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Siba Prasad Jash Vs. Kali Prasad Kundu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 3961-65 of 1974
Judge
Reported inAIR1975Cal410
ActsPresidency Small Cause Courts Act, 1882 - Section 38
AppellantSiba Prasad Jash
RespondentKali Prasad Kundu
Appellant AdvocateSaktinath Mukherjee and ;Satya Narayan Das, Advs.
Respondent AdvocateDilip Kumar Banerjee, Adv.
Excerpt:
- .....i find no prohibition against acceptance by the court of security of immovable property situated outside the jurisdiction of that court when the court decides to accept security, nor there is any mandatory provision requiring it to accept the security only of properties situated within the jurisdiction of the said court. on the contrary, i find that there are provisions under section 31 for transfer of the decree for execution against, immovable properties of the judgment-debtor outside the jurisdiction of that court. accordingly, in my opinion the court was wrong in not accepting the security of immovable properties offered by the petitioner only for the reason that such property was situated outside the jurisdiction of that court.4. as identical orders were passed on the.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. These Rules arise out of several decrees passed by the Court of Small Causes, Calcutta. It appears that the petitioner filed before the Full Bench of the said Court an application under Section 38 of the Presidency Small Cause Courts Act, 1882 for a new trial of Suit No. 3448 of 1970 which was decreed by the Second Bench of the said Court. Similar applications were filed in respect of four other suits between the same parties which were decreed by the said Court. The said applications were admitted by the Full Bench of the Court and the defendant was directed to deposit the entire decretal amount of the suits and respective half institution fees etc. for the amount of relief sought for within specified date. It appears that thereafter the lawyer for the defendant filed one set of petitions in the said suits for allowing him to furnish security for the decretal dues. The Court allowed the prayer as a special case and directed the defendant to furnish security to the extent of the decretal dues of the suit to the satisfaction of the Registrar of the said Court and to deposit half institution fees. It appears that thereafter the defendant filed another set of applications praying for an order that immovable property within the jurisdiction of Calcutta Corporation, but outside the jurisdiction of the Court be accepted as security. By order dated July 11, 1974, these petitions were rejected and the defendant was given time to furnish security of properties situated within the jurisdiction of the said Court or to deposit the entire decretal amount and half institution fee within two weeks. In default the applications under Section 38 were to stand dismissed. The applications were put up on July 25, 1974 and, as the orders were not complied with, the applications under Section 38 was rejected for non-compliance of Court's order.

2. Mr. Saktinath Mukherjee, appearing for the defendant petitioner, submitted that the court acted with material irregularity and in excess of jurisdiction in dismissing the applications for furnishing security of properties situate outside the jurisdiction of the Court of Small Causes, Calcutta. It was contended that the Court should have allowed the applications and accepted the security of immovable properties offered which were situated within the Corporation of Calcutta, but outside the jurisdiction of the said Court.

3. On a perusal of the relevant provisions, I find no prohibition against acceptance by the Court of security of immovable property situated outside the jurisdiction of that Court when the Court decides to accept security, nor there is any mandatory provision requiring it to accept the security only of properties situated within the jurisdiction of the said Court. On the contrary, I find that there are provisions under Section 31 for transfer of the decree for execution against, immovable properties of the judgment-debtor outside the jurisdiction of that Court. Accordingly, in my opinion the Court was wrong in not accepting the security of immovable properties offered by the petitioner only for the reason that such property was situated outside the jurisdiction of that Court.

4. As identical orders were passed on the same dates in respect of the applications in the said suits being applications under Section 38. Suits Nos. 3446 of 1970, 1997 of 1971, 3459 of 1970, 20 of 1971 and 3467 of 1970, this judgment will govern the orders passed on those applications under Section 38 of the Act in the said suits and challenged in these rules.

5. For these reasons, the impugned orders are set aside and the Rules are made absolute. All the matters are sent back to the Full Bench of the Court of Small Causes, Calcutta for considering the applications of the defendant offering security of immovable property outside the jurisdiction of the said Court, and proceeding with the same in accordance with law.

6. There will be no order as to costs.


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