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Giridhari Lal and ors. Vs. Thakurdas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 77 of 1962
Judge
Reported inAIR1964Ori170
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38, 39(1), 41 and 47 - Order 21, Rules 6, 11 and 11(2); Limitation Act, 1908 - Sections 3 - Schedule - Article 182(5)
AppellantGiridhari Lal and ors.
RespondentThakurdas
Appellant AdvocateR.N. Misra and ;R.N. Patnaik, Advs.
Respondent AdvocateB.K. Pal and ;A. Mohanty, Advs.
DispositionAppeal allowed
Cases ReferredRadheshyam v. Devendra
Excerpt:
.....form the particulars whether any, and (if any) that previous applications have been made for the execution of the decree, the dates of such applications and their results. 9. the learned district judge's judgment is clearly contrary to law and must be set aside......judgment-debtor (respondent) on 29-9-1951 in money suit no. 16 of 1950 in the court of the civil judge, jhunjhun in rajasthan, and the decree was confirmed in appeal no. 21 of 1962 on 28-7-1952. the first execution case was levied on 9-4-1954 in the court of the subordinate judge of sambalpur in execution case no. 28 of 1954, which was dismissed on part satisfaction on 31-3-1955. the present execution case no. 29 of 1959 was filed in the court of the subordinate judge of sambalpur on 14-5-1959. from 31-3-1955, the date of disposal of execution case no. 28 of 1954, till 14-5-1959, more than three years have elapsed in between these two dates, the decree-holders filed execution case no. 188 of 1956 on 9-4-56 and execution case no. 465 of 1958 on 8-9-1958 in the court of the civil judge,.....
Judgment:

G.K. Misra, J.

1. The decree-holders are the appellants. They obtained a decree against the judgment-debtor (respondent) on 29-9-1951 in Money Suit No. 16 of 1950 in the Court of the Civil Judge, Jhunjhun in Rajasthan, and the decree was confirmed in appeal No. 21 of 1962 on 28-7-1952. The first execution case was levied on 9-4-1954 in the Court of the Subordinate Judge of Sambalpur in Execution case No. 28 of 1954, which was dismissed on part satisfaction on 31-3-1955. The present Execution case No. 29 of 1959 was filed in the Court of the Subordinate Judge of Sambalpur on 14-5-1959. From 31-3-1955, the date of disposal of Execution case No. 28 of 1954, till 14-5-1959, more than three years have elapsed in between these two dates, the decree-holders filed execution Case No. 188 of 1956 on 9-4-56 and Execution case No. 465 of 1958 on 8-9-1958 in the Court of the Civil Judge, Jhunjhun, which were respectively dismissed on 16-10-1956 and 23-2-1959.

2. The judgment-debtor filed an objection under Section 47 C. P. C. The entire objection petition is couched in 4 paragraphs. Paragraphs 1 to 3 merely give statements of fact. In paragraph 3 it is admitted that the decree-holders obtained a certificate of non-satisfaction from the Court at Jhunjhun on 23-2-59 whereafter Execution case No. 29 of 1959 was filed in the Court of the Subordinate Judge of Sambalpur. The substantive objection in paragraph 4 is--

'That the petition under Order 21 Rule 6 was filed after a lapse of three years and as such the step in aid of execution was clearly barred by time.'

Order 21, Rule 6, C. P. C. merely prescribes that the Court sending a decree for execution shall send a copy of the decree, a certificate of non-satisfaction and a copy of the order for execution etc. It is difficult to appreciate the exact nature of the objection in paragraph 4 of the petition,

3. Before the learned Subordinate Judge the judgment-debtor's objection was presented as--

'Sri B. Das, Advocate for the judgment-debtor urged that non-satisfaction certificate for the instant case has been filed but none such was filed for starting Ex. Case No. 465 of 1958 at Jhunjhun............'

This objection was overruled by the learned Subordinate judge. Before the learned District Judge, the objection was presented in the shape--

'that the Jhunjhun Court had no jurisdiction to entertain the said execution case No. 188 of 1956 without obtaining a certificate under Section 41 C. P. C. from the transferee court of Sambalpur.'

Placing reliance on Nagi Reddi v. Kotamma, AIR 1947 Mad 431, the learned District Judge held that so long as a certificate of non-satisfaction was not given by the transferee court the jurisdiction was retained by it and that the transferor court had no jurisdiction to entertain an application for execution. He accordingly held that the Ex. case No. 188 of 1956 in the Jhunjhun Court was without jurisdiction and was to be ignored. He did not make a reference to Execution case No. 485 of 1958 in the court of Jhunjhun. Apparently ha must have been of opinion that the same argument would apply to that execution case. After ignoring both the intermediate executions in the Court of Jhunjhun, he came to the conclusion that the present execution case was barred by time. The miscellaneous appeal has bean filed against the order of the learned District Judge.

