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Gauri Shankar Vs. Firm Dulichand Laxmi Narayan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 208 of 1957
Judge
Reported inAIR1959MP188
ActsCode of Civil Procedure (CPC) , 1908 - Sections 3, 47 and 115 - Order 21, Rule 5
AppellantGauri Shankar
RespondentFirm Dulichand Laxmi Narayan
Appellant AdvocateT.C. Naik, Adv.
Respondent AdvocateG.C. Koshal, Adv.
DispositionAppeal dismissed
Cases ReferredMohanlal Goenka v. Benoy Krishna
Excerpt:
- - as such he complained that order 21, rule 5 of the civil procedure code had not been complied with. the said cases are clearly distinguishable on the short ground, that the transferee courts in those courts were courts inferior to the district court. benoy krishna, air 1953 sc 65, their lordships clearly laid down that a non-compliance with order 21, rule 6 of the civil procedure code is a mere irregularity. in substance order 21, rule 5 and order 21, rule 6, civil procedure code deal with procedural matters, and it would not be unsafe to apply the principles indicated by their lordships of the supreme court to eases under order 21, rule 5 of the civil procedure code......by the second additional district judge, bilaspur to that court under section 39 of the civil procedure code, without complying with the procedure laid down by order 21, rule 5 of the civil procedure code, could proceed and that it was not necessary to return the transfer certificate to the transferor court.2. although the learned counsel for the decree-holder did not specifically raise the question relating to the tenability of a revision, i, during the course of the arguments pointedly asked the learned counsel for the petitioner as to why the memo was termed as a revision. the objections, raised in the executing court, relating to the tenability of the execution and the jurisdiction of the executing court to proceed, were, in fact, covered by section 47 of the civil.....
Judgment:
ORDER

P.K. Tare, J.

1. This revision, purporting to be under Section 115 of the Civil Procedure Code, has been filed by the judgment-debtor and is directed against the order, of the Additional District Judge, Umaria, District Shahdol dated 2-7-1957, holding that the execution of the decree, transferred by the Second Additional District Judge, Bilaspur to that Court under Section 39 of the Civil Procedure Code, without complying with the procedure laid down by Order 21, Rule 5 of the Civil Procedure Code, could proceed and that it was not necessary to return the transfer certificate to the transferor Court.

2. Although the learned counsel for the decree-holder did not specifically raise the question relating to the tenability of a revision, I, during the course of the arguments pointedly asked the learned counsel for the petitioner as to why the memo was termed as a revision. The objections, raised in the executing court, relating to the tenability of the execution and the jurisdiction of the executing court to proceed, were, in fact, covered by Section 47 of the Civil Procedure Code.

As such, under the said section, an appeal lay to this Court. See the case of Firm Ganeshdas Badrinarayan v. Amulukchand, AIR 1940 Cal 161, decided by a Division Bench of the Calcutta High Court. Consequently I shall treat this as an appeal under Section 47 of the Civil Procedure Code and shall dispose it of accordingly, so that the party aggrieved would have a right of appeal, under Clause 10 of the Letters Patent, as a matter of right, on the authority of Madhukar Trimbaklal v. Sati Godawari Upasani Maharaj, ILR (1940) Nag 141: (AIR 1940 Nag 39) (FB).

There is authority for this course of action in treating a revision as an appeal and 'vice versa'. See the case of Sahdeo Singh v. Melhusingh, ILR 49 All 178: (AIR 1927 All 120). Neither the question of court-fee nor limitation is affected by this course. This course adopted by me, is proper, as the question involved is on important question, requiring an authoritative decision, in view of the conflict of views in the various High Courts.

3. The learned counsel for the judgment-debtor appellant urged that the Additional District Judge, Bilaspur sent the transfer certificate along with the execution ease directly to the Additional District Judge, Umaria instead of the District Court, Rewa. As such he complained that Order 21, Rule 5 of the Civil Procedure Code had not been complied with. The said rule is as follows:

'Where the court to which a decree is to be sent for execution is situated within the same district as the court which passed such decree, such court shall send the same directly to the former Court. But where the court to which the decree is to be sent for execution is situate in a different district, the court which passed it shall sent it to the District Court of the district in which the decree is to be executed.'

