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Sita Ram Rai and anr. Vs. Madho Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1939All57
AppellantSita Ram Rai and anr.
RespondentMadho Prasad
Excerpt:
.....ic 1858 overruled]. - after hearing the learned counsel for the parties, i have come to the conclusion that my ex parte decision was erroneous and that this appeal must fail. it is admitted that no proceedings in execution were taken by the munsif of bansgaon and the decree remained wholly unsatisfied. for the reasons given above i hold that the decision appealed against is perfectly correct and dismiss this appeal with costs......court. clause (2) of section 39, civil p.c., empowers the court of its own motion to send the decree for execution to any subordinate court 'of competent jurisdiction.' a comparison of section 39 of the present code with the relevant portion of section 223 of the former code shows that section 39 has reproduced the relevant portion of section 223 verbatim except in one respect. in the former code, it was provided that 'the court which passed a decree may of its own motion send it for execution to any court subordinate thereto.' but in clause (2) of section 39 the words 'of competent jurisdiction' have been added. this addition must have boon deliberate and intentional and was presumably with a view to set at rest the conflict between the calcutta and the madras high courts on the.....
Judgment:

Iqbal Ahmad, J.

1. This appeal was heard ex parte and allowed by me on 16th April 1937. But, on an application for the setting aside of the ex parte decision being made that decision was set aside and the appeal was restored to its original number and is for disposal before me today. After hearing the learned Counsel for the parties, I have come to the conclusion that my ex parte decision was erroneous and that this appeal must fail. The facts that give rise to the questions of law that have to be decided in the present appeal are undisputed and are as follows : A decree for costs was passed in favour of the appellant decree-holders by the Court of the Subordinate Judge of Azamgarh on 16th July 1928 and within three years of that date, viz. on 14th July 1931, the decree-holders filed an application in that Court under Section 39, Civil P.C. The application was on a form prescribed by Order 21, Rule 11, Civil P.C., and the prayer contained in the application was as follows:

The property of the plaintiff-judgment-debtor lies within the jurisdiction of the Court of the Munsif of Bansgaon in District Gorakhpur. A certificate may therefore be drawn up for sale of the property of the judgment-debtor by auction.

2. This prayer was contained in col. 10 of the application in which column an entry is to be made as to the 'mode in which the assistance of the Court is required.' On the application being filed, the Court forthwith directed that a certificate of trans. for of the decree be prepared and be sent to the Court concerned. After the preparation of the certificate the case was again put before the Court with a note that the certificate had been prepared and the Court then ordered that the certificate be sent to the 'Court concerned.' The certificate was then sent to the Court of the Munsif of Bansgaon. It is admitted that no proceedings in execution were taken by the Munsif of Bansgaon and the decree remained wholly unsatisfied. A fresh application to execute the decree was made by the decree-holders on 20th July 1934 and this application was successfully opposed by the judgment-debtor in the Court below on the ground that the application was barred by limitation. The question that I have to decide is whether the application dated 20th July 1934 was or was not within time. It is clear that the application dated 20th July 1934 was within three years of 27th July 1931 the date on which the Subordinate Judge of Azamgarh disposed of the application dated 14th July and ordered the certificate about the transfer of the decree to be sent to 'the Court concerned.' The application dated 20th July 1934 was therefore within time if the application dated 14th July 1931 amounted to a step-in-aid of execution and was an application in accordance with law.

3. The decision in Todar Mal v. Phoola Kaur (1913) 35 All. 389 puts it, beyond doubt that an application made to the Court that passed the decree to transfer the same for execution to another Court is a step-in-aid of execution. The question however remains whether the application dated 14th July 1931 was an application in accordance with law. In Chattar v. Newal Singh (1890) 12 All. 64 it was hold that the expression 'applying in accordance with law' means applying to the Court to do something in execution which by law that Court is competent to do. It was further observed in that case that the expression

does not, moan applying to the Court to do something -which, either to the decree-holder's direct knowledge in fact, or from his presumed knowledge of the law, he must have known the Court was incompetent to do.

4. This case was followed in Munawar Husain v. Jani Bijai Shankar (1905) 27 All. 619. The same interpretation was put on the phrase by the Patna High Court in Amrit Lal v. Murlidhar (1922) 9 A.I.R. Pat. 188. In Pitamber Jana v. Damodar Gachait (1926) 13 A.I.R. Cal. 1077 it was held that the expression 'in accordance with law' in Article 182(5) of Schedule 1, Limitation Act, should be taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. It was further held in that case that if the application was such as to make it impossible for the Court to issue execution upon it the application cannot be deemed to be in accordance with law.

