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Ramkumar Chunilal Agarwala and ors. Vs. Hazarimal Bansilal Kumbhar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. (Execution) Second Appeal No. 1 of 1957 and Civil Ref. Nos. 1 and 2 of 1960
Judge
Reported inAIR1961Raj157
ActsCode of Civil Procedure (CPC) , 1908 - Sections 24, 38 and 41
AppellantRamkumar Chunilal Agarwala and ors.
RespondentHazarimal Bansilal Kumbhar and ors.
Appellant Advocate M.M. Vyas, Adv. for Ram Kumar
Respondent Advocate Krishna Mal Lodha, Adv. for Hazari Mal and; Chand Mal Lodha, Adv. for Hansraj and others
Cases ReferredDarsan Singh v. Baldeo Das
Excerpt:
- - cases may be well conceived where for instance there may be other properties available to the decree-holder in the jurisdiction of the ratangarh court. it is well-established that there is no bar in law to simultaneous execution cases. vyas because the learned judges observed in that case that once a decree is transferred under section 39 the court which passed the decree ceases to have jurisdiction till it receives a certificate under section 41 of the code, there is no doubt that under section 41 of the code, the court to which a decree is sent for execution has to certify to the court which passed it the fact of such execution or where the former court fails to execute the same the circumstances attending such failure. where the transferee court has completely failed to execute.....sarjoo prosad, c.j.1. these are connected cases and arise out of the same set of facts and circumstances. they can be, therefore, conveniently disposed of by this judgment.2. on the 8th of september, 1952, ram kumar, who is the decree-holder appellant in the miscellaneous appeal, obtained decree in nine different suits filed by him against defendants kanhaiyalal and hazari mal on the basis of hundis. these suits were originally instituted in the court of the munsif at sujangarh. on the abolition of that court the suits were transferred to the court of civil judge, ratangarh, and later they actually came to be heard by the court of the civil judge, churu, to which the suits in question were transferred along with a number of other suits.it was the last court which disposed of those suits.....
Judgment:

Sarjoo Prosad, C.J.

1. These are connected cases and arise out of the same set of facts and circumstances. They can be, therefore, conveniently disposed of by this judgment.

2. On the 8th of September, 1952, Ram Kumar, who is the decree-holder appellant in the Miscellaneous Appeal, obtained decree in nine different suits filed by him against defendants Kanhaiyalal and Hazari Mal on the basis of Hundis. These suits were originally instituted in the Court of the Munsif at Sujangarh. On the abolition of that Court the suits were transferred to the Court of Civil Judge, Ratangarh, and later they actually came to be heard by the Court of the Civil Judge, Churu, to which the suits in question were transferred along with a number of other suits.

It was the last Court which disposed of those suits and passed the decrees in question. Appeals preferred against the decrees were also dismissed with some modification. Kanhaiyalal, one of the judgment-debtors, preferred a second appeal to this Court. There was no appeal by Hazari Mal. The decrees were set aside as against Kanhaiyalal, but the decrees remained final and effective in so far as the other judgment-debtor Hazari Mal was concerned. The decree-holder Ram Kumar then applied for transfer of the decrees for execution to the Court of the Civil Judge at Ratangarh, and the Court which passed the decrees acceded to the prayer.

Thereafter Execution Cases Nos. 338 to 345 of 1952 were instituted in the Court of the Civil Judge, Ratangarh. It happened that in one of the above cases, viz., No. 345 of 1952, the judgment-debtor Hazari Mal applied to this Court for transfer of the execution case to some other Court under Section 24 of the Code of Civil Procedure. This Court by its order dated 31-7-1953, directed the execution case to be transferred to the Court of the Civil Judge, Bikaner.

Eventually the other execution cases also pending before the Court of the Civil Judge, Rataugarh, were transferred to the Civil judge of Bikaner, on the 27th of April, 1954. In spite of this transfer it appears that the decree-holder did not take any further steps in those execution cases before the Court of the Civil Judge at Bikaner, as a result ot which on the 24th of July, 1954, the execution cases were discussed for default. On the same day tha decree-holder started fresh execution cases in the Court of the Civil Judge at Ratangarh.

