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Krishna Agarwal Vs. Bhawani Prasad Girdhar Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 302 of 1957
Judge
Reported inAIR1964All480
ActsCode of Civil Procedure (CPC) , 1908 - Sections 39
AppellantKrishna Agarwal
RespondentBhawani Prasad Girdhar Lal
Appellant AdvocateK.L. Misra, ;B.L. Gupta and ;Radha Krishna, Advs.
Respondent AdvocateO.N. Mehrotra, Adv.
DispositionAppeal dismissed
Excerpt:
civil - decree transferred - section 39 of code of civil procedure, 1908 - transfer of decree by decree holder challenged in appeal - section 39 gives legal right to decree holder to apply for transfer of decree - motive behind demanding such transfer is immaterial as far as demand is justified. - - in these circumstances we are afraid that the appeal must fail though we have some sympathy with the appellant......for the appellant, that it has not been possible to arrive at an amicable settlement with the decree-holders. in these circumstances we are afraid that the appeal must fail though we have some sympathy with the appellant. the right of the decree-holder to have the decree transferred from one court to another arises under section 39 of the c. p. c. that section enumerates five circumstances under which a court which passes a decree may send it for execution to another court. one of them is that the person against whom the decree was passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other court. it is not denied that the appellant works for gain within the territorial jurisdiction of the.....
Judgment:

Dhavan, J.

1. This is a judgment-debtor's appeal from the order of the First Additional Civil Judge, Kanpur, dismissing his objection against the transfer of the decree from the Kanpur Court to the Allahabad Court. The appellant is an Advocate of this Court. The plaintiff respondent obtained a decree against the firm of which the appellant is a partner being a member of the joint Hindu family which owns the firm, and then applied for the transfer of the decree to the Allahabad Court. The appellant filed an objection on the ground that the judgment-debtors had sufficient property at Kanpur to satisfy the decree and there was no necessity for proceeding in execution against him at Allahabad. It was rejected by the execution court and the appellant has come to this Court in appeal.

2. The case was heard at some length at the last hearing but adjourned on a suggestion from us to enable the parties to explore the possibilities of a compromise. We are informed by Mr. Bajpai, counsel for the appellant, that it has not been possible to arrive at an amicable settlement with the decree-holders. In these circumstances we are afraid that the appeal must fail though we have some sympathy with the appellant. The right of the decree-holder to have the decree transferred from one court to another arises under Section 39 of the C. P. C. That section enumerates five circumstances under which a court which passes a decree may send it for execution to another court. One of them is that the person against whom the decree was passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other court. It is not denied that the appellant works for gain within the territorial jurisdiction of the Court to which the decree had been transferred. Mr. Bajpai contended that the appellant has no property in Allahabad apart from his law books and personal effects. Learned counsel pointed out that the appellant's library and moveables had already been attached and there Is no apparent reason for seeking the transfer of the decree except to harass the appellant or put pressure on him to pay the decretal amount. He contended that the application for transfer was mala fide and should have been rejected.

3. We are unable to accept this argument. The right to have a decree transferred is not an equitable buta legal right. It has not been shown that the decree holder has acted so dishonestly as to deceive the court. He is only seeking to execute his decree and the law gives him certain rights one of which is to have the decree transferred to another Court. It is always open to a judgment-debtor to stop the execution by paying the decretal amount If the appellant is unable to do so for causes beyond his control, the Court can sympathise with him but cannot stop the decree-holder from executing his decree in any lawful manner and get it transferred to another court in accordance with law, even if it feels as we do in this case that the object of the transfer may be to put pressure on one of the judgment-debtors to pay up the decretal amount. In fact, the object of providing for execution against the person of the judgment-debtor could only be to put pressure on him.

4. The appeal is dismissed with costs.


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