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Punjab Co-operative Bank Ltd. Vs. L. Bikram Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. First Appeal Nos. 47 and 48 of 1951
Judge
Reported inAIR1959P& H71
ActsCode of Civil Procedure (CPC) , 1908 - Order - 22 - Sections 39, 41, 42, 50 and 146; Indian Independence (Legal Proceedings) Order 1947
AppellantPunjab Co-operative Bank Ltd.
RespondentL. Bikram Lal and ors.
Appellant Advocate S.D. Bahri, Adv.
Respondent Advocate J.N. Seth and; R. Sachar, Advs. for;Minor (Amit Lal)
DispositionAppeal allowed
Cases ReferredA.S. Metal Mart v. The First National Bank
Excerpt:
.....order 21, rule 22(2), civil procedure code, where an execution application is made against the legal representatives then the executing court may not issue notice to the legal representatives tinder certain circumstances and it has been repeatedly laid down that the provisions of this order apply to transferee court as well. now the transferee court continues to have jurisdiction to execute the decree even if repeated applications are made for the purpose till it certifies to the court that passed the decree the fact of its execution or failure under section 41, civil procedure code. it is well settled that the court which passed the decree continues to have jurisdiction to execute the decree itself or to send it to some other court for this purpose even if it has already transferred..........again on 3-1-46 for execution of the decree but this time the application was made against the legal representatives of the judgment-debtor as piare lal had died in the meanwhile. this application was also dismissed on 7-2-'1947 and on the same date a fresh application was made for realisation of rs. 8,824/12/4 as balance due under the decree. the legal representatives filed objections on 20-5-1947 urging inter alia' that only the court which passed the decree could order execution against the legal representatives under section 50 civil procedure code,the parties' evidence on the other issues involving questions of fact was concluded on 20-12-1947 and two days later the legal representatives raised a new objection and that was to the effect that as the lahore court was a foreign.....
Judgment:
ORDER

Bishan Narain, J.

1. It will be convenient to deal with Execution first Appeal No. 47 of 1951 and Execution First Appeal No. 48 of 1951 together as the points involved in both the appeals are the same.

2. The facts out of which Execution First Appeal No. 47 of 1951 has arisen are these. The Punjab Co-operative Bank Ltd.. obtained a mortgage decree for Rs. 30,0007- against Piare Lal on 31-8-1930 from the Court of the Additional District Judge Lahore. The Bank obtained an order from the Lahore Court for transfer of the decree to Feroze-porc under Section 39, Civil Procedure Code. The Bank then applied to the Court of the Senior Sub-Judge Ferozepore for execution of that decree on 22-4-1943 and it was dismissed on 18-6-1943 after partial satisfaction.

The Bank then applied again on 3-1-46 for execution of the decree but this time the application was made against the legal representatives of the Judgment-debtor as Piare Lal had died in the meanwhile. This application was also dismissed on 7-2-'1947 and on the same date a fresh application was made for realisation of Rs. 8,824/12/4 as balance due under the decree. The legal representatives filed objections on 20-5-1947 urging inter alia' that only the Court which passed the decree could order execution against the legal representatives under Section 50 Civil Procedure Code,

The parties' evidence On the other issues involving questions of fact was concluded on 20-12-1947 and two days later the legal representatives raised a new objection and that was to the effect that as the Lahore Court was a foreign Court its decree could not be executed by an Indian Court. This objection was however overruled by order dated 6-2-1948. Thereafter the executing Court held that under Section 50, Civil Procedure Code, the application for imp leading the legal representatives lies to the Court which passed the decree and ordered on 21-5-1948 that proceedings be stayed till the decree-holder Bank obtains the necessary orders from the Lahore Court. It appears that the Bank had already approached the Lahore Court on 12-3-1948 for that purpose and that Court by order dated 21-5-1948 impleaded three sons and the widow of the deceased judgment-debtor.

Another application was made to the Lahore Court for impleading Basant Lal Malhotra another son of the judgment-debtor and that this application was granted by an order dated 15-10-1949. The execution proceedings were then resumed in the Feiozepore Court and the execution application was dismissed on the ground that it was not filed in accordance with law as an application for execution against the legal representatives could only be made in Lahore and after 15-8-1947 that being a foreign Court could not deal with the matter. It is against this decision that the Bank has appealed to this Court (Execution First Appeal No. 47 of 1951).

3. The facts out of which Execution First Appeal No. 48 of 1951 has arisen are these. The Bari Doab Bank Ltd., had obtained a money decree for Rs. 24065/10/- against the same Piare 1,31 on 26-10-1934 from the Court of Sub Judge 1st Class Lahore. The Bank got the decree transferred to Ferozepore under Section 39, Civil Procedure Code. The Ferozepore Court dismissed the application on 30-10-1942. The Bank filed a fresh application on 18-10-1945 for realisation of Rs. 6923/8/- as balance due under the decree. The proceedings were stayed under Section 6 of the Soldiers (Litigation) Act 1925 by order dated 1-3-1946 as Bikram Lal one of the sons and the legal representative of Piare Lal was on active 'service.

