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Syed Mohammad Vs. Mohd. Jagar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 1153 of 1962
Judge
Reported inAIR1965All589
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 9, 47 and 100
AppellantSyed Mohammad
RespondentMohd. Jagar and ors.
Appellant AdvocateD.P. Agarwal, Adv.
Respondent AdvocateBenarsi Das, Adv.
DispositionAppeal allowed
Excerpt:
.....of decree has been consigned for default in payment of process fees - lower appellant court has no jurisdiction - matter cannot be agitated in the second appeal first time order. - - an amin was appointed for carrying out the attachment, but his attempts failed and he returned the papers to the execution court. then the decree-holder was called upon to take further steps and he applied for attachment a second time but failed to deposit the process-fee for the amin despite repeated orders of the execution court. it is well established that if a court or tribunal has no jurisdiction to seize of a matter and to decide it then no amount of consent by a party would confer jurisdiction on it......this is a second appeal by a judgment-debtor in an execution matter. it appears that the plaintiff decree-holder applied for execution of his decree and in execution sought attachment of certain properties of the judgment, debtor. an amin was appointed for carrying out the attachment, but his attempts failed and he returned the papers to the execution court. then the decree-holder was called upon to take further steps and he applied for attachment a second time but failed to deposit the process-fee for the amin despite repeated orders of the execution court. the court finally passed the following order on 21-4.1961 :'consign for default. costs on d. h.'against this order of the execution court the decree-holder filed an appeal purporting to be under section 47, civil p. c. the learned.....
Judgment:

K.B. Asthana, J.

1. This is a second appeal by a judgment-debtor in an execution matter. It appears that the plaintiff decree-holder applied for execution of his decree and in execution sought attachment of certain properties of the judgment, debtor. An Amin was appointed for carrying out the attachment, but his attempts failed and he returned the papers to the execution Court. Then the decree-holder was called upon to take further steps and he applied for attachment a second time but failed to deposit the process-fee for the Amin despite repeated orders of the execution Court. The Court finally passed the following order on 21-4.1961 :

'Consign for default. Costs on D. H.'

Against this order of the execution Court the decree-holder filed an appeal purporting to be under Section 47, Civil P. C. The learned Second Additional Civil Judge, Meerut, allowed the appeal of the decree-holder and set aside the order of the execution Court. The learned Judge further passed an order that the execution case No. 217 of 1960 be restored. It is against this order of the lower appellate Court that the judgment-debtor has filed the present appeal.

2. Sri D. P. Agarwal appearing for the judgment-debtor assailed the decree of the Court below on the ground that as no appeal lay under Section 47, Civil P. C. the decree of the lower appellate Court allowing the appeal and restoring the execution case being without jurisdiction was a nullity and ought to be set aside. Learned counsel submitted that the order of the execution Court simply was for consigning the execution application for the reason that the decree-holder had not taken any further steps and in passing that order the execution Court was not determining any question relating to execution, discharge or satisfaction o any decree.

In the alternative it was submitted that if the order of the execution Court be interpreted as dismissing the execution application in default then it would not be a decree within the meaning of Section 2 of the Code of Civil Procedure and would not be appealable. For the decree-holder respondent it was argued in reply that the order of the execution Court amounted to a refusal to execute the decree and it implied that the decree-holder was not entitled to execute his decree and thus there was a determination of the right of the decree-holder to execute his decree and the order fell within the definition of a decree under Section 2, Civil P. C.

3. Having heard learned counsel for the par-ties, I am inclined to agree with the contention raised by learned counsel for the appellant the (judgment-debtor). The order of the execution Court no doubt is laconic and to some extent ambiguous. That is why learned counsel for the appellant had to put his case in the alternative. It is not urged on be-half of the decree-holder respondent that the order of the execution Court can have any third meaning apart from either consigning the execution application for want of prosecution or dismissing it in default. If the order of the execution Court is interpreted as consigning the execution application to the record room on account of the negligence of the decree-holder to deposit the process fee then it is obvious that there has been no determination of any question under Section 47, Civil P. C. relating to execution, discharge or satisfaction of the decree. If that order is interpreted as one dismissing the application for execution in default, it would not amount to a decree appealable under Section 47, Civil P. C. In either case no appeal lay against the order of the execution court.

4. It was then urged for the decree-holder respondent that the jurisdiction of the lower appellate Court to entertain and hear the appeal not having been questioned before it, the judgment-debtor appellant would be deemed to have acceded to its jurisdiction and it is no longer open to him to agitate that matter in second appeal. It is well established that if a Court or tribunal has no jurisdiction to seize of a matter and to decide it then no amount of consent by a party would confer jurisdiction on it. Once the order of the execution Court is held not to amount to a decree under Section 47, Civil P. C. there would arise an inherent want of jurisdiction in the lower appellate Court to entertain an appeal against that order for that order under the law would be non-appealable. The right to appeal is a substantive right conferred by statute. The right of appeal in execution matters is conferred by the Code of Civil Procedure on a party only against the determination of a question under Section 47 of the Code relating to execution, satisfaction or discharge of a decree. In this view of the matter this submission on behalf of the decree-holder respondent has no force.

5. The result is that his appeal succeeds. It is allowed. The order of the Court below is set aside and that of the execution Court is restored. In the circumstances of the case, parties are directed to bear their own costs of this appeal.


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