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Jugal Charan Mondal, Judgment-debtor Vs. Sm. Pankajini Dasi, Decree-holder - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 13 of 1958
Judge
Reported inAIR1961Cal183
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 and 47
AppellantJugal Charan Mondal, Judgment-debtor
RespondentSm. Pankajini Dasi, Decree-holder
Appellant AdvocateJitendra K. Sen Gupta and ;Narendra Nath Biswas, Advs.
Respondent AdvocateChandidas Roy Choudhury, Adv.
DispositionAppeal allowed
Cases ReferredRamanna v. Nallaparaju
Excerpt:
- .....february 27, 1956, the aforesaid decree was put into execution before the same court and the same learned judge, having pecuniary jurisdiction as aforesaid, and the order for sale was made by the said learned judge through the following processes, namely,(a) by directing issue of writ of attachment on march 17, 1956, the attachment being duly effected in the first week of april following; (b) by issuing or directing issue of notice underorder xxi rule 66 of the code of civil procedure, on may 29, 1956, the notice being duly served on june 4, 1956; and (c) by settling and issuing or directing issue of sale proclamation on june 15, 1956, which was duly served in time.3. on august 11, 1956, the appellant filed an objection under section 47 of the code of civil procedure on the ground.....
Judgment:

P.N. Mookerjee, J.

1. This is a judgment-debtor's appeal, arising oat of a proceeding under Section 47 of the Code of Civil Procedure. The appellant judgment-debtor, who was also the Receiver to the judgment-debtor's estate, objected to the holding of the sale, upon the ground, inter alia, that the Court which made the relevant order for sale, or, more precisely, made the order, directing issue of sale proclamation, and fixed the date of sale, had no jurisdiction to pass the relevant order or orders, and had also no jurisdiction to hold the sale at the time, or, in the manner, in which the same was held. The objection was overruled by both the Courts below and the sale has since been actually held and the property has been purchased by the decree-holder respondent.

2. The relevant facts stand as follows :

On June 1, 1955, the respondent decree-holder obtained the decree in Question for Rs. 2178/-, with interest Rs. 81-2-0 and costs Rs. 297-11-6, in Money Suit No. 144 of 1954, from Sri K. K. Chakravarty, the learned Munsif, 1st Court, Alipore, who had pecuniary jurisdiction up to Rs. 3500/-. On February 27, 1956, the aforesaid decree was put into execution before the same Court and the same learned Judge, having pecuniary jurisdiction as aforesaid, and the order for sale was made by the said learned Judge through the following processes, namely,

(a) by directing issue of writ of attachment on March 17, 1956, the attachment being duly effected in the first week of April following;

(b) by issuing or directing issue of notice underOrder XXI Rule 66 of the Code of Civil Procedure, on May 29, 1956, the notice being duly served on June 4, 1956; and

(c) by settling and issuing or directing issue of sale proclamation on June 15, 1956, which was duly served in time.

3. On August 11, 1956, the appellant filed an objection under Section 47 of the Code of Civil Procedure on the ground inter alia that necessary leave to proceed against him as receiver, as aforesaid, had not been obtained by the decree-holder. This was registered as Miscellaneous Case No. 211 of 1956 (Section 47) and the same was adjourned from time to time until September 28, 1956, when the execution proceedings were stayed by the Court, that is, by the same learned Judge, Sri K. K. Chakravarty, until the disposal of the above Misc. case, which had, in the meantime been fixed for peremptory hearing on December 1, 1956. The latter date, however, appears to have been shifted later on to December 10, 1956.

4. Meanwhile, it appears that the original Presiding Officer of the Court Sri K. K. Chakravarty was transferred and he was succeeded by Sri S. K. Roy, who, however, had powers only up to Rs. 2000/-. The above Misc. case remained pending till December 27, 1956, when it appears to have been dismissed for default by the said learned Munsif, Sri S. K. Roy, before whom thereafter, the appellant judgment-debtor applied under Section 151 of the Code of Civil Procedure on January 10, 1957, for restoration of the said Misc. case but the execution case proceeded and sale proclamation was issued by the learned Munsif, after rejecting the present appellant's prayer for stay. The sale date was fixed by the learned Munsif on April 15, 1957, by his order, dated February 26, 1957. By his subsequent order, dated March 9, 1957, the learned Munsif also fixed the restoration Misc. case for peremptory hearing on May 18, 1957, and directed the judgment debtor's fresh application for stay to be put up on April 12, 1957, by his order, dated April 11, 1957. On this dated (April 12, 1957), however, the learned Munsif recorded the following order :

'The stay petition filed by judgment-debtor on 11-4-57 is put up to-day for order. It appears from the record that the Court has got no power to try the case as the valuation of its original suit is over Rs. 2000/-. The record has not been sent through oversight. Let the record be transferred to Munsif, 2nd Court, Alipore, as per District Judge's order No. 9-G, dated 14-1-57.

