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Choudhary Raghunandan Singh Vs. NaraIn Das Bal Kishun Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 349 of 1958
Judge
Reported inAIR1960All730
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9, 37, 38, 73 and 115
AppellantChoudhary Raghunandan Singh
RespondentNaraIn Das Bal Kishun Das and anr.
Appellant AdvocateRam Surat Singh and ;Krishna Shanker, Advs.
Respondent AdvocateKeshava Prasad Singh, Adv.
DispositionRevision dismissed
Excerpt:
civil - jurisdiction for execution of decree - sections 37 and 115 of code of civil procedure, 1908 - second court has jurisdiction if court of first instance has no jurisdiction - successor in office has jurisdiction to execute decree passed by predecessor - approaching court in irregular manner not sufficient for interference - mistake - do not confer jurisdiction. - - in the madras case the judgment-debtor failed to raise the objection in the first instance. considering that the parties are guilty of the same mistake, there is no good ground for interference in revision......banaras for rs. 5,000 and odd in september 1955. the decree-holder applied to the court of the civil judge, banaras for execution of the decree, apparently on the ground that the then munsif (city), banaras had no jurisdiction to try a suit of the valuation of rs. 5,000. the decree was transferred to the collector of banaras for execution, as landed property was involved.3. firm 'narain das balkishun das' obtained against bechan a decree from the court of munsif (city), banaras in 1953 for a sum of rs. 4,000 and odd. narain das balkishan das applied to the learned civil judge of banaras on 16-4-1957 for execution against bechan judgment-debtor by way of rateable distribution in the assets received in raghunandan singh's decree no. 240 of 1955. 4. this application for execution and.....
Judgment:
ORDER

V.G. Oak, J.

1. This revision application by a decree-holder arises out of execution proceedings.

2. Raghunadan Singh obtained against Bachan a decree from the Court of the Munsif (City), Banaras for Rs. 5,000 and odd in September 1955. The decree-holder applied to the Court of the Civil Judge, Banaras for execution of the decree, apparently on the ground that the then Munsif (City), Banaras had no jurisdiction to try a suit of the valuation of Rs. 5,000. The decree was transferred to the Collector of Banaras for execution, as landed property was involved.

3. Firm 'Narain Das Balkishun Das' obtained against Bechan a decree from the court of Munsif (City), Banaras in 1953 for a sum of Rs. 4,000 and odd. Narain Das Balkishan Das applied to the learned Civil Judge of Banaras on 16-4-1957 for execution against Bechan judgment-debtor by way of rateable distribution in the assets received in Raghunandan Singh's decree No. 240 of 1955.

4. This application for execution and rateable distribution by Narain Das Balkishan Das was opposed by Ragunandan Singh. Raghunandan Singh's objection was overruled by the learned Civil Judge,Banaras by his order dated 3-2-1958. This revision is directed against that order.

5. The main question involved in this revision is whether on 16-4-1957 Narain Das Balkishan Das were entitled to apply to the Civil Judge of Banaras for execution. The learned Civil Judge has observed that, the City Munsif had pecuniary jurisdiction in April 1957 up to Rs. 3,000 only. This position was not disputed before me. The question, therefore, is whether a Munsif, who has pecuniary jurisdiction of Rs. 3,000 can execute a decree passed by his predecessor-in-office for Rs. 4,000 and odd.

6. The learned counsel for Narain Das Balkishan Das relied upon Section 37, C. P. C. Section 38, C. P. C., lays down that, a decree may be executed either by the Court, which passed it, or by the Court to which it is sent for execution. Now, the Civil Judge, Banaras did not pass the decree in question. Nor was the decree sent to him for execution.

7. But the expression 'Court which passed the decree' has been given an extended meaning by Section 37, C. P. C. Section 37, C. P. C., runs thus :

'The expression 'Court which passed a decree', or words to that effect, shall, in relation to the execution of decrees........be deemed to include-

(a),...........

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.'

If it is held that the Munsif had no jurisdiction to execute the decree, it is obvious that the competent Court for execution was the Civil Judge. We have, therefore, to consider whether the Munsif (City), Banaras had jurisdiction to execute the decree.

8. In Abdus Sattar v. Mohini Mohan Das : AIR1933Cal684 , it was held that, the Court which passes a decree has power to execute a decree notwithstanding the provisions of Section 37 and the Court which passed the decree does not cease to exist merely because the pecuniary jurisdiction of the said Court has been altered.