5. It follows from the authorities mentioned above that the application or step-in-aid of execution of the nature referred to in Article 182(5), Limitation Act, can be only in accordance with law if the application is made or the step-in-aid of execution is taken in a Court of competent jurisdiction and if the prayer that is made by the decree-holder is one which the Court can lawfully grant. In the case before me, I find that the prayer contained in col. 10 of the application dated 14th July 1931 was one which the learned Subordinate Judge of Azamgarh was not competent to grant. The prayer has been quoted above and the only possible interpretation that can be put on the same is that the decree-holders prayed that the decree be transferred for execution to the Court of the Munsif of Bansgaon. The Munsif of Bansgaon was however not competent to try the suit in which the decree under execution was passed. I am informed that the suit in the Subordinate Judge's Court that culminated in the decree under execution was valued at Rs. 5000 and it has been conceded in argument that the Munsif of Bansgaon was not invested with the pecuniary jurisdiction to try suits of the value of Rs. 5000. He therefore had not the jurisdiction to execute the decree in question : vide Durga Charan Mojumdar v. Umatara Gupta (1889) 16 Cal. 465 and Amrit Lal v. Murlidhar (1922) 9 A.I.R. Pat. 188. It follows that the prayer contained in the application dated 14th July 1931 was one which could not be granted by the Subordinate Judge of Azamgarh.

6. But it is contended by the learned Counsel for the appellants that the last two cases just mentioned were wrongly decided and it is maintained that it is open to the Court which passed a decree to send it for execution to another Court irrespective of the limits of the pecuniary jurisdiction of the Court to which the decree is transferred and in support of this contention reliance is placed on the decisions in Narasayya v. Venkatakrishnayya (1884) 7 Mad. 397 and Shanmuga Pillai v. Ramanathan Chetti (1894) 17 Mad. 309. It was held in these cases that Section 223, Civil P.C. 1882,

gives jurisdiction to a Munsif's Court to execute a decree in a suit beyond its jurisdiction which has been transferred to it for execution by a District Court.

7. Section 223 of the Code of 1882 corresponds to Sections 38, 39, 41 and to certain other Sections of the Code of 1908. In the present case I am concerned with only that portion of Section 223 of the Code of 1882 that has been re-enacted in Section 39 of the Code of 1908. Section 39(1) prescribes the circumstances in which the Court passing the decree may, on the application of the decree-holder, send the same for execution to another Court. Clause (2) of Section 39, Civil P.C., empowers the Court of its own motion to send the decree for execution to any Subordinate Court 'of competent jurisdiction.' A comparison of Section 39 of the present Code with the relevant portion of Section 223 of the former Code shows that Section 39 has reproduced the relevant portion of Section 223 verbatim except in one respect. In the former Code, it was provided that 'the Court which passed a decree may of its own motion send it for execution to any Court subordinate thereto.' But in Clause (2) of Section 39 the words 'of competent jurisdiction' have been added. This addition must have boon deliberate and intentional and was presumably with a view to set at rest the conflict between the Calcutta and the Madras High Courts on the point. The addition of the words of competent jurisdiction in Clause (2) of Section 39 unmistakably points in the conclusion that the Legislature intended to lay down that it is not open to any and every Court to execute a decree irrespective of its pecuniary jurisdiction and that the competence of a Court to execute a particular decree must be determined by reference to its competence to try a suit of similar valuation in which the decree under the Section was passed. Accordingly the Madras cases can no longer be deemed to be laying down the correct law and I must hold that the Munsif of Bansgaon had no jurisdiction to execute the decree held by the appellants.

8. Great reliance was placed by the learned Counsel for the appellants on the decision in Hafeez Uddin v. Ram Chander Das : AIR1937All397 . It was held in that case that if an application under Section 39, Civil P.C., gives sufficient particulars of the decree sought to be transferred the application cannot be considered to be otherwise than one in accordance with law. On the basis of this decision it was argued that as the application dated 14th July 1931 indicated with precision the decree which was sought to be transferred that application must be deemed to be an application in accordance with law. I find it impossible to accede to this contention. Hafeez Uddin v. Ram Chander Das : AIR1937All397 the particulars of the decree were correctly mentioned in the application filed by the decree-holder. There was however slight error in the name of one of the parties and it was held that that error did not make the application otherwise than one in accordance with law. In the case before me the facts are essentially different. The prayer contained in the application under Section 39, Civil P.C., was to transfer the decree for execution to a Court that had no jurisdiction to execute the same. The learned Subordinate Judge of Azamgarh had therefore no jurisdiction to grant the prayer contained in the application. The application was not therefore in accordance with law and cannot give a fresh start to the period of limitation. For the reasons given above I hold that the decision appealed against is perfectly correct and dismiss this appeal with costs.


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