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B. Krishna Chandra Agarwal Vs. Firm Mohan Lal Bhikam Das and Co. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All758
AppellantB. Krishna Chandra Agarwal
RespondentFirm Mohan Lal Bhikam Das and Co.
Excerpt:
- - the decree had been obtained originally from the bombay high court against a firm kishun chand-har govind carrying on business at cawnpore as well as some other persons. the court allowed time to the decree-holder to state clearly whether he would proceed against the firm or against the personal properties of kishun chand-har govind......arising out of an execution proceeding. the decree had been obtained originally from the bombay high court against a firm kishun chand-har govind carrying on business at cawnpore as well as some other persons. this decree was transferred for execution to the fatehpur court for the realization of the amount by attachment of certain shops. the court allowed time to the decree-holder to state clearly whether he would proceed against the firm or against the personal properties of kishun chand-har govind. in the meantime, the decree. holder filed an application in the bombay high court, which had passed the original decree, and obtained an order directing that the decree-holder was at liberty to execute the decree against kishun chand and har govind also. objection was then taken in.....
Judgment:

1. This is an appeal by the judgment-debtor arising out of an execution proceeding. The decree had been obtained originally from the Bombay High Court against a firm Kishun Chand-Har Govind carrying on business at Cawnpore as well as some other persons. This decree was transferred for execution to the Fatehpur Court for the realization of the amount by attachment of certain shops. The Court allowed time to the decree-holder to state clearly whether he would proceed against the firm or against the personal properties of Kishun Chand-Har Govind. In the meantime, the decree. holder filed an application in the Bombay High Court, which had passed the original decree, and obtained an order directing that the decree-holder was at liberty to execute the decree against Kishun Chand and Har Govind also. Objection was then taken in the Fatehpur Court to which execution had been transferred that the Bombay High Court had no jurisdiction in the matter and its order was ultra vires inasmuch as the decree had been transferred to the Fatehpur Court for execution. This contention has been repelled, and we think rightly, by the Court below.

2. The learned Counsel for the appellant relies on Maharajah of Bobbili v. Sri Raja Narasaraju A.I.R. 1916 P.C. 16. But in that case, although the decree had been transferred by a district Court to a Munsif's Court for execution and had not been returned, a subsequent application was nevertheless made in the Court of the District Judge which their Lordships of the Privy Council said could not amount to a valid step-in-aid of execution. After the execution itself is transferred, the only Court to which an application for execution could be made or step-in-aid could be taken would be the Court executing the decree and not the Court which had passed the original decree. That case therefore has no application to the case before us. Order 21, Rule 50(2) which applies to the facts of this case lays down expressly that:

Whore the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule 1, Clauses (b) and (o) as being a partner in the firm, he may apply to the Court which passed the decree for leave....

3. Prima facie, therefore, the Court to which the application for leave can be made is the Court which passed the decree and that would be the High Court. It appears however that a Division Bench of this Court in Sital Prasad v. Clements Robson & Co. A.I.R. 1921 All. 199 came to the conclusion that by virtue of the provisions of Section 42, Civil P.C., the executing Court also has the same power, for under that section the Court executing the decree sent to it shall have the same powers in executing such a decree as if it had been passed by itself; although the learned Judges at p. 398 remarked that for the purposes of execution the executing Court is to be deemed to be the Court which passed the decree, apparently all that they intended to lay down was that the Court would have jurisdiction to entertain the application and grant leave under Order 21, Rule 50(2). It seems to us that the Patna High Court in Kalu Ram v. Sheonand Rai Jokhi Ram A.I.R. 1932 Pat. 323 has taken a contrary view holding that it is only the original Court which passed a decree and not the Court to which the decree has been transferred for exeoution which can entertain such an application. It is not necessary for us to consider that point in this case. Sital Prasad v. Clements Robson & Co. A.I.R. 1921 All. 199 is certainly distinguishable, because the learned Judges did not lay down that the Court which had passed a decree ceases to have jurisdiction in the matter although Order 21, Rule 50(2) expressly refers to such Court. Furthermore Order 21, Rule 28 also provides that any order of the Court by which the decree was passed, or of such Court of Appeal aforesaid in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution. We are therefore unable to hold that the Bombay High Court had ceased to have jurisdiction to grant leave under Order 21, Rule 50(2) merely because it had transferred the execution of its own decree to the Fatehpur Court. If the appellant wishes to raise any question as to fraud in getting service effected of the summons issued by the Bombay High Court or wishes to have the order of the Bombay High Court set aside or reviewed, his remedy is apparently to apply to that Court. The appeal is accordingly dismissed with costs.


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