These were Execution Cases Nos. 230 to 238 of 1954. Before we proceed to observe as to what steps were taken in these execution cases it will be relevant to state that the records of the execution cases which had been transferred to the Civil Judge, Bikaner, were ordered to be sent back to the Court of the Civil Judge, Ratangarh, on the 24th of August, 1954, and the records were actually received by that Court on the 28th of August, 1954.

In Execution Case No. 230 of 1954 it appears that the decree-holder attached a sum of Rs. 7,200/-which was lying in deposit in the Court of the Civil Judge, Ratangarh, to the credit of the judgment-debtor Hazari Mal and had been attached earlier and brought into Court in an execution case at the instance of one Hanumun Datt, against the same judgment-debtor, Hanuman Datt's execution case having been later dismissed.

The decretal amount in execution in that case, as pointed out by the learned counsel for the respondent, came to only Rs. 1,804/6/- though the actual attachment was in respect of the entire sum of Rs. 7,200/-; but the other execution cases having been also pending before the same learned Civil Judge, he ordered the amount to be appropriated proportionately in part satisfaction of the various decrees.

3. In order to explain the nature of the dispute and the relationship of the parties in the cases with which we are concerned, it would be necessary to refer to a few more facts as to how this sum of Rs. 7,200/- came to be attached and was in the custody of the Court of the Civil Judge, Ratangarh. It appears that one Mal Chand, father of Hansraj and others, who are parties in the civil revision cases, had obtained a consent decree against his own son Jawari Mal and the judgment-debtor Hazari Mal on the 30th of April, 1952.

The consent decree appears to have been obtained for a sum of Rs. 36,000/- within a couple of days of the institution of the suit. Mal Chand after obtaining the consent decree levied execution of the same on 29th October, 1952, in the Court of the District Judge of Bikaner, but this execution case was dismissed on the Sth of November, 1952. The execution case having terminated, an order of attachment, jf any, fell through as a matter of course and ceased to have effect under Order XXI, Rule 57, of the Code of Civil Procedure.

Mal Chand levied another execution in the Court of the Civil Judge, Churu, which was dismissed on the 18th of January, 1954. He then levied a third execution in the case in the Court of the District Judge, Bikaner, on the 17th of November,1954, and on the same date obtained an order of attachment of the sum of Rs. 7,200/- which was lying in the Court of the Civil Judge, Ratangarh. The bone of contention in these cases is, therefore, the above sum of Rs. 7,200/-, which, as we pointed out earlier, had been already attached on 27th July, 1954, by the decree-holder Ram Kumar in execution of his own decrees pending in the Court of the Civil Judge at Ratangarh and was later ordered to be paid to the decree-holder in partial satisfaction of his decrees on 13th April, 1955. The District Judge ordered on 7th February, 1955, that the said amount lying in the Court of the Civil Judge, Ratangarh, should be forwarded to his Court, but the Civil Judge replied on 23rd May, 1955, that the money had been already paid to Ram Kumar, the appellant in the Miscellaneous Appeal, towards the satisfaction of his decrees.

The learned District Judge has now directed by the order in question before us in Civil Revision No. 294 of 1956 that the amount should be paid back in Court. It appears that the judgment-debtor in the execution cases pending before the Civil Judge at Ratangarh had raised objections on the ground that the Ratangarh Court was not competent to execute the decrees. These objections were over-ruled by the Ratangarh Court on the 13th of April,1955. It is against that ordei that the judgment-debtor appealed to the District Judge.

The District Judge allowed the appeal on 20th November, 1956, and against that order the decree-holder has preferred Miscellaneous Appeal No. 1 of 1957. The District Judge held that the execution cases pending before the Civil Judge at Ratangarh were incompetent as the said Court had no jurisdiction to entertain them. Mal Chand, who is the decree-holder executing his decree in the Court of the District Judge, Bikaner, has preferred Civil Revision No. 130 of 1955 against the order of the Civil Judge, Ratangarh, refusing to entertain the objections of the judgment-debtor.

