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Benoy Krishna Mukerjee Vs. Mohanlal Goenka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 95 of 1945
Judge
Reported inAIR1950Cal287
ActsEvidence Act, 1872 - Section 115; ;Code of Civil Procedure (CPC) , 1908 - Sections 11, 41, 47 and 151- Order 21, Rule 6; ;Calcutta High Court Civil Rules - Rule 264; ;Calcutta High Court Civil Orders
AppellantBenoy Krishna Mukerjee
RespondentMohanlal Goenka and ors.
Appellant AdvocateN.C. Sen Gupta, ;R.B. Pal, ;Balai Lal Pal and ;Abinash Chandra Majumdar, Advs.
Respondent AdvocateAtul Chandra Gupta, ;Benoyendra Prasad Bagchi, ;Bankim Chandra Roy, ;Amiya Kumar Mukherjee and ;Biswanath Naskar, Advs. (for Dy. Registrar)
DispositionAppeal allowed
Cases ReferredPeary Choudhury v. Sonoory Dass
Excerpt:
- harries, c.j.1. this is an appeal from an order of a learned subordinate judge of asansol, dismissing an application to set aside a sale. the application was made under sections 47 and 151, civil p. c.2. to appreciate the points in issue it will be necessary to state the facts in some detail.3. nagarmull rajgharia, now deceased, whose personal representative has been brought on the record as respondent in his stead, obtained a decree in suit no. 1518 of 1923 on the original side of this court. the decree was eventually transferred for execution by this court to the court of the subordinate judge at asansol through the district judge of burdwan. a certificate of non-satisfaction under section 41 civil p. c., was sent by this court which was transmitted to the asansol court. the.....
Judgment:

Harries, C.J.

1. This is an appeal from an order of a learned Subordinate Judge of Asansol, dismissing an application to set aside a sale. The application was made under Sections 47 and 151, Civil P. C.

2. To appreciate the points in issue it will be necessary to state the facts in some detail.

3. Nagarmull Rajgharia, now deceased, whose personal representative has been brought on the record as respondent in his stead, obtained a decree in Suit No. 1518 of 1923 on the Original Side of this Court. The decree was eventually transferred for execution by this Court to the Court of the Subordinate Judge at Asansol through the District Judge of Burdwan. A certificate of non-satisfaction under Section 41 Civil P. C., was sent by this Court which was transmitted to the Asansol Court. The decree-holder Nagarmull Rajgharia commenced Money Execution Case No. 296 of 1931 in the Court of the Subordinate Judge at Asansol, but that case was eventually dismissed for default on 27th February 1932. The Court at Asansol sent what purported to be a certificate of non-satisfaction under Section 41, Civil P. C., to this Court and it is to be observed that the decree was never again transferred to the Court at Asansol for execution. Later, however, the decree-holder made another application for execution at Asansol and Money Execution case No. 224 of 1932 was commenced. In the course of that execution the decree-holder purchased the Sripur Colliery on 9th June 1933, but the sale was set aside on 29th January 1934 on an application by one of the judgment-debtors, the appellant in this appeal, under Order 21, Rule 90, Civil P. C. A certificate purporting to be a certificate under Section 41, Civil P. C., was sent by the Asansol Court to the High Court. The decree-holder appealed against this order setting aside the sale, but his appeal was dismissed by this Court. The records of Misc. case No. 224 of 1932 were returned to this Court by the Asansol Court on 17th September 1935 and the execution case was revived.

4. The property, namely, Sripur Colliery, was again sold in an execution sale to the decree-holder for Rs. 12,000 but this sale was set aside. The property was again resold and purchased by the decree-holder for Rs. 2,50,000 on 27th May 1938. The appellant made an application to set aside this sale which was rejected. He preferred an appeal to this Court which was ultimately dismissed and an application by him for leave to appeal to the Privy Council failed.

5. It appears that the judgment-debtor instituted a suit being Title Suit No. 3 of 1936 in the Court of the Subordinate Judge at Asansol to recover a sum of money and to enforce a charge against the Sripur Colliery and for permission to redeem a charge declared in favour of the said decree-holder Nagarmull Rajgharia in suit No. 1518 of 1928. The appellant's suit was dismissed in the Court at Asansol, but on 13th August 1940 an appeal from that decree was allowed in this Court.

6. In order to ascertain the amount due to the decree-holder, Nagarmall Ragharia in suit No. 1518 of 1923 the appellant instructed his attorney to search the records of that suit and it is said that as a result of that search the appellant came to know for the first time on 23rd August 1940 that the Asansol Court had sent a certificate of non-satisfaction in Honey Execution case No. 296 of 1931 to this Court and that no fresh certificate of non-satisfaction had been sent by this Court to the Court at Asansol. The appellant then realised for the first time that the Court at Asansol had no jurisdiction to entertain the second execution case, namely, Money Execution case No. 224 of 1932 and that all the proceedings in that case were null and void as they were without jurisdiction. It seems that an application to review the order of the High Court dismissing the application to set aside the sale for Rs. 2,50,000 was made but was rejected. But no point was made on this matter and it does not appear when that application was made.

