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Peary Mohun Chowdhry Vs. Romesh Chunder Nondy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal371
AppellantPeary Mohun Chowdhry
RespondentRomesh Chunder Nondy
Excerpt:
execution of decree - representative of decree-holder--attachment of decree--civil procedure code (act xiv of 1882), sections 232, 244, 273. - .....the decrees of different courts. but there would seem to be no sufficient reason for this restriction. the section rather seems to contemplate the right of the attaching creditor in every case to enforce execution of the decree which he has attached. where both decrees are decrees of the same court, the section assumes that that court has jurisdiction to execute the attached decree-that is, its own decree-on the application of the attaching creditor. it is only where the decree attached is the decree of another court that a special provision is necessary, and accordingly the section specially provides that in such a case the attaching creditor must make a formal application to the court which made the decree to execute its own decree which he has attached. it would seem then that a.....
Judgment:

1. It is admitted that the sole question for our decision in this case is whether or not an appeal lay to the District Judge from the order of the first Subordinate Judge, dated 11th December, 1886. If there was no appeal from that order, the order of the District Judge, dated 27th May, 1887, was passed without jurisdiction, and although there would be no appeal against it to this Court we have intimated that in this case we are prepared to consider this appeal as an application under Section 622 of the Code to have that order set aside on the ground that it was made without jurisdiction.

2. The facts as found by the District Judge are these: U. and P. had cross-decrees, P's decree being for the larger amount. E. had also a decree against U., in execution of which he applied to attach XL's decree against P. There is some question as to the date on which this application was granted, but the Judge finds it was prior to the 18th September, on which date an application by P. to execute his decree for the balance after setting off the smaller decree (Under Section 246 of the Code of Civil Procedure) was rejected. On the matter coming again before the Court-in what manner it came before the Court does not clearly appear upon the proceedings--the Subordinate Judge cancelled his former order attaching XL's decree in execution of E's decree, and directed that P.'s decree should be executed. R. thereupon appealed to the District Judge, and the question is whether an appeal lay against the Subordinate Judge's order. It is clear that no appeal would lie unless the order complained of can be regarded as an order made under Section 244 of the Code, that is, an order determining a 'question arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree.' Now the question related to the execution, discharge or satisfaction of U's decree against P., and the point for our consideration is whether Having been allowed to attach that decree, can be treated as the representative of U. in the determination of that question--that is to say, whether a person who attaches a decree is a representative of the decree-holder. Reading Section 232 of the Code with Section 273, we are of opinion that he must be so regarded. Section 273 distinctly provides that in certain cases the attaching creditor may himself apply to execute the decree. The District Judge appears to think that this can only be done in cases which come within that distinct provision-that is, in cases where the decree which has been attached and the decree which is sought to be executed are the decrees of different Courts. But there would seem to be no sufficient reason for this restriction. The section rather seems to contemplate the right of the attaching creditor in every case to enforce execution of the decree which he has attached. Where both decrees are decrees of the same Court, the section assumes that that Court has jurisdiction to execute the attached decree-that is, its own decree-on the application of the attaching creditor. It is only where the decree attached is the decree of another Court that a special provision is necessary, and accordingly the section specially provides that in such a case the attaching creditor must make a formal application to the Court which made the decree to execute its own decree which he has attached. It would seem then that a creditor who attaches a decree is in much the same position as the transferee of a decree under Section 232, and we think that he must be regarded as a representative of the decree-holder under Section 244(c). For these reasons we are of opinion that an appeal did lie to the District Judge, and that this appeal must be dismissed with costs.


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