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Chhegalal Ramniwas Vs. Shyamlal Parmatma Swarup Merchants of Delhi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 67 of 1958
Judge
Reported inAIR1960MP387
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(18), 40, 121 and 122 - Order 21, Rule 5
AppellantChhegalal Ramniwas
RespondentShyamlal Parmatma Swarup Merchants of Delhi
Appellant AdvocateS.L. Garg, Adv.
Respondent AdvocateS.D. Sanghi, Adv.
DispositionAppeal dismissed
Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him.....execution of a decree of a court in another state in the absence of rules under section 40 of the civil procedure code.2. the facts giving rise to this appeal are as follows :--a decree for money was passed by the sub-judge 1st class, delhi, on 5-5-1955. that decree was sent for execution to the district court in-dore from where it was transferred to the additional civil judge 2nd class. indore. objection to this execution was raised on behalf of the judgment-debtor that in the absence of anv rales providing for the manner for such execution and the court to which such decrees are to be sent for execution either in the state of madhya bha-rat or the present state of madhya pradesh the decree could not be executed by that court that is the court of civil judge 2nd class, indore. this.....
Judgment:

V.R. Newaskar, J.

1. The present appeal involves the question with regard to the competency of a petition which has been submitted for execution of a decree of a Court in another State in the absence of rules under Section 40 of the Civil Procedure Code.

2. The facts giving rise to this appeal are as follows :--

A decree for money was Passed by the Sub-Judge 1st Class, Delhi, on 5-5-1955. That decree was sent for execution to the District Court In-dore from where it was transferred to the Additional Civil Judge 2nd Class. Indore. Objection to this execution was raised on behalf of the judgment-debtor that in the absence of anv rales providing for the manner for such execution and the Court to which such decrees are to be sent for execution either in the State of Madhya Bha-rat or the present State of Madhya Pradesh the decree could not be executed by that Court that is the Court of Civil Judge 2nd Class, Indore. This contention found favour with the Court of first instance and it rejected the application for execution but on appeal the decision was set aside and the case was remanded to the Court of first instance for further proceedings in execution. This is a second appeal against that decision.

3. It is contended on behalf of the appellant by Mr. Garg that the terms of Section 40 indicate that In the absence of rules for the manner of execution of decrees of a Court in another State and the Court by which it is to be executed such decrees cannot be executed at all. He contended that there are no specific rules referred to in Section 40 C.P.C. either in the State of Madhya Bharat or in the State of Madhya Pradesh. He therefore urges that the view taken by the lower appellate court is not correct and the execution petition should be dismissed.

4. Mr. Sanghi. who appears for the respondent, on the other hand contends that Section 40 C.P.C. does not justify the view that in case no rules are framed in the State of Madhya Bharat or the State of Madhya Pradesh prescribing the manner of execution for the Court by which the execution is to be effected in respect of the decrees of another Courts the decrees cannot be executed at all. The Section, according to the learned counsel, only suggests that in case there exists cretain special rules in a particular State on the matter referred to in Section 40 C.P.C. apart from what are contained in the First Schedule to the Civil Procedure Code it is those rules that will govern the matter. In the absence of any such special rule the provisions contained in the first Schedule ought to apply. The learned counsel in this connection referred to the definition of the word 'rules' contained in Section 2(18) C.P.C. and also relied upon the provision of Order 21 Rules 5 and 8 C.P.C.

5. Section 2(18) C.P.C. defines the term 'rules' to mean 'rules and forms contained in the First Schedule or made under Section 122 or Section 125'. Section 122 C.P.C. confers inter alia power upon the High Court in each State in India to make rules from time to time after previous publication regulating the procedure of Civil Courts subject to their superintendence and further power to annul, alter or add to all or any of such rules. Section 125 C.P C. is not material for the present purpose. Section 121 C.P.C. indicates that the rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part X of the Civil Procedure Code.

It therefore appears that in the absence of any rules made by the High Court in exercise of its powers under Section 122 C.P.C. rules in the First Schedule will govern the procedure as dealt with therein. Section 40 C.P.C. when it refers to rules in force in a particular State may mean either the rules in the First Schedule of the Civil Procedure Code or such rules as are framed under Section 122 C.P.C. by the High Court either to annul, alter or add to all or any of the rules in the First Schedule of the Civil Procedure Code.

6. The Bombay and Allahabad High Courts have altered Rule 5 of Order 21. By this alteration they have permitted transfer of decrees for execution to any court in the State direct without the necessity of sending it through the District Court of the District in which the transferee Court is situated and the requirement of sending the decree for execution through a District Court is confined to cases where the decree is passed by a Court Of another State in India.

Such a modification in Rule 5 not having been made by the High Court of M.P. the requirement of Rule 5 of Order 21 C.P.C. has to be followed. Mr. Garg's contention is that, reference to District in Rule No. 5 C.P C. is to the District in the same Slate and not another State. There is no justification for this assumption in view of the actual wordings of the Rule which is wide enough to include any District in any State in India. The Rule is only intended for administrative convenience and has nothing to do with the question of jurisdiction much less with inherent want of jurisdiction.

7. The appeal therefore has no merit in it and ought to be dismissed with costs.

8. Ordered accordingly.


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