7. As the appellant alleged that the Court at Asansol had no jurisdiction to entertain the second application for execution and therefore no jurisdiction to order or conduct a sale, an application was made to the Court at Asansol under Sections 47 and 151, Civil P. C., praying that the sale be set aside as it was a sale without jurisdiction.

8. The decree-holder objected and contended that the Court at Asansol had jurisdiction to entertain the proceedings and in the alternative, if it had no jurisdiction, the appellant having failed to press the point in the proceedings was now barred by the doctrine of res judicata from contending that the Court had no jurisdiction.

9. The matter eventually came before the learned Subordinate Judge who held in the first place that the Court at Asansol had jurisdiction to entertain the second application for execution. In the view of the learned Subordinate Judge, the document purporting to be a certificate of non-satisfaction sent under Section 41, Civil P. C. to the High Court when the first application was dismissed for default was not in fact or in law a certificate of non-satisfaction which deprived the Court at Asansol of jurisdiction further to entertain execution of the decree. In the view of the learned Subordinate Judge, this notice was merely an intimation to the High Court that the first attempt at execution had failed for non-appearance of the decree-holder. As in the view of the learned Subordinate Judge there was no certificate of non-satisfaction sent to the High Court the Court at Asansol had retained jurisdiction to execute the decree and therefore all the proceedings were with jurisdiction.

10. In the second place the Court was of opinion that this question of jurisdiction should have been raised and pressed. But as that was not done the Court could not later be asked to re-agitate the matter and hold that it had no jurisdiction. In short it held that the judgment-debtor appellant was barred by the doctrine of res judicata from raising the point. 10a. In the Court of the Subordinate Judge there seems to have been some discussion as to whether or not there was on the file in the Court at Asansol a certificate of non-satisfaction from this Court when the second execution case was started. Allegations were made by the appellant that the documents were abstracted from the record in the High Court and placed in the record of the execution case at Asansol. It is unnecessary, however, to consider this question because learned advocate for the respondent conceded before us that no fresh certificate of non-satisfaction was sent by the High Court to the Court of Asansol after receipt by the High Court of the certificate under Section 41 despatched by the Asansol Court to the High Court and received by the latter on 11th March 1932. It will be seen therefore that no fresh certificate of non-satisfaction was sent by this Court to Asansol which would give that Court jurisdiction. The respondent's case is that the Asansol Court had jurisdiction throughout and had not sent any certificate under Section 41 which would deprive that Court of its jurisdiction.

11. It is quite clear that the Court at Asansol has no inherent jurisdiction to execute a decree made on the Original Side of this Court. A decree of this Court however could be transferred to Asansol for execution under the provisions of Section 39, Civil P. C. which is in these terms:

' (1) The Court which passed a decree may, on the application of the decree-holder, Send it for execution to another Court,

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immoveable property situate Outside the local limits of the jurisdiction of the Court, which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.'

12. It is common ground that the decree in question could be and was transferred by this Court to the Court at Asansol for execution.

13. Section 41 of the Code provides: 'The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the farmer Court fails to execute the same the circumstances attending such failure.'

14. When a decree is sent by the Court which passed it to another Court for execution a copy of the decree together with a certificate of non-satisfaction or part satisfaction is sent to the Court which has to execute the decree and it is clear that when the Court to which these documents are sent, receives the documents it then has jurisdiction to execute the decree. It is Admitted that this Court sent a copy of the decree and a certificate of non-satisfaction to the Asansol Court and therefore that Court had jurisdiction to execute the decree and therefore had jurisdiction to entertain the first application for execution which resulted in Money Execution case No. 296 of 1931.

15. As I have stated earlier, this application was dismissed for default and there can be no doubt that a certificate was sent to this Court giving the result of the application for execution. According to the judgment-debtor appellant this was a certificate of non-satisfaction under Section 41, Civil P. C., whereas according to the respondent it was nothing more then an intimation that the first attempt at execution had failed.

16. The certificate was in Form No. 6 of Appendix E, Civil P. C., that is, in the form of a 'certificate of execution of a decree transferred to another Court' under Order 21, Rule 6 of the Code. This Court has adapted, that form for certificates under Section 41 of the Code and there is a note on the form that the form may also be used for certificates under Section 41 of the Code. Such a form was undoubtedly used and the details of the execution are given in the form and under the column 'How the case is disposed of' appear the words 'Dismissed for default, 27th February 1932.'