It, therefore, follows from the above recital of facts that the decision of the above two civil revision applications depends upon the decision of the Miscellaneous Appeal itself. If it is found that the Court of the Civil Judge at Ratangarh had no jurisdiction to entertain the execution cases and, therefore, any order passed by that Court directing payment of the amount attached to the decree-holder Ram Kumar was without authority, the civil revision preferred by Mal Chand is bound to succeed and similarly the civil revision application preferred by Ram Kumar will have to be dismissed.

If on the other hand it is held that the Court of the Civil Judge, Ratangarh, had jurisdiction to entertain the execution cases in question, then the order of the Civil Judge will have to be upheld and the order of the District Judge to the contrary will have to be set aside. Therefore, the main question which arises for consideration in all these cases is whether the Court of the Civil Judge at Ratangarh can be said to be a Court of competent jurisdiction to entertain the execution cases; and this in fact is the only point which has been seriously canvassed at the Bar.

4. Now, Section 38 of the Code of Civil Procedure provides that a decree may be executed either bythe Court which passed it, or by the Court to which it is sent for execution. In other words, both categories of Courts, therefore, have jurisdiction to execute the decree; namely, the Court which passed the decree and the Court to which the decree is sent for execution. On the facts which have been narrated earlier it is clear that the Court of the Civil Judge, Churu, which had passed the decrees had transferred them for execution to the Court of the Civil Judge at Ratangarh.

Therefore, there can. be no doubt that the Court of the Civil Judge at Ratangarh was constituted a competent Court for the purpose of executing the decrees in question within the meaning of Section 38 of the Code. Accordingly, Execution Cases Nos. 338 to 345 were validly started in that Court. The point, however, which arises is as to what was the effect of the order passed by this Court under Section 24 of the Code transferring the execution cases to the Court of the Civil Judge at Bikaner.

It has been vehemently urged on behalf of the learned counsel for the respondents, both the judgment-debtor as also the heirs of Mal Chand since substituted, that the result of this transfer was that the Court of the Civil Judge at Ratangarh completely lost seisin of the matter and the jurisdiction of that Court was ousted when these execution cases which were pending before him at the time were transferred for disposal to the Court of the Civil Judge at Bikaner.

It must be conceded that once the execution case is transferred for execution from one Court to another, the transferee Court naturally acquires all the powers which the executing Court possesses for execution of a decree, and it may have to observe all the formalities which under the procedural law the executing Court has to follow in all such cases. It is not that as a result of the transfer some new procedure is devised and the Court will conform to some different kind of procedure; but at the same time it is to be seen whether it is not open to the decree-holder in spite of the transfer of some of the execution cases which were pending before the Court at Ratangarh to start fresh execution cases for purposes of execution of his decrees in that Court.

Cases may be well conceived where for instance there may be other properties available to the decree-holder in the jurisdiction of the Ratangarh Court. Is the decree-holder then precluded from instituting fresh execution cases before the Ratangarh Court in order to obtain satisfaction of his decrees, in spite of the fact that the Ratangarh Court has become a transferee Court for purposes of execution within the meaning of Section 38 of the Code?

It is well-established that there is no bar in law to simultaneous execution cases. Therefore, even assuming for the sake of argument that some of the execution cases which were originally instituted in the Court of the Civil Judge at Ratangarh had been transferred by the order of this Court under Section 24 of the Code for purposes of execution to the Civil Judge at Bikaner and even assuming that for purposes of those execution cases the Civil Judge at Bikaner had by virtue of the order of transfer acquired all the powers of an executing Court, there was nothing in law to prevent the decree-holder from I executing the decrees in question in fresh execution cases and pursuing the properties which may be available for satisfaction of his decrees within thejurisdiction of the Court at Ratangarh.

It follows, therefore, that the Court to which the decree was duly transferred for execution continues to have jurisdiction to execute the decree, although some of the execution cases pending before it may have been transferred to some other Court. We may in this connection refer to a Full Bench decision of the Patna High Court in Radheshyam v. Devendra, AIR 1952 Eat 213 where it was held that where a decree is transferred to another Court for execution the transferee Court gets jurisdiction to execute the decree.

