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Latchman Pundeh Vs. Maddan Mohun Shye and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR6Cal513
AppellantLatchman Pundeh
RespondentMaddan Mohun Shye and ors.
Cases Referred and Doed Edney v. Benham
Excerpt:
execution of decree - court which passed the decree--civil procedure code (act x of 1877, as amended by act xii of 1879), sections 223, 649--limitation act (xv of 1877), schedule ii, article 179, clause 4. - .....of the local government (see section 3 of act xi of 1865). the application for execution of a decree passed by such an abolished court must now be made to the munsif who would have jurisdiction to entertain the suit in which such decree was made, if such suit were instituted at the time when application for such execution is made. another example is, where the sudder ameen who had jurisdiction throughout the whole of the district with a pecuniary limit exceeding that of a munsif was abolished as such, the officer who was sudder ameen becoming the munsif at head-quarters with a local jurisdiction limited to a single munsif usually that at head-quarters. see clause 2, section 4, read with section 8 of the repealed act xvi of 1868. a decree passed by such a sudder ameen who had a local.....
Judgment:

Field, J.

1. The decree which forms the subject of these proceedings was passed on the 5th of December 1876 by the Munsif of Manbazaar. Subsequent to the passing of that decree, the head-quarters of the Manbazaar Munsifi were transferred from Manbazaar to Barabazaar, and the local limits of the jurisdiction of the same Munsifi were altered by transferring certain than as to the district of West Burdwan and forming them into, or uniting them within, another Munsif, termed the Katra Munsifi.

2. On the 5th of December 1879, the decree-holder applied to the Munsif of Manbazaar, then stationed at Barabazaar, to have his decree executed. The decree was a money-decree, which also declared a lien on certain immoveable property. This immoveable property was, at the time of making the decree, within the jurisdiction of the Manbazaar Munsifi; and by reason of the transfer, to which I have adverted, became subsequently, and was on the 5th of December 1879, a portion of the local jurisdiction of the Katra Munsifi.

3. The lower Courts appear to be of opinion that because this immoveable property was no longer within the jurisdiction of the Manbazaar Munsif, this Munsif had no jurisdiction to execute or to entertain an application for the execution of the decree.

4. It appears to me that this viewis an erroneous one. The jurisdiction to execute a decree is given by Section 223 of the Code of Civil Procedure; and according to that section a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution under the provisions of the Act thereinafter contained.

5. Now it appears to me that the Munsif's Court at Manbazaar did not cease to be 'the Court which passed the decree' merely by reason that the headquarters of the Munsif had been moved to another place, or merely by reason that the local limits of the jurisdiction of the Munsif were altered. This being so, it is clear that the execution of the decree might have been bad in the Court of the Munsif of Barabazaar.

6. A good deal of discussion has taken place during the argument in this case about the meaning of Section 649 of the Amended Code of Civil Procedure. That section provides that the expression in Chap. XIX of the Code, 'Court which passed the decree,' or words to that effect, shall, unless there be anything repugnant in the context, be deemed to include, where the decree to be executed is passed in appeal, the Court which passed the decree against which the appeal was preferred; and where the Court which passed the decree to be executed has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed were instituted at the time of making application for execution of the decree would have jurisdiction to try such suit.'

8. It has been contended, that because the immoveable property included in the decree is now situated within the jurisdiction of the Katra Munsif, therefore the application for the execution of the decree must be made to the Katra Munsif's Court, because if a suit were now to be brought in respect of such immoveable property, such suit must be instituted in the Katra Munsif's Court. It appears to me that this contention is untenable, for the Court which passed the decree has not ceased to exist or ceased to have jurisdiction to execute it.

9. The words of the section (649) are, it may be observed, in extension of the original and literal meaning of the expression 'Court which passed the decree.' The definition contained [518] in Section 649 was not intended by the Legislature to limit or confine the natural meaning of the expression ' Court which passed the decree' to the exact instances stated in the new section. This is the usual interpretation put upon the word 'include' when employed in the definition portion of a Statute. See Rej v. Kershaw (6 E. and B., 999, at p. 1007); Ex parte Ferguson (L. R., 6 Q. B., 280, at p. 291); Pound V. Plumstead Board of Wards (L. R., 7 Q. B., 183); and Doed Edney v. Benham (7 Q.B., 976, at p. 979). It follows, therefore, that the expression 'Court which passed the decree' must in this ease still include the Court of the Munsif of Barabazaar.

