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Sanwal Das Gupta Vs. Babubhai Bhawanji Jhaveri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 584 of 1959
Judge
Reported inAIR1963P& H395
ActsCode of Civil Procedure (CPC) , 1908 - Sections 42 - Order 21, Rule 50(2)
AppellantSanwal Das Gupta
RespondentBabubhai Bhawanji Jhaveri
Appellant Advocate Hari Shankar, Adv.
Respondent Advocate K.L. Arya, Adv.
DispositionPetition dismissed
Cases ReferredPulin Behari v. Iswar Chandra Pal Firm
Excerpt:
.....or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the..........is competent to entertain and decide an application under order xxi, rule 50 (2) of the code of civil procedure, and it has been referred to us because of some conflict of judicial opinion on the question.2. the decree in this case was obtained against a partnership firm from a court of bombay. it was transferred for execution to the court of a subordinate judge at delhi. the decree-holder then made an application in the delhi court, seeking execution against a partner of the judgment-debtor firm, and that partner, being sanwal dass gupta, objected on the ground that such an application could be entertained only by the original court which made the decree. the executing court overruled that objection, holding that it had jurisdiction to entertain the petition and decide whether.....
Judgment:

Dulat, J.

1. The only question in this case is whether the Court, to which a decree has been transferred for execution, is competent to entertain and decide an application under Order XXI, Rule 50 (2) of the Code of Civil Procedure, and it has been referred to us because of some conflict of judicial opinion on the question.

2. The decree in this case was obtained against a partnership firm from a Court of Bombay. It was transferred for execution to the Court of a Subordinate Judge at Delhi. The decree-holder then made an application in the Delhi Court, seeking execution against a partner of the judgment-debtor firm, and that partner, being Sanwal Dass Gupta, objected on the ground that such an application could be entertained only by the original Court which made the decree. The executing Court overruled that objection, holding that it had jurisdiction to entertain the petition and decide whether execution should be allowed against the partner. Hence this revision petition by Sanwal Dass Gupta.

3. On behalf of the petitioner, reliance is placed on the language of Sub-rule (2) of Rule 50 of Order XXI of the Code of Civil Procedure. It says -

50. (2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1), Clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.' The argument is that because this rule says that an application may be made to the Court which passed the decree, the inference must be that such an application cannot be made to the transferee-Court.

This argument, however, ignores a clear provision contained in Section 42 of the Code of Civil Procedure, which is in these terms - '42. The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself .........'

It is obvious that if full effect is given to the provision in Section 42 of the Code of Civil Procedure, then the powers of a Court, which may have originally granted the decree, and the powers of a Court, to which it is later transferred for execution, would be identical, and the argument, that a particular application which may be made to the Court granting the decree cannot be made to the transferee-Court, would not appear to have much substance.

It is admitted that as far as the Lahore High Court is concerned, the view all along has been that a transferee-Court has jurisdiction to entertain and decide an application under Rule 50 (2), Order XXI, Civil Procedure Code. Bhide, J., sitting alone, in E. D. Sasson and Co., Ltd. v. Shivji Ram Devi Das, AIR 1929 Lah 228, adopted that view, and the same was followed by Addison, J., again sitting alone, in Abdul Hamid v. Dhanpat Mat Diwan Chand, AIR 1931 Lah 507(2). Later that year Addison, J., sitting in a Division Bench with Coldstream, J., considered the matter again and affirmed the same view in Bombay Company Ltd. v. Kahan Singh, AIR 1931 Lah 736.

It is admitted that there is no decision of the Lahore High Court or of this Court expressing thecontrary view, which is now canvassed on behalf of the petitioner. Learned counsel, however, refers to a decision of the Calcutta High Court in Pulin Behari v. Iswar Chandra Pal Firm, AIR 1945 Cal 303, where a Division Bench of that Court noticed the divergence of judicial opinion concerning the interpretation of Order XXI, Rule 50, Sub-rule (2), Civil Procedure Code, and came to the conclusion, in spite of the decisions of the Lahore High Court I have referred to, that the true meaning of Sub-rule (2) of Rule 50, Order XXI, is that such an application must be made to only the Court which had originally granted the decree. The divergence of opinion arises but of the emphasis placed on the words of Rule 50, Sub-rule (2) of Order XXI in one case and the language of Section 42 of the Civil Procedure Code in the other, and, as far as I can see, there is no reason why full effect should not be given to the language of Section 42 and why its import should be cut down.

As I have said, that has been the view of the Lahore High Court which this Court ordinarily follows, and nothing has been said in the present case to persuade us to depart from it. No inconvenience of any kind seems to result from the adoption of this view and it seems, on the other hand, only proper that the Court, seized of the execution proceedings for the time being, should be allowed to decide whether it would at the instance of the decree-holder permit execution to be taken out against a partner of a firm. I would, therefore, in agreement with the decision of the Lahore High Court, hold that in such a case as the present the transferee-Court is competent to entertain an application under Order XXI, Rule 50 (2) of the Civil Procedure Code. The present revision petition must, on this view, fail and I would dismiss it but, in all the circumstances, not burden the petitioner with costs.

D. Falshaw, C.J.

4. I agree.


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