17. It is clear, therefore, that the Court at Asansol intended this document to be a certificate under Section .41 of the Code, that is a certificate of non-satisfaction. It is urged however that the Court at Asansol could never have intended this Certificate to be a certificate under Section 41 of the Code because it had not complied with the Rules of the Court. Rule 264 of the Civil Rules and Orders (part I) of this Court provides that a covering letter should be sent with a certificate of non-satisfaction. But there is no covering letter on the record of this Court and it would appeal that no such letter was sent with this certificate. The respondent contends that as Rule 264 was not complied with, it is clear that the document was never intended to be a certificate of non-satisfaction under Section 41 of the Code.

18. The learned Subordinate Judge attached no importance to the failure to send the covering letter with the certificate and I think rightly. Rule 264 of the Civil Rules and Orders referred to above is in these terms:

'Decree sent to the High Court for execution under Section 39 and certificates communicating the result of execution proceedings to the High Court under Section 41 of the Code, shall be accompanied by covering letters.'

19. It is difficult to appreciate what was in the mind of this Court when this rule was drafted. A covering letter as a rule contains nothing more then a statement that accompanying the letter is a certain document and I cannot see that the absence or otherwise of a covering letter can affect the nature of the document sent. If it was a notice of non-satisfaction under Section 41 of the Code it would, I think, be such a notice with or without a covering letter and I think the learned Subordinate Judge was right in not attaching any importance to the want of a covering letter.

20. It is clear, however, that the Court at Asansol did not send with the certificate purporting to be one under Section 41 of the Code a copy of the decree which had been sent to it and that fact is also suggested to be of importance. It is urged by the respondent that if the Asansol Court really intended the certificate to be one under Section 41 it would have sent a copy of the decree along with it.

21. I think there can be no doubt that the Certificate sent was a certificate of non-satisfaction under Section 41 of the Code. It was sent in the form prescribed by this Court for such certificates. If it was not intended to be a certificate of non-satisfaction then there was no need for the Court at Asansol to send any intimation at all.

22. Mr. Atul Gupta on behalf of the respondent has contended that all that the Asansol Court had intended when sending this certificate was to intimate to this Court out of courtesy that the first attempt at execution at Asansol had failed. It was contended that the Court at Asansol was informing this Court quite unnecessarily of the fate of other proceedings. A similar certificate was sent to this Court on 1st February 1934 when a sale in the second execution case was set aside. This, it is said, was not necessary, but the certificate shows that it was intended as a certificate of non-satisfaction. It shows that a sale was held and that sale was set aside and the execution case dismissed on 29th January 1931.

23. I cannot assume that the Asansol Court never intended to act under Section 41 of the Code and that it was merely out of courtesy informing this Court of the result of various steps in the execution.

24. Further it appears to me that the Court at Asansol did intend that the certificate should be a certificate under Section 41 because when the second execution case was commenced in 1932 the first order in the case makes it clear that the Court assumed that it had jurisdiction, because it wrongly thought that a fresh certificate of non-satisfaction had been received by the Court at Asansol. The first order in the second execution case is dated 24th November 1932 and is in these words:

'Register. Let the certificate of non-satisfaction received be annexed to the record. Issue notices under Order 21, Rule 22, Civil P. C. upon the judgment-debtors returnable on 23rd December 1932.'

25. From the terms of this order it is clear that the Asansol Court was of opinion that what gave it jurisdiction to entertain the second execution case was the fact that a fresh certificate of non-satisfaction had been received from this Court, though in fact no such certificate had ever been received. This order, I think, makes it clear that the Asansol Court was of opinion that a fresh certificate of non-satisfaction from this Court was necessary to give it jurisdiction and it could only have held that view if it was of opinion that the Court at Asansol had lost jurisdiction to execute the decree by reason of something which it had done in connection with the earlier execution case. The only, thing that it had done in connection with the earlier case which could deprive it of jurisdiction was to send to this Court what purported to be a certificate of non-satisfaction under Section 41, Civil P. C.

26. For these reasons I am satisfied that the Asansol Court not only sent what purported to be a certificate of non-satisfaction under Section 41 of the Code to this Court, but intended such certificate to be a certificate of non-satisfaction. I do not agree with the learned Subordinate Judge that the document was never intended to be such a certificate and was only an intimation that the first attempt at execution had failed.

27. Mr. Atul Gupta on behalf of the respondent has contended that the circumstances existing in this case when the first application for execution was dismissed for default did not warrant the despatch of a certificate of non. satisfaction under Section 41 of the Code. He relied upon the words of Section 41 which are :'The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution or where the former Court fails to execute the same the circumstances attending such failure.'

28. Mr. Gupta's argument is that the transferee Court was never intended by the Code to send a certificate of non-satisfaction unless it had failed to execute the decree. It is only when the Court is satisfied that it can do no more towards executing the decree that such a certificate should be sent. Failure to execute the decree at the first attempt for non-appearance of the decree-holder is not, according to Mr. Gupta, total failure to execute the decree. The Court, according to the respondents should have waited and should not have sent a certificate of non-satisfaction until it was clear that it could do nothing more to execute this decree. It, however, sent what purported, to be a notice under the section when the first attempt to execute failed for non-appearance of the decree-holder.

