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Champalal Hirachand and anr. Vs. Mohanlal Narayandas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 41 of 1958
Judge
Reported inAIR1959MP397a
ActsCode of Civil Procedure (CPC) , 1908 - Sections 39 and 46 - Order 21, Rule 2; Limitation Act, 1908 - Schedule - Article 181
AppellantChampalal Hirachand and anr.
RespondentMohanlal Narayandas and ors.
Appellant AdvocateK.M. Sundecha, Adv.
Respondent AdvocateS.L. Dubey, Adv.
DispositionAppeal dismissed
Cases Referred and Puran Mal v. Firm Dina Nath Hari Ram
Excerpt:
.....of appellant is liable to be set aside. - the expression 'the decree has been transferred to the court by which the attachment has been made' in the proviso clearly shows that a precept issued under section 46 is itself not a transfer of the decree......of district judge of dhar refecting an application preferred by the appellants under order 21, rule 2, civil p. c. for recording and certifying an adjustment of a decree under execution, said to have been arrived at between the parties.2. the material facts are that a decree was passed by the court of the district judge of ujjain on 24th february 1956. thereafter the decree-holders moved the court of the district judge of ujjain for the issue of a precept under section 46, civil p. c. for attachment of certain property belonging to the judgment-debtors situated within the limits of the court of the district judge of dhar. in pursuance of that precept, the judgment-debtors' property was attached in march 1957. on 29th march 1957 the judgment-debtors presented in the court of the.....
Judgment:

P.V. Dixit, J.

1. This is an appeal from an order of District Judge of Dhar refecting an application preferred by the appellants under Order 21, Rule 2, Civil P. C. for recording and certifying an adjustment of a decree under execution, said to have been arrived at between the parties.

2. The material facts are that a decree was passed by the Court of the District Judge of Ujjain on 24th February 1956. Thereafter the decree-holders moved the court of the District Judge of Ujjain for the issue of a precept under Section 46, Civil P. C. for attachment of certain property belonging to the judgment-debtors situated within the limits of the court of the District Judge of Dhar. In pursuance of that precept, the judgment-debtors' property was attached in March 1957. On 29th March 1957 the judgment-debtors presented in the court of the District Judge of Dhar an application for recording an adjustment under Order 21, Rule 2, Civil P. C.

This application was rejected on the ground that the decree passed by the Court of the District Judge of Ujjain had not been transferred to the Court of the District Judge of Dhar for execution and that the application under Order 21, Rule 2, Civil P? C. should have been made to the Court of the District Judge of Ujjain. Subsequently the decree was transferred for execution to the Court of the District Judge of Dhar and was received in that court on 4th June 1957. The decree-holders then made an application under Order 21, Rule 11, Civil P. C. in the Court of the District Judge of Dhar for execution of the decree. The judgment-debtors then again submitted another application on 18th October 1957 for recording an adjustment under Order 21, Rule 2, Civil P. C. This application was rejected on the ground that it was made by the judgment-debtors ninety days after the date of the adjustment and was barred by time. The judgment-debtors have now preferred this appeal.

3. Mr. Sundecha, learned counsel for the appellants, contended that the judgment-debtors' first application made on 29th March 1957 in the court of the District Judge of Dhar for recording the adjustment was to the proper court as the court to which a precept is issued under Section 46, Civil P. C. is a court executing the decree; and that, therefore, that application should have been entertained and not rejected as incompetent. It was not disputed that ihe second application made on 18th October 1957 after the decree had been transferred for execution to the Court of the District Judge of Dhar was presented more than ninety days after the date of the adjustment. But it was argued that this application was not an independant application but only one in continuation of the former application dated 29th March 1957 for recording the adjustment under Order 21, Rule 2, Civil P. C. and could not, there-tore, be regarded as time barred.

4. I am unable to accede to these contentions. An application under Order 21, Rule 2, Civil P. C. has to be made to the court executing the decree. On 29th March 1957 when the appellants first applied under Order 21, Rule 2, Civil P. C., for recording the adjustment, the decree had not been transferred to the Court of the District Judge of Dhar where the judgment-debtors presented that application. No doubt the court of District Judge. Ujjain which passed the decree issued a precept under Section 46, Civil P. C. to the Dhar Court. But the issue of a precept under Section 46, Civil P. C., has not the effect of transfer of a decree for execution to the court to which the precept is issued.

The conditions under which a decree can be transferred to another court for execution have been laid down in Section 39, Civil P. C. That section contemplates art express order of transfer and a transfer of a decree under that provision to another court takes effect from the date of order of transfer. Now, it is plain from the language of Section 46 itself that whatever else may be the legal effect of the issue of a precept under Section 46, Civil P. C. and of the at-tachment made thereunder, it does not amount to an order of transfer of a decree for execution to the court to which the precept is issued. A precept under Section 46, Civil P. C. becomes necessary when the judgment debtor's property is situated within the limits ot another court and when it is necessary to prevent the judgment-debtor from alienating or otherwise dealing with it to the detriment of the decree-holder till proper proceedings for the sale of the property in pursuance of an application can be taken.

