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Ram Abhilakh Vs. Ram Jas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. Nos. 875 and 876 of 1962
Judge
Reported inAIR1966All218
ActsCode of Civil Procedure (CPC) , 1908 - Sections 4(1) and 42; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act, 1954; Uttar Pradesh Panchayat Raj Act, 1947 - Sections 64, 93 and 93(2)
AppellantRam Abhilakh
RespondentRam Jas and ors.
Appellant AdvocateB.N. Sapru, Adv.
Respondent AdvocateM.C. Agarwal and ;M.B. Agarwal, Advs.
DispositionApplication allowed
Excerpt:
.....raj act, 1947 and sections 4(1) and 42 of code of civil procedure, 1908 - decree passed by nyaya panchayat - powers of munsif - munsif can execute the decree as if it were passed by itself by attachment or sale of immovable property. (ii) jurisdiction of nyaya panchayat - sections 64 and 93 of u.p. panchyat raj act, 1947 - nyaya panchayat has no jurisdiction to entertain suits relating to immovable property - decree against immovable property - execution of decree against property includes immovable and movable property under section 93 - held, nyaya panchayat has jurisdiction to execute the decree against the immovable property. - - while executing the decree the nyaya panchayat acts, as one may say, like a post office. but this rule shall not be applicable to special laws..........to forward me decree to the munsif for execution as if it were a decree passed by him. but if the nyayapanchayat passing the decree had transferred it to the munsif, the latter shall execute the decree as if it were passed by him. 7. the two sub-sections of section 93 of the act when read together shall also suggest that a decree forwarded to the munsif under sub-section (1) shall also be governed by the provisions of sub-section (2). on reading section 93 of the act along with rule 128 of the rules it shall be clear that the nyaya panchayat has, for all practical purposes no power of execution; it can simply issue a notice to the judgment-debtor to comply with the decree and it is optional with the judgment-debtor to pay the decretal amount or not to pay. in case of non-compliance of.....
Judgment:
ORDER

1. This order shall govern Civil Revisions Nos. 875 and 876 of 1962 both by Ram Abhilakh, decree-holder, against the order, dated 30-8-1962 of the Munsif of Gyanpur, holding that in view of Section 42, C. P. C. he had, while executing the decree passed by the Nyaya Panchayat, same powers as the Nyaya Panchayat, and could not execute the decree by attachment and sale of immovable property. He consequently dismissed the application of Ram Abhilakh for the execution of the decree by attachment and sale of immovable property.

2. Section 64 of the U. P. Panchayat Raj Act, 1947 (to be referred hereinafter as the Act enumerates) the jurisdiction of the Nyaya Panchayat in civil cases. A perusal thereof shall make it clear that the Nyaya Panchayat has no jurisdiction to take cognizance of a suit for the recovery of immovable property or for the value thereof. Similarly the Nyaya Panchayat has no jurisdiction to entertain a suit for the recovery of money due on a contract in respect of an immovable property. In short, the Nyaya Panchayat has me jurisdiction to entertain suits with regard to movable property, and not immovable property.

3. Though the jurisdiction of the Court for trial of suits may be limited, the legislature can give unlimited jurisdiction to the same Court for the execution of the decree passed in accordance with the law. In other words, unless there be a provision to the contrary there can be no difficulty in such Court executing the decree against properties in respect of which a suit could not have been entertained by it. Whether the Court executing the decree has such a power shall thus depend upon by the provisions of the law applicable.

4. Section 93 of the Act lays down the mode of execution of decrees or orders passed by Nyaya Panchayat. A decree or order passed by Nyaya Panchayat is to be executed by it in such manner as may be prescribed. The rule so prescribed is contained in R. 128 of the U P. Panchayat Raj Rules (to be referred hereinafter as the Rules). However, if the property of thedefendant or opposite party is situated outside the jurisdiction of the Nyaya Panchayat passing me decree or order, it may, in the manner prescribed, transfer the decree or order for execution to the Nyaya Panchayat within whose jurisdiction the property may be situated and if mere be no Nyaya Panchayat, then to the Court of the Munsif, or Sub-divisional Officer, as the pase may be, within whose jurisdiction it may be situated. Under Sub-section (2) of Section 93 also a Nyaya Panchayat can forward the decree or order to the Munsif, or Sub-Divisional Officer, as the case may be, in case it finds any difficulty in executing the decree or order, and on the transfer of the decree the Munsif, or Sub-Divisional Officer, can execute the same as if it were a decree or order passed by him.

5. Even though in Section 64 differentiation has been made between 'movable' and 'immovable' property, the general word 'property' is used in Section 93. Section 93 thus places no such restriction on the execution of decree and it can be executed against any property including an immovable property even though no suit with regard to immovable property can be entertained by the Nyaya Panchayat.

6. In view of Rule 128 of the Rules the Nyaya Panchayat shall be unable to execute the decree unless the judgment-debtor voluntarily pays the amount or the decree and the costs of execution. Sub-rule (1) of Rule 128 prescribes the fee payable for an application for execution of the decree. Sub-rule (2) lays down the procedure to be followed by the Nyaya Panchayat which passed the decree. In case property of the defendant or opposite party against whom the execution application has been presented is not situated outside the jurisdiction of the Nyaya Panchayat, it has to issue a notice of the defendant or opposite party requiring him to comply with the decree within 30 days of the receipt of notice, and if the decree is not complied with within the said time, or such further time not exceeding three months as the Nyaya Panchayat may deem fit to allow, it (Nyaya Panchayat) has to forward the decree for execution in accordance with the provisions of Sub-section (2) of Section 93 of the Act.

