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Bhagwan Das Vs. Gomti Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberExn. First Appeal No. 20 of 1954
Judge
Reported inAIR1962All619
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 and 39
AppellantBhagwan Das
RespondentGomti Bai and anr.
Appellant AdvocateS.N. Misra, Adv.
Respondent AdvocateS.N. Verma, Adv.
DispositionAppeal dismissed
Excerpt:
(i) civil - execution - sections 38 and 39 of code of civil procedure, 1908 - held, execution of decree is permissible in both the courts at one time - court which passed the decree and the court to which the decree is transferred for execution. - - the impugned decision of the learned civil judge is therefore correct and the appeal must fail......is being questioned by the present appeal.3. the question was considered recently by a learned single judge of this court in aftab ahmad v. hindusthan commercial bank ltd. : air1960all558 . the facts were similar and it was held that the second application for execution in the court which had passed the original decree was maintainable. the same view appears to have been taken by a division bench of rajasthan high court in ramkumar chunilal v. hazarimal bansilal .the only decision to the contrary is that of a learned single judge in parsottam pasi v. raj narain : air1957all336 . the question that arose for decision in parsottam's case : air1957all336 was not exactly the same. there the question, was whether an application made in the transferee court after a decree had been.....
Judgment:

Srivastava, J.

1. The short question raised by this execution first appeal is whether simultaneous execution is permissible in two courts, one being the Court to which the decree has been transferred for execution under Section 39 Civil Procedure Code and the other being the Original Court which passed the decree.

2. The facts are that the decree-holder having obtained his decred got it transferred to a Court in Gwalior and put in an application for execution there. Before a certificate could be sent by the Gwalior Court, he put in a second execution application in the Court which had passed the decree and wanted to proceed against some property of the judgment-debtor situated within the jurisdiction of that Court. Objection was taken to the second application on the ground that it was not maintainable in law. Relying on the case of Makkhan Lal v. Mst. Bhagwana Kuer : AIR1936All655 , the learned Civil Judge rejected the objection. His order is being questioned by the present appeal.

3. The question was considered recently by a learned Single Judge of this Court in Aftab Ahmad v. Hindusthan Commercial Bank Ltd. : AIR1960All558 . The facts were similar and it was held that the second application for execution in the Court which had passed the original decree was maintainable. The same view appears to have been taken by a Division Bench of Rajasthan High Court in Ramkumar Chunilal v. Hazarimal Bansilal .

The only decision to the contrary is that of a learned Single Judge in Parsottam Pasi v. Raj Narain : AIR1957All336 . The question that arose for decision in Parsottam's case : AIR1957All336 was not exactly the same. There the question, was whether an application made in the transferee Court after a decree had been transferred to another Court, could be treated as an application in aid of execution and the learned Single Judge answered that question in the negative. The attention of the learned Single Judge was apparently not drawn to the Division Bench case in : AIR1936All655 . We respectfully agree with the decisions in Makhan Lal's case : AIR1936All655 and Aftab Ahmad's case : AIR1960All558 and are of the opinion that the application for execution made in the transferor Court was not barred by any provisions of law and was therefore maintainable. The impugned decision of the learned Civil Judge is therefore correct and the appeal must fail. It is accordingly dismissed with costs. The stay order is discharged.


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