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Shew Kumar Nopany Vs. Grindlays Bank Limited - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. Nil of 1984
Judge
Reported inAIR1986Cal328
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 41
AppellantShew Kumar Nopany
RespondentGrindlays Bank Limited
DispositionAppeal dismissed
Cases ReferredMerla Ramanna v. Nallaparaju
Excerpt:
- .....and cited the following decisions which are noted and considered hereinafter :original side rules 'rule 4 of chapter xvii -- where a decree is sent to another court for execution, stay of execution will be entered in the proceedings inthis court, unless the judge, registrar or master shall, on such terms as he thinks fit, otherwise direct.' code of civil procedure 'order xxi rule 26 (1) -- the court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order.....
Judgment:

Dipak Kumar Sen, J.

1. A decree waspassed in Suit No. 775 of 1980 in favour of the plaintiff, Grindlays Bank Ltd. on the 2nd March, 1981 for Rs. 36,02,511.67 P. with interest at the rate of 15% per annum from the 1st August, 1980 till realisation against the defendants Ramacast Limited, a limited company. Shew Prosad Nopany and Bimal Kumar Nopany, two Directors of the company, in their capacity as guarantors.

2. On an application of the plaintiff, the said decree was transmitted to the District Court, Alipore for execution in respect of a property belonging to Shew Prosad Nopany, the defendant No. 2 situated within the jurisdiction of the said District Court. The said execution proceeding is still pending. On the 28th February, 1984 the plaintiff after the transmission of the said decree filed another Tabular Statement in this Court praying for examination of Shew Prosad Nopany and Bimal Kumar Nopany two of the judgment-debtors in this Court under Order 21, Rule 41 of the Code of Civil Procedure.

3. The said application was opposed and was ultimately disposed of by a judgment and order dated the 12th September, 1984. The prayer of the plaintiff for examination of the judgment-debtors was allowed. The present appeal is against the said judgment and order.

4. It is the case of the appellants, the two judgment-debtors, is, inter alia, that under Chapter XVII, Rule 4 of the Original Side Rules of this Court, execution of a decree is stayed automatically when the decree is sent to another Court for execution unless there is a direction to the contrary by the Master or the Registrar or the Judge. It is contended that the transmission of the decree in the case before us was unconditional and, therefore, further execution cannot be proceeded with in this Court. It is contended further that the Tabular Statement for examination of the judgment-debtors has been filed under the provisions of Order 21 of the Code of Civil Procedure which lay down various modes of execution and matters relating to execution. The application for examination of judgment-debtors would come under the mischief of Rule 4 of Chapter XVII of the Original Side Rules and no order could have been passed on such an application.

5. The case of the plaintiff-Bank is, inter alia, that an application for examination of the judgment-debtors is not an application for execution but an application in aid of execution. The object is to ascertain from the judgment-debtors particulars of their properties and assets on which execution can thereafter be levied. This Court having passed the decree, it is contended, retains seisin over the decree and that the stay contemplated by Rule 4 of Chapter XVII of the Original Side Rules can be varied or vacated at any time by this Court.

6. Learned Counsel for the parties drew our attention to the relevant statutory provisions and cited the following decisions which are noted and considered hereinafter :

Original Side Rules

'Rule 4 of Chapter XVII -- Where a decree is sent to another Court for execution, stay of execution will be entered in the proceedings inthis Court, unless the Judge, Registrar or Master shall, on such terms as he thinks fit, otherwise direct.'

Code of Civil Procedure

'Order XXI Rule 26 (1) -- The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been made by such Court of first instance or Appellate Court, if execution had been issued thereby, or if application for execution had been made thereto.'

'Order XXI Rule 41.-- (1) Where a decree is for the payment of money the decree-holdermay apply to the Court for an order that-

(a) the judgment-debtor, or

(b) (Where the judgment-debtor is a corporation), any officer thereof, or

(c) any other person, be carefully examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.'

7. In support of the respective contentions the following decisions were cited at the Bar :--

(a) Maharaja of Bobbli v. Sree Narasaraju Peda Balliara Simihulu Bahadur Guru, reported in (1917) 21 Cal WN 162 : (AIR 1916 PC 16). This decision was cited as an authority for the proposition that after a decree has been transferred to another Court for execution, the proper Court to which a subsequent application for execution should be made is the transferee court.

