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Ram Ranjan Choudhury Vs. the Berhampore Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 83 of 1961
Judge
Reported inAIR1966Cal482
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 8
AppellantRam Ranjan Choudhury
RespondentThe Berhampore Bank Ltd. and ors.
Appellant AdvocateJagannath Cangopadhyay and ;Hemesh Chandra Sen, Advs.
Respondent AdvocatePrasanta Kumar Ghosh, Adv. for Respondent No. 1
DispositionAppeal dismissed
Excerpt:
- .....in the schedule hereto annexed or a sufficient part thereof be sold with the approbation of the district judge's court at murshidabad to the best purchaser * * * * *'. 2. the certified copy of this order together with as authorised copy of the decree of the high court and a certificate of non-satisfaction was sent to the court of the district judge with a request that the decree should be executed within the jurisdiction of his court under the provisions of the code of civil procedure. the relevant provision is laid down in order 21, rule 8 of the code which is as follows;-- 'where such copies are so filed, the decree or order may, if the court to which it is sent is the district court, be executed by such court or be transferred for execution to any subordinate court of competent.....
Judgment:
ORDER

Chatterjee, J.

1. The only point involved in this appeal is whether the Subordinate Judge had the jurisdiction to entertain the execution petition and to proceed with it. This High Court passed the decree to the following effect:--

'It is hereby ordered and decreed that the mortgaged properties in the aforesaid preliminary decree mentioned and set out in the schedule hereto annexed or a sufficient part thereof be sold with the approbation of the District Judge's Court at Murshidabad to the best purchaser * * * * *'.

2. The certified copy of this order together with as authorised copy of the decree of the High Court and a certificate of non-satisfaction was sent to the Court of the District Judge with a request that the decree should be executed within the jurisdiction of his Court under the provisions of the Code of Civil Procedure. The relevant provision is laid down in Order 21, Rule 8 of the Code which is as follows;--

'Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.'

Order 21, Rule 7, which is relevant for the purpose is as follows:--

'The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.'

Thereafter there is Order 21, Rule 8 to which we have already referred.

3. The question is whether in such circumstances the District Court could transfer the matter to the Court of the Subordinae Judge for execution. According to Mr. Gangopadhyay, Order 21, Rule 8 read with Order 21, Rule 7 should be interpreted to mean that the District Court may transfer it for execution to such subordinate court which would be competent to entertain the suit concerned. But, according to Mr. Gangopadhyay, the Court of the Subordinate Judge would not be entitled to entertain the suit because of the provision of Banking Companies Act. Therefore,--it is urged--the court of the Subordinate Judge is no competent court. We are afraid, we cannot accept that argument. Order 21, Rule 8 is in the Chapter relating to execution and provisions relating to execution are only to be found in Order 21, of the Code. In Order 21 there are some provisions which do not refer directly to execution but they are incidental to execution and are matters relating to execution but this order has nothing to do with the stage at which a decree is to be passed or the stage at which a suit is to be entertained. Therefore, Order 21, Rule 8 means that the said decree may be executed by the District Court or be transferred for execution to any Subordinate Judge of competent jurisdiction to entertain the said execution case. In this case the execution would be with reference to the mortgaged properties and the decree has its pecuniary value. Therefore, the competent court would be the court which had jurisdiction over the mortgaged properties and which has also the pecuniary jurisdiction to execute the decree in question. That court is the court of the Subordinate Judge. Therefore, we find nothing wrong.

4. But there is another aspect. Order 21, Rule 8 provides that the District Judge may transfer it to a Subordinate Court. Therefore, from Order 21, ft. 8 we get nothing as to how it goes to the court of the Subordinate Judge. So far as that is concerned, we mutt refer to the Bengal, Agra and Oudh Civil Courts Act. That Act gives me District Judge administrative control over an civil courts under thee Act which includes the Court of the Subordinate Judge. Section 18 of that Act also provides for fixing me local jurisdiction of the courts. Therefore, we court competent to execute the decree would be determined with reference to the aforesaid Act and that in the instant case is unquestionably the court of the Subordinate Judge before whom the decree in question is sought to be executed.

5. The result is that the appeal is dismissed. There will be no order as to costs.

Gupta, J.

6. I agree.


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