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Makkhan Lal Vs. Musammat Bhagwana Kuer - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in162Ind.Cas.51
AppellantMakkhan Lal
RespondentMusammat Bhagwana Kuer
Cases ReferredSarasti Prasad v. Peoples
Excerpt:
execution - court transferring decree to another for execution--decree-holder, whether can take out execution in both courts--civil procedure code (act v of 1908), sections 38, 39. - .....the west munsif, allahabad, the small cause court judge had no jurisdiction to entertain another execution application and to pass the order in question. reliance has been placed on section 38, civil procedure code, which lays down:-'a decree may be executed either by the court which passed it or by the court to which it is sent for execution.' there is nothing in this section to restrict the powers of the court which passed the decree for executing it. section 39 lays down the cases in which the decree may be sent to another court for execution. under clause (b), section 39, the court which passed the decree may on the application of the decree-holder, send it for execution to the court within whose jurisdiction the judgment-debtor has the property against which the decree-holder.....
Judgment:

1. This is an application in revision by the judgment-debtor, Makkhan Lal, against the order of the learned Judge, Small Cause Court, Allahabad, for the execution of a decree by arrest of the applicant. The opposite party, Musammat Bhagwana Kuer, had a decree against the applicant. She applied for execution on April 19, 1932. The decree was transferred for execution against the zemindari property to the Court of the West Munsif, Allahabad, on May 20, 1932, and the property was attached on May 26, 1932. The sale of the property has been stayed under the orders of the Government. On February 14, 1935, the opposite party applied to the learned Judge, Small Cause Court, for execution by arrest of the applicant, judgment-debtor on March 8,1935, the learned Judge, Small Cause Court, ordered the execution to proceed by the arrest of the judgment-debtor. Against this order the judgment-debtor has come here in revision.

2. It was urged by the learned Counsel for the applicant that it was not permissible to have execution proceedings in more than one Court and as the decree had already been transferred, as stated above, to the Court of the West Munsif, Allahabad, the Small Cause Court Judge had no jurisdiction to entertain another execution application and to pass the order in question. Reliance has been placed on Section 38, Civil Procedure Code, which lays down:-'A decree may be executed either by the Court which passed it or by the Court to which it is sent for execution.' There is nothing in this section to restrict the powers of the Court which passed the decree for executing it. Section 39 lays down the cases in which the decree may be sent to another Court for execution. Under Clause (b), Section 39, the Court which passed the decree may on the application of the decree-holder, send it for execution to the Court within whose jurisdiction the judgment-debtor has the property against which the decree-holder wishes to execute his decree. There can be no doubt that the execution against the same property cannot take place in two Courts at one and the same time. But there is no bar for execution in one Court against the property and in another Court by other means.

3. The learned Counsel for the applicant relies on Maharajah of Bobbili v. Narasaraju Peda Beliara Simhulu 39 M 640 : 36 Ind. Cas. 682 : A.I.R. 1916 P C 16 : 31 M.L.J. 300 : 18 Bom. L R 909 : 14 A L J 1129 : 20 M L T 472 : 24 C L J 478 : 4 L W 558 : (1916) 2 M W N 541 : 21 C W N 162 : 1 P L W 26 : 43 I A 238 (P C). But this case does not help the applicant as it does not touch the point of concurrent execution in more than one Court at one and the same time. It only relates to the execution against a property. The point was considered in Sarasti Prasad v. Peoples' Industrial Bank, Ltd. 15 A L J 532 : 39 Ind. Cas. 729 where it was held:

Where a decree is passed by one Court and is transferred to another for execution, the decree-holder is entitled to make an application for execution to the former Court inasmuch as concurrent execution of decrees is permissible.

4. As regards the merits of the case, the decree was passed in March 1932, on the basis of a pro-note of 1929. The judgment-debtor has not paid anything out of the decretal amount since 1932 when the decree was passed. As already stated, the execution of the decree by sale of the zemindari property has been stayed under the, orders of the Government. It, therefore, became necessary for the decree-holder to take some other means to realise the money. It has not been shown that the judgment-debtor cannot arrange to raise money by mortgaging his zemindari property or other wise to satisfy the decree. It appears that the judgment-debtor is deliberately making no efforts to pay up the decretal amount. Under these circumstances there is no reason why the decree-holder should not be allowed to proceed with the execution of her decree in the manner allowed to her by the law.

5. It was also urged by the learned Counsel for the applicant that the applicant may be allowed some time to arrange for the money and to pay up the decree. A stay order in favour of the applicant was passed on March 11, 1935. The applicant, therefore, has had about, one year to make arrangement for the payment of the decretal amount if he had wished to do so. There is no force in the application. It is, therefore, ordered that the application be dismissed with costs. The stay order is discharged.


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