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Seth Shapurji Nana Bhai Vs. Shankar Dat Dube - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All431
AppellantSeth Shapurji Nana Bhai
RespondentShankar Dat Dube
Excerpt:
execution of decree - civil procedure code, section 234--application to execute decree against alleged representative of deceased judgment-debtor. - .....subordinate judge of aligarh found both these issues against him arid ordered the transfer of the decree for execution to jaunpur. against this order raja shankar dat dube appealed to the district judge of aligarh, repeating in his appeal the same objections as he had raised before the subordinate judge. neither before the subordinate judge nor in his appeal to the district judge did he raise any question as to the jurisdiction of the former court to decide as to whether or not he was the legal representative of the deceased judgment-debtor. the learned district judge allowed the appeal, being of opinion that the decision of the subordinate judge as to whether the applicant was or was not the heir of the deceased judgment-debtor was ultra vires, inasmuch as the' question was one to be.....
Judgment:

Aikman, J.

1. The appellant in this case got a money decree from the Court of the Subordinate Judge of Aligarh against one Raja Hari Har Dat Dube, a resident of the district of Jaunpur. The judgment-debtor died after the passing of the decree and before execution had been taken out. After his death the decree-holder applied to the Court which passed the decree to send it for execution to the Court of the Subordinate Judge of Jaunpur. In his application he inserted the name of the respondent Raja Shankar Dat Dube, brother, and Musammat Sahodra, widow, of the deceased judgment-debtor as his legal representatives. Notice was issued to these two persons to show cause why the decree should not be executed against them. No cause was shown by Musammat Sahodra, but Raja Shankar Dat Dube presented a petition of objection, contending that he was not the heir of the deceased judgment-debtor and that no property of the deceased had Come to his hands. The Subordinate Judge of Aligarh found both these issues against him arid ordered the transfer of the decree for execution to Jaunpur. Against this order Raja Shankar Dat Dube appealed to the District Judge of Aligarh, repeating in his appeal the same objections as he had raised before the Subordinate Judge. Neither before the Subordinate Judge nor in his appeal to the District Judge did he raise any question as to the jurisdiction of the former Court to decide as to whether or not he was the legal representative of the deceased judgment-debtor. The learned District Judge allowed the appeal, being of opinion that the decision of the Subordinate Judge as to whether the applicant was or was not the heir of the deceased judgment-debtor was ultra vires, inasmuch as the' question was one to be decided by the Court executing the decree. In second appeal to this Court the decree-holder impugns the correctness of the learned Judge's opinion. I think the appeal must succeed. Although the decree-holder did not refer in his petition to Section 234 of the Code, I think his application amounts to an application under the first paragraph of that section, and from the wording of that section it is in my opinion a question for the Court which passed the decree to decide whether a particular person is or is not the legal representative of a deceased judgment-debtor. But I think the Subordinate Judge was exceeding his powers when he went on to decide as to the amount of property which had come to the hands of the respondent. The Court which passed the decree having decided who is to be regarded AS the legal representative, it is for the Court executing the decree to decide as to the extent of that legal representative's liability. I draw this inference from the use of the words 'the Court which passed the decree' in the first paragraph, and 'the Court executing the decree' in the second paragraph of Section 234 of the Code. So much therefore of the Subordinate Judge's decision as referred to the property in the hands of the respondent was ultra vires, but in my opinion the Subordinate Judge had jurisdiction to decide as to whether or not the respondent was the legal representative. This was a question properly for the Court which passed the decree, and not for the Com t to which the decree was transferred. The learned Counsel for the respondent relies on Section 244 Clause (c). This gives the Court executing a decree jurisdiction to determine 'questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof.' But this does not give a Court executing a decree transferred to it jurisdiction to determine who are to be considered the representatives. Any order passed by a Court sending a decree for execution to another Court holding that the decree might be executed against a certain person as the legal representative of the deceased judgment-debtor might, I think, come within the provision of Clause (c) of Section 244 of the Code of Civil Procedure, and a copy of it should be sent to the Court to which the decree is transferred for execution. In this view I am supported by the remarks of Prinsep and Beverley, JJ., in Srihary Mundul v. Murari Chowdhry I.L.R. 13 Cal. 257, at p. 262. The learned District Judge in his judgment says as follows: 'I agree with the Subordinate Judge that the application of the original applicant (now appellant) should have been dismissed, but the application should have been dismissed on the ground that the Court had no jurisdiction to entertain the application.' The meaning of this is not quite clear, hut I gather from it that the District Judge merely held that the lower Court ought to have dismissed the application as having no jurisdiction, and did not mean to hold that the application should have been dismissed on its merits. I therefore think that the case must be remanded under Section 562 of the Code of Civil Procedure. I allow this appeal, and, setting aside the order of the Lower Appellate Court, remand the case under Section 562 of the Code of Civil Procedure with directions to re-admit the appeal under its original number On the register and proceed to determine it on the merits with reference to the above remarks., The costs will abide the result.


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