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Adjai Coal Co. Vs. Lakhi NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All396
AppellantAdjai Coal Co.
RespondentLakhi NaraIn and ors.
Excerpt:
.....to the other, refers clearly to instances where one court has ceased to exist and the entire business of that court has been taken over by another court. 4. it is well established law that the execution court has no power to amend a decree. agriculturists' relief act may lead to much inconvenience, and in certain instances, as in the present, it appears that the main intention of the act may be defeated......in the following terms:can executing court grant relief under the agriculturists' relief act in a decree transferred] to it by another court situated in or outside the united provinces?2. this question of law has arisen in connexion with the execution of a decree obtained by the adjai coal co., ltd., against lakhi narain ram in the court of asansol in bengal. when the decree-was transferred to the court of the additional civil judge of ballia for execution the judgment-debtor applied for an instalment decree under section 5, agriculturists' relief act of 1934. section 5 of the act relates to the granting of an instalment decree. the section is in the following terms:(1) notwithstanding anything contained in the code of civil procedure, 1908, the court shall, unless for reasons to be.....
Judgment:
ORDER

1. The question referred by the learned Additional Civil Judge is in the following terms:

Can executing Court grant relief under the Agriculturists' Relief Act in a decree transferred] to it by another Court situated in or outside the United Provinces?

2. This question of law has arisen in connexion with the execution of a decree obtained by the Adjai Coal Co., Ltd., against Lakhi Narain Ram in the Court of Asansol in Bengal. When the decree-was transferred to the Court of the Additional Civil Judge of Ballia for execution the judgment-debtor applied for an instalment decree under Section 5, Agriculturists' Relief Act of 1934. Section 5 of the Act relates to the granting of an instalment decree. The section is in the following terms:

(1) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Court shall, unless for reasons to be recorded it directs otherwise, at any time, on the application of the judgment-debtor and after notice to the decree-holder, direct that any decree for money or preliminary decree for sale or foreclosure passed by it or by any Court whose business has been-transferred to it against an agriculturist, whether before or after this Act comes into force, shall be converted into a decree for payment by instalments drawn up in such terms as it thinks fit in accordance with the provisions of Section 3 : Provided that any final decree for sale which has not been fully satisfied, passed before this Act comes into force, shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, be revisable in the same manner and to the same extent as-the preliminary decree for sale or foreclosure-passed against an agriculturist.

3. Now it is not disputed that the Court of the Additional Civil Judge of Ballia, so far as the decree of the plaintiff is concerned, is merely an execution Court. In our opinion the business of the Court of Asansol has not been transferred to the Court of the Additional Civil Judge of Ballia within the meaning of Section 5, U.P. Agriculturists' Relief Act. The part of the section, which relates to the transfer of business from one Court to the other, refers clearly to instances where one Court has ceased to exist and the entire business of that Court has been taken over by another Court. It does not refer, in our judgment, to the case where a decree has been transferred from one Court to another for execution. Had the intention of the Legislature been to give jurisdiction to the execution Court to amend a decree under Section 5 of the Act, the expression 'whose business has been transferred' would not have been used. The section would have run : 'or by any Court whose decree has been transferred to it for execution'. In support of this view we refer to Section 30, U.P. Agriculturists' Relief Act, which relates to the reduction of interest. In that section it is made clear that it is the Court which has passed the decree which has the jurisdiction to reduce the rate of interest. We refer further in this connexion to the provisions governing instalment decrees of the Code of Civil Procedure, Order 20, Rule 11. Under the provisions of that Rule it is the Court which passes the decree which alone has power to modify the decree and substitute a decree for payment by instalments.

4. It is well established law that the execution Court has no power to amend a decree. The duty of the execution Court is to carry out the decree as it has been passed by the Court from which the decree has been transferred for execution. If the intention of the Legislature had been to give power to the execution Court to amend the decree so as to give the judgment-debtor benefits of the provisions of the Agriculturists' Relief Act, such provision, so inconsistent with accepted principle and present procedure, would have been embodied in clear and unambiguous terms. No doubt the inability of the executing Court to give effect to Section 5, U.P. Agriculturists' Relief Act may lead to much inconvenience, and in certain instances, as in the present, it appears that the main intention of the Act may be defeated. Our duty however is to give effect to the clear provisions of the Act as they stand. It will be a matter for the Government to consider whether Section 5 of the Act should not be amended so as to give execution Courts the necessary jurisdiction to amend decrees under the provisions of the Act. In the result we answer the question referred by the learned Additional Civil Judge of Ballia in the negative.


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