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Rooplall Dass and anr. Vs. Krishtokishore Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal687
AppellantRooplall Dass and anr.
RespondentKrishtokishore Dutt and ors.
Cases ReferredSaroda Prosaud Mullick v. Lutchmeeput Singh Doogar
Excerpt:
form of decree - drawing up of decree--duty of decree-holder--execution of decree in two or more districts. - .....and it was, therefore, a proper case for sending a certificate to other districts to have the decree executed in them. we may observe that section 239 empowers the court in any other district to which a decree is sent for execution to stay such execution, in order to enable the judgment-debtors to make any necessary application to the court by which the decree was made, and that the effect of the provisions contained in this section is to alleviate any hardship that might be the result of more than the decretal amount being realized by simultaneous executions in more than one district. the proposition contended for, viz., that a decree can be executed in one district only, and cannot simultaneously be executed in two or more districts, is a proposition which is opposed to the.....
Judgment:

Field, J.

1. We think there are no grounds for this appeal. The suit was brought to recover a sum of money which was secured by a mortgage. The decree declared that the amount claimed was due to the plaintiffs, and it further declared that, for the recovery of the amount, the property mortgaged could be made liable; in other words, it was a decree in the nature of a money-decree, which also contained a declaration of lien upon certain property. But the decree did not say in express language that the amount decreed was to be recovered in the first instance from the mortgaged property; and that any balance not recovered therefrom might be recovered from the other property belonging to the judgment-debtors. It is now contended before us that, although these express words are not to be found in the decree, it ought to be construed as if they bad been actually inserted. We think that we cannot accede to this contention. If the appellants were dissatisfied with the decree in the particular form in which it was drawn up, they should have applied to the Court which passed such decree to amend it by inserting words which would have precluded the decree-holders from proceeding against any other property belonging to the judgment-debtors, until they had first exhausted the property included in the mortgage-bond.

2. The second contention raised before us is, that the decree cannot be simultaneously executed in more than one district. The decree was a decree of the Dacca Court, and the mortgaged property is situated not in Dacca only, but in other districts; and the judgment-debtors are further stated to have property in the districts of Burrisaul, Furreedpore, and the 24 Parganas. With reference to Clause (b) of Section 2231 of the Code of Civil Procedure, the decree-holders stated in their application for execution, that the whole of the decretal amount could not be recovered from the property situate in the Dacca district and it was, therefore, a proper case for sending a certificate to other districts to have the decree executed in them. We may observe that Section 239 empowers the Court in any other district to which a decree is sent for execution to stay such execution, in order to enable the judgment-debtors to make any necessary application to the Court by which the decree was made, and that the effect of the provisions contained in this section is to alleviate any hardship that might be the result of more than the decretal amount being realized by simultaneous executions in more than one district. The proposition contended for, viz., that a decree can be executed in one district only, and cannot simultaneously be executed in two or more districts, is a proposition which is opposed to the decision of the Privy Council in Saroda Prosaud Mullick v. Lutchmeeput Singh Doogar 14 Moore's I.A. 529; S.C. 10 B.L.R. 214 and to several decisions of this Court, and is, in our opinion, wholly untenable. This appeal must, therefore, be dismissed with costs.

1[Section 223: 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 hereinafter contained. The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court.

Court by which decree may be executed.

(b) if such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or


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