29. I am inclined to think that the construction placed upon this section by Mr. Atul Gupta is right. But that does not solve the question. If what was sent to this Court was a certificate of non-satisfaction under Section 41 then that deprived the Asansol Court of jurisdiction whether the certificate should or should not in the circumstances have been sent. The fact that the certificate was sent when it should not have been sent cannot affect the question if the certificate was intended to be a certificate of non-satisfaction as I hold it was.

30. Reliance was placed by Mr. Gupta upon the case of Abda Begam V. Muzaffar Husen Khan, 20 ALL. 129: (1897 A. W. N. 218) the head-note of which reads as follows:

'The Court to which a decree is sent for execution retains its jurisdiction to execute the decree until the execution has been withdrawn from it, or until it has fully executed the decree and has certified that fact to the Court which sent the decree, or has executed it so far as that Court has been able to execute it within its-jurisdiction and has certified that fact to the Court which sent the decree, or until it has failed to execute the decree and has certified that fact to the Court which forwarded the decree. The mere striking off of an application for execution on the ground of informality in the application does not terminate the jurisdiction of the Court to execute the decree, nor render it necessary for the Court to send any certificate to the Court which forwarded the decree for execution.'

31. In the Allahabad case the first application for execution made in the transferee; Court was struck off on the ground that it did not comply with certain sections of the Code then in force. Later the Subordinate Judge of the transferee Court certified to the Court that passed the decree, that on the objection of the judgment-debtor the application for execution was struck off. On the same day, on which this certificate was sent, the decree-holder applied again to the transferee Court to execute the decree. The application, however, was dismissed on the ground that the transferee Court was no longer seized of the case and was functus officio. On appeal, however, the High Court held that the transferee Court in spite of the certificate which it had sent had jurisdiction to entertain the execution. The Court appears to have thought that the document which was sent was not a certificate of non-satisfaction and indeed it was not. It was merely an intimation that an application for execution had been struck off whatever that phrase may mean. In the United Provinces and in other Provinces it has been repeatedly held that striking off an application for execution is not in fact a dismissal and applications for execution struck off or, to use a familiar phrase used in those provinces, 'consigned to the record room,' may be revived. Those orders are not regarded as complete dismissals of the application. At p. 132 the Bench which decided the Allahabad case observed :

'In our opinion the Court of the Subordinate Judge of Cawnpore did not fail to execute the decree within the meaning of Section 223; it merely struck off an application on the ground of informality. We further consider that the case was not a case in which the Subordinate Judge of Cawnpore was justified in sending any certificate to the Court at Lucknow. Neither of the events had arisen which would have justified the Subordinate Judge in sending any certificate under Section 223, for there was neither execution nor failure.'

32. The facts of the Allahabad case differ from the facts of the present case. In the case before us the execution application had been dismissed, though for default, and that was the end of the application. In the Allahabad case the application had simply been struck off on the ground of informality and I have little doubt that it could have been revived on the informalities being corrected. In any event in the Allahabad case there was nothing to indicate that execution in the transferee Court could not proceed. Whereas in the case before as the Asansol Court might well have come to the conclusion that any attempt to execute in that Court was hopeless and it could have inferred that fact from the absence of the decree, holder in support of his application. Further in the Allahabad case the certificate which was sent made it clear that the application was only struck off and not that it had been dismissed for any reason.

33. I am somewhat doubtful whether a Court can go into the question whether what purports to be a certificate under Section 41 was or was not such a certificate if on the face of it clearly is such a certificate. In any event I do not think it necessary to consider the matter further because I am satisfied that the Asansol Court intended this certificate to be a certificate under Section 41 even if it is open to this Court to go into the question of what it did intend. There were grounds in the present case to justify the issue of such a certificate and I think it was issued and even if it was wrongly issued it deprived the transferee Court of jurisdiction because it was intended to be and was in fact a certificate under Section 41, Civil P. C.

34. As I have stated earlier a copy of the decree was not returned to this Court with the certificate and the learned Subordinate Judge appears to have thought that to deprive the Asansol Court of jurisdiction the copy of the decree would have to be sent with the certificate of non-satisfaction. It is to be observed that the original decree is not sent to the transferee Court, but merely a copy of the same, and therefore it is by no means essential that the copy should be returned when the transferee Court notifies satisfaction or non-satisfaction. Further it is to be observed that there is nothing in the present Code of Civil Procedure that requires the transferee Court to return the copy of the decree along with the certificate of non-satisfaction. Section 41 of the Code is silent as to the return of the copy of the decree.