It retains this jurisdiction until it sends a certificate under Section 41 of the Civil Procedure Code;nevertheless the transferor Court is not deprived of its jurisdiction to execute the decree. The latter Court retains jurisdiction to execute the decree except to the extent that the transferee Court has alsoacquired jurisdiction to execute it and this thetransferor Court can do in certain circumstanceseven in the absence of the certificate required underSection 41. What, therefore, holds true of the Courtwhich passed the decree is equally true of the Courtno which the decree is transferred for execution.(5) There would be nothing in law to preventthe decree-holder from executing his decree indifferent transferee Courts constituted under Section 38 of the Code of Civil Procedure, if properties are available to him within the respective jurisdiction ofthose Courts for satisfying the decree, and sometimes the execution cases may be simultaneous. Section 39 is a very important section which gives the Tight to a decree-holder to apply to the Court which passed the decree to send it for execution to another Court in the circumstances mentioned in the section; and the whole object of the section is that thedecree-holder should obtain satisfaction of his decree.

Any order of transfer made under Section 24 of the Code directing the execution to proceed in some other Court has, therefore, to be read subject to the other provisions of the Code relating to execution, discharge and satisfaction of the decree; and thatshould be so read as not to defeat the very purpose of execution but to help that purpose for satisfactionof the decree. In a case, therefore, where the execution cases have been transferred to another Court and the decree-holder feels that he cannot obtain satisfaction in that Court by way of execution, it is open to him not to continue the execution cases but to seek his redress in some other competent Court where he can promptly and expeditiously obtain satisfaction of his decree.

Once that postulate is accepted there can be little doubt that the result of the transfer of those execution cases does not altogether extinguish the right which the Ratangarh Court possessed as a transferee Court within the meaning of Section 38 of the Code to execute the decrees in question. In the instant case it appears that after the execution cases pending before the Civil Judge, Ratangarh, were transferred to the Civil Judge, Bikaner, the decree-holder did not take any steps in the execution proceedings.

The execution cases were, therefore, dismissed for default and later or rather on the same day simultaneously the decree-holder filed another set ofexecution cases before the Civil Judge, Ratangarh. We are unable to find that these execution cases could not be entertained by the Civil Judge at Ratangarh merely because some other execution cases which were instituted earlier had been transferred from his Court to that of the Civil Judge at Bikaner. The order of transfer did not divest the Ratangarh Court of the jurisdiction which it had validly acquired to execute the decrees as a result of the transfer of the decrees to that Court by the Court which passed the decrees in question.

6. It may be suggested that the conduct of the decree-holder in having the execution cases pending in the Bikaner Court dismissed for default and starting fresh executions almost simultaneously in the Ratangarh Court, in effect, circumvented the order of this Court by virtue of which the previous execution cases were transferred to the Bikaner Court.

In the first place, if the decree-holder has a right to execute his decrees in the Court at Ratangarh, what reasons impelled him to start those execution cases is hardly material in the eye of law but on examining the facts, it does not appear to us that necessarily the decree-holder intended to circumvent the order of this Court transferring those cases, at appears that some moneys were payable to the judgment-debtor by the Public Works Department at Bikaner.

It is, therefore, not unlikely that the decree-holder submitted to the order of transfer under the impression that it would be easier for him to get satisfaction of his decrees in the Bikaner Court; but when it was found that the disputed amount had already been transferred to the Ratangarh Court the decree-holder might have legitimately decided not to prosecute the proceedings pending in the Bikaner Court but to start fresh proceedings at Ratangarh in order to avail himself of the amount lying in that Court. We, therefore, do not see much force in the suggestion.

7. The order under appeal in Miscellaneous Appeal No. 1 of 1957 proceeds on the ground that when these new execution cases were started the learned Civil Judge at Ratangarh had not received any certificate of non-satisfaction of the decrees from the Bikaner Court; as such it could acquire no jurisdiction to execute the decrees. Mr. Vyas for the appellant has sought to rely upon a decision of the Allahabad High Court in Muhammad Habibullah v. Tikam Chand, AIR 1925 All 276(2) for his contention that considerations which arise in a case of transfer under Section 24 of the Code of Civil Procedure of execution cases from one Court to another are entirely different from considerations which arise in the case of other Courts to which decrees may be transferred for execution in due course under Section 39.

