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Jahar Vs. Kamini Debi (Wife of Nanda Kumar Jha) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1901)ILR28Cal238
AppellantJahar
RespondentKamini Debi (Wife of Nanda Kumar Jha)
Cases ReferredHiralal v. Budri Dass
Excerpt:
decree, execution of - transfer of decree for execution--court which passed the decree--transfer of local jurisdiction--civil procedure code (act xiv of 1882),section 228 and section 649--limitation act (xv of 1877), section 14--bona fide proceeding. - .....by order of the local government, to the court of the munsif of malda. nevertheless the decree-holder took out execution of his decree, within the time fixed by the law of limitation, in the malda court, and in the course of the execution, a sum of money was paid towards liquidation of that decree. a second application for execution was made in february 1899 in the same court, but the decree-holder was referred to the nawabganj court, as being the court which had passed the decree, and which was alone competent to execute it, in order that an application might be made for the transfer of the decree for execution by the munsif of malda. when an application for execution was made to the munsif of malda, on a certificate transferring the decree to him, the judgment-debtor pleaded.....
Judgment:

1. The decree sought to be executed in this case was made by the Court of the Munsif of Nawabganj, but the local jurisdiction in respect of the subject-matter of this suit appears to have been subsequently transferred, by order of the Local Government, to the Court of the Munsif of Malda. Nevertheless the decree-holder took out execution of his decree, within the time fixed by the law of limitation, in the Malda Court, and in the course of the execution, a sum of money was paid towards liquidation of that decree. A second application for execution was made in February 1899 in the same Court, but the decree-holder was referred to the Nawabganj Court, as being the Court which had passed the decree, and which was alone competent to execute it, in order that an application might be made for the transfer of the decree for execution by the Munsif of Malda. When an application for execution was made to the Munsif of Malda, on a certificate transferring the decree to him, the judgment-debtor pleaded limitation, The Munsif overruled that plea and gave the decree holder the benefit of Clause 3 of Section 14 of the Limitation Act, holding that he was entitled to a deduction of the time during which the application, erroneously made to the Munsif of Malda, had been pending, as he held that such proceedings had been taken in good faith. The District Judge, on appeal, expressed a contrary opinion, holding that ignorance of the law on the part of the decree-holder would not constitute good faith. The District Judge, however, on other grounds, affirmed the order of the Munsif, holding that the proceedings, erroneously taken in the Malda Court, were not absolutely void but voidable, and that the judgment-debtor having condoned the error committed By the decree-holder and having accepted the jurisdiction by making part payment of the decree, the proceedings were saved under, Section 14 of the Limitation Act.

2. The first question raised before us in this appeal is, what Court was competent to execute this decree, and it is contended that the Court of the Munsif of Nawabganj was alone competent to execute it, being the Court which passed it within the terms of Section 223 of the Code of Civil Procedure, and it was also contended that, although the Munsif of Malda might now alone have jurisdiction to try the suit by reason of the transfer to his jurisdiction of the locality in which the subject matter of the suit is situated, he would not be the Court to have jurisdiction to execute the decree passed by the Munsif of Nawabganj. As authority for this we have been referred to the case of Kalipodo Mukerjee v. Dino Nath Mukerjee (1897) I.L.R. 25 Cal. 315. That case, however, is distinguishable from the present, for it was held--that the District Judge's order under Clause 2 of Section 13 of the Bengal Civil Courts Act did not amount to a transfer of jurisdiction, but was merely an order for the distribution of business amongst two Courts, each having jurisdiction. In the present case, however, the order of transfer was of a different character. It was an order by the Local Government which readjusted the boundaries of two adjoining mouzahs, so as to place the lands, the subject matter of the suit, within the jurisdiction of the Munsif of Malda. There was, therefore, no mere re-distribution of business as in the case in I.L. Rule 25 Cal. but a removal of jurisdiction over this locality. The case of Lutchman Pandeh v. Madan Mohun Shye (1880) I.L.R. Cal. 513. seems to us more appropriate in dealing with the terms of Section 649 of the Code of Civil Procedure. It was there held that the terms of that law were permissive and, applying that judgment to the facts of the present case, the Munsif of Nawabganj did not cease to have jurisdiction in the matter of the execution of the decree but that the decree might also be executed by the Munsif of Malda. This interpretation seems to us to be in accordance with Section 17 of the Bengal Civil Courts Act. We think, therefore, that the proceedings in the Court of the Munsif of Malda were not without jurisdiction, so as to have the effect of barring the present application as not made within the period of limitation.

3. We are also of opinion that the grounds upon which the District Judge has held that the time occupied in the proceedings taken by the decree-holder in the Malda Court should not be excluded are unsound. He has held that ignorance of law, that is to say, ignorance on the part of the decree-holder that his application for execution could only be made in the Court of Nawabganj in which the decree was passed and that the Malda Court had no jurisdiction to execute that decree, prevented his pleading good faith within the terms of Section 14 of the Limitation Act. The case of Hiralal v. Budri Dass (1180) I.L.R. 2 All. 729; L.R. 7 I.A. 167. is an authority to the contrary. It was there held that proceedings taken erroneously in a Court which had no jurisdiction, but which was believed by the decree-holder to have jurisdiction, were bona fide. Their Lordships of the Privy Council pointed out in that case that the Judge himself believed he had jurisdiction and acted accordingly, so also in the present case.

4. The appeal is, therefore, dismissed with costs.


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