35. The learned Subordinate Judge, however, relied upon a Full Bench decision of this Court in the case of J.G. Bagram v. J.P. Wise, 10 W. R. 46: (1 Beng. L. R. 91), in which it was held that when a decree of one Court has been transmitted under Sections 284 et seq of Act VIII [8] of 1859, to another Court for execution, and when that Court has struck off for default the first proceedings in execution of the judgment-creditor, the Court to which the decree has been transmitted has jurisdiction to allow the proceedings to be revived. At p. 50 Sir Barnes Peacock C. J., who delivered the judgment of the Full Bench observed:

'It is quite clear that the Court to which the decree was sent had jurisdiction over its own order striking off the case, whatever the striking off amounts to. As soon as a copy of the decree which is sent for execution to another Court is filed in the Court to which it is transmitted, It has the same effect as a decree of that Court, and by Section 283 that Court is to proceed to execute it according to its own rules in the like cases. The order for striking off the application for execution of the decree did not strike the copy of the decree off the records of the Court to which it was sent for execution; and as long as it remains there the Court to which it was sent may deal with it, and any application for execution of it as if it was a judgment of that Court. If in the present case, the decree had been a decree of the Backerganj Court, that Court would have had power to entertain the, application.'

36. It is to be observed however that the provisions of the Code then obtaining were very different from the provisions of the present Code. There was no provision then similar to Section 41 of the present Code which required the transferee Court to certify to the Court which passed the decree that the decree had been executed or that there had been a failure to execute the decree. It would appear that as long as a copy of the decree together with a certificate that satisfaction thereof had not been obtained within the jurisdiction of the Court that passed it remained with the transferee Court that Court had jurisdiction. This case therefore is no authority for the proposition that under the present Code the transferee Court retains jurisdiction if it retains a copy of the decree though it has sent a certificate of non-satisfaotion under Section 41 of the Code to the Court that passed the decree.

37. The case of Muhammad Ibrahim v. Chhatoo Lal, 5 Pat. 398 : (A. I. R. (13) 1926 Pat. 274) was relied upon by both parties. In that case a Bench held that the jurisdiction of the Court to which a decree has been sent for execution ceases as soon as the Court takes action lender Section 41, Civil P. C, and certifies to the Court which passed the decree the circumstances attending the failure on the part of the transferee Court to execute the decree.

38. The appellant urged that this case clearly decided that once the Asansol Court had sent a certificate of non-satisfaction to this Court, the Asansol Court had no further jurisdiction. learned Advocate for the respondent contended that in this case the transferee Court had returned the copy of the decree. But if it had Das J. who delivered the judgment of the Bench attached no importance whatsoever to that fact. It seems to me quite clear that this Patna case supports to the full the contention of the appellant that the Asansol Court ceased to have jurisdiction when it despatched a certificate of non-satisfaction after the first application for execution bad been dismissed for default. It is to be observed that in the Patna case the certificate under Section 41 was a certificate sent after dismissal for default.

39. The respondent also relied upon the case of Maharajah of Bobbili v. Narasaraju. 43 I. A. 238 : (A. I. R. (3) 1916 P. C. 16), in which it was held that when the decree of a District Court had been sent under the Code of Civil Procedure, Section 323, to the Court of a Munsif for execution and had not been returned to the District Court the 'proper Court' within the meaning of the Limitation Act, 1908, Schedule 1 Article 182 (6) in which to apply for execution, or to take some step-in-aid of execution of the decree is the Court of the Munsif. Consequently, in the above circumstances, an application in the District Court would not prevent the time for enforcing the decree from running (under Article 182) from the date upon which it was made,

40. In this case the Munsif to whose Court the decree had been transferred for execution neither returned the copy of the decree nor sent a notice of non-satisfaction and therefore it was held that an application made in the Court of the District Judge for execution before the Munsif certified non-satisfaction and returned the decree was an application made to a Court without jurisdiction. This is clear from the observations of Sir John Edge, who delivered the judgment of the Board, at p. 242 :

'As the decree of 5th April 1904 had by order of the Court of the District, Judge been sent on 30th September 1904, to the Court of the Munsif Parvatipur for execution by the latter Court, and as the copy of the decree with the non-satisfaction certificate was not returned to the Court of the District Judge until, 3rd August 1910, and as the petition of 13th December 1907, was for execution of the decree by sale of the immoveable property of the respondents which was within the local limits of the jurisdiction of the Munsif's Court, their Lordships having regard particularly to Sections 223, 224, 228 and 230, Civil P. C. 1882, are satisfied that when that petition of 13th December 1907, was presented to the Court of the District Judge that Court was not the proper Court to which the application to execute the decree by sale of the immoveable property which had been attached by the Court of the Munsif should have been made and that the proper Court to which the application should have been made was the Court of the Munsif of Parvatipur as that was the Court whose duty it then was to execute the decree so far as it could be executed by that Court.'

41. It is true that in these observations Sir John Edge refers to the fact that the Munsif had neither returned a certificate of non-satisfaction as he was required by Section 223 of the Code of 1882 (now Section 41 of the present Code) nor a copy of the decree to Court which passed the decree. Section 223 did not require the transferee Court to return a copy of the decree and therefore it appears to me that no undue weight should be attached to the fact that the copy of the decree was not returned. I do not think that this Privy Council case is an authority for the proposition that to deprive the transferee Court of jurisdiction that Court must send not only a certificate of non-satisfaction, but also must return a copy of the decree sent to it. Neither the Code of 1882 nor the present Code required the transferee Court, in case of failure to execute, to return a copy of the decree, though doubtless in most cases it would do so when it sent a certificate of non-satisfaction. In my view there is nothing in the present law which requires a transferee Court when it has fully executed the decree or has failed to execute the decree wholly or in part, to return a copy of the decree sent to it along with a certificate of non-satisfaction. That being so, I think the learned Subordinate Judge was wrong in holding that the Asansol Court still retained jurisdiction by reasons of the fact that a copy of the decree did not accompany the certificate of non-satisfaction under Section 41, Civil P. C.which it sent to this Court when the first application for execution was dismissed for default.

42. On the other hand I think that these cases show that once a certificate for non-satisfaction has been sent the transferee Court ceases to have jurisdiction. This view of the Privy Council case was taken by a Bench of this Court in the case of Jatindra Kumar v. Ramesh Chandra, 43 C. W. N. 412, in which a decree was sent for execution in Court B and that Court sent intimation of non-satisfaction to a Central Court which under the practice prevailing was to send such intimation to Court A which had passed the decree but no such intimation was sent by the Central Court and the decree-holder made an application for execution in Court B but that Court returned the application on the ground that it had already certified non-satisfaction and the decree-holder then applied to Court A and it was held that Court A had no jurisdiction.

43. On appeal this decision was reversed and this Court held that Court A had jurisdiction.

44. In this case though Court A had not actually received the certificate of non-satisfaction it had been sent by the transferee Court B to the Central Court for transmission to Court and, therefore Court B had ceased to have jurisdiction and Court A which had passed the decree had, therefore, jurisdiction when the application was made to it. This appears to me to be a case clearly in support of the appellant's present contention and we must follow it and hold that once certificate of non-satisfaction has been sent by the transferee Court to the Court that passed the decree the transferee Court ceases to have jurisdiction, though it might have failed to return the copy of the decree sent to it.

45. From the above it is clear that after the Asansol Court sent the notice of non-satisfaction under Section 41, Civil P. C., it ceased to have jurisdiction over the execution of this decree and that being so, it should not have entertained the second application for execution. It however did so and two sales in the second execution were set aside and eventually a sale for Rs. 2,50,000 was effected which the Court refused to set aside.

46. On behalf of the appellant it has been contended that if the Asansol Court had no jurisdiction to entertain the second application for execution then the whole of its orders were made without jurisdiction and are, therefore, null and void. That being so it is urged that an application could be made under Sections 47 and 151 to set aside the sale as being a sale without jurisdiction.

47. Mr. Atul Gupta contended that the appellant at the hearing before the learned Subordinate Judge conceded that no application under Section 47 lay and that the application must be treated as one under Section 151, Civil P. C. The learned Subordinate Judge does make a reference to such an admission by Dr. Radha Binode Pal who was one of the learned Advocates for the appellant in the Court below. However, we are informed in argument before the learned Subordinate Judge, the leading Advocate Dr. Naresh Sen Dupta withdrew this concession and contended that the application was one under Section 47, Civil P. C. If there was an admission, it was on a point of law not binding on the appellant and further Mr. Atul Gupta does not press the point having regard to a statement made by Dr. Naresh Sen Gupta that he contended eventually that the application was one under Section 47, Civil P. C.

48. Mr. Atul Gupta contended that if the application was one under Section 161, Civil P. C., then no appeal lay and that is so. But having regard to the statement of Dr. Naresh Sen Gupta we are bound to hold that this was an application under Section 47, Civil P. C., as it was stated to be and, therefore, an appeal lay from the order of the Subordinate Judge.

49. In my view, the Court of the Subordinate Judge at Asansol had no inherent jurisdiction to entertain an application for execution of a decree made on the Original Side of this Court. A judgment delivered by a Court not competent to deliver it cannot operate as res judicata and in my view the orders of the Subordinate Judge of Asansol, being wholly without jurisdiction cannot be relied upon to found a defence upon the principles of res judicata. It is true that the appellant could and should have raised the question in the second execution case that the Asansol Court had no jurisdiction in the absence of a certificate of non-satisfaction from the High Court to entertain the application. But in my view though this point was neither made nor pressed, these orders of the learned Subordinate Judge in the second execution application cannot be urged as a bar to the present application under the doctrine of res judicata. It is true that Section 11, Civil P. C., doss not apply to execution proceedings but it has been held by their Lordships of the Privy Council that the principles of the law relating to res judicata do apply to execution proceedings and Mr. Atul Gupta has urged that the present application is barred by res judicata. Dr. Naresh Sen Gupta on behalf of the appellant concedes that the doctrine of res judicata does apply to execution proceedings, but he has contended that the doctrine has no scope in the present case because the orders of the Subordinate Judge were wholly without jurisdiction as there was lack of inherent jurisdiction in the Court.

