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Firm Baghmal Keshrimal Vs. Firm Purshottam Amratlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 129 of 1960
Judge
Reported inAIR1963MP154
ActsCode of Civil Procedure (CPC) , 1908 - Sections 37, 38, 41 and 42
AppellantFirm Baghmal Keshrimal
RespondentFirm Purshottam Amratlal
Advocates:J.D. Patel, Adv.
DispositionAppeal dismissed
Cases ReferredPatna High Court. In Ekram Hussein v. Mt. Umtul Rasul
Excerpt:
- - clearly mentions that where the decree has been passed in the exercise of appellate jurisdiction then also it is the court of the first instance which can execute the decree, and when the power of the court of the first instance is the same as that of the transferee court there cannot be any difficulty in holding that it has got the power of getting an execution petition modified on the basis of an appellate decree passed subsequent to the date of transfer......in that of the appellate court and there-fore the execution petition which seeks to execute thedecree passed -- by the trial court cannot be allowed to be continued. on this view there is no d'spute. all the high courts have agreed that it is the appellats decree that is executable. i need not discuss those rulings.7. but the decree-holder in this case after the decision of the appeal has asked for the modification of the execution petition on the basis of the decree of the appellate court. the question therefore is whether the execution can proceed after modifying the execution petition in the line of the decree passed by the appellate court.8. under section 42 c. p. c. the transferee court has got all the powers of the transferor court, as if the decree has been passed by itself......
Judgment:

S.B. Sen, J.

1. This appeal arises out of an executionapplication.

2. A decree was passed against the appellants in the Court at Ahmadabad and the same was transferred to the Court at Ujjain for execution. After the certificate for non-satisfaction was sent the decree was slightly modified in appeal. No fresh certificate was sent and the decree-holder sought to execute the decree according to the decree of the appellate Court. The appellant raised an objection to the continuance of the previous application on the ground that the transferee Court has no power to amend the execution petition. He also stated that the execution cannot proceed as it has not been properly signed by the decree-holder. There was another objection raised that the appellate Court had ordered the stay of the execution,

3. The executing Court at Ujjain disallowed all the objections. He filed an appeal before the District Judge who has agreed with the executing Court and the matter is now in miscellaneous appeal before me.

4. The learned counsel did not press his objection regarding stay. The Courts below have also found that the execution petition has been signed by a proper person and that point was also not very much pressed before me.

5. The most important and only point that was argued with vehemence is that as there has been an appeal and as the trial Court's decree has been modified ;n appealthe execution cannot proceed nor the transferee Court hasthe power to get the execution petition amended.

6. It cannot be disputed that it is the appellate decree that can be executed. The decree of the trial Court merges in that of the appellate Court and there-fore the execution petition which seeks to execute thedecree passed -- by the trial Court cannot be allowed to be continued. On this view there is no d'spute. All the High Courts have agreed that it is the appellats decree that is executable. I need not discuss those rulings.

7. But the decree-holder in this case after the decision of the appeal has asked for the modification of the execution petition on the basis of the decree of the appellate Court. The question therefore is whether the execution can proceed after modifying the execution petition in the line of the decree passed by the appellate Court.

8. Under Section 42 C. P. C. the transferee Court has got all the powers of the transferor Court, as if the decree has been passed by itself. If that is the position the transferee Court cart get the petition amended. The jurisdiction of a transferee Court continues till the certificate is returned to the original Court. As I have already stated that the original decree cannot be executed but it will be too much to say that the decree-holder should apply afresh to the original Court for sending the appellate decree. If the transferee Court has got the same powers as that of the trial Court and if the trial Court under such circumstances could allow an amendment of the execution petition, I do not see any reason why the transferee Court cannot do so.

9. Section 38 C. P. C. says

'a decree may be executed either by the Court which passed it or by the Court to which it is sent forexecution.'

Therefore this section apart from Section 42 says that it is the Court to which the decree is sent for execution that can execute the same. Section 37 of the C. P. C. clearly mentions that where the decree has been passed in the exercise of appellate jurisdiction then also it is the Court of the first instance which can execute the decree, and when the power of the Court of the first instance is the same as that of the transferee court there cannot be any difficulty in holding that it has got the power of getting an execution petition modified on the basis of an appellate decree passed subsequent to the date of transfer.

10. The argument that Section 42 C. P. C. confers on the transferee Court the powers of a trial Court only in relation to the decree that has been transferred and not to any decree subsequently passed cannot be accepted. An appeal has been held to be a continuation of the original proceedings and if the decree of the original Court is transferred to the transferee Court there is no reason to hold that the transferee Court has no power to give effect to the appellate decree as if it has been the original Court.

11. The decision reported in Harilal v. Moolchand, AIR 1930 Bom 225, relied on by the appellant does not help him at all. In that case the Division Bench of the Bombay High Court has held :

'Where once an appellate decree is passed whether it confirms, varies or reverses the decree of the original Court, it is the only decree capable of execution for it has been substituted for that of the original Court andtechnically a fresh application for execution is necessary.'

I do not understand why the previous application cannot be modified. It amounts to the same thing. If after theappellate decree is received the executing Court is approached to grant leave to amend the petition, it willbe too technical to ask for a fresh application,

12. The cases reported in Prayagdas v. Indirabai, AIR 1948 Nag 189, and Shrikisandas v. Sitaram, AIR 1952 Nag 126, also do not help the applicant. The facts of the cases would show that they were not deciding the powers of a transferee Court executing the decree modified in appeal.

13. In Bangar Raju v. Suraiahmma Bahadur, AIR 1957 Andh-Pra 403, the High Court is of the view that the proper Court to execute the appellate decree would be only the trial Court by virtue of Section 37 C. P. C. and the High Court did not feel a fresh application, necessary. Similar is also the view of the Patna High Court. In Ekram Hussein v. Mt. Umtul Rasul, ILR 9 Pat 829 : (AIR 1931 Pat 27), their Lordships observed :

'Once a court which has the power to execute the decree of the appellate court, has transferred the execution to another Court and the execution is still alive, the Court to which the execution has been transferred will exercise all the powers of the Court of the first instance and will retain the jurisdiction, even though there has been an appeal since and the decree has been affirmed in appeal.'

In the instant case the execution petition is still alive. Now if the transferee Court has got all the powers of the Court of the first instance, I do not see any reason why the execution application cannot proceed after modification or amendment. I fully agree with the views expressed by the Andhra Pradesh and the Patna High Courts.

14. The result is the appeal is dismissed with costs. Counsel fee according to scale, if certified.


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