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Parsottam Pasi Vs. Pt. Raj NaraIn Sharma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 876 of 1955
Judge
Reported inAIR1957All336
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(5); Code of Civil Procedure (CPC) , 1908 - Sections 38 and 41 - Order 21, Rule 6
AppellantParsottam Pasi
RespondentPt. Raj NaraIn Sharma and anr.
Advocates:Har Nandan Prasad, Adv.
DispositionAppeal allowed
Excerpt:
.....passed it, or by the court to which it is sent for execution. clearly states: the court sending a decree for execution shall send a copy of the decree and at the same time a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court by which it was passed or where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied and shall send a copy of any order for the execution of the decree or, if no such order has been made, a certificate to that effect. the court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the same the circumstances..........air 1935 lah 465 (fb) (k) a majority of the full bench of the lahore court however seems to have taken the view that execution applications could be made also in the transferor court despite the transfer.6. in my view however there can be little doubt that the other view above indicated is correct, and that in this case steps-in-aid of execution which were taken before the judge small cause court, banaras, before the requisite certificate of non-satisfaction had been sent by the munsif of hawali to that court were futile and could not save limitation.7. accordingly i allow this appeal, set aside the judgment and decree of the court below and uphold the objection of the judgment-debtor that the present application for execution is beyond time. since no one appears for the respondent there.....
Judgment:

Gurtu, J

1. This is a judgment-debtor's appeal. The decree-holder obtained a money decree on 10-7-42 from the Judge, Small Cause Court, Banaras. He applied for transmission of the decree under Section 39 of the Code of Civil Procedure to the Judge Section C. Court, Banaras. The decree was transmitted to the Munsif of Hawaii by the Judge, Small Cause Court. An application for execution of the transmitted decree was made by the decree-holder on the 21st of January 1946 to the Munsif, Hawaii execution being sought against land. The land being a protected land within the meaning of U. P. Regulation of Agricultural Credit Act (XIV of 1940) the Munsif, Hawaii, transferred the execution of the decree to the Collector. Having transferred the decree he dismissed the application by his order dated the 8th March 1946.

It appears that the decree-holder took no steps before the Collector. On 7-3-49 he moved an application before the Judge, Small Cause Court for a fresh transmission of the decree. This application was dismissed by the Judge, Small Cause Court on the 19th of April 1949 on the ground that the Court to which the decree had been sent for execution had not certified back to him the fact of execution or non-execution. On 16-8-'50 another application was made before the Judge, Small Cause Court, Banaras fpr transmission of the decree. This application was again dismissed upon the previous ground. A certificate of non-satisfaction was at last sent by the Munsif of Hawali and then on the 4th September, 1953, the decree-holder made an application for a fresh transmission of the decree to the Judge, S.C.C. Banaras.

The Judge gave a certificate of non-satisfaction and transferred the decree to the Munsif, Hawali. There an application for execution was made on 9-1-'54 by the decree-holder. The judgment-debtor then took an objection that the execution application was time-barred. The ground of the objection was that after the decree had been transmitted by the Judge, Small Cause Court, on 29-7-45, the Judge, Small Cause Court, had no further jurisdiction in regard to the execution of the decree until a certificate of non-satisfaction had been received back from the Munsif, Hawaii, and that therefore all the applications previously made for retransmission of the decree to the Judge, Small Cause Court, Banaras were ineffectual and that therefore the execution application made to the Munsif of Hawaii on 9-1-'54 was beyond time being beyond three years of the date of the dismissal of the first application for execution by the Munsif of Hawali and also being beyond three years from the date of the dismissal of the previous application dated 8-3-'46.

2. The Courts below have rejected the objection of the judgment-debtor and have ordered execution to proceed. They have treated the application dated 7-3-'49, and 16-8-'50 as being steps-in-aid of execution. The judgment-debtor comes up in appeal and argues that once the Judge, Small Cause Court, Banaras, had transmitted the decree he had no further jurisdiction left to deal with the decree and any application made to him thereafter could not be treated as steps-in-aid and that the decree-holder should have taken his steps-in-aid before the Munsif of Hawali.

