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Shib Nath Mukherjee, Judgment-debtor Vs. Life Insurance Corporation of India, Decree-holder - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 289 of 1959
Judge
Reported inAIR1961Cal170,65CWN766
ActsCode of Civil Procedure (CPC) , 1908 - Section 37; ;Bengal, Agra and Assam Civil Courts Act, 1887 - Section 13(1) and 13(2)
AppellantShib Nath Mukherjee, Judgment-debtor
RespondentLife Insurance Corporation of India, Decree-holder
Appellant AdvocateBasanta Kumar Panda, Adv.
Respondent AdvocateRabindra Nath Choudhuri, Adv.
DispositionAppeal dismissed
Cases ReferredIn Masrab Khan v. Deb Nath Mali
Excerpt:
- .....appellant. the mortgage decree was passed against the appellant by the first court of subordinate judge, alipore, the mortgaged property being situated at baloram bose ghat road, within the jurisdiction of bhowanipore thana within calcutta corporation. at the time when the mortgage suit was decreed, by the distribution of areas made by the district judge under section 13(2) of the bengal, agra and assam civil courts act, bhowanipore thana was within the jurisdiction of the first court of subordinate judge, alipore. the first execution case was filed in the first court of subordinate judge in 1953, and that was disposed of on part satisfaction, in september, 1954, in view of the creation of some additional permanent courts of subordinate judge at alipore, the district judge, alipore,.....
Judgment:

S.K. Sen, J.

1. This Miscellaneous Appeal is directed against an order of Shri A. B. Syam, Subordinate Judge, First Court, Alipore, dismissing an application under Section 47 of the Civil Procedure Code in which the objection was taken that the Subordinate Judge, First Court, did not have jurisdiction to execute the mortgage decree which had been passed against the appellant. The mortgage decree was passed against the appellant by the First Court of Subordinate Judge, Alipore, the mortgaged property being situated at Baloram Bose Ghat Road, within the jurisdiction of Bhowanipore Thana within Calcutta Corporation. At the time when the mortgage suit was decreed, by the distribution of areas made by the District Judge under Section 13(2) of the Bengal, Agra and Assam Civil Courts Act, Bhowanipore Thana was within the jurisdiction of the First Court of Subordinate Judge, Alipore. The first Execution Case was filed in the First Court of Subordinate Judge in 1953, and that was disposed of on part satisfaction, In September, 1954, in view of the creation of some additional permanent Courts of Subordinate Judge at Alipore, the District Judge, Alipore, re-distributed the areas among the different Subordinate Judges of Alipore by a fresh order under Section 13(2) of the Bengal, Agra and Assam Civil Courts Act, and by this order Bhowanipore Thana was transferred to the jurisdiction of the Fifth Court of Subordinate Judge, Alipore. The decree-holder respondent filed the second Execution Case, being Title Execution Case No. 34 of 1955, in the First Court of Subordinate Judge, Alipore, namely, in the Court which had passed the decree. There was an application under Section 47 of the Civil Procedure Code by the appellant pleading adjustment of the decretal amount. In that application under Section 47 C. P. C., no objection as to jurisdiction was raised. That application was ultimately dismissed. We are concerned with the second application under Section 47 C, P. C. which was filed by the judgment-debtor appellant in the course of the same Execution Case, namely, Title Execution Case No. 34 of 1955, of the First Court of Subordinate Judge, Alipore. In this application under Section 47, objection as to jurisdiction was raised, it being pleaded that since the property was situated within the jurisdiction of Bhowanipore Thana, business arising from which had been assigned to the Fifth Court of Subordinate Judge, the Execution Case ought to have been filed in the Fifth Court of Subordinate Judge because the Fifth Court of Subordinate Judge was the Court which could have passed the decree at the time when the second application for execution was made. This application under Section 47 was, however, dismissed by the learned Subordinate Judge on two grounds. Firstly, the learned Subordinate Judge held in view of certain decisions referred to by him that in spite of the re-transfer of certain territories among the different Courts by the learned District Judge by an order, under Section 13(2) of the Bengal, Agra and Assam Civil Courts Act, the First Court of Subordinate Judge remained the Court which passed the decree and, therefore, it was competent to entertain the application for execution. The second ground advanced by the learned Subordinate Judge was that the plea as to want of jurisdiction was barred by constructive res judicata because the objection as to jurisdiction had not been raised in the first application under Section 47 C. P. C. which had been filed by the appellant.

