Skip to content


Sachindra Kumar Bose Vs. Raj Kumari Usha Prova De - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
AppellantSachindra Kumar Bose
RespondentRaj Kumari Usha Prova De
Excerpt:
- .....date namely 15th august 1947, the decree-holder applied to the jessore court for transmitting the decree for execution to 24-parganas. before the appointed date the order of transmission was made and the district judge of 24-parganas actually received the decree before the appointed date. before the appointed date, an application for execution was made to the subordinate judge of 24-parganas by the decree-holder. the judgment-debtor filed an objection under section 47, civil p.c. in that court and that objection was decided by the subordinate judge against the judgment-debtor also before the appointed date. the miscellaneous appeal with which we are concerned was filed in this court against the said order of the subordinate judge of 21-parganas before the appointed date. so, the appeal.....
Judgment:

1. The decree-holder opposite party instituted a suit for money against the judgment-debtor petitioner in the Court of the Subordinate Judge at Jessore. That suit was ultimately decreed by this Court on appeal before August 1947. Before the appointed date namely 15th August 1947, the decree-holder applied to the Jessore Court for transmitting the decree for execution to 24-Parganas. Before the appointed date the order of transmission was made and the District Judge of 24-Parganas actually received the decree before the appointed date. Before the appointed date, an application for execution was made to the Subordinate Judge of 24-Parganas by the decree-holder. The judgment-debtor filed an objection under Section 47, Civil P.C. in that Court and that objection was decided by the Subordinate Judge against the judgment-debtor also before the appointed date. The miscellaneous appeal with which we are concerned was filed in this Court against the said order of the Subordinate Judge of 21-Parganas before the appointed date. So, the appeal was pending in this Court on the appointed date. The question before us is whether this appeal stands automatically transferred to the East Bengal High Court or has this Court still jurisdiction to decide the appeal? The question depends upon the interpretation to be given to the words 'Court of origin' occurring in para, 3, Clause 13 of the High Courts (Bengal) Order 1947.

2. The contention of the learned advocate appearing for the appellant is that we have no jurisdiction to deal with this appeal because the Court of origin must be taken to be the Court where the suit was instituted, namely, the Court at Jessore. The contention of the decree-holder opposite party, however, is that as the appeal is against an order passed by the executing Court, the Court of origin must be taken to be the Court where the execution was started and as that was a Court in West Bengal, namely, the Court of the Subordinate Judge of 24-Parganas, this appeal does not stand transferred to the Dacca High Court but is to be continued in this Court. No doubt the order of the Jessore Court transmitting the decree to 24-Parganas for execution gave the Court of the Subordinate Judge of 24-Parganas jurisdiction to entertain the application for execution, but after the transmission and before the decree was re. transmitted to the Court at Jessore on a certificate given by the Court of 24-Parganas, the Subordinate Judge of 24-Parganas had executive jurisdiction for the purposes of execution, We hold that the Court of origin in the case before us must be taken to be not the Jessore Court where the suit was instituted but the Court where the execution proceedings were started. The view contended for by the learned advocate for the appellant would lead to manifest absurdity, for, if his view be accepted, this appeal would have had to be decided by the High Court at Dacca. If that Court came to the conclusion that the case ought to be remanded, the Dacca High Court would have no jurisdiction to remand the case to the Court of execution because that Court, namely, the Court of the Subordinate Judge of 24-Parganas is not a Court under the jurisdiction of the Dacca High Court.

3. We accordingly hold that the Court of origin in this case is the Court of the Subordinate Judge of 24-Parganas and so this appeal does not stand transferred to the Dacca High Court by reason of the provisions of the High Courts (Bengal) Order, 1947. Let this order be placed before the Registrar, Appellate Side, as early as possible.


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