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Abda Begam Vs. Muzaffar Husen Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All129
AppellantAbda Begam
RespondentMuzaffar Husen Khan
Excerpt:
.....that the certificate that the case had been struck off was a certifying by the subordinate judge of cawnpore, that his court bad failed to execute the decree within the meaning of section 223. reference was made to clause (b) of section 224 for the purpose of showing that it was intended by the legislature that the court in which a decree was made should give information to the court to which the decree was sent for execution as to the extent to which the decree had been executed, and as to the part of the decree which still remained unexecuted, and it is argued that similar information, when the decree had been sent to another cou 3. for the appellant it is contended that the subordinate judge of cawnpore must have jurisdiction to execute the decree until the decree had in fact..........was sent the decree-holder applied again to the subordinate judge of cawnpore to have the decree executed. her application was dismissed on the ground that the subordinate judge of cawnpore was no longer seised of the case and was functus officio. from that order of dismissal this appeal has been brought.2. the dismissal of the first application on the 11th of april 1896, was not a dismissal on the merits and was not a dismissal which precluded the decree-holder from applying again to the same court for execution of her decree. the application was dismissed merely upon the ground of informalities in the application itself. it has been contended before us on behalf of the judgment-debtor that the subordinate judge of cawnpore ceased to have jurisdiction when he forwarded the.....
Judgment:

John Edge, C.J. and Burkitt, J.

1. The appellant before us obtained a decree for money in the Court of the Judicial Commissioner of Oudh. On the application of the decree-holder the decree was sent to the District Judge of Cawnpore for execution under Section 223 of the Code of Civil Procedure. The District Judge transferred the case to the file of the Subordinate Judge of Cawnpore. The decree-holder applied to the Subordinate Judge for execution of the decree. The application was admitted and property was attached. Thereupon the judgment-debtor, who is respondent here, filed an objection to the execution of the decree on the ground that the application did not comply with Sections 235 and 237 of the Code of Civil Procedure. The application with the objection came on for hearing, and the Subordinate Judge on the 11th of April 1896, struck off the application on the ground that it did not comply with Sections 235 and 237. Subsequently the Subordinate Judge certified to the Court at Lucknow that 'on the objection of the judgment-debtor the application for execution was struck off.' Apparently on the very day when that certificate was sent the decree-holder applied again to the Subordinate Judge of Cawnpore to have the decree executed. Her application was dismissed on the ground that the Subordinate Judge of Cawnpore was no longer seised of the case and was functus officio. From that order of dismissal this appeal has been brought.

2. The dismissal of the first application on the 11th of April 1896, was not a dismissal on the merits and was not a dismissal which precluded the decree-holder from applying again to the same Court for execution of her decree. The application was dismissed merely upon the ground of informalities in the application itself. It has been contended before us on behalf of the judgment-debtor that the Subordinate Judge of Cawnpore ceased to have jurisdiction when he forwarded the certificate that the first application had been struck off. The grounds of that contention are that Section 243 of the Code provides, amongst other things, that the Court 'to which a decree is sent under this section 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,' and it is contended that the certificate that the case had been struck off was a certifying by the Subordinate Judge of Cawnpore, that his Court bad failed to execute the decree within the meaning of Section 223. Reference was made to Clause (b) of Section 224 for the purpose of showing that it was intended by the Legislature that the Court in which a decree was made should give information to the Court to which the decree was sent for execution as to the extent to which the decree had been executed, and as to the part of the decree which still remained unexecuted, and it is argued that similar information, when the decree had been sent to another Court, would be necessary for the Court which had sent the decree for its own guidance in case of further applications for execution of the decree. It has been now decided by their Lordships of the Privy Council that two or more contemporaneous executions of the same decree may be validly held. What might be the result if there were two or more contemporaneous sales of the judgment-debtor's property, say, one in Gorakhpur, another in Allahabad, and another in Meerut, each realizing the full amount due under the decree, is a matter with which we need not concern ourselves. What would become of the purchasers at these sales and what interest they would take, or how it could be arranged between the various Courts that the sales should not be held contemporaneously are further matters with which we need not concern ourselves.

3. For the appellant it is contended that the Subordinate Judge of Cawnpore must have jurisdiction to execute the decree until the decree had in fact been executed or until there had been an absolute failure to enforce execution of it. The following cases were cited in the argument: Rangili v. Riayat Husain, Weekly Notes, 1883, p. 247. Gajadhar v. Hanuman, Weekly Notes, 1886, p. 31, Buboria Ahun Basee Kooer v. Joob Raj Singh 23 W.R., C.R., 225, and J.G. Bagram v. J.P.Wise 1 B.L.R. F.B., 91.

4. In our opinion the Court to which a decree is sent for execution retains its jurisdiction to execute the decree until the execution has been withdrawn from it, or until it has fully executed the decree and has certified that fact to the Court which sent the decree, or has executed it so far as that Court has been able to execute it within its jurisdiction and has certified that fact to the Court which sent the decree, or until it has failed to execute the decree and has certified that fact to the Court which sent the decree. Now the Legislature, when it used the words ' fails to execute' in Section 223 of the Code, could not have meant that a Court which merely strikes off an application on the ground of informality thereby fails to execute the decree. 'Fails ' must signify a failure after a serious and bond fide attempt by the Court to execute the decree. That paragraph in Section 223 suggests to our minds that it may have originated in an attempt to assimilate as far as possible the practice in such cases in England where a decree-holder who has obtained his decree for money sues out a writ of fieri facias directed to the sheriff to levy on the goods of the judgment-debtor within his bailiwick, and the sheriff's return (to be a good one) must be, either that he has levied to the extent of the goods of the judgment-debtor within his bailiwick, or that there are no good's of the judgment-debtor within his bailiwick. In our opinion the Court of the Subordinate Judge of Cawnpore did not fail to execute the decree within the meaning of Section 223; it merely struck off an application on the ground of informality. We further consider that the case was not a case in which the Subordinate Judge of Cawnpore was justified in sending any certificate to the Court at Lucknow. Neither of the events had arisen which would have justified the Subordinate Judge in sending any certificate under Section 223, for there was neither execution nor failure. The case of J.G. Bagram v. J.P. Wise, which was a Full Bench ruling of the Calcutta Court, is an authority to show that the Court to which a decree is sent has, even after striking off an application for execution, as here, still jurisdiction in the matter of the execution. It is true that the Full Bench case was decided on Section 284 of Act VIII of 1859, but in our opinion it is equally applicable to cases arising under the present Code of Civil Procedure. We have come to the conclusion that the Subordinate Judge wrongly declined jurisdiction when he had it. We set aside the order dismissing the application out of which this appeal has arisen, and we remand the case under Section 562 of the Code of Civil Procedure to the Court of the Subordinate Judge for the application to be restored to the file and to be disposed of according to law. The appellant will have her costs of this appeal.


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