3. The submission seems to be justified. Section 38 of the Civil Procedure Code clearly indicates that

'A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.'

Simultaneous application for execution in the Court which passed the decree and in the Court towhich the decree had been transmitted seems to be ruled out by the language of Section 38 of the Civil Procedure Code. Order 21, Rule 1 of the C. P. C.clearly states:

'All money payable under a decree shall be paid into the Court whose duty it is to execute the decree.''

Once a decree is transmitted it is the duty of the Court to which it has been transmitted to execute the decree. Order 21 Rule 6 of the C. P. C. states that:

'The Court sending a decree for execution shall send a copy of the decree and at the same time a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed or where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied and shall send a copy of any order for the execution of the decree or, if no such order has been made, a certificate to that effect.'

Under Section 41 of the C. P. C.

'The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.'

It is therefore clear that reporting in regard to the state of execution of the decree has to be made at both ends both by the transmitting Court and by the Court to which the decree has been transmitted and the reason is obvious because without such certificate the Court concerned would not know to what extent the decree had been executed. The entire scheme of the Code is therefore clear that there cannot be simultaneous steps-in-aid of execution in both the Courts which passed the decree and in the Court to which the decree has been transmitted for execution, So far back as Budhi Bibi v. Indar Kuar, 1882 All WN 171 (A), the principle governing this matter was clearly indicated with reference to the provisions of the then Civil Procedure Code. It was stated in that case that

'If the decree-holder desired to take a step to enforce his decree, which had been sent in 1877 to the Partabgarh Court for execution and was still in that Court, he was bound to apply to that Court, and his futile application to the Allahabad Court to give him a second certificate to the Partabgarh Court, the first being still subsisting and operative, was neither an application in accordance with the law of the Civil Procedure Code, nor was it made to the proper Court.'

It was held that the application of the 13th of May 1879 was therefore unavailing to give the decree-holder a fresh start in limitation from that date and his present application of the 4th January 1882 was barred by time.

4. Their Lordships of the Privy Council in the case of Maharajah of Bobbili v. Sri Raja Nara-saraju Peda Baliara Simhulu Bahadur, AIR 1916 PC 16 (B) have I think clearly indicated that once a decree is transferred, the transferor Court ceased to have jurisdiction and also that all steps which have to be taken thereafter must be taken in the transferee Court. There is a large body of authority which has followed the Privy Council case. In Jatendra Kumar v. Mahendra Chandra : AIR1933Cal906 ; Ram Kishan v. Satya Narain : AIR1939Cal741 ; Diwanchand v. Ralliaram, AIR 1931 Lah 14 (E); Firm Sherumal China-mal v. Firm Hiralal Anantram, AIR 1925 Lah 233 (P); Peirce Leslie & Co. Ltd. v. Perumal, AIR 1918 Mad 580 (FB) (G); Mohammad Shakir v. Jugal Kishore ; Kamakhya Narain Singh v. Kalipado Dutta, AIR 1939 Pat 289(I) and Bishundeo Narain v. Raghunath Prasad AIR 1940 Pat 677 (J) following the Privy Council case, the view has been taken that it is in the transferee Court that steps-in-aid must be taken and that no steps-in-aid can be taken in the transferor Court until the transferee Court has certified back the result of the execution proceedings transferred to it.

5. In the case of Kanti Narain v. Madan Gopal, AIR 1935 Lah 465 (FB) (K) a majority of the Full Bench of the Lahore Court however seems to have taken the view that execution applications could be made also in the transferor Court despite the transfer.

6. In my view however there can be little doubt that the other view above indicated is correct, and that in this case steps-in-aid of execution which were taken before the Judge Small Cause Court, Banaras, before the requisite certificate of non-satisfaction had been sent by the Munsif of Hawali to that Court were futile and could not save limitation.

7. Accordingly I allow this appeal, set aside the judgment and decree of the Court below and uphold the objection of the judgment-debtor that the present application for execution is beyond time. Since no one appears for the respondent there will be no orders as to costs.


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