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Firm Ganeshdas BadrinaraIn Vs. Amuluk Chand Oswal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal161
AppellantFirm Ganeshdas Badrinarain
RespondentAmuluk Chand Oswal
Cases Referred and Sham Sundar Saha v. Anath Bandhu Saha
Excerpt:
- .....574. the learned district judge was therefore right in holding that the order of the subordinate judge transferring the decree for execution to the small cause court, calcutta, was bad in law.5. mr. das next contended that the learned district judge had no jurisdiction to set aside an order made by the subordinate judge rejecting the judgment-debtor's objection to the order of transfer. it was argued by him that the order of transfer, though it was ex parte, being an order under section 47 of the code was appealable and as that appeal was barred by time, the judgment-debtor was precluded from questioning the validity of the said order by another petition under section 47, civil p.c. i am unable to accept this view. the order for transfer was made ex parte. the judgment-debtor no doubt.....
Judgment:

Nasim Ali, J.

1. This is an appeal against the order of the District Judge, Assam Valley Districts, dated 21st June 1939, reversing an order of the Special Subordinate Judge of the same district made on 23rd March 1989. The appellant obtained a money decree against the respondent in the Court of the Special Subordinate Judge on 19th March 1927. He applied for transfer of this decree for execution to the Presidency Small Cause Court, Calcutta, on 9th February 1939. On 10th February 1939, the Subordinate Judge issued the necessary certificate of non-satisfaction of decree to the Court of Small Causes, Calcutta, for execution and transferred the decree to that Court without giving any notice to the judgment-debtor. Thereafter the Small Cause Court arrested the judgment-debtor in execution of the decree. On 23rd March 1939, the judgment-debtor made an application before the Subordinate Judge, Assam Valley Districts, who made the order for transfer for recalling the said order. The learned Subordinate Judge refused this prayer of the judgment-debtor. The latter thereupon appealed to the District Judge. The learned District Judge allowed the appeal and recalled the order of transfer made by the Subordinate Judge. Hence this appeal to this Court.

2. The first point urged by Mr. Das in support of this appeal is that the learned District Judge was wrong in recalling the order inasmuch as the order was good in law though it was made ex parte. The learned District Judge has found that the order of transfer was bad in law inasmuch as the decree was above Rs. 2000 and the Small Cause Court, Calcutta, has no power to execute decrees exceeding Rs. 2000. Mr. Das contention is that the view taken by the learned District Judge is wrong inasmuch as there is no limitation as regards the pecuniary jurisdiction in cases coming under Section 39, Clause (i), Civil P.C. His argument is that Clause (ii) of the said Section expressly refers to the jurisdiction of the Court, but Clause (i) does not mention anything about the competency of the Court. The opening words of Clause (i) of Section 39 are in these terms:

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

3. It was argued by Mr. Das that the expression 'another Court' includes Court of any jurisdiction, viz. that of a Munsif or a Subordinate Judge and consequently a decree passed by a Subordinate Judge can be transferred for execution to the Court of a Munsif. I am unable to 'accept this contention. Section 6 of the1 Code runs thus:

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

4. There is no express provision in Section 39, Clause (i) that the transferee Court 'may be a Court of any pecuniary jurisdiction. The transferee Court contemplated by Section 39 must be therefore a Court of competent jurisdiction, that is, a Court which has the same pecuniary jurisdiction as the transferor Court. This view is supported by the decision in Durga Charan Mojumdar v. Umatara Gupta (1889) 16 Cal. 465 and Sham Sundar Saha v. Anath Bandhu Saha (1910) 37 Cal. 574. The learned District Judge was therefore right in holding that the order of the Subordinate Judge transferring the decree for execution to the Small Cause Court, Calcutta, was bad in law.

5. Mr. Das next contended that the learned District Judge had no jurisdiction to set aside an order made by the Subordinate Judge rejecting the judgment-debtor's objection to the order of transfer. It was argued by him that the order of transfer, though it was ex parte, being an order under Section 47 of the Code was appealable and as that appeal was barred by time, the judgment-debtor was precluded from questioning the validity of the said order by another petition under Section 47, Civil P.C. I am unable to accept this view. The order for transfer was made ex parte. The judgment-debtor no doubt did not appeal against that order in time. There is nothing in the law which precludes him from raising his objection to the said ex parte order under Section 47 of the Code. This he did. This objection is an objection relating to the execution of the decree as it is an objection relating to the first step in execution. His objection was overruled by the Subordinate Judge. The order of the Subordinate Judge therefore was an order under Section 47 and was consequently appealable to the District Judge. The District Judge had therefore jurisdiction to set aside the order of the Subordinate Judge. The points taken by the learned advocate for the appellant fail and this appeal is accordingly dismissed. There will be no order as to costs.

Narsing Rau, J.

6. I agree.


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