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Nilmony Singh Deo Vs. Biressur Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal744
AppellantNilmony Singh Deo
RespondentBiressur Banerjee and ors.
Cases ReferredDawan Ali v. Soroshibala Dabee I.L.R.
Excerpt:
civil procedure code, 1882, section 230 - application to transfer decree for execution--application for execution of decree--'granting' application, meaning of--issue of process. - .....was competent to execute it in the manner desired. the court at manbhoom could have no power to execute a decree at burdwan. the law, in our opinion, contemplates that in such a case the court which passed the decree is competent only to transfer it for execution in the manner directed by section 224, but that the application for execution should be made to the court which has jurisdiction to issue processes in order to enforce payment of the money decreed. we therefore regard the application of the 26th july 1887, as an application merely to transfer the decree for execution, and not an application for the execution of the decree itself. the district judge relies upon the case of dawan ali v. soroshibala dabee i.l.r. 8 cal. 297 as explaining the meaning of the granting of an.....
Judgment:

Prinsep and Hill, JJ.

1. The decree in this suit was passed on the 7th August 1875. It was kept alive from that time until the 26th July 1887. On that date, an application for a certificate was made to the Deputy Collector of Manbhoom, the Court by which the decree was passed, to allow execution to be taken out in the Civil Court at Burdwan. The application, no doubt, was made in the form prescribed in Section 235, but the last column, Clause (i), was necessarily vague in respect of the attachment of particular properties. The decree was sent for execution to Burdwan by a proceeding dated 13th April 1888, and was received on the 4th May following. Execution has been refused under Section 230 of the Code, it being found that more than twelve years have elapsed from the date of the decree, and that this matter fell within that section, inasmuch as a previous application had been made to execute the decree under Section 230, and had been granted. It is contended in second appeal by Mr. Woodroffe, first, that the application to the Deputy Collector of Manbhoom, dated 26th July, was an application to execute the decree within the terms of Section 230, and that the subsequent proceedings at Burdwan could only be properly regarded as proceedings in continuation and in furtherance of that application. In our opinion the application made at Manbhoom was not an application to execute the decree, but an application to send the decree for execution by a Court which alone was competent to execute it in the manner desired. The Court at Manbhoom could have no power to execute a decree at Burdwan. The law, in our opinion, contemplates that in such a case the Court which passed the decree is competent only to transfer it for execution in the manner directed by Section 224, but that the application for execution should be made to the Court which has jurisdiction to issue processes in order to enforce payment of the money decreed. We therefore regard the application of the 26th July 1887, as an application merely to transfer the decree for execution, and not an application for the execution of the decree itself. The District Judge relies upon the case of Dawan Ali v. Soroshibala Dabee I.L.R. 8 Cal. 297 as explaining the meaning of the granting of an application to execute within Section 230. It is unnecessary for us to discuss this matter, and to consider whether it is, as found in that case, to be equivalent to admitting an application within the terms of Section 245, or something beyond that, because we have no doubt that it includes the issue of a process for execution of the decree. In this case we have had brought to our notice two instances in which such processes issued and money was realized in part satisfaction of the decree, so that it is clear that the applications to execute, which were applications before the present application, were granted within the terms of Section 230. The decree-holder may or may not have cause to complain of the delay in the transmission of the decree from Manbhoom for execution to Burdwan, but that is not a matter which is relevant in the case now before us. Section 230 of the Code of Civil Procedure permits of no extension of the term specified, except for reasons which do not apply to this case. The appeal is therefore dismissed with costs.


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