Skip to content


Gokul Kristo Chunder Vs. Aukhil Chunder Chatterjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal457
AppellantGokul Kristo Chunder;In Re: Ishan Chunder Das;rasharaj Boase and ors.;moola Kumari Bibee and Bissun
RespondentAukhil Chunder Chatterjee; ;gobinda Rani Chowdhrani;mool Chand Dhamant and anr.
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri I.L.R.
Excerpt:
execution of decree - transfer of decree for execution--jurisdiction--civil procedure code (act xiv of 1882) sections 6 and 223. - .....three cases, therefore, the point is virtually the same, namely, whether under section 223 of the code a decree can be sent for execution to, and can be executed by, a court which, as regards its pecuniary jurisdiction, was not competent to make the decree.4. on the one side, it is contended that section 223 contains no limitation as regards the pecuniary jurisdiction of the court to which a decree may be sent for execution, similar to that contained in section 252; that by section 28 the court to which a decree is sent for execution is expressly vested with the same powers in executing it as if the decree had been passed by itself; that if there is any force in the limitation sought to be imposed, the provisions of section 295 regarding the rateable distribution of assets would, in.....
Judgment:

Beverley, J.

1. In these three cases the question raised is practically one and the same. It may be broadly stated thus: Has a Civil Court jurisdiction to execute a decree sent to it for that purpose under Section 2231 of the Code when that decree has been passed in a suit the value or amount of the subject-matter of which was in excess of the pecuniary limits of its ordinary jurisdiction?

2. [The judgment here set out the facts in the three cases and then proceeded.]

3. In all three cases, therefore, the point is virtually the same, namely, whether under Section 223 of the Code a decree can be sent for execution to, and can be executed by, a Court which, as regards its pecuniary jurisdiction, was not competent to make the decree.

4. On the one side, it is contended that Section 223 contains no limitation as regards the pecuniary jurisdiction of the Court to which a decree may be sent for execution, similar to that contained in Section 252; that by Section 28 the Court to which a decree is sent for execution is expressly vested with the same powers in executing it as if the decree had been passed by itself; that if there is any force in the limitation sought to be imposed, the provisions of Section 295 regarding the rateable distribution of assets would, in many cases, be unfairly restricted in their operation. And we have been referred to the case of Narasayya v. Venkata Krishnayya I.L.R. 7 Mad. 397 in which Turner, C.J., and Muttasami Ayyar, J., held that Section 223 gave an extraordinary jurisdiction to a Court to execute a decree in a suit beyond its pecuniary jurisdiction sent to it for execution.

5. On the other hand, it is said that the proceedings in execution are merely a continuation of the suit, and that a Court, which has no jurisdiction to try the suit, can have no jurisdiction to execute a decree made in that suit. And in support of this view, the case of Shri Sidheshwar Pandit v. Shri Harihar Pandit I.L.R. 12 Bom. 155 decided by Sargent, C.J., and Nanabhai Haridas, J., has been cited before us.

6. It appears, therefore, that the Madras and Bombay authorities are opposed to each other on this point. The point is one of some importance, but it would seem that no decision of this Court upon it is to be found in the reports.

7. The question turns to some extent upon the Civil Courts Acts, which prescribe the pecuniary jurisdiction of the various Civil Courts. And it may be pointed out here that, whereas the Madras and Bombay Civil Courts Acts (Act III of 1873, Section 123, and Act XIV of 1869, Section 24) speak of the jurisdiction of the Courts in 'suits and proceedings' of a civil nature, the Bengal Civil Courts Act refers to 'suits' only. The distinction is probably unimportant and, in fact, it appears that, in the report of the Madras case referred to, the words 'suits and applications' are quoted by some mistake as being the words used in the Madras Act instead of the words suits and proceedings. '

8. The Madras decision proceeds upon the principle that Section 223 of the Code confers an extraordinary jurisdiction which is limited by no restriction such as is to be found in Section 25.

