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Debi Prosanna Ghosh Vs. Indra NaraIn Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal791
AppellantDebi Prosanna Ghosh
Respondentindra NaraIn Pal and ors.
Excerpt:
- .....the court of the first munsif at rampurhat on 14th july 1937. admittedly, the court of the first munsif had no jurisdiction to entertain this application. it was consequently returned by him for presentation to the proper court on 15th july 1937, and on the same day, it was presented by the decree-holder to the court of the second munsif of rampurhat. the court of first instance dismissed the application for execution on the ground that it was barred by limitation. this decision was however reversed by the lower appellate court on the ground that the application was not time-barred, having regard to the provisions of section 14 (2), limitation act (act 9 of 1908). with regard to this point the judgment of the lower appellate court contains a finding to the effect that the.....
Judgment:

Edgley, J.

1. The judgment-debtor is the appellant in this case. It appears that the decree-holders applied for the execution of a decree for costs which they had obtained against the appellant. The decree was passed by the District Judge of Birbhum on 14th July 1934. The decree-holders applied for execution in the Court of the First Munsif at Rampurhat on 14th July 1937. Admittedly, the Court of the First Munsif had no jurisdiction to entertain this application. It was consequently returned by him for presentation to the proper Court on 15th July 1937, and on the same day, it was presented by the decree-holder to the Court of the Second Munsif of Rampurhat. The Court of first instance dismissed the application for execution on the ground that it was barred by limitation. This decision was however reversed by the lower Appellate Court on the ground that the application was not time-barred, having regard to the provisions of Section 14 (2), Limitation Act (Act 9 of 1908). With regard to this point the judgment of the lower Appellate Court contains a finding to the effect that the decree-holders had no mala fide motive in filing their application for execution in the first Court. In view of the reasons given by the learned District Judge in respect of this finding, he seems to have been clearly of the opinion that the application for execution was prosecuted in good faith in a Court, which from defect of jurisdiction was unable to entertain it. In my view this finding of the learned District Judge Amounts to a finding of fact.

2. It is however urged by the learned advocate for the appellant in this case that the decision of the lower Appellate Court is wrong because the First Munsif had no jurisdiction to return the application for execution which had been filed by the decree-holders. He contends that there is no direct provision in Order 21, Civil P.C., which authorises a Court to return an application for execution. As pointed out however by the learned District Judge, there is no Section of the Code forbidding a Court to return an application for execution if it has been filed in a wrong Court and, in my view, if such an application is filed before a Court which has no jurisdiction to receive it, such Court, in circumstances such as those which arise in the present case, would be fully competent to return the application in exercise of its inherent power under Section 151, Civil P.C. In view of what is stated above, I consider that the decision of the lower Appellate Court is correct. It is therefore affirmed, and this appeal is dismissed with costs, the hearing fee being assessed at one gold mohur.


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