The execution proceedings were resumed on 12-4-1947. Thereafter the proceedings in this case and in the case of Punjab Co-operative Bank Ltd. were taken together. The same objections were filed by the legal representatives and the same orders were passed thereon as narrated above. The only difference is that the Lahore Court brought the legal representatives on record on 1-7-1949 and the oral evidence was recorded in this case and was made with the consent of the parties in the case of the Punjab Co-operative Bank Ltd. The appeal of the Bari Doab Bank Ltd., is numbered as Execution First Appeal No. 48 of 1951.

4. Now these facts raise two questions of law and they are: (1) Whether the application for substitution of legal representatives must be made only in the Court which passed the decree and without such an application execution cannot proceed in the transferee Court and (2) Whether an application, for this purpose in Lahore Court after 15-8-1947 is valid,

5. Dealing first with the seoond question it appears to me that after 15-8-1947 the Lahore Court has become a foreign Court and any order passed by; it after the date under Section 50, C. P. C. has no effect in this country. The first point seems to be more difficult to decide. Under Section 50, C. P. C., the decree-holder on the death of the judgment-debtor may apply to the Court which passed the decree; to execute it against the legal representatives of the deceased judgment-debtor. Under Section 39, Civil Procedure Code, the Court that passed the decree may send it to another for execution,

On such a transfer the transferee Court has under Section 42, Civil Procedure Code, the same powers-in executing it as if it had passed the decree and under Section 40, Civil Procedure Code, it shall execute it according to the rules applicable to itself. Under Order 21, Rule 22(2), Civil Procedure Code, where an execution application is made against the legal representatives then the executing Court may not issue notice to the legal representatives Tinder certain circumstances and it has been repeatedly laid down that the provisions of this order apply to transferee Court as well.

Now the transferee Court continues to have jurisdiction to execute the decree even if repeated applications are made for the purpose till it certifies to the Court that passed the decree the fact of its execution or failure under Section 41, Civil Procedure Code. It is well settled that the Court which passed the decree continues to have jurisdiction to execute the decree itself or to send it to some other Court for this purpose even if it has already transferred it to another Court. In this connection the provisions of Section 146, Civil Procedure Code, are also not to be ignored.

This section provides that when proceedings can be taken against a person on an application then an application can be made against persons claiming under him. Thus under this, section an application can be made against a legal representative of a judgment-debtor. It will not be irrelevant to state at this place that provisions of p. 22 do not apply to execution pro-ceedings and it is not necessary to file a separate' application to bring the legal representatives of at judgment-debtor on the record.

In view of these provisions of law it appears to me that after transfer of a decree the jurisdiction of the transferee Court is not excluded to execute it against the legal representatives of the judgment-debtor. There was a conflict of views in this matter in various High Courts till their Lordships of the Privy Council held in Jang Bahadur v. Bank of Upper India, Ltd., Lucknow, AIR 1928 P. C. 162:

'But before execution can proceed against the legal representative of the deceased judgment-debtor, the decree-holder must get an order for substitution from the Court which passed the decree. This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure, e.g., if the application for substitution is made to the Court to whom decree is transferred instead of to the Court passing the decree, the 'defect might be waived; and the party who has acquiesced in the Court exercising it in a wrong way, cannot afterwards turn round and challenge the legality of the proceedings.'

It is clear from this decision that their Lordships ot the Privy Council ultimately decided the matter on the ground that the legal representatives of the judgment-debtor were estopped from raising it. This decision to my mind does not hold finally that the transferee Court has no power or jurisdiction to execute the transferred decree against the legal representatives of the judgment-debtor.

It has, however, been decided by the Pepsu High Court in A.S. Metal Mart v. The First National Bank, Ambala AIR 1954 Pepsu 115 that the words 'may apply' in Section 50 should he read ('shall apply' and that any application for execution of the decree against the legal representatives of the deceased judgment-debtor in the transferee Court is not competent without getting the legal representatives impleaded in the Court which passed the decree.

6. Now if the transferee Court has jurisdiction to entertain such an application then even after partition of the country that jurisdiction has been preserved by para 4 of the Indian Independence (Legal Proceedings) Order, 1947 which lays down--

'x x x x x

(1) all proceedings pending immediately beforethe appointed day in any civil or criminal court(other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in thatcourt as if the said Act had not been passed, andthat court shall continue to have for the purposes ofthe said proceedings all the jurisdiction and powerswhich it had immediately before the appointedday; x x x x

x x x x x'

7. In view of the importance of the matter I am of the opinion that the points of law involved in this case should be decided by a larger Bench. Let the papers be placed before the Hon'ble the Chief Justice for orders.


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