9. We are of opinion that we ought not to follow that decision.

10. It seems to us that the learned Judges who decided that case overlooked the provisions of Section 6 of the Code of Civil Procedure, which appears to contain words which, we think, were expressly intended to limit the jurisdiction which would otherwise he given by Section 223. We are also of opinion that there are other indications in the Code going to show that, as Sargent, C. J., said in the Bombay case, a Court which could not have entertained the suit is incompetent to deal with it in execution.

11. The last clause of Section 6 runs as follows: 'Nothing in this Code shall operate to give any Court jurisdiction over suits of which the amount or value of the subject-matter exceeds the pecuniary limits (if any) of its ordinary jurisdiction.'

12. It is contended that the word 'suits' in this clause must be limited to proceedings in the cause up to the passing of the decree, and that it does not, therefore, operate to curtail the power of a Court to execute a decree. We see no sufficient reason for giving the word this restricted meaning. On the other hand, there would appear to be several weighty reasons for assigning it a wider signification so as to cover all proceedings in a suit, including the proceedings in execution.

13. By Section 9 the Code is divided into ten parts, the first of which treats of suits in general. It is important to observe that that part of the Code contains the rules relating to the execution of decrees (Chap. XIX). So far as it goes, this circumstance seems to show that the framers of the Code regarded the proceedings in execution as a part of the suit.

14. In Section 3, moreover, we find proceedings up to decree and proceedings after decree equally referred to as being proceedings in the suit.

15. Again, if the words 'jurisdiction over suits' in Section 6 are to be limited to the institution and hearing of causes up to decree only, it is difficult to conceive any case to which the clause in question would apply. We have been unable to discover any provision in the Code which could, if uncontrolled by this clause, have operated to give a Court jurisdiction to try a suit in excess of the limits of its pecuniary jurisdiction. Chapter II contains the rules as to the Court in which a suit is to be brought; and it will be seen that in almost every section in that chapter the pecuniary jurisdiction of the Court is expressly or impliedly referred to. [See Sections 15, 16, 17, 19 and 25].

16. On the other hand, Section 223, if uncontrolled by Section 6, gives to a Court a very wide-in fact a practically unlimited-jurisdiction in many important matters in respect of suits, the amount or value of the subject-matter of which may exceed the pecuniary limits of its ordinary jurisdiction.

17. By Section 2284, the Court executing a decree sent to it has the same powers in executing the decree as if it had been passed by itself,. * * * * and its order in executing such decree is made subject to the same rules in respect of appeal as if the decree had been passed by itself.

18. Accordingly, if the decree of a District or Subordinate Judge can be sent to a Munsif for execution, the Munsif has jurisdiction to try all questions relating to the execution of the decree (e.j., limitation, claims to attached property, complaints of resistance or obstruction, and generally all questions under Section 244), and the appeal from his orders would lie in every case to the District Judge,- no matter what might be the value of the suit. As Westropp, C.J., remarked in Balaji Ranchoddas I.L.R. 5 Bom. 680, questions arising in the execution of decrees are frequently quite as important as the questions in issue in suits and appeals, and there would seem to be no reason why the limitation of jurisdiction thought necessary in respect of hearing the original Suit should not be also necessary in respect of trying questions relating to the execution of the decree.

19. There are other considerations which go to bear out the view that the jurisdiction conferred by Section 223 must be considered as qualified by the last clause of Section 6.

20. Section 223 itself contains a clause empowering the Courts of Small Causes at Calcutta, Madras, Bombay, or Rangoon, to execute decrees sent to them in certain cases, but such a decree must have been passed in a case cognizable in a Court of Small Causes, or, as Act VII of 1888 more clearly puts it, 'in a suit of which the value, as set forth in the plaint, did not exceed two thousand rupees, and which, as regards its subject-matter, is not excepted by the law for the time being in force from the cognizance of either a Presidency or a Provincial Court of Small Causes.' In other words, we have here a distinct recognition of the rule which appears to be contained in Section 6, that no Court can execute a decree passed in a suit, the value of the subject-matter of which would have been in excess of its pecuniary jurisdiction.

21. Section 649 refers to a case in which a Court, which passed a decree, may have ceased 'to exist or to have jurisdiction to execute it.' The use of these words in the Code seems to imply that the jurisdiction of a Court in the execution of decrees is subject to limitation, and that it is not competent to every Court to execute the decree of another Court that may be sent to it for that purpose.

