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Durga Dass NaraIn and ors. Vs. Umatul HoseIn Begam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.46
AppellantDurga Dass NaraIn and ors.
RespondentUmatul HoseIn Begam and ors.
Cases ReferredAmar Chandra Kundu v. Sebak Chand Chowdhury
Excerpt:
civil procedure code (act xiv of 1882,), sections 223 and 228 - court to which decree is sent for execution--certificate--attachment of property--decree sent back a second time--attachment does not come to end. - .....might be executed by the sale of certain property which had been attached by the district judge of gaya in proceedings taken previously in execution of the same decree in his court. the execution case had been struck off for default by the judge of gaya after the property had been attached and the decree had been returned to the subordinate judge of patna.2. it appears that the present respondent brought a suit against the father of the present appellants and obtained a decree on the 17th february 1904, for rs. 8,699-5-0 in the court of the subordinate judge of patna. afterwards the decree-holder applied for execution of the decree by attachment and sale of the property belonging to the judgment-debtors in the district of gaya and put in an application under section 233 of the code of.....
Judgment:

1. The present appeal is directed against an order of the Subordinate Judge of Patna directing that the decree obtained in his Court against the father of the appellants should be sent to the District Judge of Gaya for execution in order that the decree might be executed by the sale of certain property which had been attached by the District Judge of Gaya in proceedings taken previously in execution of the same decree in his Court. The execution case had been struck off for default by the Judge of Gaya after the property had been attached and the decree had been returned to the Subordinate Judge of Patna.

2. It appears that the present respondent brought a suit against the father of the present appellants and obtained a decree on the 17th February 1904, for Rs. 8,699-5-0 in the Court of the Subordinate Judge of Patna. Afterwards the decree-holder applied for execution of the decree by attachment and sale of the property belonging to the judgment-debtors in the District of Gaya and put in an application under Section 233 of the Code of Civil Procedure praying that the decree might be sent for execution to the Gaya Court. In consequence the Subordinate Judge of Patna drew up the necessary proceeding and in December, 1904, sent the decree to the District Judge of Gaya for execution. On the 24th December 1904, the decree holder applied for execution of the decree by attachment and sale of certain immovable properties of the judgment-debtor situated within the District of Gaya. The properties were attached on the 20th January, 1905 and on the 13th February, 1905, the sale proclamation was ordered to be issued and it was duly served on the 18th March, 1905. On the 31st March, 1905, the present appellants, one of whom was minor, applied under the provisions of Section 278 of the Civil Procedure Code to have their shares in the ancestral properties released from attachment. It must be noted that the appellants with the original judgment-debtor were members of a joint Hindu family governed by the Mitakshara law. Their application was, however, struck off for default on the 26th May 1905. Subsequently their father, the original judgment-debtor, paid in July, August and September in three instalments, the sum of Rs. 1,300 in satisfaction of the decree and in October, 1905, he died. The sale of the attached properties appears to have been stayed in consequence of the payment of these sums in satisfaction of the decree, the attachment remaining subsisting. The case was fixed for hearing on the 1st November in the Court of the District Judge of Gaya and on that date intimation was given to the Court that the judgment-debtor had died. On the 2nd November the pleader for the decree holder appears to have been sent for and on his representing that he had received no instructions from his client, the case was struck off. Afterwards the District Judge of Gaya returned the decree to the Subordinate Judge of Patna with a certificate stating to what extent the decree had been executed and how far it remained unexecuted.

3. On the 9th December 1905, the present respondent put in an application before the Subordinate Judge of Patna praying that as the proceedings in execution in the Gaya Court had failed owing to the death of the judgment-debtor, the decree might be sent to the District Judge of Gaya with a certificate to enable her to realise the balance of the decretal amount through that Court. An objection was taken by the present appellants who had been substituted on the record as legal representatives of the original judgment debtor, on the ground that the Gaya Court was the proper Court in which the application ought to have been made and that the Patna Court had no jurisdiction to entertain it. The Subordinate Judge of Patna, however, held that as the District Judge of Gaya had sent the decree back to his Court under Section 223 of the Civil Procedure Code, his Court being the Court which passed the decree had power to decide whether the decree-holder could execute the decree against the legal representatives of the judgment-debtor. Further he held that as the property of the judgment-debtor, had been already attached by the Court of the District Judge of Gaya and as there had been an order for its sale, the decree-holder was entitled under the law to follow that property in execution against the sons, the present appellants, and in support of this view he relied on the case of The Sivagiri Zamindar v. Tiruvengada 7 M. 339.