He, therefore, contends that a certificate of satisfaction or non-satisfaction under the law was not necessary. In the case in question it was undoubtedly observed that the reason for the enactment of Section 38 was entirely different and the section was not exhaustive and a decree could be executed by the Court to which it is transferred for execution under Section 24 of the Code. No one doubts this proposition. In that case, however, no question definitely arose about the application or non-application of Sections 41 or 42 of the Code of Civil Procedure.

Indeed if at all that case may be against the contention put forward by Mr. Vyas because the learned Judges observed in that case that once a decree is transferred under Section 39 the Court which passed the decree ceases to have jurisdiction till it receives a certificate under Section 41 of the Code, There is no doubt that under Section 41 of the Code, the Court to which a decree is sent for execution has to certify to the Court which passed it the fact of such execution or where the former Court fails to execute the same the circumstances attending such failure.

Usually the certificate contemplates three contingencies: where the transferee Court has fully executed the decree, in which case a certificate of lull satisfaction will be given; where the transferee Court has completely failed to execute the decree, when a certificate of non-satisfaction has to be given; or where it has executed the decree partly and has failed to execute the remaining part of it within the limits of its jurisdiction, in that case only partial satisfaction can be entered and the certificate will show that the decree remains unsatisfied to that extent

This may be as a result of successive executions in the same transferee Court by seeking different aids in execution. We do not think that the transferee Court even under Section 24 of the Code of Civil Procedure has not to observe these formalities; but the point still remains what form the certificate has to take and to whom the certificate is to be sent. Ordinarily where the Court which passes the decree transfers it for execution to another Court, the transferee Court certifies to the Court which passed the decree; but where an execution case is pending in a transferee Court and is transferred from that Court for execution to some other Court under Section 24 of the Code, the question may naturally arise whether the transferee Court under Section 24 in respect of that execution case should certify to the Court where the execution case was originally pending about the result of the execution or it should send a certificate to the Court which passed the decree.

Ordinarly the Court which passed the decree has no direct concern with the Court to which the execution case had been transferred by the superior Court under Section 24, and probably the more appropriate procedure would be to send information to the Court where the execution case was originally pending as to the result of the execution and then the said Court may in its turn certify to the Court which passed the decree.

But even assuming, as Mr. Chand Mal on behalf of the respondents contends, that for all purposes the Court to which the execution cases are transferred under Section 24 of the Code is substituted for the Court to which the decrees were transferred for execution under Section 38 of the Code, the point, in our opinion, would not affect the jurisdiction of the RatangarhCourt to execute the decrees in question. What form the certification is to take and whether the absence of such certificate bars any fresh execution is entirely a different matter.

There appears to be divergence of judicial opinion on the point. In some cases it is strictly enjoined that a certificate in a particular form should fee sent to the Court which passed the decree beforeany fresh execution can be levied, whereas in othercases it is said that no particular form is necessary and if information is sent to the Court concerned about the result of the execution case that in itself would be sufficient to amount to a certificate within the meaning of Section 41 of the Code.

We are more inclined to the latter view subject to what We have said earlier that in appropriate cases there is no bar to simultaneous executions either. In Krishna Prosanna Lahiri v. Sarojini Debi, AIR 1937 Cal 557 it was held that, where a transferee Court dismissed the execution case pending before it and directed that the decree Court should be informed and a certified copy of this order was actually filed in the decree Court together with the decree-holder's petition in which he asked that his decree should be transferred to another Court for execution, it was sufficient compliance with the requirements of Section 41 of the Code.

The learned Judges appear to have followed in that case an earlier decision of the Court reported in Rajani Kanta v. Golam Mahiuddin, 39 Cal WN 129: (AIR 1935 Cal 99). In that case the learned Judges observed that a petition for execution would be competent in respect of the decree even if the certificate of non-satisfaction had not been sent A similar view appears to have been taken in Darsan Singh v. Baldeo Das, AIR 1946 Pat 365. In that case also it was pointed out that Section 41 prescribed no particular form of certificate.