(b) Modali Ademma v. Lanka Venkata Subbayya reported in AIR 1933 Mad 627. This decision of a Division Bench of the Madras High Court was cited for the proposition that where an order is made sending a decree toanother Court for execution, the said order by itself, confers jurisdiction on the transferee Court which can act even without receiving a copy of the decree.

(c) Kusum Kamini Debi v. Sailesh Chakraborty, reported in AIR 1935 Cal 118. This decision of a Division Bench of this Court was cited for the proposition that a decree holder is not entitled to divide a decree into several parts for piecemeal execution in different Courts or in the same Court.

(d) Ramkishon Ram Bhakat v. Satya Narayan Bhakat reported in (1939) 43 Cal WN 185 : (AIR 1939 Cal 741). This decision reiterates the proposition laid down by the Privy Council in Maharaja of Bobbli (AIR 1916 PC 16) (supra).

(e) Kanduk Narasimha Rao v. Veerni Surayya, reported in AIR 1957 Andh Pra 544. In this case a Division Bench of the Andhra Pradesh High Cout followed the decision of the Madras High Court in Modali Ademma, AIR 1933 Mad 627 (supra).

(f) Padrauna Raj Krishna Sugar Works Ltd. v. Land Reforms Commr. U. P. reported in : [1970]75ITR358(SC) . In this case the Supreme Court observed that by virtue of Order 21 Rule 30(e) of Code of Civil Procedure, simultaneous execution both against the property and the person of the judgment-debtor is allowed.

8. Another decision of the Supreme Court, namely, Mulraj v. Murli Raghunath Maharaj, reported in : [1967]3SCR84 was also cited. The decision has little relevance in the controversy before us and need not be considered further.

9. The main question to be decided is whether, after a decree is transmitted for execution to another Court, the Court passing the decree retains any seisin over or jurisdiction in respect of the decree. We accept the contention of the respondent that an application for examination of a judgment-debtor is strictly not an application for execution. The different modes of execution for a money decree have been set out in Rule 30 of Order XXI of the Code of Civil Procedure. The modes of execution laid down is by attachment and sale of his property, or by the civil imprisonment of the judgment debtor, or by both. The examination of a judgment-debtor is not indicated as a mode of execution of a money decree.

10. Rule 26 of Order XXI of the Code of Civil Procedure, noted earlier provides that even where a decree has been sent to another Court for execution, such execution may be stayed so that the judgment-debtor can come back to the Court which passed the decree for obtaining other orders relating to the decree or execution which might have been made by such Court. This provision indicates that the Court which passed the decree retains the overall jurisdiction in the matter of the execution of the decree.

11. It will be anomalous to hold that once a decree has been transferred to another Court, for execution in a particular manner, the Court passing the decree loses jurisdiction to examine the judgment-debtor. The transferee Court may not have the territorial jurisdiction to issue process for the attendance of the judgment-debtor or a third party, as provided by Rule 41 of Order XXI of the Code of Civil Procedure. The transmission of the decree to another Court for execution may render the provisions of Rule 41 of Order XXI nugatory.

12. Under the Rules of the Original Side it is open to this Court while directing transfer of a decree to another Court for execution, not to stay execution proceedings in this Court. It cannot be assumed that once a decree has been transferred to another Court and stay of execution is entered in the proceeding of this Court, the Court loses the jurisdiction to vacate such a stay. If a stay is entered at the time of the transfer, subsequent proceeding in execution before the Court, in our view, will not be entirely without jurisdiction and a nullity. It may be that the same will be an irregular assumption of jurisdiction.

13. The view we have taken finds support from a decision of the Supreme Court in Merla Ramanna v. Nallaparaju reported in : [1955]2SCR938 where the Supreme Court observed as follows : --

'It is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court.'

14. In the facts before the Supreme Court, a decree passed by one Court was sought to be impugned in a suit filed in another Courtwithin the territorial jurisdiction of which the property involved in the suit was situated.

15. For the reasons above, we do not findany reason to interfere with the judgment andorder of the first Court which is under appealand we affirm the same. The appeal isdismissed with costs.

G.N. Ray, J.

16. I agree.


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