50. It appears to me that this is not a case of an irregular assumption of jurisdiction, but rather of a want of inherent jurisdiction. The Court at Asansol, as I have said, had no inherent jurisdiction to execute a decree made on the Original Side of this Court. It could only do so on receipt of a certificate of non-satisfaction from this Court and a copy of the decree. Having received neither, the Asansol Court when it entertained the second application, had no jurisdiction at all.

51. The present case appears to me to be similar to the case of Rajlakshmi Dassee v. Katyayani Dassee, 38 Cal. 639 : (12 I. C. 464), where a suit was intentionally undervalued. The defendants raised no objection as regards valuation, and the suit was tried. The appeal was filed before the District Judge instead of before the High Court, in consequence of the under valuation, and the District Judge decided the appeal, by a consent decree. It was held by a Bench of this Court that if a Court has no jurisdiction over the subject-matter of the litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities, and not only voidable, they are void and have no effect either as estoppel or otherwise, and may not only be set aside at any time by the Court in which they are rendered, but be declared void by every Court in which they may be presented. It was further held that these principles apply not only to original Courts, but also to Courts of appeal and that jurisdiction could not be conferred upon a Court of appeal by consent of parties, and any waiver on their part could not make up for the lack or defect of jurisdiction. At p. 668 Sir Asutosh Mookerjee J. observed :

'It is an elementary principle of law, that if a Court has no jurisdiction over the subject matter, its judgment and orders are mere nullities, and may not only be set aside at any time by the Court in which they are rendered, but be declared void by every Court in which they are presented. If a Court hag no jurisdiction, its judgment is not merely voidable, but void, and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been, if it has no power to hear and determine the cause, its authority is wholly usurped and its judgments and orders are the exercise of arbitrary power under the forms, but without the sanction of the law.''

52. After citing certain cases the learned Judge at p. 669 observes :

'These cases lay down the doctrine that, where no jurisdiction exists, no action on the part of the plaintiff, no inaction on the part of the defendant, can invest the Court with any of the elements of power or of vitality, so as to convert the proceeding before it into a proper judicial process. If a Court assumes to act where it has no jurisdiction, its adjudications are all utterly void and have no effect either as an estoppel or otherwise. From this point of view the consent decree is entirely unavailing for want of jurisdiction, and consequently neither binds nor bars the plaintiff.'

53. It seems to me that this case establishes that the orders of the Subordinate Judge off Asansol in the second execution case are wholly null and void and can have no effect either as an estoppel or otherwise. In short, they cannot be pleaded in bar of the present application on the principles of res judicata. The decisions must be treated as if they had never been made and therefore the sale is wholly ineffective and must be set aside.

54. In an earlier case of Gurdeo Singh v. Chandrika Singh, 36 Cal. 193 : (1 I. C. 913), the same learned Judge had to deal with a case not of inherent want of jurisdiction, but a case of an irregular assumption of jurisdiction. In that case a suit was Instituted originally in the Court of the Second Subordinate Judge; the District Judge transferred the case to his own Court acting in the exercise of the powers conferred on him by Section 25, Civil P. C. of 1882. Subsequently, the District Judge transferred the case to the First Subordinate Judge as he himself was about to proceed on leave. The case was tried by him and no objection was taken by either party to the effect that the Subordinate Judge had no jurisdiotion to try the case. On an objection taken as to the want of jurisdiction it was held that under Section 18 of Act XII [12] of 1887, the Subordinate Judge unquestionably possessed jurisdiction over the subject-matter of the litigation, and that therefore the case was not one of absolute want of jurisdiction, but was at beat an irregular assumption of jurisdiction, and as no objection at an earlier stage of the proceedings was taken by the defendants appellants, they waived their right to take exception to the power of the Subordinate Judge to try the cause under authority of an order of transfer made by the District Judge.

55. These cases purport to follow the well-known decision of their Lordships of the Privy Council in Ledgard.v. Bill, 13 I. A. 134: (9 ALL. 191 P. C.). In that case a suit having been instituted in the Court of the Subordinate Judge who was incompetent to try it, the same was transferred by consent of parties to the Court of the District Judge for convenience of trial. It was held that such transference was incompetent, and that such consent did not operate as a waiver of the plea to the jurisdiction which was taken in the defendant's written statement and subsequently insisted upon. Dealing with this matter Lord Watson, who delivered the judgment of the Board at p. 144 observed :

'The defendant pleads that there was no jurisdiction in respect that the suit was instituted before a Court incompetent to entertain it, and that the order of transference was also incompetently made. The District Judge was perfectly competent to entertain and try the suit, if it were competently brought, and their LordShips do not doubt that, in such a case, a defendant may be barred, by his own conduct, from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause in which the Judge is competent to try, the parties without objection join issue, and go to trial upon merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities is the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit.'