4. He accordingly directed that the decree should be sent back to the District Judge of Gaya for execution.

5. It is against this order that the present appeal has been preferred.

6. The contention which has been advanced in support of the appeal is that having due regard to the provisions of Sections 223, 224 and 228 of the Civil Procedure Code, after the decree had been sent to the District Judge of Gaya for execution, the Subordinate Judge of Patna had no seisin over the proceedings in execution, but the District Judge of Gaya alone had seisin over those proceedings and, that when the District Judge of Gaya on the 2nd November, 1905, struck off the execution case and under Section 223 certified the fact and the result of the proceedings in execution of his Court to the Court of the Subordinate Judge of Patna, he became functus officio and that the attachment of the property which had been made in March 1905, ceased to subsist. Thereafter on an application by the present respondent, the Subordinate Judge of Patna was not competent to revive the proceedings so as to enable the respondent to execute the decree by sale of the property which had been attached by the Court of the District Judge of Gaya.

7. The learned Vakil who appears in support of the appeal admits that if the proceedings in execution had been taken in the Court of the Subordinate Judge of Patna the effect of the dismissal or striking off of the proceedings would not have been to remove the attachment already existing on the property. That this is so is clear from a decision of this Court in the case of Puddomonee Dassee v. Roy Muthoora Nath Chowahry 20 W.R. 133; 12 B.L.R. 411; and from a decision of the Allahabad High Court in the case of Bank of Upper India v. Sheo Prasad 19 A. 482. The learned Vakil, however, argues that as the proceedings in execution were taken in the Gaya Court and as that Court after striking off the case had returned the proceedings to, the Sub-Judge of Patna with a certificate under Section 223 of the Code of Civil Procedure, the Gaya Court then became functus officio and all the proceedings in that Court including the attachment came to an end. We are not prepared to accept this contention. No doubt, under the law the Court to which a decree is sent for execution must, on the termination of the proceedings in that Court, certify to the Court which passed the decree the result of those proceedings, and after such a certificate it is necessary that in order that the decree-holder may subsequently proceed to execute the decree he should make an application to the Court which passed the decree so that the decree may again be sent back for execution to the other Court; but we do not think that it was the intention of the legislature or that it follows from this procedure that when an application for execution has been sent back a second time to the same Court for execution against the same property, it must be held that the attachment of that property which was made in the proceedings in execution in that Court of necessity came to an end when that case was struck off. In our opinion the same effect should follow in the course of the proceedings taken in execution in the Court to which the decree had been sent, under Section 223, Code of Civil Procedure, as would have followed if the proceedings had been taken in the Court which passed the decree and the same principles should apply.

8. We think, therefore, that the view which the Subordinate Judge has taken is correct and that the attachment must be held to have subsisted in the Court of the District Judge of Gaya even though the District Judge on the representation of the pleader for the decree-holder that he had no instructions, dismissed the proceedings on the 2nd November, 1905, and sent back the decree with his certificate to the Subordinate Judge of Patna.

9. The application to the Patna Court was made on the 9th December, 1905, that is to say just about a month after the date of dismissal of the proceedings in the Gaya Court, and there is nothing to show that the decree-holder was not diligent in prosecuting the proceedings in execution. We, therefore, think the grounds which have been urged in support of the appeal fail and the appeal must be dismissed with costs, the hearing-fee being assessed at five gold mohurs.

10. The learned Vakil for the appellant admits that even if we had not taken this view, then on the authority of the decision of the Full Bench in the case of Amar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642; 11 C.W.N. 593; 5 C.L.J. 491; 2 M.L.T. 207 (F.B.) it would have been necessary for us to send the case back to the Subordinate Judge of Patna in order that he might send the decree for execution to the District Judge of Gaya in order that that officer might determine how far the properties of the sons as legal representatives of their deceased father were liable to sale in satisfaction of their father's debt.


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