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(Sheikh) Muhammad Habibullah Vs. R.B. Seth Tikam Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All276a; 85Ind.Cas.746
Appellant(Sheikh) Muhammad Habibullah
RespondentR.B. Seth Tikam Chand
Excerpt:
- - this means that the procedure for suit as well as the procedure for executing decrees shall apply to other proceedings both as to the trial of those proceedings and the carrying out of the orders passed in those proceedings......38 is different. it was enacted to decide the question as to the jurisdiction of a court when a suit i3 transferred. if a suit instituted in court a is transferred to court b and court b decides it, section 38 enjoins that that application for execution shall be presented to court b and not to court a, that is, the application is to be presented to the court which passed the decree and not to the court in which the suit was instituted. the section is not exhaustive and a decree can be executed by the court to which it is transferred under section 24. the analogy of the provisions of section 141 does not hold except in favour of the view that suits include execution proceedings. under that section the procedure provided by the code in regard to suit is made applicable to all.....
Judgment:

1. It is objected in this appeal that the Court of Small Gauges at Agra had no jurisdiction to carry on execution proceedings on the application of the decree-holder in Execution Case No. 76 of 1923. The decree was passed by the Additional Subordinate Judge, and the application for execution was filed by the decree-holder in that Court. Subsequently on 30bh November, 1923, the District Judge of Agra transferred, for overwhelming reasons, this particular application for execution to the Court of the Small Cause Court Judge. It was argued here that the District Judge had no jurisdiction under Section 24 to do so. We are of opinion that the word 'suit' in Section 24 will include execution proceedings. This was held by this Court so far back as 1876 under Act VIII of 1859, Section 6 Gaya Pershad v. Bhup Singh (1876) 1 All. 180 (F.B.), It was pointed out that under Section 38 a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution, and that therefore, no other Court can execute a decree. The reason for the passing of Section 38 is different. It was enacted to decide the question as to the jurisdiction of a Court when a suit i3 transferred. If a suit instituted in Court A is transferred to Court B and Court B decides it, Section 38 enjoins that that application for execution shall be presented to Court B and not to Court A, that is, the application is to be presented to the Court which passed the decree and not to the Court in which the suit was instituted. The section is not exhaustive and a decree can be executed by the Court to which it is transferred under Section 24. The analogy of the provisions of Section 141 does not hold except in favour of the view that suits include execution proceedings. Under that section the procedure provided by the Code in regard to suit is made applicable to all proceedings in any Court of Civil jurisdiction. This means that the procedure for suit as well as the procedure for executing decrees shall apply to other proceedings both as to the trial of those proceedings and the carrying out of the orders passed in those proceedings.

2. Reference by the appellant's learned Counsel to Section 39 of the Code of Civil Procedure indicated a confusion between two totally different matters. Section 39 covers cases of transfer of a decree and not of an application for execution. Once a decree is transferred under Section 39 that Court which passed the decree ceases to have jurisdiction till it receives a certificate under Section 41. Under Order 21, Rule 10, an application for execution is to be presented to the Court to which the decree is transferred, when the decree is sent to another Court for execution, and not to the Court which passed it. This is totally different from the transfer of one particular application for execution under Section 21 of the Code of Civil Procedure. For instance, in the present case, the Small Cause Court has jurisdiction to dispose of this particular execution matter but not to receive any fresh application for execution, which will lie in the Court of the Additional Subordinate Judge.

3. We hold that the lower Court had jurisdiction and dismiss this appeal with costs which shall include Counsel's fees here on the higher scale.


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