Sub-rule (3) lays down the mode of execution where the property of the defendant or opposite party against whom the execution application has been presented, is situated outside the jurisdiction of the Nyaya Panchayat. In such cases, the Nyaya Panchayat which passed the decree can itself proceed in the manner laid down in Sub-rule (2), or transfer the decree for execution as provided in Sub-section (1) of Section 93 of the Act. Where the decree has been transferred to another Nyaya Panchayat or to the Munsif, a notice to the defendant or opposite party in the manner provided under Sub-rule (2) has to be issued in the first instance, and if the decree is not complied with within the period specified in the notice, or within such further time not exceeding three months as may be allowed the transferee Nyaya Panchayat has to act under Sub-section (2) of Section 93 of the Act, that is, to forward me decree to the Munsif for execution as if it were a decree passed by him. But if the NyayaPanchayat passing the decree had transferred it to the Munsif, the latter shall execute the decree as if it were passed by him.

7. The two Sub-sections of Section 93 of the Act when read together shall also suggest that a decree forwarded to the Munsif under Sub-section (1) shall also be governed by the provisions of Sub-section (2). On reading Section 93 of the Act along with Rule 128 of the Rules it shall be clear that the Nyaya Panchayat has, for all practical purposes no power of execution; it can simply issue a notice to the judgment-debtor to comply with the decree and it is optional with the judgment-debtor to pay the decretal amount or not to pay. In case of non-compliance of the decree it has to be forwarded to the Munsif for further action. While executing the decree the Nyaya Panchayat Acts, as one may say, like a post office. After realising the fee the Nyaya Panchayat simply issues notice to the judgment-debtor and in case of non-compliance, to forward the decree to the Munsif, for further action.

8. Section 42, C. P. C. lays down the power of the Court in executing 'transferred decrees'. The section was amended under U, P. Act No. XXIV of 1954 and the material part of amended Section 42 as applicable in the State of Uttar Pradesh is as below:--

'The Court executing a decree sent to it shall have the same power in executing such decree as the Court which passed it.'

The corresponding provision in unamended Section 42 was:--

'The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.'

The change introduced under U. P. Act No. XXIV of 1954 was that for the words 'as if it had been passed by itself', the words 'as the Court which passed it' were substituted. The effect of the change was considered in Karam Chand v. Gur Dayal, 1960 All LJ 352: (AIR 1960 All 512) and Bhukan Lal v. Ishwar Dayal Singh, 1963 All LJ 220: (AIR 1963 All 587), with which I am in respectful agreement. In view of the amendment the transferee Court can, while executing the decree, exercise only such powers as were possessed by the Court which passed the decree; but this rule shall not be applicable to special laws like the U. P. Panchayat Raj Act. This would be apparent from Section 4, C. P. C., Section 4(1) provides:--

'In the absence of any specific provisionto the contrary, nothing in the Code snail bedeemed to limit 01 otherwise effect anyspecial.... power conferred... . .by orunder any other law for the time being inforce.'

Consequently, any special power conferred by the Act shall override the corresponding provisions of the Code of Civil Procedure. 'Power' includes not only the jurisdiction to entertain and decide a suit but also the execution of the decree passed therein. In other words, if the special law makes a provision for the execution of a decree and thereby confers a special power on the executing Court, that provision shall override the corresponding provisions of theCode and the decree can be executed in the manner laid down in the special law.

9. It shall be found that in Sub-section (2) of Section 93 of the Act the words used are similar to those contained in unamended Section 42. Under this Sub-section the Munsif has to execute the decree as if it were a decree passed by him. Unamended Section 42 also provided that the transferee Court while executing the decree shall have the same powers as if it had been passed by itself. The words 'as if it had been passed by itself' mean 'as if the decree had been passed by the transferee executing Court'. Consequently the law applicable prior to the amendment of Section 42, C. P. C. shall apply to the execution of decrees passed by the Nyaya Panchayat, and while executing the decree the Munsif can exercise such powers as he could while executing a decree passed, by him, There can be no controversy in that the Munsif could execute the decree passed by him by attachment and sale of immovable property even though the decree related to movable property.

10. To get over this difficulty it was contended on behalf of the opposite parties that what the legislature meant was that the Munsif, was to execute the decree as if it were a decree passed by him as such, that is, as Nyaya Panchayat. Omissions in an enactment cannot be presumed. The Courts of law have to interpret the law as passed and cannot suppose that certain words had been inadvertently omitted. The Courts of law have the power to add or omit a few words to carry out the intention of the legislature provided that without adopting such a course no proper meaning can be given to the enactment. Addition or omission of words is an exception and not a rule. In the instant case, sub-SECTION (2) of Section 93 can be given a proper meaning without addition of the words suggested by the learned Advocate.

11. To sum up, Section 93 (2) of the Act overrides the provisions of Section 42, C. P. C., and while executing decree passed by a Nyaya Panchayat the Munsif can execute it as if it were a decree passed by him. The Munsif could execute a decree passed by him by attachment and sale of immovable property and consequently, he could execute the decree passed by the Nyaya Panchayat, duly forwarded to him for execution, by attachment and sale of immovable property. The Munsif has taken a wrong view of the law arid thereby failed to exercise the jurisdiction which was vested in him. This Court can, therefore, exercise the revisional jurisdiction by remanding the matter for hearing on merits.

12. Both the revisions are hereby allowed and the order under revision is set aside. The objections shall now be registered at their original number and disposed of in accordance with the law. Costs or this Court shall abide the decision of the objections.


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