4. The learned district Judge's view may be examined with reference to an illustration. Supposing the judgment debtor has a piece of immoveable property within the jurisdiction of the court in Jhunjhun, another piece in Cuttack, a third piece in Puri and fourth piece in Sambalpur where he permanently resides. In the first instance, the decree-holders proceeded against the piece of property in Sambalpur by getting the decree transferred to the Court of the Subordinate Judge of Sambalpur. If the learned District Judge's view is accepted, until the court of the Subordinate Judge of Sambalpur sends a certificate of non-satisfaction under Order 21, Rule 6 C. P. C., the Court at Jhunjhun, which passed the decree, has no jurisdiction to further entertain an execution case wherein relief is sought against the properties in Jhunjhun, Cuttack and Puri. This would lead to an absurd position. The learned Judge's view is directly contrary to the observation of the Judicial Committee in Saroda Prosad Mullick v. Lutchmeeput Singh Doogur, 14 Moo Ind App 529 (PC). At p. 540 their Lordships observed--

'A more important point involved in the case is whether the transmission could be made to the three Zilla Courts concurrently, for the purpose of execution. On consideration of the Code, their Lordships can find nothing to prevent this being done. On the contrary, the procedure is wail adapted to allow of it, and of its being done most beneficially for the creditor, and without injustice to the debtor. If it were not so, the debtor might be able to get rid of his property before it could be attached. On the other hand, there is provision for the protection of the debtor, for the issuing of the execution in more Zillahs than one is made subject to the control of the Judge who may refuse to do so where he saw there was very sufficient reason to the contrary.'

That last sentence is based on Section 286 of the then Coda corresponding to Order 21, Rule 21, C. P. C. which lays down that the court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.

5. The conflict of authority in different High Courts in India appears to have arisen from certain observations of the Privy Council in Maharajah of Bobbili v. Sri Raja Narasaraju Peda Baliara Simhuiu Bahadur, 43 Ind Anp 238 : (AIR 1916 PC 16). The facts of that case were that by the order of the Court of the District Judge, the decree dated 5th April, 1904 had been sent to the Court of the Munsif of Parvatipur for execution by the latter Court, and the copy of the decree with the non-satisfaction certificate was not returned to the Court of the District Judge until August 3, 1910. On 13th December, 1907 an execution was filed before the District Judge for sale of immoveable property of the judgment-debtor which was within the local limits of the jurisdiction of the Munsif of Parvatipur. Their Lordships held that the petition o1 13th December 1907 was not presented to the proper court and that the Munsif of Parvatipur was the proper Court, The pertinent observation is that the court of the Munsif of Parvatipur was the proper court whose duty was to execute the decree 'so far as it could be executed by that Court.'

The conflict of authority arose out of the underlined words. Some Courts took the view that until the Munsif Court of Parvatipur sent back the certificate of non-satis-faction, the Court of the District Judge was wholly without jurisdiction to entertain any other execution application. AIR 1947 Mad 431 is one such decision on which the learned Judge has wholly placed reliance. This view has not been accepted as good law in other decisions. The aforesaid observation of their Lordships has been construed to refer to concurrSnt executions against the same property.

In the aforesaid case, the non-satisfaction certificate with regard to the execution case against a particular property within the jurisdiction of Munsif of Parvatipur had not been sent to the District Judge and the further execution filed before the District Judge related to the self-same property which was within the jurisdiction of the Munsif Ccurt of Parvatipur. Their Lordships' observation must be limited to its own context which means that against the self-same property no two execution cases can be filed in two different Courts simultaneously on the basis of the same decree (vide Sundara Rao v. Appiah Naidu, AIR 1954 Mys 1 (FB)).

6. The matter would be taken to have been conclusively settled by their Lordships of the Privy Council in Jang Bahadur v. Bank of Upper India Ltd. 55 Ind App 227 : (AIR 1928 PC 162). The following passage at p. 233 (of Ind App) : (at p. 164 of AIR) brings out the essential principle--

'In order to decide that question it is necessary to examine the provisions of the Code as to execution when a decree is transferred. Under Clause (c) of Section 39, Sub-section (i) of the Code of 1908, a decree directing the sale of immoveable property situate outside the local limits of the jurisdiction of the court, which passed it, may be transferred for purposes of execution to the Court within whose jurisdiction the property is situated. On such transfer the former Court does not altogether lose seisin of the decree. But the Court of transfer obtains jurisdiction to deal with that particular execution proceeding and retains such jurisdiction until such execution is withdrawn or stayed, or until it satisfies to the court which passsd the decree either that the decree has been executed or, if it fails to execute the decree, the circumstances attending such failure -- (Section 41).'

