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Aftab Ahmad and ors. Vs. the Hindustan Commercial Bank Ltd., Aminabad, Lucknow - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.Ex.D.A. No. 24 of 1958
Judge
Reported inAIR1960All558
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 and 41
AppellantAftab Ahmad and ors.
RespondentThe Hindustan Commercial Bank Ltd., Aminabad, Lucknow
Advocates:Mohd. Ayub, Adv.
DispositionAppeal dismissed
Excerpt:
civil - second execution application - sections 38 and 41 code of civil procedure, 1908 - irregularity of non sending of non-satisfaction certificate - right of decree holder to file second execution - not prohibited if property is not same. - - bhagwana kuer air1936all655 where it was clearly mentioned that no doubt execution against the same property cannot take place in two courts at one and the same time but there is no bar for execution in one court against the property, and in another court by another means......following executions: 1. the first execution application was filed on 2-2-51 in the court of the civil judge, lucknow who had passed the decree. it was transferred to the court of the sub-judge, ambala and decided on 14-2-51. 2. the second execution application was filed on 14-2-51 in the court of the sub-judge, ambala and decided on 30-4-51. 3. the third execution application was filed on 6-2-54 in the court of the civil judge at lucknow. it was transferred to the court o the sub-judge, ambala and decided on 1-10-54. 4. the fourth execution application was filed on 21-10-54 in the court of the sub-judge, ambala and decided on 10-2-56. 5. the fifth execution application was filed on 18-4-56 in the court of the civil judge, lucknow and decided on 7-5-56. 6. the sixth execution.....
Judgment:

V.D. Bhargava, J.

1. This is a judgment debtor's appeal in execution of decree. The respondent brought a decree against one C. Rule Mujtaba, who has died and his sons and other heirs have been brought on record. The respondent made the following executions:

1. The first execution application was filed on 2-2-51 in the court of the Civil Judge, Lucknow who had passed the decree. It was transferred to the court of the Sub-Judge, Ambala and decided on 14-2-51.

2. The second execution application was filed on 14-2-51 in the court of the Sub-Judge, Ambala and decided on 30-4-51.

3. The third execution application was filed on 6-2-54 in the court of the Civil Judge at Lucknow. It was transferred to the court o the Sub-Judge, Ambala and decided on 1-10-54.

4. The fourth execution application was filed on 21-10-54 in the court of the Sub-Judge, Ambala and decided on 10-2-56.

5. The fifth execution application was filed on 18-4-56 in the court of the Civil Judge, Lucknow and decided on 7-5-56.

6. The sixth execution application was filed on 4-8-56 in the court of the Civil Judge, Lucknow and decided on 6-8-56.

7. The seventh application, out of which this appeal arises, was filed on 16-8-56.

2. According to learned counsel for the appellant the third application for execution was made for transfer of the case to the Ambala court before any certificate of satisfaction had been received from the Ambala court on the second application, Though the application was decided on 31-4-57 by the Sub-Judge of Ambala, he never sent the certificate of non-satisfaction to the Civil Judge at Lucknow, therefore the third application was not a proper application, and reliance was placed on Section 41, C. P. C. It was argued, firstly, that unless the non-satisfaction certificate is received no fresh application would be filed and it was further contended that if one execution application is pending a second execution application is not entertainable.

3. I am unable to see under what provision of law it can be urged that that application was not entertainable. The action which was to be taken thereafter under Section 41 by the Ambala court was only of a ministerial nature and the court was not required to do anything further. The non-sending of the non-satisfaction certificate may be an irregularity, but it does not affect the right of the decree-holder to put in a second execution application. Similarly there is no prohibition in law that two execution applications cannot simultaneously go on if the property against which execution is sought is not the same. There seems to be some conflict on whether if the property against which execution is sought by two different applications, is the same, whether in such case both executions can proceed simultaneously but so far as two executions by two different methods or against two different properties arc concerned, there is no doubt.

4. Learned counsel for the appellant has placed reliance on Parsottam Pasi v. Raj Narain Sharma : AIR1957All336 ; a decision of a single Judge in which it was held that unless a certificate has been received the other application cannot be said to be a step in aid of the execution. The learned single Judge who decided that case had omitted to consider a division bench case, Makhan Lal v. Mt. Bhagwana Kuer : AIR1936All655 where it was clearly mentioned that

'No doubt execution against the same property cannot take place in two Courts at one and the same time but there is no bar for execution in one court against the property, and in another court by another means.'

and in the circumstances there seems to be no reason why the second application should have been treated as barred.

5. Moreover, if this objection is taken, it should have been taken when that application was filed. That objection seems to have been waived by the judgment debtor. The present application is, in my opinion, in order.

6. I see no force in this appeal and dismiss it under Order 41 Rule 11, C. P. C.


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