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Ram Babu and ors. Vs. Chaudhari Sanwal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All412
AppellantRam Babu and ors.
RespondentChaudhari Sanwal Das and ors.
Excerpt:
.....the extent and what part of the decree remained unsatisfied. now as regards the court to which a decree is sent for execution it is provided as follows in section 41: the court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the same the circumstances attending such failure. 274 there was also a certificate issued by the court to which the decree was transferred certifying that that court had failed to execute the decree. 149 there was a case before a learned single judge in which the court to which the decree had been transferred had payment made in full by the acceptance of a cheque by the decree-holder and on 24th october 1930 the proceedings were therefore struck off as the..........first appeal by the judgment-debtors against an order d/-8th september 1936 by the learned civil judge of allahabad dismissing their objection to execution of a decree. there were two points of objection taken before the gourt below but learned counsel for the appellants before us states that he confines his objection to the point that the court below had no jurisdiction after its order of 14th november 1932. the learned civil judge of agra had decreed a suit on a simple mortgage and the execution of that decree was transferred to the. civil court of allahabad under the provisions of section 39 of the code. it is laid down in order 21, rule 6 that the court sending a decree for execution shall send : (a) a copy of the decree; (b) a certificate setting forth that satisfaction of.....
Judgment:

Bennet, J.

1. This is an execution first appeal by the judgment-debtors against an order D/-8th September 1936 by the learned Civil Judge of Allahabad dismissing their objection to execution of a decree. There were two points of objection taken before the Gourt below but learned Counsel for the appellants before us states that he confines his objection to the point that the Court below had no jurisdiction after its order of 14th November 1932. The learned Civil Judge of Agra had decreed a suit on a simple mortgage and the execution of that decree was transferred to the. Civil Court of Allahabad under the provisions of Section 39 of the Code. It is laid down in Order 21, Rule 6 that the Court sending a decree for execution shall send : (a) a copy of the decree; (b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed or partial satisfaction had been obtained, and the extent and what part of the decree remained unsatisfied. Now as regards the Court to which a decree is sent for execution it is provided as follows in Section 41:

The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

2. In regard to this section this High Court has made a further rule in Order 21, Rule 104 as follows:

When the certificate prescribed by Section 41 is received by the Court which sent the decree for execution, it shall cause the necessary details as to the result of execution to be entered in its register of civil suits before the papers are transmitted to the record room.

3. There is, further, in the General Rules (Civil) of 1934 for Courts subordinate to the High Court of Judicature at Allahabad, Vol. 2, p. 59, a list of printed forms authorized by the High Court of which No. 6 on the list is 'Certificate of execution of decree transferred to another Court (Section 41).' Therefore when the Court at Allahabad desired to comply with the provisions of Section 41 it would direct the preparation of the certificate under that section and when such a certificate was prepared it would be sent to the Court at Agra. It is to be noted that Section 41 states that the Court to which a decree is sent for execution shall certify to the Court which passed it not merely that it shall make an order that such a certificate shall be prepared. Now the decree in question had been one for instalments on compromise. There was a sale fixed by the Allahabad Court for 14th November 1932 and on 12th November 1932 the judgment-debtor made an application to the Court at Allahabad for adjournment to April 1933 stating that he had paid Rs. 3996 and that the decree-holder consented to this extension of time. In the ordinary course this application would have been granted, but at that period the rules of this High Court required that for cases of execution of decrees which were pending over one year explanation should be sent containing a copy of every order passed and the explanation of the delay. The Court below appears to have been anxious to avoid the further submission of this explanation form every six months and accordingly it refused to adjourn the case on the ground that the case was an old one in its order of 12th November 1932 and the order suggested that if the decree-holder consented to time being granted the decree-holder could get the present execution case struck off.