2. Against the order of the learned Subordinate Judge dismissing the application under Section 47 C. P. C., this appeal has been filed. Mr. Basanta Kumar Panda, appearing for the appellant, has urged that while it might be correct to hold that the First Court of Subordinate Judge, Alipore, could entertain the application for execution even after cases arising from Bhowanipore Thana had been assigned to the Fifth Court of Subordinate Judge, still it should have been held that only the Fifth Court of Subordinate Judge had the jurisdiction to bring the property to sale in execution of the mortgage decree, and, therefore, the learned Subordinate Judge, First Court, should have passed an order transferring the Execution Case to the Fifth Court of Subordinate Judge for taking further steps in execution for bringing the property to sale. In support of this contention, Mr. Panda has referred to certain observations in the case Sreenath Chakravorty v. Priyanath Bandopadhya : AIR1931Cal312 which was one of the cases cited by the learned Subordinate Judge. In that case it was held that the decree-holder has the right to apply for execution to the Court which passed the decree even if the decree be in respect of property which is no longer within the jurisdiction of such Court; but territorial jurisdiction being a condition precedent to a Court executing a decree, no Court can execute a decree in respect of property lying outside its territorial jurisdiction; and in particular, no Court can bring property to sale when the property was at the date of the order for sale outside its territorial jurisdiction; and, accordingly, the Court which passed the decree after entertaining the application for execution, should transfer the application for execution to the Court having jurisdiction over the property which is the subject-matter of the decree. In making the above decision, the learned Judges referred to the Full Bench decision in Prem Chand De v. Mokshada Devi, ILR 17 Cal 699. In that case it was held that a Court has no jurisdiction in execution of a decree to sell property over which it had no territorial jurisdiction at the time it passed the order for sale. It appears, however, that in that case, before the order for sale was passed, the area where the mortgaged property was situated had been transferred by an order of the Government to the jurisdiction of another Court. In the present case we are not concerned with transfer of jurisdiction by an order of the Government, but by assignment of jurisdiction under Section 13(2) by the District Judge. Under Section 13(1) of the Bengal, Agra and Assam Civil Courts Act, the State Government by a Notification in the Gazette may fix or alter the local limits of jurisdiction of any Civil Court under the Act. No such alteration was made in the present case. All Subordinate Judges at Alipore have jurisdiction over the entire district of 24-Parganas. But there are many Subordinate Judges at Alipore, and the local jurisdiction is divided among them by the District Judge by an order under Section 13(2) which provides that if the same local jurisdiction is assigned to two or more Subordinate Judges or to two or more Munsifs, the District Judge may assign to each of them such civil business cognizable by the Subordinate Judge or Munsif as he thinks fit subject to any general or special order of the High Court. In such a case, in view of the order of the Government, the Subordinate Judge or the Munsif, as the case may be, retains his territorial jurisdiction over the entire district or sub-division, but for the purpose of convenience he actively exercises jurisdiction over the area fixed by the District Judge in his order under Section 13, Sub-section (2). In Masrab Khan v. Deb Nath Mali, 75 Cal LJ 255 : (AIR 1942 Cal 821), which is a decision of B. K. Mukherjea and C. C. Biswas, JJ., it was held that assignment of business under Section 13(2) of the Civil Courts Act was not transfer of jurisdiction. It was held as follows at p. 261 (of Cal LJ): (at p. 323 of AIR):

'an order under Section 13(2) of the Civil Courts Act does not effect a transfer of jurisdiction. It merely distributes as a matter of convenience and with reference to certain local areas, the civil business amongst two or more Courts each of which has jurisdiction over the whole area. In such cases neither of the Courts would lose the jurisdiction which it acquired under Section 13(1) of the Act.'

In that case a final mortgage decree had been passed by the First Court of Munsif, Kishoregunge in December, 1932. An application for execution of the mortgage decree was filed in December, 1935 in the Second Court of Munsif, Kishoregunge, on the ground that subsequent to the passing of the mortgage decree, the particular area where the mortgaged property was situated had been assigned to the Munsif, Second Court, Kishoregunge, by an order under Section 13(2) of the Civil Courts Act. It was held that this application for execution made to the Second Court of Munsif, Kishoregunge, was not an application made to the proper Court, and that the application for execution should have been made, in spite of the redistribution of business under Section 13(2) of the Civil Courts Act, to the First Court of Munsif, Kishoregunge, which had passed the decree, because the Court which had passed the decree had not ceased to exist, and, therefore, Clause (b) of Section 37 of the Civil Procedure Code could not he called into play.

3. This decision has never been differed from and, therefore, we are hound to hold that the application for execution in the present case was rightly made to the First Court of Subordinate Judge, Alipore in 1955, even though by an order under Section 13(2) of the Bengal, Agra and Assam Civil Courts Act in September, 1954, cases arising from Bhowani-pore Thana had been assigned to the Fifth Court of Subordinate Judge, Alipore.

4. Thus, the appellant is not entitled to any relief. It is, therefore, ordered that the appeal be dismissed with costs, hearing fee being assessed at 2 gold mohurs.

N.K. Sen, J.

5. I agree.


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