Skip to content


Durga Charan Mojumdar Vs. Umatara Gupta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal465
AppellantDurga Charan Mojumdar
RespondentUmatara Gupta
Cases ReferredGokul Kristo Chunder v. Akhil Chunder Chatterjee Ante
Excerpt:
execution of decree - transferof decree for execution--civil procedure code, 1882, section 223. - .....for our decision is whether such an order can be passed by the subordinate judge so as to give the munsif jurisdiction. the terms of section 223, standing by themselves, are sufficiently wide to permit this, but we think that they should be read with the other- portions of the code which restrict their application. section 6 of the code declares that 'nothing in this code affects the jurisdiction or procedure, or 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.' now all matters relating to execution of decrees are regarded as proceedings in a suit, and the chapter relating to matters in execution forms portion of part i of the code which is entitled 'of suits in.....
Judgment:

Prinsep and Ghose, JJ.

1. The matter for our decision in this appeal is whether the Munsif was competent to execute a decree transferred to him by the Subordinate Judge who passed it.

2. It appears that the appellant obtained a decree from the Munsif which he put into execution. Another decree had been obtained against him, or rather against his assignor, in the Court of the Subordinate Judge, and the decree-holder thereupon obtained an order from the Subordinate Judge to transfer the decree by an order under Section 223 to the Court of the Munsif, in order that it might be set off as a cross-decree. The sole question submitted for our decision is whether such an order can be passed by the Subordinate Judge so as to give the Munsif jurisdiction. The terms of Section 223, standing by themselves, are sufficiently wide to permit this, but we think that they should be read with the other- portions of the Code which restrict their application. Section 6 of the Code declares that 'nothing in this Code affects the jurisdiction or procedure, or 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.' Now all matters relating to execution of decrees are regarded as proceedings in a suit, and the chapter relating to matters in execution forms portion of Part I of the Code which is entitled 'Of suits in general.' We may also refer to the well-known case of Mungul Per shad Dichit v. Grija Kant Lahiri I.L.R. 8 Cal. 51 : L.R. 8 I.A. 123 in which their Lordships of the Privy Council expressed themselves in a similar manner. Section 246 of the Code, Explanation I, relating to the execution of cross-decrees, is also important in this respect. It declares that the decrees contemplated by that section are decrees capable of execution at the same time and by the same Court. These expressions, in our opinion, seem to indicate a limitation in respect to the powers of execution by Courts of inferior jurisdiction. In respect to Section 223, we may also observe that the Court of the Munsif, although inferior to the Court of a Subordinate Judge, is not, within the terms of Section 2, subordinate thereto. The definition of District Court,' as therein given, seems to contemplate that all Courts within a district are subordinate to the District Court, that is to say, the principal Civil Court of Original Jurisdiction, rather than to the Court of the Subordinate Judge, which is a Court generally having concurrent original jurisdiction with a District Court. We accordingly hold that Section 223, which declares that the Court which passes a decree may, on the application of the decree-holder, send it for execution to another Court, should be interpreted to mean another Court having jurisdiction and competent to execute that decree, having regard to the amount or value of the subject-matter of its ordinary Jurisdiction. We have considered the case of Narasayya v. Venkata Krishnayya I.L.R. 7 Mad. 397, but we are unable to concur in the opinion expressed by the learned Judges of the Madras Court. We have been referred to a case decided by another Division Bench of this Court (Pigot and Beverley, JJ.), on the 7th instant-Gokul Kristo Chunder v. Akhil Chunder Chatterjee Ante p. 457--in which the view taken of the decision of the Madras Court coincides with that we now express. The respondent it) not without remedy in obtaining a set-off for the amount of his decree against the decree now under execution against him, provided he can satisfy any objections that may be raised as to a set-off being no longer allowable by reason of the assignment. He can, if so advised, apply to the District Court under Section 25 for the transfer of the decree under execution in the Court of the Munsif to that for the Subordinate Judge, so that the Subordinate Judge may deal with both decrees together. The order of the lower Appellate Court is accordingly set aside, and the order of the Munsif disallowing execution of this decree restored, but not on the grounds stated by the Munsif, which are still open for consideration before a properly constituted Court.


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