Intimation by the transferee Court that the execution case is dismissed as infructuous is sufficient compliance with the provisions of the section. What is equally important is the observation in the above case that the fact that the transferee Court retains jurisdiction until a certificate under Section 41 is sent does not necessarily involve that no other court can have jurisdiction to execute the decree. To hold otherwise would be equivalent to holding that simultaneous execution in two courts is impossible, whereas it is well established that in appropriate circumstances there can be simultaneous execution in different courts.

It was further pointed out that the Court passing the decree even after it has transferred it for execution retains jurisdiction to pass proper orders in connection with execution in proper circumstances and the jurisdiction of the transferee Court is only subordinate to that Court which passed the decree. In those circumstances it was held that where the Court passing the decree passed an order in execution appointing a receiver to sell a charged decree before the receipt of the certificate under Section 41 from the Court to which the decree was transferred for execution, there was no reason to hold that the order of the Court was without jurisdiction.

We have already held that simultaneous executions are possible in different Courts provided theCourt which passed the decree transfers the decreefor execution to those Courts in respect of properties within the jurisdiction of those Courts that, maybe available to the decree-holder for satisfaction ofthe decree. The decree may be executed in thoseCourts even in respect of the person of the judgment-debtor residing within the jurisdiction of thatCourt.

That being so it becomes almost academic to discuss as to whether the certificate of non-satisfaction of the decrees was actually sent to the Patangarh Court before the fresh executions were levied and the learned District Judge seems to have been in error in laying too great a stress on the point in order to determine the jurisdiction of the Ratangarh Court to deal with the execution cases. There is no doubt that on the date these executions were started in the Ratangarh Court the execution cases at Bikaner had terminated and had been dismissed for default.

The learned Judge has found that the records were sent back to the Civil Judge at Ratangarh and they were received by the Civil Judge at Ratangarh on the 28th of August, 1954. The records could not but be sent to the Civil Judge of Ratangarh because they had been transferred from there under Section 24 of the Code. It is not that they could be sent to the Court which passed the decree. For the above reasons we are inclined to hold that the order of the learned District Judge cannot be sustained. The appeal must, therefore, be allowed and the order in question must be set aside.

8. The net result is that the Miscellaneous Appeal stands decreed. Similarly Civil Revision No. 294 of 1956 will also have to be allowed because the District Judge would have no jurisdiction to direct repayment of the amount which had been validly appropriated towards the satisfaction of the decrees in favour of the decree-holder appellant. The costs of these proceedings will be paid by the judgment-debtor to the decree-holder appellant. There will be one consolidated hearing fee of Rs. 50/-.

9. Mr. Chand Mal Lodha has specifically pressed his application in Civil Revision No. 130 of 1955, on the additional ground that in view of the attachment order issued by the District Judge of Bikaner on the 19th of November, 1954, the petitioner in this case, namely Mal Chand or his heirs, should have been heard before any order could be made by the Civil Judge, Ratangarh, directing payment of the amount to the decree-holder Ram Kumar. The attachment order passed by the District Judge in favour of the petitioner was on 19-11-1954, while the amount in question was ordered to be handed over on 13-4-1955.

On the date in question the learned Civil Judge appears to have written a long order disposing of various objections which were raised before him and under Order 21, Rule 52 of the Code he had jurisdiction to pass the order which he did. The Rule authorises the Court having the custody of the property attached to decide any question of title or priority between the decree-holder and any other person not being the judgment-debtor claiming to be interested in the property. In the circumstances we do not find that there has been any illegality or irregularity which would go to vitiate that order.

The contention of Mr, Chand Mal that an opportunity should have been given to him to be heard in tile matter does not appear to be well-founded. There is nothing to indicate that he ever made any attempt to present himself before the Civil Judge Ratangarh, seeking to be heard in the matter or even to present any claim in that Court. He appears to have been content with the order of attachment and the subsequent direction given by the learned District Judge that the entire amount should be brought over to his Court.

No attempt also appears to have been made by Mr. Chand Mal's clients to apply for rateable distribution in the Court of the Civil Judge itself. In the circumstances we do not see how the order can be questioned in this revision application. The decision of the learned Civil Judge is quite justified. We are, therefore, bound to reject this application, and if Mr. Chand Mal has any remedy open to him under Section 73 of the Code, he may pursue that remedy. We would leave each party to bear his own costs in this case.


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