4. Accordingly on 14th November 1932 the decree-holder asked the Court to strike off the execution case in part satisfaction. On that date the Court ordered that the execution case be struck off, that Rs. 51,996 had been realised and the order directed that the Court which had sent the decree should be informed of the result of the execution. The actual vernacular words were : 'Natija Ijrae digree se adalat mutalliqa ko ittila ki jave.' On the following day, the 15th November 1932, the decree-holder applied for execution and the case was registered under a new number as 149 of 1932. The previous case had been 169 of 1929. Further proceedings went on in execution with which we are not now concerned. The argument of learned Counsel for the judgment-debtors appellants is that from the date of the order of 14th November 1932, the Court at Allahabad ceased to have any jurisdiction in regard to the execution of this decree. He argues that the order which was passed was tantamount to certifying to the Agra Court under Section 41, Civil P.C. Now, it is clear to us that the mere giving of information of the result of the execution so far is not at all the action of a Court terminating its jurisdiction in regard to the execution certificate which had been received from the Court at Agra under the provisions of Section 39 and Order 21, Rule 6. The order does not contain any direction that a certificate shall be prepared under Section 41 or that the certificate received from the Court at Agra shall be returned to the Court at Agra. There was no intention whatever that that certificate from the Court at Agra was to be returned and that the jurisdiction of the Court at Allahabad was to be terminated. This distinguishes the present case from a number of cases which have been cited by learned Counsel. We may briefly refer to some of the rulings of this Court on the point. In Abda Begum v. Muzaffar Hussin Khan (1898) 20 All. 129, a Bench of this Court had a case where a decree had been sent from Lucknow for execution to a Court at Cawnpore and the Court at Cawnpore struck off the execution application on the ground that it did not comply with Sections 235 and 237. Subsequently, the Subordinate Judge certified to the Court at Lucknow that 'on the objection of the judgment-debtor the application for execution was struck off.' Apparently, on the very day when that certificate was sent the decree-holder applied again to the Subordinate Judge of Cawnpore to have the decree executed but the application was dismissed. The Subordinate Judge held that he was functus offtcio. On appeal, the High Court held that the order was incorrect and that the Subordinate Judge of Cawnpore was not functus officio, but that he still had jurisdiction to entertain the execution case. Various rulings were referred to including J.G. Bagram v. J.P. Wise (1868) 1 Beng. L.R. 91, where the Full Bench of the Calcutta High Court held that even after striking off an application for execution the Court to which a decree has been sent for execution still has jurisdiction in regard to the execution.

5. It will be noted that in the case before the Allahabad High Court mentioned above there had actually been a certificate sent to the Court at Lucknow. In the present case there was no certificate sent and the order was not for the sending of a certificate under Section 41 but merely for conveying information. At page 131 of the Allahabad ruling, it is mentioned that it had been held at that time by their Lord-ships of the Privy Council that two or more contemporaneous executions of the same decree may be validly held. That was held under the previous Code but apparently by the introduction of the certificate in Order 21, Rule 6 such procedure can no longer exist. It was perhaps with some recollection of such a former procedure that the learned Civil Judge in the Court below thought that it was necessary to convey information to the Court at Agra as to the extent of realization by the decree-holder up to date. He was not correct in thinking that such information was necessary a that stage of the proceeding as under the system of certificates in the present Code no execution could be taken out at Agra as long as the certificate granted by the Agn Court remained in Allahabad.

6. In Shiam Lal v. Koerpal : AIR1925All179 a learned single Judge of this Court had a case where the Court to which the decree had been transferred did certify the result of execution proceedings under Section 41 to the Court passing the decree and the copy of the decree had been returned. It was held naturally that no further jurisdiction existed in the Court to which the decree had been previously transferred. In Muhammad Ibrahim v. Chhatto Lal (1926) 13 A.I.R. Pat. 274 there was also a certificate issued by the Court to which the decree was transferred certifying that that Court had failed to execute the decree. This case again is quite different from the present case. In G.V. Rattan Chandra and Co. v. Haveli Shah (1933) 20 A.I.R. Lah. 149 there was a case before a learned single Judge in which the Court to which the decree had been transferred had payment made in full by the acceptance of a cheque by the decree-holder and on 24th October 1930 the proceedings were therefore struck off as the decree was satisfied in full. In the following year on 24th July 1931 (wrongly stated by the ruling to be 1930) a further application for execution was made under Section 151, Civil P.C. and it was held that the Court had no jurisdiction. It was stated that the record did not show whether the certificate under Section 41 had actually been sent to the Court which passed the decree but that that was a mere detail. Naturally that certificate would be ascertained from the record of the Court which had passed the decree and not from the Court to which the decree had been transferred for execution and there was no reason to suppose that the order for the certificate to be sent under Section 41, Civil P.C. had not been carried out.

7. The present case is quite different because there was neither an order for the preparation of such a certificate under Section 41, Civil P.C. nor was any such certificate ever sent. No doubt in the present case when two decree-holders died in 1933, the two records were sent from the Court at Allahabad to the Court at Agra for substitution of the names of the heirs of those two deceased decree-holders. When those records wore in Agra, by an error of the Court at Agra the earlier record of the execution case No. 169 of 1929 containing the original certificate issued by the Agra Court under Order 21, Rule 6 was sent to the record room at Agra and certain entries were made purporting to be under Order 21, Rule 104 of the amount of satisfaction which had been obtained at Allahabad. After these-proceedings the record of execution case No. 149 of 1932 was sent back to Allahabad, and further proceedings were taken under it. Now we do not consider that any weight can be assigned to the mere errors of the Court at Agra as the action had to be taken under the Code by the Court at Allahabad by sending the certificate under Section 41, Civil P.C. to terminate its jurisdiction and no such action was ever taken. We consider that the appellants have not shown that there was any defect whatever in the jurisdiction of the Court at Allahabad and accordingly we dismiss this execution first appeal with costs.


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