56. In this case their Lordships drew a distinction between lack of inherent jurisdiction and an irregular assumption of jurisdiction. Where there is an inherent lack of jurisdiction parties cannot by their mutual consent convert a proceeding into a proper judicial process. If they cannot do it by mutual consent a fortiori they cannot do it by not taking a point as to want of jurisdiction. If the proceeding cannot in the words of Lord Watson be converted 'into a proper judicial process' then it seems to me that the orders of a Court in such a case cannot possibly operate by way of res judicata,

57 The same view has been taken in Lakhmi Chand v. Madho Rao : AIR1930All681 , where it was held that in the absence of a certificate from the Collector a civil Court had no jurisdiction to try a suit relating to a pension or grant of money or land revenue made by Government and a judgment of a civil Court in such a suit without a certificate under Section 6, Pensions Act, could not operate as res judicata,

58. A similar case was Raghubir Saran v. Hori Lal : AIR1931All454 , where a suit was brought in a Court in the District of x on a mortgage of property situate in the District of Y and a decree was passed without any adjudication of the question of jurisdiction. It was held that the decree did not operate as res judicata so as to bar a suit to set aside the decree for want of jurisdiction.

59. Mr. Atul Gupta eventually contended that possibly these orders of the learned Subordinate Judge could not be pleaded as a bar to a suit brought for setting aside the sale and for recovery of possession of the property if it had been handed over to the auction purchaser. It must be remembered in the present case that the auction purchaser was the decree-holder himself and a dispute regarding this sale is a dispute between the parties to the decree relating to the execution, discharge or satisfaction of the decree. Such matters must be agitated by proceedings under Section 47, Civil P. C., and therefore it would appear to me that no suit would lie in the present case. In any event I cannot see why, as the principles of res judicata are applicable to execution proceedings, the same rule should not apply to a subsequent application in execution and to a suit. Why should these orders not operate as res judicata in a suit, but operate as res judicata in a subsequent application in execution proceedings? Mr. Atul Gupta contended that if these orders of the learned Subordinate Judge could not be pleaded as a bar to the present application then applications under Section 47 would be interminable and that it would always be open to the judgment-debtor to harass the decree-holder by alleging want of inherent jurisdiction. It must be observed, however, that there are comparatively few cases in Which the want of inherent jurisdiction can be urged and the fact that the decree-holder might be harassed is no reason for not giving effect to the contentions of the appellant if they were well-founded.

60. Lastly, it was urged by the appellant that a Court has inherent power to correct its own proceedings when it has been misled, for example, by the fraud of one of the parties. Reliance was placed on a Bench decision of this Court in Peary Choudhury v. Sonoory Dass 19 C. W. N. 419 : (A. I. R.: (2) 1915 Cal. 622). In that case a decree passed by consent in an appeal was set aside on an application by the respondent under Order 41, Rule 19, Civil P. C., the Court finding that the appellant got the service of the notice of the appeal suppressed and had a false and fraudulent vakalatnama and a petition of compromise filed and that the respondent came to know about the compromise decree only after process in execution of the decree was taken out. The Bench held that Order 41, Rule 19 had no application to the case, but the decree could be set aside on review under Order 47, Rule 1, and the Court had also inherent jurisdiction to set aside the decree. The Bench further observed that it was an inherent power of every Court to correct its own proceedings when it had been misled.

61. In the present case the Court at Asansol was undoubtedly misled because the first order in the second execution case dated 24th November 1932, presupposes the existence of a fresh certificate of non-satisfaction and such is ordered to be annexed on the record. How the Court was misled is not clear, but it was undoubtedly due to the fault of the respondent decree-holder, because at that stage the judgment-debtor appellant was not before the Court. If the decree-holder misled the Court, as he must have, then it appears to me that this Bench decision applies and that the Court has inherent power to correct its own proceedings. The only way in which it can correct its own proceedings is to set aside this sale which was wholly without jurisdiction. In my view the learned Subordinate Judge was wrong in holding that the application was barred by the doctrine of res judicata. The appellant did in his objections vaguely raise the question of jurisdiction, but even so the matter was never pressed and never adjudicated upon. Whether adjudication would have affected the question the Court need not consider as all that can be argued is that the question of jurisdiction could and should have been raised and therefore cannot be agitated again. In my view the orders did not preclude the appellant from urging that the sale should be set aside and in my opinion the learned Subordinate Judge should have set aside this sale for want of jurisdiction.

62. In the result therefore this appeal is allowed. The order of the lower Court is set aside and the sale is set aside and the whole proceedings are held to be void and of no effect. The appellant is entitled to his costs in this Court and in the Court below. I would assess the hearing fee in this Court at ten gold mohurs.

Sarkar, J.

I agree.


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