22. The last clause of Section 6 was first introduced into the Code of 1877. But the Code of 1859 everywhere assumes that the power to execute a decree is not a power possessed by all Courts indiscriminately, but is subject to restrictions of jurisdiction. That Code speaks of the Court 'whose duty it is to execute the decree' (see Sections 206,207,285). That Court need not necessarily be the Court which passed the decree (Section 206), but it must be a Court having jurisdiction to execute it, and by Section 287 that Court must apparently be either the principal Civil Court of original jurisdiction in the district,' or 'any Court subordinate thereto to which it may entrust the execution of the decree.''

23. In the case of Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R. 8 Cal. 51 : L.R. 8 I.A. 123, their Lordships of the Privy Council said: 'It appears to their Lordships that an application for the execution of a decree is an application in the suit in which the decree was obtained.' This and similar remarks which are to be found elsewhere support the view that the proceedings in a 'suit' do not necessarily terminate with the decree, but that the word '' suit' may fairly be interpreted to include the proceedings taken to execute the decree. If this be so, it follows that Section 6 must operate to limit the jurisdiction conferred by Section 223. We are of opinion that it does so operate, and that these cases ought to be decided accordingly.

24. The rule will accordingly be made absolute with costs. The appeal from Order No. 284 will be allowed with costs, the order of the lower Courts being set aside. And the reference will be answered in the terms of this judgment.

Pigot, J.

25. I am of the same opinion. In the judgment which has been just read, an argument adduced by the learned pleader, Babu Lal Mohan Das, has not been mentioned by us, and we think it is well to add these words of reference to it. That argument was used as an answer to the objections referred to in our judgment as to allowing Courts of inferior jurisdiction to deal with questions of great amount or great importance, and it was suggested that Section 239 meats that difficulty by providing for recourse to the Court making the decree in, certain cases. That suggestion is, however, met by the observation that the power of having recourse to the Court granting the decree given by that section is limited to the judgment-debtor. We think that disposes of that argument.

1 Court by which decree may be executed.

[Section 223 :A decree may be executed either by the Court which passed it or by the Court to which it is sent for execution under the provisions hereinafter contained.

The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court.

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or,

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or,

(c) if the decree directs the sale of immoveable property situate outside the local limits of the jurisdiction of the Court which passed it, or,

(d) if the Court which passed the decree considers, for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

The Court which passed a decree may of its own motion send it for execution to any Court subordinate thereto.

The Court to which a decree is sent under this section for execution shall 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.

If the decree has been passed in a case cognizable by a Court of Small Causes and the Court which passed it wishes it to be executed in Calcutta, Madras, Bombay or Rangoon, such Court may send to the Court of Small Causes in Calcutta, Madras, Bombay or Rangoon, as the case may be, the copies and certificate respectively mentioned in Clauses (a), (b) and (c) of Section 224; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.

If the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But if the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed.]

2 Transfer of suit.

[Section 25: The High Court or District Court may, on the application of any of the parties, after giving notice to the parties and hearing such of them as desire to be hoard, or of its own motion without giving such notice, withdraw any suit whether pending in a Court of First Instance or in a Court of appeal subordinate to such High Court or District Court, as the case may be and try the suit itself, or transfer it for trial to any other such subordinate Court competent to try the same in respect of its nature and the amount or value of its subject-matter.

For the purposes of this section, the Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

The Court trying any suit withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

3 Jurisdiction of District Judge or Subordinate Judge in original suits.

[Section 12: The jurisdiction of a District Judge or a Subordinate Judge extends subject to the rules contained in the Code of civil Procedure to all original suits and proceedings of a civil nature

Jurisdiction of District Munsif.

The jurisdiction of a District Munsif extends to all like suits and proceedings, not otherwise exempted from his cognizance, of which the amount or value of the subject-matter does not exceed two thousand five hundred Rupees.]

4 Powers of Court in executing transmitted decree. Appeal from orders in executing such decrees.

[Section 228: The Court executing a decree sent to it under this chapter shall have the same powers, in executing such decree as if it bad been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree, And its orders in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.]


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //