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Ananta Kumar Shyam Roy Vs. Surendra Kumar Mitra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal424
AppellantAnanta Kumar Shyam Roy
RespondentSurendra Kumar Mitra
Cases ReferredRamkripal Shukul v. Mt. Rupkuari
Excerpt:
- .....in title execution case no. 69 of 1933 of the second court of the munsif at dacca. the respondent decree-holder alone executed that decree. the application for execution is not on record and it is difficult to say what the terms of the said application were. the application, however, was held to be not maintainable by an order dated 10-8-1933. there were several intermediate executions. the last execution case with which we are now concerned was started on an application filed on 4-9-1944, in the 2nd court of the munsif at dacca. on the same date the respondent-decree-holder made an application for transfer of the decree to the sixth court of the munsif at dacca. as this application for transfer remained pending before the second court of the munsif, dacca and 12 years from the date of.....
Judgment:

Das, J.

1. This appeal is on behalf of the judgment-debtor. The appellant borrowed money on a mortgage from the respondent and another person. In 1932 a mortgage suit was instituted, being Suit No. 42 of 1932 of the Second Court of the Munsif at Dacca by the respondent against the appellant, the co-mortgagee being added as a pro forma defendant in the suit. On 2-11-1932, the mortgage suit was decreed for a sum of Rs. 868-8-0. The decree directed that the respondent will get a moiety share of the aforesaid sum of Rs. 868-8-0 plus the full costs of the suit which was, assessed at Rs. 183-13-9. The proforma defendant being entitled to the remaining moiety share of Rs. 868-8-0. This decree was executed in 1933 in title execution case No. 69 of 1933 of the Second Court of the Munsif at Dacca. The respondent decree-holder alone executed that decree. The application for execution is not on record and it is difficult to say what the terms of the said application were. The application, however, was held to be not maintainable by an order dated 10-8-1933. There were several intermediate executions. The last execution case with which we are now concerned was started on an application filed on 4-9-1944, in the 2nd Court of the Munsif at Dacca. On the same date the respondent-decree-holder made an application for transfer of the decree to the sixth Court of the Munsif at Dacca. As this application for transfer remained pending before the Second Court of the Munsif, Dacca and 12 years from the date of the decree was about to expire the respondent decree-holder filed another application for execution in the sixth Court of the Munsif at Dacca on 28-10-1944. On 9-11-1944, the Second Court of the Munaif at Dacca made an order for transfer of the decree to the sixth Court of the Munsif at Dacca. On 4-12-1944, the certificate of non-satisfaction of the decree was signed by the Mansif Second Court at Dacca and the certificate and requisite papers were transmitted to the sixth Court of the Munsif at Dacca on 21.12-1944. The execution then proceeded in the sixth Court of the Munsif at Dacca. The judgment-debtor appellant objected to the execution of the decree under Section 47, Civil P.C., on a two-fold ground, namely, that the execution was barred under Section 48, Civil P.C., and that the execution as laid was not maintainable in view of Order 51, Rule 15, Civil P.C. These contentions having been overruled by the Courts below, the judgment-debtor has come up on second appeal to this Court.

2. Mr. Mitter appearing on behalf of the appellant has argued in the first instance that the application for execution is barred under Section 48, Civil P.C. His argument is that the transferee Court assumes jurisdiction at the earliest when the order transmitting the decree is passed and as in this case the order for trans, mission was made on 9-11-1944, the application for execution filed in the transferee Court became operative on that date and that as this date was beyond 12 years of the date of the decree the application was barred under Section 48, Civil P.C. Mr. Mitter has placed reliance on two decisions of the Madras High Court viz. the case in Nanjunda Chettiar v. Nallakaruppan Chettiar : AIR1928Mad496 and the case in Modali Ademma v. L. Venkata Subbayya 20 A.I.R. 1933 Mad. 627. In the case reported in Nanjunda Chettiar v. Nallakaruppan Chettiar : AIR1928Mad496 , Jackson J. observed as follows:

A Court must obtain jurisdiction by some definite act. If the receipt of the decree from the Court which passed it is not the essential act, what is it? It is not enough to say that the receipt is discretionary or that the mere despatch is enough; and a Court cannot arrogate jurisdiction to itself. It must be held, therefore, that until a Court has received the decree, it has no jurisdiction to entertain an application.

This view of Jackson J. was, however, not accepted in a later decision of the same Court in Modali Ademma v. L. Venkata Subbayya 20 A.I.R. 1933 Mad. 627. Where Beasley C.J. and Bardswell J. preferred to follow the view taken by Krishnaswami Ayyar J. in Arimuthu Chetty v. Vyapuripandaram (10) 35 Mad. 588 at p. 590 which was to the effect that 'once an order is made sending the decree to another Court for execution that by itself is sufficient to entitle the decree-holder to apply to the Court to which the decree is sent for execution.'