9. In Survanarayan v. Maheshwar Keot AIR 1950 Assam 115, a decree for over Rs. 1,000 was passed by a Court which was presided over by an officer who had pecuniary jurisdiction to try suits up to Rs. 2,000. An application for execution of the decree was made to the same Court, but at a time when it was presided over by an officer who had jurisdiction to try suits valued up to Rs. 1,000 only. It was held that the Court had jurisdiction to entertain the execution application.

10. There are authorities for the view that, a Munsif may entertain an execution application although he was not competent to try the suit which gave rise to the decree. There are also decisions to the effect that, once a Court passes a decree with reference to immovable property, subsequent loss of territorial jurisdiction with reference to that property would not affect the jurisdiction of the Court in the matter of execution.

11. In Ramanna v. Nallaparaju : [1955]2SCR938 , their Lordships of the Supreme Court pointed out that, it is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court. The point actually decided in that case related to territorial jurisdiction. But their Lordships' decision has an important bearing on the question of pecuniary jurisdiction also.

12. The learned counsel for the respondents was unable to cite any authority for the view that the Munsif (City) Banaras was incompetent to entertain the execution application in April 1957, simply because his pecuniary jurisdiction was up to Rs. 3,000. I, therefore, accept the view taken in Suryanarayan's case AIR 1950 Assam 115, and other cases to the effect that, in such cases the Court has jurisdiction to entertain the execution application. I, therefore, agree with Mr. Krishna Shanker that, in the present case the Munsif (City), Banaras had jurisdiction to entertain the execution application in April 1957.

13. An examination of Section 37, C. P. C., will show that, another Court will have jurisdiction only if the Court of first instance has no jurisdiction to execute the decree. If this condition is not fulfilled, the second Court would not have jurisdiction to entertain the execution application. The applicant is, therefore, right in his contention that, the Civil Judge, Banaras could not entertain the execution application simply as a result of Section 37, C. P. C.

14. But it has been pointed out on behalf of the respondents that, the application was for rateable distribution. The assets in question were sold by the Civil Judge of Banaras through the Collector of Banaras. So, ultimately the Court to be approached for rateable distribution was the Civil Judge, Banaras. Section 39, C. P. C., provides for transfer of decrees. Under the circumstances the proper procedure for the respondents was this.

In the first instance, they should have applied to the Munsif (City) Banaras for execution with a request for transmitting the application for rateable distribution to the Civil Judge of Banaras. In that case the Munsif could transmit the decree for rateable distribution under Section 39, C. P. C. In that event the Civil Judge of Banaras would have been competent to allow rateable distribution. What the respondents did was to approach the Civil Judge of Banaras, without applying to the Munsif (City) Banaras. The procedure adopted by the respondents was wrong.

15. A similar situation arose in Balakrishnayya v. Linga Rao AIR 1943 Mad 449. In that case a final mortgage decree was passed by Court A. Thereafter that Court ceased to have territorial jurisdiction over the property. Court B had territorial jurisdiction with respect to that property. It was held that the Court B cannot execute the decree without transmission of the decree from Court A which passed it.

It was, however, held that, the absence of an order of transfer was merely an irregularity in the assumption of jurisdiction by Court B when proceedings for execution of the final mortgage decree are commenced in it. It was observed that, the judgment-debtor should be deemed to have waived the objection, since it was not taken in the first instance. This decision of the Madras High Court was approved by the Supreme Court in : [1955]2SCR938 .

16. That decision is authority for the view that, the mere fact that a certain Court was approached in an irregular manner is not a sufficient ground for interference by the High Court. In the Madras case the judgment-debtor failed to raise the objection in the first instance. In the present case the applicant decree-holder did raise the objection in the first instance. On the other hand, it has been pointed out on behalf of the respondents that, under similar circumstances the applicant himself approached the Civil Judge of Banaras in execution.

On the view urged on behalf of the applicant, he was wrong in applying to the Civil Judge for execution. The applicant should have approached the Munsif (City), Banaras for execution, although the pecuniary jurisdiction of the Munsif had been lowered. Thus the applicant was guilty of the same mistake as has been committed by the respondents. It is true that a mistake committed by a party does not confer jurisdiction on a Court. But that circumstance has to be taken into consideration in deciding whether this Court should interfere in revision or not.

17. This is not a case where the Civil Judge had no jurisdiction at all. I have explained above that, the Civil Judge would have had jurisdiction, had the Civil Judge been approached under Section 39, C. P. C. We are, therefore, dealing with a case where jurisdiction has been exercised in an irregular manner. Considering that the parties are guilty of the same mistake, there is no good ground for interference in revision. Since both the parties are at fault, they may be directed to bear their own costs.

18. The revision is dismissed. Parties shall bear their own costs.


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