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Hazarilal and ors. Vs. Musammat Lareti - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in33Ind.Cas.523
AppellantHazarilal and ors.
RespondentMusammat Lareti
Cases ReferredTodarmal v. Phoola Kuar
Excerpt:
execution of decree - small cause court decree, transfer of, to munsif's court--order in execution by munsif, appealability of--executing court, power of--appeal--limitation--application for transfer of decree, if-step-in-aid of execution civil--procedure code (act v of 1908), section 42--limitation act (ix of 1008), schedule i, article. 182. - .....munsif of shahjahanpore for execution. the decree-holder applied for execution and was met with a plea of limitation, the learned munsif yielded to the plea. the decree-holder preferred an appeal to the district judge who disagreed with the first court on the question of limitation and remanded the case for trial on the merits. the applicant before this court challenges the order of the district judge on the ground that it was made without jurisdiction. it is contended on her behalf that the munsif of shahjahanpore for the purpose of executing the decree in question was acting as a small cause court judge and as his order was passed in that capacity, it could not be subject of an appeal to the district judge, i do not think the contention is sound. according to section 42 of the code,.....
Judgment:

Rafique, J.

1. This is an application in, revision from an order of the District Judge of Shahjahanpore setting aside an order of the Munsif on the execution side and remanding the case for trial on the merits. It appears that Hazari Lal the opposite party obtained a decree against the applicant Musammat Lareti from the Court of the Subordinate Judge at Farrukhabad in the exercise of its Small Cause Court powers. The decree was transferred to the Court of the Munsif of Shahjahanpore for execution. The decree-holder applied for execution and was met with a plea of limitation, The learned Munsif yielded to the plea. The decree-holder preferred an appeal to the District Judge who disagreed with the first Court on the question of limitation and remanded the case for trial on the merits. The applicant before this Court challenges the order of the District Judge on the ground that it was made without jurisdiction. It is contended on her behalf that the Munsif of Shahjahanpore for the purpose of executing the decree in question was acting as a Small Cause Court Judge and as his order was passed in that capacity, it could not be subject of an appeal to the District Judge, I do not think the contention is sound. According to Section 42 of the Code, of Civil Procedure the Court to which a decree is transferred for execution has the same powers in executing the transferred decree as if it had passed the decree itself. In Adhar Chandra Gope v. Pulin Behary Saha 27 Ind. Cas. 10 : 20 C.L.J. 129 and in Peary Lal Singh v. Radha Nath Singh 11 C.W.N. 861 the Calcutta High Court has held that the Court to which a decree is transferred for execution has powers to execute it as if it passed the decree and thai if orders of such Court are appealable, an order made by it in the course of executing the transferred decree is also appealable. The next point urged on behalf of the applicant is that the decree is barred by limitation. This contention is based on the case of Khetpal v. Tikam Singh 14 Ind. Cas. 172 : 9 A.L.J. 365 : 34 A, 396. The learned Counsel for the opposite party relies on the case of Todarmal v. Phoola Kuar 19 Ind, Cas. 664 : 11 A.L.J. 533 : 35 A.389. I think the latter case is more in point. The plea of limitation also fails. I, therefore, dismiss the application with costs.


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