The word used in the said rule is 'district court' which will have to be interpreted in the light of the definition of a District in Section 2(4) of the Civil Procedure Code which is as follows:

' 'District' means the local limits of the jurisdiction of a principal civil court of original jurisdiction (hereinafter called a 'District Court') and includes the local limits of the ordinary original civil jurisdiction of a High Court.' Thus, what is necessary under Order 21, Rule 5 of the Civil Procedure Code is that the execution should be sent to a District Court and not to any particular Judge. Section 3 of the Civil Procedure Code provides for subordination of courts in these terms:

'For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade 'inferior to that of a District Court' and every court of small causes is subordinate to the High Court and District Court.' An Additional District Judge may be administratively subordinate to a District Judge. But the Court of an Additional District Judge cannot in terms of Section 3 of the Civil Procedure Code be said to be subordinate to the court of the District Judge. It is a part and parcel of the District Court itself, as it is in no sense a civil court of a grade inferior to that of a District Court The Court of a Civil Judge would certainly be such inferior court.

4. The learned counsel for the appellant, relying on the cases of Debi Dial Sahu v. Moharaj Singh, ILR 22 Cal 764; Sachindra Kumar v. Usha Prova De, AIR 1949 Cal 890 and Durgaprasad v. Harishankar, AIR 1950 Assam 163, urged that the provisions of Order 21, Rule 5, Civil Procedure Code were mandatory and therefore, the transferee Court in the present case, had no jurisdiction to proceed with the execution. The said cases are clearly distinguishable on the short ground, that the transferee courts in those courts were courts inferior to the District Court.

5. The learned counsel for the respondent referred me to the cases of Bhagwan Singh v. Barkat Ram, AIR 1943 Lah 129; Radheshyam v. Firm Sawai Modi Basdeo Prasad, AIR 1953 Raj 204 (FB); and Maharaj Kishore Khanna v. Raja Ram Singh, AIR 1954 Pat 164 and contended that the non-compliance with the provisions of Order 21, Rule 5 of the Civil Procedure Code was a mere irregularity, which did not affect the question of jurisdiction of the transferee court to proceed with the execution.

In the case of AIR 1943 Lah 129 (supra), the transferee court was an inferior civil court, while the objection was raised at a very late stage. Therefore, the objection was treated as having been waived. In the case of AIR 1953 Raj 204 (FB) (supra), the transferee court was similarly an inferior civil court and the objection relating to non-compliance with Order 21, Rule 5, was not raised except at the appellate stage before the Division Bench.

Therefore, it was deemed to have been waived. In the case of AIR 1954 Pat 164 (supra), the transferee court was au inferior civil court. But the objection was raised at an early stage. But all the same, these cases, relying on the Privy Council case of Jang Bahadur v. Bank of Upper India Ltd.. AIR 1928 PC 162, held that the non-compliance was a mere irregularity. Although, the question under Order 21, Rule 5, Civil Procedure Code was not before their Lordships of the Supreme Court, in the case of Mohanlal Goenka v. Benoy Krishna, AIR 1953 SC 65, their Lordships clearly laid down that a non-compliance with Order 21, Rule 6 of the Civil Procedure Code is a mere irregularity.

In substance Order 21, Rule 5 and Order 21, Rule 6, Civil Procedure Code deal with procedural matters, and it would not be unsafe to apply the principles indicated by their Lordships of the Supreme Court to eases under Order 21, Rule 5 of the Civil Procedure Code. Therefore if I come to the conclusion that there has been non-compliance with Order 21, Rule 5. Civil Procedure Code, that would amount to a mere irregularity not affecting the question of jurisdiction to proceed with the execution.

The weight of authority, on the strength of the dicta laid down by their Lordships of the Privy Council and the Supreme Court appears to be in favour of treating the non-compliance as mere irregularity, which is curable and which would not vitiate any vested eights created in favour of the decree-holder or the third parties. For these masons, I am unable to accept the Calcutta and the Assam view, which treats the non-compliance as an illegality rendering the proceedings as nullity.

6. The next question is whether there was non-compliance with Order 21, Rule 5, Civil Procedure Code. In my humble opinion, the said provision was fully complied with, as the transferee court was a part and parcel of the District Court itself and was not in any sense an inferior civil court. In all the cases that I could and, the transferee court was an inferior civil Court, namely, either a subordinate Judge, or a Civil Judge or a Munsif.

I was unable to find out a case where the transferee court was an Additional District Judge. But in view of the discussion in para 3 above, I hold that there was no non-compliance with Order 21, Rule 5, Civil Procedure Code in the present case. Consequently the transferee court had jurisdiction to proceed with the execution. Therefore, the order of the learned Additional District Judge dismissing the objection was correct on merits.

7. The learned counsel for the appellant, very fairly and rightly, did not press the other point relating to the executability of the decree at the instance of one of the two owners of the decree-holder firm.

8. For the reasons aforesaid, this appeal failsand is dismissed with costs. Counsel's fee Rs. 100/- if certified.


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