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Kartick Nath Pandey and ors. Vs. Tilukdhari Lall, for Himself and as Guardian of Sarundhari Lall, His Minor Brother - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal667
AppellantKartick Nath Pandey and ors.
RespondentTilukdhari Lall, for Himself and as Guardian of Sarundhari Lall, His Minor Brother
Cases ReferredMaseyk v. Steel and Co.
Excerpt:
execution of decree - sale of property covered by decree to court which passed decree when property is situate outside its local jurisdiction at time of application--civil procedure code (act xiv of 1882), section 223(c)--jurisdiction. - .....by the judgment-debtor under a mortgage decree of 23rd december 1878, made by the subordinate judge of bhaugulpore. the mortgaged property, which by the decree is ordered to be sold, is wholly situated in the district of monghyr, which district was formerly comprised within the local limits of the jurisdiction of the subordinate judge of bhaugulpore. since the passing of the decree, however, it appears that a subordinate judge has been appointed at monghyr with a territorial jurisdiction conterminous with that district. an application having been made to the subordinate judge of bhaugulpore to execute the decree and bring the mortgaged property to sale, the judgment-debtor objected that the property being now situated within the jurisdiction of the subordinate judge of monghyr, the.....
Judgment:

1. This in an appeal by the judgment-debtor under a mortgage decree of 23rd December 1878, made by the Subordinate Judge of Bhaugulpore. The mortgaged property, which by the decree is ordered to be sold, is wholly situated in the district of Monghyr, which district was formerly comprised within the local limits of the jurisdiction of the Subordinate Judge of Bhaugulpore. Since the passing of the decree, however, it appears that a Subordinate Judge has been appointed at Monghyr with a territorial jurisdiction conterminous with that district. An application having been made to the Subordinate Judge of Bhaugulpore to execute the decree and bring the mortgaged property to sale, the judgment-debtor objected that the property being now situated within the jurisdiction of the Subordinate Judge of Monghyr, the Subordinate Judge of Bhaugulpore had no jurisdiction to execute the decree and bring the property to sale. This objection was overruled by the Subordinate Judge, and the present appeal has been brought against that order.

2. It is contended, first, that the Subordinate Judge of Bhaugulpore had no jurisdiction to entertain the application; and, secondly, that, even if he could entertain the application, he had no jurisdiction to direct the sale of the property.

3. On the first point, we think it clear upon the authority of the case cited by the lower Court Latchman Pundeh v. Maddan Mohun Shye 6 C. 513 that the Subordinate Judge of Bhaugulpore had jurisdiction to entertain the application.

4. We are further of opinion that, in the present case, he also had jurisdiction to execute the decree. In support of the appellant's contention, we have been referred to the cases of Maseyk v. Steel and Co. 14 C. 661 and Shurroop Chunder Gooho v. Ameerunnissa Khatoon 8 C. 703. Neither of those cases is precisely in point, inasmuch as in both of them some portion of the property was admittedly situated within the jurisdiction of the Court which made the decree, whereas in the present case none of the property is now situated within the local jurisdiction of the Subordinate Judge of Bhaugulpore. So far as they decide anything, however, those cases are in favour of the respondent: for in both cases it was decided that the Court which made the decree had power to execute it. It is true that in the latter case cited, Field, J., remarked: 'The case of course would be very different if the property consisted of different taluks or different revenue-paying estates, the whole of any one or more of which was situated within (another) the Furreedpore district'. This, however, was not the case before him, and we cannot regard the remark as carrying any greater weight than an obiter dictum. The case of Maseyk v. Steel and Co. 14 C. 661 was decided on the principle that a Court which has jurisdiction to make a decree for the sale of mortgaged property has also jurisdiction to execute its decree and bring the property to sale. We think that that is a correct principle of law, and, as shown in that case, it is in accordance with the practice on the Original Side of this Court. On behalf of the appellant some reliance has been placed upon certain remarks of Mr. Justice Ghose in that case, but those remarks do not seem to have affected the decision of the case before him, and we do not, therefore, feel ourselves pressed by them. Mr. Justice Ghose says that he concurs generally in the judgment pronounced by the Chief Justice; and he further remarks as follows: 'Now it seems to me that if the Court which made the decree had jurisdiction to entertain the suit in respect of the whole of the properties comprised in the mortgage-deed, it would also have jurisdiction to sell them in execution of that decree, unless it be shown that that authority has been taken away or curtailed by any of the provisions of the Civil Procedure Code.' In the present case, as in that case, Section 223, Clause (c), is relied on as curtailing that authority. We are of opinion that this contention is unsound. That section begins by laying down the general proposition that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution under the provisions thereinafter contained; and the section then goes on to say: 'The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court, if the decree directs the sale of immoveable property outside the local limits of the jurisdiction of the Court which passed it.' We think that the use of the word 'may' in this clause does not take away from the Court the power to execute its own decree conferred by the previous part of the section, but rather gives it a discretion either to execute the decree itself, or on the application of the decree-holder, to send it to another Court for execution.

5. It appears to us in fact to be an extension rather than a limitation of the Court's powers, and an extension for the sake of convenience. In the cases put in clauses (a) to (d) it might sometimes be inconvenient for the Court to execute its own decree, and the law, therefore, gives it power, on the application of the decree-holder, to transfer the decree to another Court for execution. No such application was made in this case, and the Court had, therefore, no authority to send the decree' to the Monghyr Court for execution.

6. We have not been referred to any other section of the Code or to any decision of Court in support of the position contended for by the appellant, and upon the authority of the decision in Maseyk v. Steel and Co. 14 C. 661, we must, therefore, hold that the Subordinate Judge of Bhaugulpore had authority to execute the decree of his own Court, and in execution thereof to bring to sale property wholly situated in the Monghyr district.

7. The appeal is dismissed with costs.


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