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Ramavtar and ors. Vs. Pop Sing Mahadeb Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 5 of 1963
Judge
Reported inAIR1970Ori36; 35(1969)CLT981
ActsCode of Civil Procedure (CPC) , 1908 - Sections 40 and 42; Orissa Money Lenders Act, 1939 - Sections 13
AppellantRamavtar and ors.
RespondentPop Sing Mahadeb Prasad
Appellant AdvocateA.K. Rao, Adv.
Respondent AdvocateB.K. Mohanty, Adv.
DispositionAppeal dismissed
Cases ReferredBasheer Ahamed v. G. Padmanabha Kamath.
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........subordinate judge of bala-sore, the judgment-debtor prayed for instalments under section 13 of the orissa money-lenders act (hereinafter referred to as the orissa act) on which misc. case no. 72 of 1960 was started. the said misc. case having been dismissed on 8-7-1961 the judgment-debtor preferred misc. appeal no. 71 of 1961 in this court which was heard and dismissed by a single bench of this court and hence this appeal.3. the only question for consideration is whether a transferee court in orissa in executing such a decree passed in a court in bengal would have to follow the provisions of the bengal money-lenders act or that of the orissa act. mr. a. k. eao submits that as the decree is pending execution in a court in orissa the provisions of the orissa act would apply and can be.....
Judgment:

Acharya, J.

1. This is an appeal by leave from the judgment of Hon'ble Mr. Justice G. K. Misra (as he then was) in Miscellaneous Appeal No. 71 of 1961.

2. The facts of the case, in short, are as follows :

A decree was passed by the Calcutta High Court in the Original Side for Rs, 16,765-69 nP. inclusive of interest at 6 per cent. When the said decree on transfer was pending in execution in the court of the Subordinate Judge of Bala-sore, the judgment-debtor prayed for instalments under Section 13 of the Orissa Money-Lenders Act (hereinafter referred to as the Orissa Act) on which Misc. Case No. 72 of 1960 was started. The said Misc. case having been dismissed on 8-7-1961 the judgment-debtor preferred Misc. Appeal No. 71 of 1961 in this court which was heard and dismissed by a Single Bench of this court and hence this appeal.

3. The only question for consideration Is whether a transferee court in Orissa in executing such a decree passed in a court in Bengal would have to follow the provisions of the Bengal Money-Lenders Act or that of the Orissa Act. Mr. A. K. Eao submits that as the decree is pending execution in a court in Orissa the provisions of the Orissa Act would apply and can be followed by the transferee court in this case. Mr. Rao contends that on the provisions of Sections 40 and 42 of the Civil Procedure Code the transferee court in Orissa has to follow the law for such transactions in force in this State and as such could grant instalments under the Orissa Act.

Section 40, C. P. C. lays down that a decree which is sent for execution to a court in another State shall be executed In such manner as is prescribed by rules in force in that State. It therefore states that the transferee court has to execute the decree in following the procedure prescribed by rules in its own State. Section 42 lays down the powers of a court in executing a decree transferred to it.

Now it is well settled that the 'powers' referred to in Section 42, C. P. C. purport only to mean the powers of the executing court in relation to the procedure to be followed and not in relation to the substantive law applicable in execution of the said decree. So therefore, the provisions of Sections 40 and 42, C. P. C. are purely procedural, laying down only the adjective law for the execution of the decree and cannot therefore regulate the substantive rights and liabilities of the concerned parties which were settled and determined in the court which transferred the decree in accordance with the substantive law in force in that State, and as such cannot again be subjected to and/or regulated by the law of the State to which the decree is sent only for execution.

In Inderchand Kajriwal v. Bansropan Sahu, AIR 1948 Pat 245 a Division Bench of the Patna High Court in consonance with the court's decision in N.V. Ranga-nandham v. M. Ponnacharamma, AIR 1942 Pat 128 and the decision of the Calcutta High Court in Tincourie Dawn v. Debendra Nath (1890) ILR 17 Cal 491 and that of the Madras High Court in Sree Krishna Doss v. Alumbi Ammal (1913) ILR 36 Mad 108 held as follows :

'Hence it may be said that the preponderance of judicial authority appears to be in favour of view that the transferee Court in executing the decree transferred to it for execution has to do so In accordance with the law of procedure obtaining in that Court, but has to determine the rights and liabilities of the parties in accordance with the substantive law obtaining in the Court which passed the decree, that is to say, the transferor Court.'

The Patna decision has been followed with approval in Basheer Ahamed v. G. Padmanabha Kamath. AIR 1953 Mys 37.

4. Mr. Rao further contended that it is evident from the Preamble of the Orissa Act that the provisions of the said Act would be applicable for the purpose of granting relief to any debtor in the State of Orissa. We cannot also accept this contention of Mr. Rao. The Preamble is worded as follows :

'Whereas it is expedient to regulate money-lending transactions and to grant relief to debtors in the State of Orissa; it is hereby enacted as follows : '

From the above it is evident that the purpose of enacting the said Act is to regulate money-lending transactions in the State of Orissa and to grant relief to debtors in this State. Therefore, the primary purpose of the Act is to regulate money-lending transactions in the State of Orissa and in doing so to grant relief to debtors in the State of Orissa. As it is an Act regulating money-lending transactions in the State of Orissa, its provisions would not affect the money-lending transactions which were transacted outside the State of Orissa. Naturally therefore the 'debtors' referred to in the Preamble, in the context in which the word appears therein, would mean only such persons who become debtors by the money lending transactions in the State of Orissa. Thus the above contention of Mr. Rao is fallacious.

Mr. Rao did not have any other point to urge in this appeal.

5. On the discussions and considerations made above, we do not find any merit in this appeal which is hereby dismissed with costs.

Patra, J.

6. I agree.


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