petition. It is also worth noticing that the judgment-debtor did not raise any objection to the Jurisdiction of the first Additional Judge to entertain the execution petition at any time when it was pending before him.

9. If is well in this context to dispose of a similar objection raised in regard to the entertainment of the execution petition by the Fourth Additional Judge, City Civil Court. He also admittedly has the requisite pecuniary and local jurisdiction as the Judge who passed the decree. Furthermore, the execution petition was transferred to his file by the Chief Judge, City Civil Court, but In ordering the transfer the Chief Judge appears to have called in aid Section 24 of the Code of Civil Procedure. This has given a handle to the judgment-debtor to contend that Section 24, C. P. C, does not avail to transfer execution proceedings and that therefore the transfer is Invalid in law and the Fourth Additional Judge is devoid of jurisdiction to proceed with the execution petition. In the circumstances of the case, it does not seem to be necessary to dwell upon the question whether or not execution proceedings can validly be transferred under Section 24, C, P. C. There appears to be some conflict, of judicial opinion on this question.

The decision of a Division Bench of the Madras High Court in Rajagopala Pandarathar v. Tirupathia Filial, ILR 49 Mad 746 : (AIR 1926 Mad 421), which is Ending an us, has laid down that proceedings in execution also can be transferred under Section 24, C. P. C. as they are comprehended by the words 'other proceeding' occurring inthat section. Vide also Seetharamayya y. Sivaraniakrishnarao, AIR 1944 Mad 145. This apart, it cannot be said that when the Chief Judge, City Civil Court transferred tha execution proceedings to the Fourth Additional Judge of the same Court, there is a transfer to another subordinate Court. What took place was only a transfer of the proceedings from one Judge of the Court to another Judge of the same Court. The mere circumstance that the Chief Judge purported to rely on Section 24, C. P. C. for transfer cannot alter the true character and legal effect of the transfer. The Chief Judge was entitled to make the transfer by virtue of the provisions of Section 12(1) of the Hyderabad Civil Courts Act (36 of 1954), which reads :

'The First Judge of the City Civil Court may from time to time make such arrangements as he thinks fit for the distribution of the business of the Court among the various Judges thereof.'

When one of the Judges before whom the execution proceedings were pending expressed the desire on personal grounds that they may be transferred to another Judge, it was not only competent but also right and proper for the Chief Judge to transfer them to another suitable Judge in exercise of the power conferred on him under Section 12(1) of the Hyderabad Civil Courts Act. This was essentially an administrative act. If he had the power to make the transfer as a matter of distribution of business of the City Civil Court among the various Judges thereof, that power would not in any way be affected or derogated from merely because he wrongly invoked Section 24, C. P. C. which was inappropriate for the purpose. In other words, if the transfer is otherwise valid and competent, the mere citing of an inappropriate provision of law in the order of transfer will not rob it of its validity and competence. If for this reason that we stated that it is unnecessary to labour the question as to the applicability of Section 24, C. P. C. to proceedings in execution. We are satisfied that the transfer of the execution proceedings to the Fourth Additional Judge was proper and valid and that the Fourth Additional Judge had jurisdiction to entertain the execution proceedings.

10. It is next contended by the judgment-debtor that the application of the decree-holder in the second E.P. No. 49 of 1960 for amending the decree-holder's name ought to have been dismissed, as the application purported to be filed under Order 22, Rule 10 C. P. C. Here again, the judgment-debtor appears to place exaggerated emphasis on the provision of law quoted in the application. It was Indeed erroneous for the decree-holder to have called in aid Order 22 Rule 10, C. P. C. But merely because & wrong provision of law was quoted by the decree-holder, the real legal right which he had, could not be ignored or denied. The original decree-holder, as already stated, was the Hyderabad State Bank. By Section 3 of the Slate Bank of Hyderabad Act, 1956 (Central Act 79 of 1956), the Hyderabad State Bank was statutory renamed as the State Bank of Hyderabad. Sub-section (3) of this section provided:

'The change of name of the Hyderabad State Bank by Sub-section (1) shall not affect any rights or obligations of that, bank, or render defective any legal proceedings by or against It; and any legal proceedings which might have been continued or commenced by or against the Hyderabad State Bank by its former name may be continued by or against ft by Its new name .....'

In view of this provision, there is no point in the judgment-debtor contending that the decree-holder's applicationfor amending the name of the decree-holdor-Band from 'theHyderabad State Bank' to the 'State Bank of Hyderabad'should not have been allowed because in the applicationthe provision of law quoted happened to be Order 22,Rule 30, C.P.C. A simple application for amendment ofthe name of the decree-holder-Bank would have been sufficient for the purpose. We have no doubt that the FourthAdditional Judge was perfectly right in allowing the application for amending the name of the decree-holder-Bank.

11. Lastly It is urged by the judgment-debtor that the second E. P. No. 49 of 1960 should not have been filed before the Fourth Additional Judge, but only before the Chief Judge and the latter ought to have sent it on to the former as a matter of distribution of the civil business of the City Civil Court. We do not consider this to be an argument of substance. It is a matter touching only the ministerial side of the administration of the City' Civil Court, and not inherent jurisdiction. Moreover, in the absence of any order distributing the business of the Court among the various Judges thereof in such a manner as to preclude the Fourth Additional Judge from entertaining the execution petition, the judgment-debtor cannot complain of any Irregularity on the part of the Fourth Additional Judge in entertaining the execution petition In question. The Fourth Additional ludge has concurrent local jurisdiction. He has also adequate pecuniary jurisdiction. Therefore, In the absence of any order to the contrary by the Chief Judge of the City Civil Court under the provisions of Section 12 of the Hyderabad Civil Courts Act, It was competent for the Fourth Additional Judge to entertain E. P. No. 49 of I960. Vide Chaturbhuj Marwari v. A.W. Walker, 4 Ind Cas 510 (Cal) and Rameshwar v. Jagadeshwar, AIR 1919 Pat 367.

12. It follows from the foregoing that this appeal fails and is dismissed with costs.


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