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Bhukan Lal Vs. Ishwar Dayal Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 72 of 1961
Judge
Reported inAIR1963All587
ActsCode of Civil Procedure (CPC) , 1908 - Sections 42; Code of Civil Procedure (CPC) (Uttar Pradesh Amendment) Act, 1954 - Order 50, Rule 1; Provincial Small Cause Courts Act, 1887
AppellantBhukan Lal
Respondentishwar Dayal Singh
Appellant AdvocateAmbika Prasad, Adv.
Respondent AdvocateN.S. Singhal, Adv.
DispositionRevision dismissed
Excerpt:
.....1(a)(ii) of code of civil procedure, 1908 - small causes court is not authorised to execute money decree - decree is transferred - court has no power to attach immovable property for execution of the same. - - the fact that the legislature used the expression 'as the court which passed it' in place of, and not in addition to, the expression 'as if it had been passed by itself, clearly shows that it intended to equate the power of the transferee court in the matter of executing a decree with that of the transferring court. the juxtaposition of the expression 'as if the decree had been passed by itself with the expression 'as the court which passed it' in the same section clearly shows that the legislature was alive to the difference in the meaning to be attached to these two..........referred to above reads thus:'the court executing a decree sent to it shall have the same power in executing such decree as the court which passed it: all persons disobeying or obstructing the execution of decree shall be punishable by such court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.'5. a plain reading of the aforesaid section shows that it invests the transferee court, executing a decree,with the same power in executing that decree as the court which passed it. this section, therefore, makes the power of the transferee court in the matter of execution a decree conterminous with that of the transferring court. hence, if the.....
Judgment:

Takru, J.

1. This revision by the decree-holder under Section 115 C. P. C. is directed against a judgment and decree of tha learned Civil Judge, Moradabad, whereby he upheld in appeal, a judgment and decree of a learned Munsif of that plac'e, dismissing the execution application filed by the applicant.

2. It appears that the applicant obtained a money decree against the opposite party from the Court of the Judge, Small Causes. He got that decree transferred to the Court of Munsif, as he wanted to realise his amount by the attachment and sale of the opposite-party's immovable property, and some immovable property of the latter was also attached. Thereupon the judgment-debtor filed objections, inter alia, on the ground that having regard to the amended provisions of Section 42 C. P. C. the learned Munsif did not have the power to attach immovable 'property for execution of the decree of the Court of judga Small Causes. The objection found favour with the Executing Court and the execution application was struck off. The applicant went 'up in appeal to the lower appellate Court and the latter holding itself bound by the decision in Karam Chand v. Gur Dayal, 1960 All LJ 352 : (AIR 1960' All 512) affirmed the decision of the Executing Court and dismissed the appeal. Hence this application in revision by the decree-holder.

3. The revision was originally heard by our brother Mithan Lal, who finding some difficulty in subscribing to the view taken by brother Dhawan in Karam Chand, 1960 All U 352 : [AIR 1960 All 512) (Ubi SupraJ, referred this case to a larger Bench. It is in these circumstances that this application has come up before us for disposal.

4. From the facts stated above, it is clear that the short question involved in this case turns upon the construction of Section 42 C. P. C. (as amended in this Stata by the U. P. Civil Laws (Reforms and Amendment) Act in 1954). The said section after amendment referred to above reads thus:

'The Court executing a decree sent to it shall have the same power in executing such decree as the Court which passed it: All persons disobeying or obstructing the execution of decree shall be punishable by such Court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.'

5. A plain reading of the aforesaid section shows that it invests the transferee Court, executing a decree,with the same power in executing that decree as the Court which passed it. This section, therefore, makes the power of the transferee Court in the matter of execution a decree conterminous with that of the transferring Court. Hence, if the transferring Court did not possess a power in executing a decree, the transferee Court would also not have that power Qua that decree. That this is the only interpretation which can be placed upon this section is further made clear by the wordings of the said section before its amendment. Under Section 42, as it originally stood, the transferee court had the same power in executing a decree transferred to it as if the said decree had been passed by itself. The fact that the Legislature used the expression 'as the Court which passed it' in place of, and not in addition to, the expression 'as if it had been passed by itself, clearly shows that it intended to equate the power of the transferee Court in the matter of executing a decree with that of the transferring Court.

6. The construction which we have placed above is further borne out by the fact that where the Legislature intended to preserve the power of the transferee Court in the matter of executing a decree transferred to it, it has specifically stated to that effect. See in this connection the last sentence of Section 42 which lays down that for purposes of appeal the orders of the transferee court would be subject to the same rules as though the decree had been passed by itself. The juxtaposition of the expression 'as if the decree had been passed by itself with the expression 'as the Court which passed it' in the same section clearly shows that the Legislature was alive to the difference in the meaning to be attached to these two expressions. We are, therefore, not prepared to accept the interpretation sought to be put upon this section by the learned counsel for the applicant, to wit, that the power conferred upon the transferee court in the matter of executing a decree under the amended Section 42 was intended to be in addition to the power which it already possessed in its own right under Section 51, C. P. C. This argument is clearly based, not upon the language of the amended section, but upon the statements of objects and reasons which led to the passing of the amending the Act of 1954. But as is well established, it is not permissible to take the help of such statements in interpreting the provisions of a statute, particularly when they are clear and unambiguous. We, therefore, unhesitatingly endorse the view expressed by brother Dhavan in Karam Chand, 1960 All LJ 352 : [AIR 1960 All 512) (Ubi Supra).

7. The only other matter which remains tc be considered, viz. whether in the instant case the objection of the judgment-debtor opposite party, that the transferee uourt could not execute the decree by attachment and sate of his property, since the transferring court did not possess such power, need not detain us long, for the simple reason that the power of execution of decree against immovable property is specifically denied to courts constituted under the Provincial Small Cause Courts Act 1887, by Or. L, R. l(a)(ii) of C. P. C. Thus on the view expressed by us above, it is clear that the objection of the judgment-debtor opposite party has substance and must be given effect to. We are aware that the interpretation which we have placed upon Section 42, C. P. C. may in some cases lead to hard' ship since a decree of the Court of Judge Small Cause, so long as the present section exists, cannot be executed against the immovable property of the judgment-debtor. But considerations of hardship can never justify the Courts from departing from the well-established rules governing interpretation of statute. If the Legislature agrees with us in thinking that there is this hardship, then it is for it toremove the same, and till that is done the Courts are help less in this regard.

8. For all these reasons, we find no force in this revision and accordingly dismiss it with costs.


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