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AminuddIn Mullick Vs. Atormoni Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.879
AppellantAminuddIn Mullick
RespondentAtormoni Dasi and ors.
Excerpt:
civil procedure code (act v of 1908), sections 37, 38, 150 - mortgage suit--preliminary decree by munsif--final decree by subordinate judge--execution of decree--court, proper. - .....decree sent to that court for execution. section 37 lays down that 'the expression 'court which passed a decree' or words to that effect shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include--(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance, and(b) where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try the suit.5. now the court of the subordinate judge which passed the decree had not ceased to exist nor ceased to have.....
Judgment:

1. This appeal arises out of proceedings in execution of a mortgage decree.

2. The preliminary decree upon the mortgage was obtained in the Court of the 2nd Munsif of Howrah who had power to try suits up to the value of Rs. 2,000, the decree being nearly for that sum. Subsequently the Munsif having been transferred and his successor not having been vested with powers to try suits up to Rs. 2,000, the final decree in the case was made by the Subordinate Judge of Howrah. The plaintiff decree-holder, howevar, applied for execution of the decree before the 2nd Munsif who had, in the meantime, been empowered to try suits upto Rs. 2,000. The decree was executed in that Court, with the result that certain properties of the judgment debtor were sold and a portion of the decree was realised by the proceeds of the sale.

3. The judgment debtor then applied to have the sale set aside under the provisions of Order XXI, Rule 90. So far as the application was based on Order XXI, Rule 90, no evidence was add used by the judgment debtor in support of his application. The only question which was considered by the Courts below was whether the Munsif, 2nd Court, had jurisdiction to execute the decree and the question has been answered in the affirmative by both the Courts below. The judgment-debtor has appealed to this Court.

4. The Additional District Judge has relied on the provisions of Sections 37 and 38 of the Civil Procedure Code. Section 38 says that 'the decree may be executed either by the Court which passed it or by the Court to which it is sent for execution.' The Munsif's Court was not the Court which passed the decree, nor was the decree sent to that Court for execution. Section 37 lays down that 'the expression 'Court which passed a decree' or words to that effect shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include--

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try the suit.

5. Now the Court of the Subordinate Judge which passed the decree had not ceased to exist nor ceased to have jurisdiction to execute it because Section 38 expressly provides that a decree may be executed by the Court which passed it. We think, however, that the Munsif's Court had power to execute the decree under Section 150, Civil Procedure Code. That section runs thu9: ''Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred, shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.' As soon as the second Munsif's Court was vested with the powers to try suits upto Rs. 2,000 in value, the business in the Subordinate Judge's Court, so far as it related to suits upto the value of Rs. 2,000, must be taken to have been transferred to the Munsif's Court, and that Court would have the same powers and would perform the same duties as those respectively conferred and imposed by the Code upon the Court of the Subordinate Judge, from which the business was so transferred. There are no doubt the words 'save as otherwise provided,' but we do not think that those words exclude execution cases from the purview of the section. We are, therefore, of opinion that the Munsif's Court had jurisdiction to execute the decree.

6. The appeal is accordingly dismissed with costs, one gold mohur.


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