3. Mr. Mitter contends that according to the view taken in either of these cases the application for execution in the present case would be barred under Section 48, Civil P.C. This no doubt is so, but the view taken by the Madras High Court does not seem to have found favour with our Court. In Lokenath Roy v. Mahim Chandra De : AIR1931Cal649 Mitter J. relying on the decision in Appu Baker Saheb v. Mohidia Saheb ('97) 20 Mad. 10, held that omission by the Court which passed the decree to send the certificate of non-satisfaction under Order 21, Rule 6, Civil P.C. to the Court to which the decree is transmitted for execution is a mere irregularity and does not affect the jurisdiction of the latter Court to execute the decree. In this view, Mitter J. directed the execution to proceed in the transferee Court provided the decree-holder filed the requisite certificate later on before the execution was proceeded with.

4. It may be pointed out that in none of the case3 above referred to the applicability of Section 48, Civil P.C., was directly under consideration. Section 48, Civil P.C., requires that the application for execution should be presented within 12 years of the date of the decree. It is the presentation of the application within the time limit prescribed which matters. If the presentation is irregular at the inception and the irregularity is subsequently cured, the application so presented, relates back to the date of presentation. This view is fully supported by the decision of Henderson J. in Hosain Ali Raj v. Barisal Rindan Samiti Ltd. : AIR1945Cal141 to which Mr. Mitter has very fairly and properly drawn my attention. That case is on all fours with the facts of the present case. The decision as reported does not set out the relevant dates. I have myself looked into the records of that case, which are in this Hon'ble Court. The facts appearing from those records shew that on 11th May 1929 the decree-holder obtained a decree in the Court of Small Causes; there were intermediate executions before 12 years had run out: on 7th April 1941 as application for transfer of the decree to the money file was filed before the Small Cause Court; while this was pending, the decree-holder filed an application for execution in the money file on 10th May 1941. This was within 12 years of the date of the decree. On 7th June 1941, after 12 years had passed, an order transmitting the decree to the money file was made by the Small Cause Court Judge and the certificate of non-satisfaction was signed by the Judge on the same daje. The certificate of non-satisfaction and other relevant papers were received in the transferee Court later on 13th June 1941. It was argued that as the order for transfer was made and the certificate of non-satisfaction was received beyond 12 years from the date of the decree, the application for execution wa3 barred under Section 48, Civil P.C. This contention, having been negatived in the Courts below, was repeated before Henderson J. The learned Judge in overruling this contention observes as follows:

The question is whether the failure of the Court which passed the decree to Bend it in time is a mere irregularity or whether it affects the jurisdiction?...now if this were a matter affecting the jurisdiction, it would clearly lead to most extraordinary results. Under Order 21, Rule 6 the duty of sending the decree for execution is placed before the Court which is bound to send certain papers and the decree-holder is in no way responsible for any sort of delays that might take place, and the clerks who had to prepare these papers are in no way under his control. It was decided by a learned Judge of this Court in Lokenath Roy v. Mahim Chandra De : AIR1931Cal649 that a matter of this kind is a mere irregularity. I myself am content to follow that decision.

I respectfully agree with this decision. I would add that the period of limitation laid down in Section 48, Civil P.C., cannot be curtailed by delays which may be caused by the machinery provided for in the Code of Civil Procedure for the transfer of decrees.

5. In the facts of the present case, there is another answer to the contention of Mr. Mitter. The decree-holder had taken the precaution of filing an application also in the Court which passed the decree within 12 years of the date thereof. It may be said that when the order for transfer was made, it was this application which may be deemed to proceed in the transferee Court, the second application, that was filed in the transferee Court, being superfluous : vide K.B. Dutt v. Taraprasanna Roy 11 A.I.R. 1924 Pat. 120 or a continuation of the proceeding which was started in the transferee Court. The first contention of Mr. Mitter therefore fails.

6. The second contention of Mr. Mitter is that the application for execution was in respect of the respondent decree-holder's share in the decree and as such it is hit by Order 21, Rule 15, Civil P.C., and that even if this is not so the maintainability of the application in the present form was decided against the decree-holder in a previous execution case by an order dated 10th August 1933 and as such the present execution case is barred by the principles enunciated in Ramkripal Shukul v. Mt. Rupkuari ('85) 11 I.A. 37. As regards the first branch of his contention I think that on a proper construction of the execution petition and in view of the terms of the decree there was substantial compliance with the provisions of Order 21, Rule 15, Civil P.C.

7. As regards the second branch of this contention, suffice it to say that the judgment-debtor appellant has not produced the relevant execution petition filed in 1933, and it is difficult to say that the said application was on the same terms as the present application for execution. This contention is also overruled.

8. The result, therefore, is that this appeal is dismissed but in the circumstances of the present case I direct that there should be no order for costs.

9. Leave to appeal under Clause 15, Letters Patent prayed for is refused.


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