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Mansa Ram Vs. L. Badri Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All369; 163Ind.Cas.231
AppellantMansa Ram
RespondentL. Badri Prasad and anr.
Excerpt:
- - 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. we are of the opinion that the present case is clearly distinguishable......in the same way for execution to the court of the munsif of meerut; and again the certificate and copy of decree were handed to him. he did not take them to meerut, but again returned them to the bombay court. on 6th february 1931 he made an application for transfer to the bombay court; and on that application the certificate and copy of decree were sent by the court direct to the court in meerut. the claim of the learned counsel for the judgment-debtor is that after the first order of 11th july 1928 the bombay court ceased to have jurisdiction and that the procedure adopted should have been the procedure laid down in section 41, civil p.c., which states: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.....
Judgment:

Bennet, J.

1. This is an execution second appeal by a judgment-debtor, in which the sole question raised is one of limitation. The decree-holder obtained a decree on 11th December 1926 in the Small Cause Court, Bombay. On 11th July 1928 the decree-holder made an application for transfer of that decree for execution in the Court of the Munsif of Meerut. He received a certificate and copy of the decree in accordance with the rule corresponding to the rule of this Court in Order 21, Rule 6(2). Subsequently he did not take the copy of the decree and certificate to the Meerut Court; but he returned them to the Bombay Court. He then, on 2nd December 1929, made a further application for transfer to the Bombay Court asking that the decree should be transferred in the same way for execution to the Court of the Munsif of Meerut; and again the certificate and copy of decree were handed to him. He did not take them to Meerut, but again returned them to the Bombay Court. On 6th February 1931 he made an application for transfer to the Bombay Court; and on that application the certificate and copy of decree were sent by the Court direct to the Court in Meerut. The claim of the learned Counsel for the judgment-debtor is that after the first order of 11th July 1928 the Bombay Court ceased to have jurisdiction and that the procedure adopted should have been the procedure laid down in Section 41, Civil P.C., which states:

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.

2. No authority for this proposition has been produced by counsel. He relies on Maharaja of Bobbili v. Sri Raja Narasaraju 1916 14 ALJ 1129. In that case the certificate for transfer had been received by the Court to which the transfer was to be made; and, therefore, their Lordships of the Privy Council held that the Court which passed the decree had no further jurisdiction until the procedure under section corresponding to Section 41, Civil P.C., had been carried out. We are of the opinion that the present case is clearly distinguishable. In our opinion it is open to a decree-holder, who obtains personally the copy and certificate, either to take the copy and certificate to the Court to which they are sent; or, if for some reason he does not desire to do so, to return the copy and certificate to the Court which issued them. If he takes the latter action, then the Court which passed the decree becomes again seised of the matter, and is either able to grant execution itself, or to grant a new certificate for transfer. The argument was made that it was not necessary for further steps to be taken of the nature in the present case. In Todar Mal v. Phola Kuar (1913) 11 ALJ 533, it was held that an application for transfer of a decree amounted to a step-in-aid of execution. It was also held in the Full Bench ruling reported in Kayastha Co., Ltd. v. Sita Ram Dubey 1929 ALJ 983, that a decree-holder was not now required to show his bona fide or to prove that the step-in-aid of execution was taken by him with a genuine intention to execute his decree. We are of the opinion that the Court below was correct in holding that the present application is not tome-barred, and we dismiss this second appeal with costs.


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