The conflict on the basis of the observation made in 43 Ind App 238 : (AIR 1916 PC 16) should have been set at rest by 55 Ind App 227 : (AIR 1928 PC 162). The limits of jurisdiction of the Court which passed the decree and the transferee Court have been clearly set out, and in unmistakable language' it has been laid down that the former Court does not altogether lose seisin of the decree, and it, however, loses jurisdiction in respect of a particular execution proceeding pending before the transfaree court from which no certificate of non-satisfaction has been sent. AIR 1947 Mad 431 did not take notice of this important decision of the Judicial Committee. Section 38, C. P. C. prescribes that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. In terms, there is nothing in the section to exclude the jurisdiction of the Court which passed the decree when it has been transferred for execution, to another Court.

7. Radheshyam v. Devendra, AIR 1952 Pat 213 (FB) has fully gone into the matter. It is somewhat remark-able that the decision of their Lordships of the Judicial Committee and the Full Bench decision of the Patna High Court were not brought to the notice of the learned Judge. The result of the aforesaid discussion can be summarised thus--

(i) Where a decree is transferred for execution to another Court, the transferee court gets jurisdiction to execute the decree to the limit of its jurisdiction to execute its own decree. It retains this jurisdiction until it sends a certificate of non-satisfaction under Section 41, C. P. C.

(ii) The transferor Court is not, however, deprived of its jurisdiction to execute the decree. It still retains jurisdiction to execute the decree except to the extent that the jurisdiction to execute the decree has been given to the transferee Court.

Applying these principles to the illustration I have formulated above, it would be clear that until the non-satisfaction certificate is sent by the. Subordinate Judge of Sambalpur, the Court at Jhunjhun has no jurisdiction to entertain an execution case in respect of the property within the jurisdiction of the Subordinate Judge of Sambalpur. But it has full jurisdiction to execute the decree in respect of the properties situate in Jhunjhun, Cuttack and Puri. AIR 1947 Mad 431 was wrongly decided and the learned District Judge's view is contrary to law.

8. Mr. Pal placing reliance upon Section 3 of the Limitation Act, contended that the onus was on the decree-holders to establish that the two intermediate execution cases filed in the court of Jhunjhun saved limitation. Section 3, Limitation Act, enacts--

'Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, at though limitation has not been set up as a defence.'

There can be no dispute that the onus was on the decree-holders to establish that the execution application filed in the Court of the Subordinate Judge of Sambalpur on 14-5-1959 was within limitation. The decree-holders cars bring their case within limitation only if the two intermediate applications satisfy the requisites prescribed under Article 182, Clause (5), Limitation Act, which runs thus:--

For the execution of a decree or orderof any civil courtnot provided for byarticle 183 ov by sec 48 of the Cods of Civil Procedure, 1908 (V of 1908)

Three years; or where acertifi-ed copy of the decree or orderhasbeen regis-tered. Six Years.

5. (Where the application next hereinafter mentioned bus been made) the date ofthe final order passed on an application madein accordance with law to the proper court for execution or to take some stepin aid of execution of the decree or order.

In column 6 of the Execution application, the decree-holders clearly refer to the two intermediate executions and their dates of disposal in accordance with the provisions of Order 21, Rule 11 (2) (f) which prescribes that the execution application shall contain in tabular form the particulars whether any, and (if any) that previous applications have been made for the execution of the decree, the dates of such applications and their results. The decree-holders complied with the requirements. It was open to the judgment-debtor in his objection under Section 47, C. P. C. to aver that the application was not in accordance with law or did not constitute a step in aid of execution or was not made to the proper court. The first two objections were definitely not taken. The third objection was not taken in conformity of the observation of their Lordships of the Judicial Committee in 55 Ind App 227 : (AIR 1923 PC 162). An, untenable objection was taken in a general form that the Court at Jhunjhun had no jurisdiction until the certificate of non-satisfaction was sent by the Subordinate Judge of Sambalpur.

The objection should have been taken in the specific form that the two intermediate objection applications were in respect of matters which were within the scope of execution case No. 28 of 1954 in the court of the Subordinate Judge of Sambalpur. In that case, the decree-holders would have established the fact by production of the two intermediate applications to negative the objection. They could have established that the relief sought in the two intermediate applications were different from the relief claimed in execution case No. 28 of 1954. In the absence of such objection on a question of fact, the fulfilment by the decree-holders of the requirements of law under Order 21, Rule 11, C. P. C. on the face of it saved limitation. Manifestly the decree-holder's application is within limitation and the judgment-debtor's objection is frivolous. Such a patent fact was never canvassed at any previous stage. There is no substance in the contention raised by Mr. Pal.

9. The learned District Judge's judgment is clearly contrary to law and must be set aside. In the result, the appeal is allowed with costs throughout.


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