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Ram Dutt Upadhia Vs. Ram Sunder Misir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1395 of 1953
Judge
Reported inAIR1961All636
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 144
AppellantRam Dutt Upadhia
RespondentRam Sunder Misir
Appellant AdvocateA.P. Pandey, Adv.
Respondent AdvocateR.B. Misra, Adv.
DispositionRevision allowed
Excerpt:
civil - restitution order - sections 144 and 147 of code of civil procedure, 1908 - argument on scope of jurisdiction between transferor and transferee courts - transferor court does not lose jurisdiction on transfer of decree of execution - jurisdiction confined to act done by that court itself - transferor court lacks power to undo act done by transferee court. - .....cause court, ballia, directing restoration of money by the applicant to the opposite party. the decree in execution of which the money was realised from the opposite party was passed by the small cause court, ballia. the decree was sent for execution by that court to the court of munsif, buxar, outside the state of uttar pradesh. there the decretal amount was realised and an objection taken that the execution was time-barred was rejected. subsequently, the opposite party moved the court at ballia prayingfor the withdrawal of the certificate on the ground that the execution was time-barred.that application was allowed ex parte but the record doe,s not show that thereafter any order of withdrawal of the execution transferred to the buxar court was sent to that court. later still, the.....
Judgment:
ORDER

V. Bhargava, J.

1. I have heard learned counsel for the parties in this revision which is directed against an order purported to be made under Section 144 C. P. C. by the Small Cause Court, Ballia, directing restoration of money by the applicant to the opposite party. The decree in execution of which the money was realised from the opposite party was passed by the Small Cause Court, Ballia. The decree was sent for execution by that court to the court of Munsif, Buxar, outside the State of Uttar Pradesh. There the decretal amount was realised and an objection taken that the execution was time-barred was rejected. Subsequently, the opposite party moved the court at Ballia prayingfor the withdrawal of the certificate on the ground that the execution was time-barred.

That application was allowed ex parte but the record doe,s not show that thereafter any order of withdrawal of the execution transferred to the Buxar court was sent to that court. Later still, the opposite party moved an application before the court at Ballia praying that the amount of money which had been taken away by the decree-holder in execution of the decree be directed to be restored to him under Section 144 C. P. C. This application has been allowed by the lower court and that order is being challenged on the ground that the lower court had no jurisdiction to pass that order.

2. In this case there was considerable argument on the question of the scope of jurisdiction of Ballia and Buxar courts which were the transferor and transferee courts for execution of this decree. It was urged by learned counsel for the applicant that the court at Ballia had no jurisdiction to decide whether the execution was time-barred and the order dated 18th of December, 1943, holding that the execution was time-barred and directing withdrawal of the certificate sent to Buxar court was without jurisdiction, particularly because the same question of limitation had already once been decided by the Buxar court.

On the other hand, it was urged by learned counsel for the opposite party that the transferor court did not lose all its jurisdiction and was competent to decide the question of limitation. It appears to be unnecessary to enter into this controversy in this case because, even if it be accepted that the transferor court at Ballia had jurisdiction to go into the question of limitation and to make an order withdrawing the certificate, that order would give no jurisdiction to the Transferor court at Ballia to direct restoration of money by the applicant to the opposite party.

It is clear that, even if a transferor court does not lose jurisdiction on transfer of a decree for execution, the subsequent jurisdiction of that court must be confined to those acts which are clone by that court itself or which affect the acts which have been done or are to be done by that court. Thus the transferor court may possibly have the right to hold that the certificate was wrongly sent as the execution of the decree had become time-barred and thereupon the court may have jurisdiction to withdraw the certificate.

That court cannot, however, have any power or jurisdiction to undo the acts which may have been done by the transferee court. It may be that the effect of the finding given by the transferor court may be that the acts done by the transferee court while executing the decree may, be held to be void; but, even if those acts be void, the power of making restitution would vest in the transferee court and not in the transferor court. In this case, the decretal amount was realised from the judgment-debtor by the transferee court and was paid out to the decree-holder by that court.

If, therefore, there has to be any restitution, it would be only the transferee court at Buxar whichcan direct restoration by virtue of having the power to set right the acts which might have been done by that court itself without any jurisdiction. In no case can the restitution be ordered by the Ballia court. Because of this view that I am taking, it is entirely unnecessary for me to express any final opinion as to whether the transferor court had the jurisdiction to go into the question of limitation or not, whether it could on that ground withdraw the certificate or not and whether if it did withdraw the certificate that act of the transferor court did or did not render void the proceedings that had beer- taken earlier by the transferee court.

These points may arise if and when an application for restitution is made before the transferee court at Buxar. For the decision of this revision, it is not necessary to decide these points. I have taken the view that the restitution could not have been ordered by the Ballia court so that the order passed by the lower court is without jurisdiction and must be set aside. The revision is, therefore, allowed with costs in both courts and the order passed by the lower court is set aside.


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