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Shiam Lal Vs. Koerpal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All179; 85Ind.Cas.390
AppellantShiam Lal
RespondentKoerpal and anr.
Excerpt:
- .....may be pointed out that there is a mistake in the heading of the form, certificate of execution of decree transferred to another court (appendix e. no. 5, c.p.c). the reference in brackets after the heading should be section 41 and not order 21, rule 6. the attention of the registrar of this court will be drawn to this mistake. the mistake is in the form prescribed by the act itself and has been followed in the forms printed by the high court no. 32-xx. in maharaja of bobbili v. narasaraju peda a.i.r. 1916 p.c. 16 it was held by the privy council that the proper court to which an application for execution lay was the court to which the decree was transferred under section 39 until the court to which the decree was transferred issued a certificate under section 41 and returned the copy of.....
Judgment:

Dalal, J.

1. I am of opinion that the Subordinate Judge has acted without jurisdiction in this matter. A decree passed by the Court of Small Causes of Agra was transferred for execution under Section 39 of the Civil Procedure Code to the Court of the Munsiff of Agra. The Munsiff took proceedings and finally dismissed the application for execution maintaining attachment of a house. The Munsiff then certified the result of execution proceedings under Section 41 to the Court of Small Causes. After this the appellant purchased the house. The decree-holder subsequently applied afresh to the Court of the Munsiff for execution and the appellant objected. The Munsiff held that the house having been purchased during attachment the appellant could not stop the claim of the decree-holder by virtue of his own sale-deed. On appeal it was pointed out to the District Judge that the Munsiff had no jurisdiction because he had certified the result of the execution proceedings to the Court of Small Causes under Section 41. The learned District Judge held that the procedure was incorrect and dismissed the appeal.

2. However incorrect the procedure may be, the Munsiff after having certified the result of execution proceedings under Section 41, had no jurisdiction to deal with the matter. The application for execution must now lie to the Court which passed the decree. It may be pointed out that there is a mistake in the heading of the form, certificate of execution of decree transferred to another Court (Appendix E. No. 5, C.P.C). The reference in brackets after the heading should be Section 41 and not Order 21, Rule 6. The attention of the Registrar of this Court will be drawn to this mistake. The mistake is in the form prescribed by the Act itself and has been followed in the forms printed by the High Court No. 32-xx. In Maharaja of Bobbili v. Narasaraju Peda A.I.R. 1916 P.C. 16 it was held by the Privy Council that the proper Court to which an application for execution lay was the Court to which the decree was transferred under Section 39 until the Court to which the decree was transferred issued a certificate under Section 41 and returned the copy of the decree to the original Court. That ruling referred to corresponding sections of the previous Code of 1882. It is clear therefore that Court to which the decree is transferred under Section 39 has jurisdiction only up to the time that it issues the certificate pre scribed by Section 41. That stage was passed in this case whether the certificate was issued rightly or wrongly. After the issue of the certificate the Court of the Munsiff ceased to have jurisdiction.

3. I pronounce no opinion as to the effect of continuation of the attachment of the house on a proper application for execution being presented to the Court of Small Causes and a fresh transfer of the decree is made to the Court of the Munsiff.

4. I set aside the decree of the two Subordinate Courts and dismiss the decree-holder's application for execution, dated 11th September, 1923. The respondents were not represented. This order is passed ex-parte. The appellant shall receive his costs in this Court and the Court below.


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