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Lala Jwala Prasad Vs. Thakur Dwarka Dhishji Maharaj - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1937All474; 170Ind.Cas.28
AppellantLala Jwala Prasad
RespondentThakur Dwarka Dhishji Maharaj
Excerpt:
.....dismissed--transferee court, held, could proceed with execution. - - 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. the terms of the certificate are not known. ]: as the decree of april 5, 1904, had by an order of the court of the district judge been sent on september 30, 1904, to the court of the munsif of parvatipur for execution by the latter court, and as the copy of the decree with the non-satisfaction certificate was not returned to the court of the district judge until august 3, 1910 their lordships are satisfied that when the petition of december 13, 1907, was presented to the court of the district..........of aligarh. the claim of the judgment-debtor is that the aligarh court has no jurisdiction in execution proceedings of a decree which was passed by a court in muttra. the court in muttra transferred this decree under the provisions of section 39 and, order xxi, rule 6. etc. the transfer was made in 1933, and there was attachment of certain property of the judgment-debtor by the court at aligarh and the judgment-debtor made an objection to that attachment, and on january 6, 1934, the aligarh court dismissed the objection of the judgment-debtor. the judgment-debtor filed an appeal in the high court, and an application was made for the record to be sent to the high court. on may 19, 1934, the aligarh court passed an order that the record should be sent to the high court and as the.....
Judgment:

Bannet, J.

1. This is an execution first appeal by a judgment-debtor against an order of the Civil Judge of Aligarh. The claim of the judgment-debtor is that the Aligarh Court has no jurisdiction in execution proceedings of a decree which was passed by a Court in Muttra. The Court in Muttra transferred this decree under the provisions of Section 39 and, Order XXI, Rule 6. etc. The transfer was made in 1933, and there was attachment of certain property of the judgment-debtor by the Court at Aligarh and the judgment-debtor made an objection to that attachment, and on January 6, 1934, the Aligarh Court dismissed the objection of the judgment-debtor. The judgment-debtor filed an appeal in the High Court, and an application was made for the record to be sent to the High Court. On May 19, 1934, the Aligarh Court passed an order that the record should be sent to the High Court and as the execution proceeding was pending for over a year the case should be filed and the attachment should remain and future proceedings would be continued in the same way. Later, on July 19, 1934, the Aligarh Court sent a certificate to the Muttra Court, which has not been produced. It is stated, however, that this certificate is one under Section 41, Civil Procedure Code, which provides as follows:

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. The terms of the certificate are not known. The High Court dismissed the appeal of the judgment-debtor and the record was returned to Aligarh, and the Aligarh Court has held that it is entitled to proceed with the execution of the decree. The judgment-debtor contends that once the certificate had been sent by the Aligarh Court to the Muttra Court, the Aligarh Court had ceased to have any jurisdiction to execute the decree. In support of this contention learned Counsel for the judgment-debtor appellant referred to the case in Shiam Lal v. Koerpal : AIR1925All179 . That was a case by a learned Single Judge of this Court and he based his decision on the Privy Council ruling reported in Maharajah of Bobbili v. Sri Raja Narasaraju Peda 14 ALJ 1129 : 36 Ind. Cas. 682 : AIR 1916 PC 16 : 43 IA 238 : 39 M 640 : 31 MLJ 300 : 18 Bom. LR 909 : 20 MLT 472 : 24 CLJ 478 : 4 LW 558 : (1916) 2 MWN 541 : 21 CWN 162 : 1 PLW 26 (PC). In that case there had been a transfer of a decree from the District Judge to the Court of a Munsif for execution, and their Lordships held that the Court of the Munsif had jurisdiction to entertain a subsequent application for execution under the following circumstances expressed on pp. 1136 and 113 Pages of 14 ALJ.--[Ed.]:

As the decree of April 5, 1904, had by an order of the Court of the District Judge been sent on September 30, 1904, to the Court of the Munsif of Parvatipur for execution by the latter Court, and as the copy of the decree with the non-satisfaction certificate was not returned to the Court of the District Judge until August 3, 1910 their Lordships are satisfied that when the petition of December 13, 1907, was presented to the Court of the District Judge that Court was not the proper Court to which the application to execute the decree by sale of the immovable property which had been attached by the Court of the Munsif, should have been made, and that the proper Court to which that application should have been made was the Court of the Munsif of Parvatipur, as that was the Court whose duty it then was to execute the decree so far as it could be executed by that Court.

3. Now it will be noticed that their Lordships laid down that the jurisdiction in execution of the Munsif continued until a copy of the decree with the non-satisfaction certificate was returned. Learned Counsel desires to leave out the words referring to the copy of the decree and to argue that the, jurisdiction of the Munsif would terminate when the non-satisfaction certificate was returned. As their Lordships have laid down that both things have to be returned before jurisdiction terminates, I consider that I am bound to follow the dictum of their Lordships of the Privy Council and to hold in the present case that as the copy of the decree remained in the Aligarh Court the Aligarh Court had jurisdiction. The ruling of the learned Single Judge of this Court in Shiam Lal v. Koerpal : AIR1925All179 , does not state whether the copy of the decree had been returned by the Court in addition to that Court sending the certificate. It is difficult, therefore, to know exactly what had happened in the case which was the subject of that ruling; but in no part of that ruling does the learned Single Judge purport to distinguish the ruling of their Lordships of the Privy Council, but he applies that ruling and refers to the fact that in that ruling the copy of the decree and the certificate under Section 41 were both sent to the original Court. I presume, therefore, that in the case before him both these actions had taken place, and that the copy of the decree had been returned in addition to the certificate. Now there are rules of this Court for this matter prescribed in the General Rules (Civil) of 1934, Vol. 1, Chap. IV. In this it is laid down that the execution file shall be returned to, the Court by which the decree was sent for execution in the following cases: (a) when the decree has been executed, wholly or in part, by the Court to which it has been sent; (b) when the decree is found for any reason to be incapable of execution; or (c) if no application is made for execution after the expiry of one year from the date on which the decree was received. None of these conditions existed in the present case and, therefore, there was no reason for the Aligarh Court to return the decree and it did not do so. Sub-rule (3) provided as follows:

In the case of a decree transferred for execution from a Court not subordinate to the High Court, the record of the execution proceedings shall be retained and filed in the Court which received the decree for execution, the result of the proceedings being certified to the other Court as required by Section 41.

4. I understand that this means that the execution proceedings should be filed when proceedings have terminated and that it is then that the certificate under Section 41 should be sent to the original Court. Now the sending of a certificate, therefore, under Section 41 was premature in the present case and apparently the certificate was sent by an error. I do not think under these circumstances that the sending of the certificate has any bearing on the point of jurisdiction. The Court obviously intended to retain jurisdiction as it stated that the proceedings should begin again in continuation of the previous proceedings. This was in the order of May 19, 1934. No case has been shown by the learned Counsel which would justify the argument which he has put forward. Learned Counsel for the respondent referred to the case in Abda Began v. Muzaffar Husen Khan 20 A 129 : AWN 1897, 218, for his contention that the Court below had jurisdiction. Accordingly I see no reason to differ from the Court below and I hold that the Court below had jurisdiction and I dismiss this execution first appeal with costs.


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