1. This appeal arises out of certain proceedings in execution of a decree. The decree was passed by the Small Cause Court at Sealdah, and it was subsequently transferred by that Court for execution to the Munsif's Court at Alipore. After various proceedings taken in the Alipur Munsif's Court, execution was ordered to proceed at the instance of Jogendra Haldar, who was an assignee of the decree. While the proceeding instituted by Jogendra Haldar was going on, the decree was transferred by him to Guru Prosunno Mukerjee, and applications were made to the Munsif's Court at Alipur by him and Guru Prosunno Mukerjee for allowing the latter to carry on the execution case. Thereupon notice was given to the judgment-debtors; they objected to the decree being enforced by the transferee; but the Court overruled their objection, and having found that the alleged transfer of the decree was true, allowed Guru Prosunno Mukerjee's application. Against this order of the Munsif, Amar Chundra Banerjee, one of the judgment-debtors, appealed to the District Judge, but his appeal has been dismissed, and hence this second appeal.
2. It is contended by the learned Vakil for the appellant, judgment-debtor, that having regard to the provisions of Section 232 of the Code of Civil Procedure, the application for execution of the decree by the transferee, Guru Prosunno Mukerjee, could be entertained only by the Court which passed the decree, and that the Court to which the decree had been transferred for execution had no jurisdiction to entertain it. And in support of this contention the cases of Sheonarain Singh v. Hurbuns hall (1870) 14 W.E., 65; Nakoda Ismail v. Kasam (1872) 9 B.H.C. Rep., 46; and Kadir Bakhsh v. Ilahi Bakhsh (1879) I.L.R., 2 All., 283, are relied upon.
3. On the other hand it is argued for the respondent that Section 232 is only a permissive provision which does not restrict the operation of Section 228 by which the Court executing a decree sent to it has the same powers in executing such decree as if it had been passed by itself; and that even if an application to the Court, which passed the decree, was a necessary preliminary under Section 232, the order of the Court below made in the absence of such an application involved only an irregularity not affecting the merits of the case, and that order ought not be set aside merely by reason of such irregularity, having regard to the provisions of Section 578 of the Code; and in support of this argument the case of Sham Lal Pal v. Modhusudan Sirkar (1895) I.L.R., 22 Cal., 558, is cited.
4. The points that arise for determination therefore are-
First, whether the Munsif's Court at Alipur, to which the decree in question had been transferred for execution, had power to entertain the application of Guru Prosunno Mukerjee, the transferee of the decree, to be allowed to enforce the decree; and
Second, whether, even if that Court had no such power, its order directing execution to proceed could be set aside on appeal, having regard to the provisions of Section 578.
5. The determination of the first point depends upon the construction of Section 232 of the Code of Civil Procedure. That section runs thus: 'If a decree be transferred by assignment in writing, or by operation of law, from the decree-holder to any other person, the transferee may apply for its execution to the Court which passed it, and if that Court thinks fit the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder,' and then there are two provisos to the section. Though the section is not worded as clearly as it might have been, yet reading the section as a whole we think its intention is to make an application by a transferee of a decree for its execution entertainable only by the Court which passed the decree. The section clearly shows that an application by a transferee of a decree for leave to execute it is to be granted, not as a matter of course, but only when the Court which passed the decree thinks fit. A discretion being thus left in that Court to allow or not to allow the execution to proceed at the instance of a transferee of the decree, it would follow that no other Court can entertain an application of the transferee. As for the word 'may' occurring in the section on which some stress was laid in the argument for the respondent, the option it implies is an option to apply or not to apply, and not an option to apply to the Court which passed the decree or to some other Court. And as for the general provision in Section 228, that the Court executing a decree sent to it for execution has the same powers in executing such decree as if it had been passed by itself, that must be taken subject to the special provision in Section 232 that the power of allowing a transferee of the decree to execute it is to be exercised by the Court which passed it.
6. The correctness of the view we take will be clear also from the fact that the words 'the Court' in Section 208 of Act VIII of 1859, which corresponded to Section 232 of the Civil Procedure Code, 1877, and of the present Code, were held by this Court and by the Bombay High Court, respectively, in the cases of Sheo Narain Singh v. Hurbuns Lall (1870) 14 W.R., 65; Nakoda Ismail v. Kassam (1872) 9 Bom. H.C. 46, to mean the Court which passed the decree, and the qualifying words which passed the decree' were added to the words 'the Court' in Section 232 of the subsequent Code of 1877 and of the present Code. And we may add that the case of Kadir Bukhsh v. Ilahi (1879) I.L.R., 2 All., 283, which was governed by Section 232 of Act X of 1877, supports the view we take.
7. It was argued for the respondent that if a Court executing a decree transferred to it for execution be not held empowered to grant an application by a transferee of the decree to execute the decree, especially when such application is not an application to institute execution proceedings for the first time, but is one only to carry on the proceedings already instituted by the original decree-holder, great inconvenience might be caused to the transferee. That might be so in some cases; but on the other hand, as has been pointed out in the case of Sheo Narain Singh v. Hurbuns Lall (1870) 14 W.E., 65, already referred to above, 'it would lead to the greatest difficulties, if in one Court one party was recognized as being the holder of and having the control over a decree, and at the same time in another Court another party was recognized as being in that position.'
8. It remains now to consider the second point, namely, whether the omission of the transferee to apply to the Court which passed the decree can be held to be cured by Section 578 of the Code. In the view we have taken of Section 232, this point also must be decided against the respondent. For when according to that view no Court other than the Court, which passed the decree, can in the exercise of its discretion determine whether a transferee of the decree should be allowed to execute the decree, if any other Court determines that matter and allows the transferee to go on with the execution of the decree, it acts without jurisdiction; and as the omission in question affects the jurisdiction of the Court, Section 578 cannot help the respondent.
9. As for the case of Sham Lal Pal v. Modhusudan Sircar (1895) I.L.R. 22 Cal., 558, that is distinguishable from the present. The question there was as to the meaning and effect of Section 234 of the Civil Procedure Code which provides that an application for executing a decree against the legal representative of a deceased judgment-debtor is to be made to the Court, which passed it, but does not, like Section 232, leave any discretion in that Court to allow execution or not. As execution must, in such cases, issue as a matter of course, an application to the Court which passed the decree may be regarded as mere matter of form, and its omission was therefore held, in the case cited, to be cured by Section 578 of the Code of Civil Procedure.
10. The result then is that this appeal must be allowed, and the orders of the Courts below set aside with costs.
11. I entirely concur in the judgment which has just been delivered by my learned colleague so far as it relates to the matters immediately before us, that is, the construction and effect of Section 232 of the Code of Civil Procedure. I desire only to add, as reference has been made to the case of Sham Lall Pal v. Modhusudan Sircar (1895) I.L.R., 22 Cal., 558, that I should prefer not to express any opinion as to the construction of Section 234.