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The Land Mortgage Bank of India Vs. Jassoda Kooer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal916
AppellantThe Land Mortgage Bank of India
RespondentJassoda Kooer
Cases ReferredLeake v. Daniel B.L.R. Sup. Vol.
Excerpt:
execution of decree - transfer of decree for execution--order passed in court to which proceedings are transferred--appeal irregularly brought after time has been granted to apply to original court. - .....viz., the plea of limitation, the district judge of sarun subsequently did allow the judgment-debtor time to apply to the patna court to decide it. we find that an order was passed on the 16th of november, by which one month's time was allowed to the judgment-debtor to make the necessary application to the patna court. the judgment-debtor, instead of applying to the patna court, preferred this appeal on the 6th december 1881.3. we ought to discourage such practices as these. the judgment-debtor, after the case was decided in the lower court, made a special application to the district judge to obtain time to make an application with reference to these objections in the patna court, and according to the prayer contained in his application the district judge allowed him one month's.....
Judgment:

Mitter, J.

1. This appeal arises out of a decision of the Officiating Judge of Sarun, in the matter of the execution of a decree, which was obtained by the decree-holders, respondents before us, against the judgment-debtor, the appellant, in the Subordinate Judge's Court of Patna. The decree was transferred under the provisions of the Code for execution to the District Judge's Court of Sarun. The judgment-debtor raised various objections against the execution of the decree. All these objections have been disposed of by the District Judge of Sarun, excepting two,--viz., the objections relating to the plea of limitation and to the amount due under the decree. In this appeal the judgment of the lower Court is not questioned with reference to the objections which have been disposed of by the District Judge. As regards the plea of limitation, and the objections regarding the amount due under the decree, the District Judge held that he had no jurisdiction to entertain them. He was of opinion that it was for the judgment-debtor to raise them in the Court in which the decree was originally passed, and upon that ground he declined to go into them. It has been contended before us that the view taken by the lower Court of its power in this matter is erroneous, and is contrary to the Full Bench decision in the case of Leake v. Daniel B.L.R. Sup. Vol. 970; s.c 10 W.R. (F.B.) 10. It seems to us that the District Judge was not right in holding that he had no jurisdiction to entertain these objections. Under the Full Bench decision, no doubt, the Court to which the decree is transferred for execution may entertain objections like the present; but it is not laid down in that Full Bench decision that the Court cannot refer the objector to the Court which passed the decree. Under Section 239 of the present Code, the Court to which a decree is transferred may refer the objector to the Court which passed the decree.

2. In this case we find that the lower Court had no materials before it upon which it could satisfactorily dispose of the objections taken by the judgment-debtor, and although we do not agree with the lower Court in the view which it has taken, viz., that it had no power at-all to entertain these objections, yet we think that, in this case, the proper order that the lower Court should have passed was to postpone the execution proceedings under Section 239, and allow the judgment-debtor sufficient time to apply to the Court which originally passed the decree to entertain and adjudicate upon these objections. With reference to one of them, viz., the plea of limitation, the District Judge of Sarun subsequently did allow the judgment-debtor time to apply to the Patna Court to decide it. We find that an order was passed on the 16th of November, by which one month's time was allowed to the judgment-debtor to make the necessary application to the Patna Court. The judgment-debtor, instead of applying to the Patna Court, preferred this appeal on the 6th December 1881.

3. We ought to discourage such practices as these. The judgment-debtor, after the case was decided in the lower Court, made a special application to the District Judge to obtain time to make an application with reference to these objections in the Patna Court, and according to the prayer contained in his application the District Judge allowed him one month's time. Instead of taking advantage of this order, the judgment-debtor preferred this appeal. If the judgment-debtor had, in accordance with the order of the District Judge of Sarun, made an application to the Patna Court, the objections would by this time have been disposed of. However, be that as it may, we think that, under the circumstances, we should allow only a very short time to the judgment-debtor to make any objection he may wish to make in the Patna Court, and we accordingly allow him fifteen days from this date for that purpose. As we pass this order under Section 239, we think that, under the circumstances, we should impose this condition on the judgment-debtor under Section 240, that he should pay to the respondents in this case the costs of this appeal. We assess the hearing fee at Rs. 200. If within the time fixed by this Court no application is made by the judgment-debtor to the Patna Court, the judgment-creditors will be at liberty to apply to the Sarun Court to proceed with the execution-proceedings.


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