The attachment in pursuance of a precept is merely a step for facilitating execution but is not a step in the proceedings for the execution of a decree. The attachment only keeps the property of the judgment-debtor in medio until the decree can be executed. That a precept issued under Section 46, Civil P. C. has not the effect of transferring the decree to the court to which the precept is issued becomes obvious from the proviso to Section 46 itself which says that no attachment under a precept shall continue for more than two months unless the period is extended by the order of the court which passed the decree or unless the decree is transferred for execution to the court receiving the precept.

The expression 'the decree has been transferred to the court by which the attachment has been made' in the proviso clearly shows that a precept issued under Section 46 is itself not a transfer of the decree. If then on the date on which the appellants made i.'heir first application under Order 21 Rule 2, C. P. C. the decree had not been transferred to the Dhar court for execution, the Dhar court had no jurisdiction to entertain the application preferred by the judgment-debtor on 29-3-1957. That application was, therefore, rightly rejected by the learned District Judge of Dhar on the ground that it was incompetent.

5. The appellants' second contention that the application made on 18-10-1957 was in continuation of the previous one filed on 29-3-1957 is also devoid of substance. I am unable to see how it can be regarded as an application for revival of the previous, application of 29-3-1957, when that application was dismissed by an express order saying that it could not be entertained by the court ot the District Judge of Dhar as the decree had not been transferred to that court for execution. Relying on Kailasa v. Duraiappa AIR 1939 Mad 163, learned counsel sought to argue that the order rejec'iog the previous application dated 29-3-1957 reserved to the judgment-debtors the right to apply again after the decree had been transferred and that therefore, the application made on 18-10-1957 could not but be regarded as one in continuation of the former application. I do not agree. No such reservation was made when the appellants' application of 29-3-1957 was rejected.

The observation in the order of rejection to the effect that the judgment-debtors are at liberty to file another application in accordance with law after the decree is transferred for execution does not mean that the previous application on 29-3-1957 was regarded as competent and kept pending. The observation only gave an option to the judgment-debtors to apply again in accordance with law, which inter alia meant in accordance with the law of limitation. The decision in AIR 1939 Mad 163 is distinguishable on facts, In that case, proceedings under Order 21 Rule 2 C. P. C. were first taken by the decree-holder before the competent court. The decree-holder then changed his mind and denied payment and absented himself in consequence of which the court dismissed his application for recording the satisfaction but expressly reserved to the judgment-debtor the right to claim satisfaction of the decree.

On the strength of this reservation the judgment-debtor applied for the satisfaction being recorded. It was in these circumstances that it was held thatthough the judgment-debtor's application was prima facie time barred the application could not be treated as an independent application but one in continuation of the former application and as such was not time barred. The distinguishing features of the Madras case are that in that case the proceedings under Order 21 Rule 2 were before the competent court and there was an express reservation in favour of the judgment-debtor. Both these elements are absent in the instant case.

8. Learned counsel for the appellants also cited Rai Kissenji v. Sri Kissen, AIR 1940 Cal 26; Fazal Ellahi v. Shri Krishna, AIR 1940 Cal 369; Ram Reddy v. Garla Jankawa, (S) AIR 1955 Hyd 64 and Puran Mal v. Firm Dina Nath Hari Ram, AIR 1926 Lah 403 to support his contentions. These decisions do not appear to be of any assistance to the appellants. The decision in AIR 1940 Cal 26 in no way supports the appellants' contention as it holds that an attachment under Section 46 C. P. C. is not an attachment in execution but an attachment before execution. This decision, therefore, does not support the contention that the court to which a precept is issued becomes a transferee court for execution. This decision was no doubt reversed in AIR 1940 Cal 369. The learned Judges of the Calcutta High Court in AIR 1940 Cal 369 held that the precept in the particular case before them was a step in the execution proceedings.

But they have nowhere said that the court receiving the precept and making an attachment pursuant to that becomes a transferee court for execution by the very fact of the issue of a precept. The decision in (S) AIR 1955 Hyd 64 is not in point. In that case the judgment-debtor first made an application under Order 21 Rule 2 C. P. C. within time. The execution application was later on dismissed for default and the application under Order 21 Rule 2 remained undisposed. The judgment-debtor then again preferred an application under Order 21 Rule 2 C. P. C. in fresh execution proceedings. It was held that this application was in effect an application for revival of the earlier application under Order 21 Rule 2 C. P. C. which was still undecided. It will be seen that in that case the first application under Order 21 Rule 2 C. P. C. was kept pending and remained undecided even till the date of the second application.

Here, the appellants' first application made on 29-3-1957 was finally decided and rejected long before he preferred his second application on 18-10-1957. The decision in AIR 1926 Lah 433 has also no bearing in the present case. All that was decided in that case was that a court to which a precept is issued for attachment of property has jurisdiction to accept from the judgment-debtor security for payment of the decretal amount and to staying the attachment pursuant to the precept.

7. For all these reasons, I am of the opinion that the learned District Judge of Dhar was right in rejecting the appellants' application dated 18-10-1957 under Order 21 Rule 2 C. P. C., as barred by time. This appeal is, therefore, dismissed with casts.


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