10. The words in Section 649, which have reference to the Court which passed the decree ceasing to exist, refer to a class of cases not uncommon in these provinces, in which a Small Cause Court having been in existence for a certain number of years has afterwards been abolished by an order of the Local Government (see Section 3 of Act XI of 1865). The application for execution of a decree passed by such an abolished Court must now be made to the Munsif who would have jurisdiction to entertain the suit in which such decree was made, if such suit were instituted at the time when application for such execution is made. Another example is, where the Sudder Ameen who had jurisdiction throughout the whole of the district with a pecuniary limit exceeding that of a Munsif was abolished as such, the officer who was Sudder Ameen becoming the Munsif at head-quarters with a local jurisdiction limited to a single Munsif usually that at head-quarters. See Clause 2, Section 4, read with Section 8 of the repealed Act XVI of 1868. A decree passed by such a Sudder Ameen who had a local jurisdiction over the whole district could, therefore, be executed in the Court of the Munsif before whom a suit would now be instituted in respect of the claim for which the decree was passed by the Sudder Ameen. In the absence of these provisions, and after the repeal of Act XVI of 1868, there was doubt as to the Court which had jurisdiction to execute such a decree. While Clause 2 of Section 4 and Section 8 of Act XVI of 1868 remained in force, application for execution must have been made to the Court of the Sudder Munsif; but in this case, if the decree-holder sought to attach and sell property situate within the existing local limits of jurisdiction of another Munsif, it would have been necessary to transfer the decree to such Munsif for execution under the provisions on this behalf contained in the Code.

11. The words 'cease to have jurisdiction to execute it' in Section 649 were intended(sic)to meet such a case as the following;-for example, where an Additional or Subordinate Judge, attached to more than one district, having passed a decree in one district, leaves this district and sits in another district under the provisions of Section 15 of the Bengal Civil Courts Act, such Additional or Subordinate Judge is a Court. 'When such a Court is sitting in a district other than that in which the decree was passed, it has not ceased to exist, but it has ceased to have jurisdiction to execute that particular decree. Under the provisions of Section 649, application for execution can then be made to the Court which at the time of making the application would have jurisdiction to entertain the suit in which the decree was passed.

12. It being thus clear that an application for the execution of the decree in this case could be made to the Munsif of Manbazaar or Barabazaar, whose Court was, in the literal sense of the term, the Court, which passed the decree, it was competent to the Manbazaar Munsif to transfer this decree for execution under the provisions contained in Section 223 to the Katra Munsif. When the decree was so transferred, it was the duty of the Katra Munsif to proceed under the provisions of the Code to effect the execution thereof.

13. I may here observe that there is a distinction between the jurisdiction of the Court to execute the decree and the circumstances under which effective execution can be had. Clause (c) of Section 223 appears to me to have direct reference to a case like the present. The Munsif of Manbazaar could not make a decree directing the sale of the immoveable property included in the present decree, unless at the time when the plaint was filed in the case in which such decree was made that property was situate within the local limits of the jurisdiction of his Court. The fact of the site of this property having been, subsequent to the making of the decree, placed outside the local limits of his jurisdiction, brings the case within Clause (c).

14. There is one more point in the case which it is necessary to notice, and that has reference to the Limitation Act. I have pointed out that, in my opinion, the Munsif of Barabazaar, as being the Court which passed the decree, was competent to execute it. Execution might have been had against the person or moveable property of the Judgment-debtor, if at any time found within the jurisdiction of the Barabazaar Munsif. But if no such execution could be had, because the Judgment-debtor did not reside or come within, and had no moveable property within, such Munsif's jurisdiction, it is clear that the only course open to the decree-holder to obtain effective execution would be to apply to the Court of the Barabazaar Munsif under Section 230 to have the decree sent for execution to the Katra Munsif. Now if the application to the Barabazaar Munsif be taken to be not an application for the execution of the decree, but merely an application for the transfer of the decree under the provisions contained in Section 223 and following sections, it appears to me that such an application for transfer is a step in aid of the execution of the decree within the meaning of Clause 4, Article 179 of the second schedule of the present Limitation Act, and that, therefore, the decree-holder would have a fresh period of three years from the date of such application for transfer. Were it otherwise-were the date of the application made under Section 230 to enforce a decree sent to another Court to be taken as the date up to which the period of limitation may extend, inasmuch as no such application can be made until the decree has been sent, a decree-holder would often be barred through no laches of his own, but merely because, although he had applied in time under Section 223 to have the decree sent to the other Court, delay in transmitting it had occurred in consequence of some one of the many causes which retard the completion of office work.

15. For these reasons, I concur in thinking that the order of the lower Court must be reversed.


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