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Bishwanath Singh and anr. Vs. Mohammad HussaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1024 of 1961
Judge
Reported inAIR1968All125
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 68
AppellantBishwanath Singh and anr.
RespondentMohammad HussaIn and ors.
Appellant AdvocateJ.N. Chatterji, Adv.
Respondent AdvocateKumar Chand Saxena, Adv.
DispositionAppeal dismissed
Excerpt:
civil - execution dismissed - sections 47 and 68 of code of civil procedure,1908 - application for dismissal of execution made before the collector - power is delegated under section 68 - no power to dismiss application of execution. - - as observed by the bombay high court the collector, like the nazir in india, is a ministerial officer when he executes the decree. he, like the nazir, must carry out the decree of a civil court in general subjection to the judicial direction of the court on whose authority the coercive power exercised by him rests and which alone can deal judicially with the questions that arise in execution......that of the civil judge, ballia, dismissing his objections against the execution of a decree. the decree-holder applied for execution by sale of certain mortgaged plots of land. on february 1956 the execution court. (civil judge, ballia) sent the case to the collector ballia under section 68 c.p.c. for the sale of the plots. while the proceedings for sale were pending before the collector, the decree-holder died. thereupon the collector returned the file of the case to the execution court for substitution of the legal representatives of the deceased decree-holder. the court ordered substitution. meanwhile on 2nd december 1956 the code of civil procedure amendment act (act no. 66 of 1956) was passed omitting sections 68 to 72 of the code which had conferred jurisdiction on the collector,.....
Judgment:

S.S. Dhavan, J.

1. This is a judgment-debtor's second appeal from the decree of the District Judge, Ballia confirming that of the Civil Judge, Ballia, dismissing his objections against the execution of a decree. The decree-holder applied for execution by sale of certain mortgaged plots of land. On February 1956 the execution court. (Civil Judge, Ballia) sent the case to the Collector Ballia under Section 68 C.P.C. for the sale of the plots. While the proceedings for sale were pending before the Collector, the decree-holder died. Thereupon the Collector returned the file of the case to the execution Court for substitution of the legal representatives of the deceased decree-holder. The Court ordered substitution. Meanwhile on 2nd December 1956 the Code of Civil Procedure Amendment Act (Act No. 66 of 1956) was passed omitting sections 68 to 72 of the Code which had conferred jurisdiction on the Collector, but saving his jurisdiction in cases already transferred.

Thereupon the present decree-holders applied to the execution Court for the dismissal of the application. This was opposed by the judgment-debtor but the execution court dismissed the execution as prayed. Then the decree-holders filed the present application for execution of the decree by the sale of the mortgaged plots. It was filed before the execution Court. It was opposed by the judgment-debtor on the ground that it was incompetent and the Court had no jurisdiction to entertain it. He contended that the Collector Ballia was still seized of the execution and the execution court had no jurisdiction either to dismiss the previous application for execution or entertain the present one.

2. The execution Court held that a decree-holder always has the right to get his execution dismissed and the execution court has the power to dismiss it. It held that the present application was competent and the Court had jurisdiction to entertain it, and dismissed the objection. On appeal the learned District Judge confirmed this decision, and the judgment-debtor has come to this Court in second appeal.

3. The decision of the court below is sound. A decree-holder has always the right to get his application for execution dismissed and the sole question in this case is: which court had the jurisdiction to entertain the respondent decree-holder's application for dismissal of his earlier execution, the execution court or the Collector? I think the former. Section 68 C.P.C. which provides for the transfer of a decree to the Collector in a limited class of cases, confers a limited jurisdiction on that officer. As observed by the Bombay High Court

'The Collector, like the Nazir in India, is a ministerial officer when he executes the decree. He, like the Nazir, must carry out the decree of a civil court in general subjection to the judicial direction of the Court on whose authority the coercive power exercised by him rests and which alone can deal judicially with the questions that arise in execution.'

Lallu Trikam v. Bhavla Mithia, (1887) ILR 11 Bom. 478. I respectfully agree.

The Collector under Section 68 C.P.C. is the delegatee of the powers of the civil court and therefore as a delegate he has no power to dismiss an application for execution, for a delegate cannot make a decision taking away the jurisdiction of the delegating authority. Therefore an application for dismissal of the execution must be made not before the delegate under Section 68, but at the fountain source namely, the execution court itself. Even after a decree is sent to the Collector for execution under Section 68 C.P.C. the execution court is not divested of its ordinary jurisdiction in matters other than those relating to execution by sale of immovable property.

4. The appeal is dismissed.


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