Inform District Judge accordingly.'

and the case was actually transferred to the learned Second Munsif, Sri N. C. Dutt, who had, admittedly, powers up to Rs. 3500/-, and, before whom, the execution case was registered as Money Execution Case No. 55 of 1957 and who, by his order, dated April 15, 1957, directed the sale to be held on April 16, 1957. Later on, on account of the present Misc. case No. 153 of 1957, which has been filed on the same date, namely, April 15, 1957, objecting to the sale upon the ground, inter alia, that the Court, which made the order for sale and fixed the date of sale and directed issue of sale proclamation had no jurisdiction in the matter, the sale was adjourned to April 23, 1957, the Misc. case being directed to be heard peremptorily on April 18, 1957. On this latter date, the Misc. case was dismissed and the sale was held on April 23, 1957, after rejection of the judgment-debtor's application for stay of operation of the order of dismissal of the aforesaid Misc. Case (No. 153 of 1957) and the decree-holder purchased the disputed property for Rs. 2585/7/- after obtaining necessary 'permission to bid'. The confirmation of the sale, however, was, later on, stayed by an order of the Appellate Court in the appeal, filed by the judgment-debtor, but, thereafter, the sale appears to have been confirmed and the Execution case appears to have been dismissed on full satisfaction.

5. From the above, it is clear that the execution case, in question, was entertained by a competent Court and proceeded up to about December 10, 1958, before a competent Judge, and, in the mean-time, the Misc. Case (211 of 1956) had been filed by the judgment-debtor and it remained pending in the Court and before the said learned Judge and the execution proceedings were stayed till the disposal of the said Misc. case by the said learned Judge, who had, undoubtedly, competency in the matter. If, then, the disposal of the Misc. case, by its dismissal for default on December 22, (27?), 1956, was not made by a competent Judge, the Misc. case must be deemed, in law, to be pending and, in view of the above stay order, passed, admittedly, by a competent Judge, all proceedings in execution during the pendency of the said Misc. case, as aforesaid, must be held to have been without jurisdiction and, necessarily, the sale in question would fall.

6. The crucial point, therefore, is whether the disposal or dismissal of the above Misc. case was without jurisdiction and that point has to be determined for a proper disposal of this appeal.

7. For the determination of the point, indicated above, it is necessary to remember that the Court, which has competently passed a decree, does not lose jurisdiction to execute it, merely by reason of loss of territorial or pecuniary jurisdiction in the meantime. But this 'jurisdiction to execute' means merely jurisdiction to entertain the execution application and to transfer it to the proper Court for execution, as appearing hereinbelow, and it does not extend beyond that and it docs not entitle the said Court, in such circumstances, to proceed further with the execution which has to be done by the appropriate Court, having territorial and pecuniary jurisdiction in the matter, on appropriate transfer to it of the particular decree for execution, that is, for such purposes. That, indeed, appears to be well settled now by reason of the decision of this Court, reported in Masrab Khan v. Debnath Mali : AIR1942Cal321 and Vasireddi Sri-manthu v. Venkatappayya AIR 1947 Mad. 347 (F. B.) and neither the decision of this Court in Abdus Sattar v. Mohini Mohan Das, 37 Cal WN 679 : (AIR 1933 Cal 084) or Iswari Prasad Singh v. Farkat Hussain AIR 1916 Pat 3 (1), or, any observation, made therein, nor any observation of the Supreme Court in Ramanna v. Nallaparaju, : [1955]2SCR938 really affect the above position.

8. In the above view, the dismissal of the Section 47 objection (Misc. case No. 211 of 1956) in the present case by Sri S. K. Roy must be held to have been without jurisdiction and, in the eye of law, that Misc. case must be deemed to be still pending and as by a valid order, passed by a competent Judge, Sri K. K. Chakravarty, the execution proceedings were stayed till the disposal of the Misc. case, the sale held must be found to be invalid in law and without jurisdiction and it is, accordingly, liable to be set aside in the present Section 47 proceeding.

9. As, again, the decree-holder herself is the auction-purchaser, there is no question also of any resulting inequity or injustice.

10. Before us, an argument of 'waiver' was made by the learned Advocate for the respondent, but, in view of the fact that the question involved is a question of jurisdiction we do not think that, 'waiver' has any scope for consideration here, this not being a case of mere 'irregular assumption of jurisdiction' but a case of 'total lack or absence of jurisdiction.'

11. We would, accordingly, decree this appeal, set aside the decision of the two Courts below, allow the present Misc. case under Section 47 of the Code of Civil Procedure and set aside the impugned sale. The execution proceedings will now be revived and they will continue according to law and the decree-holder will take necessary steps for sale of the property or for other reliefs, as she may desire to obtain in the matter, after the records go back to the executing Court.

12. In the circumstances of this case, there will be no order for costs in the present miscellaneous proceeding uptill this stage.

Niyogi, J.

13. I agree.


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