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Murari Chowdhry and anr. Vs. Srihary Mundul - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal257
AppellantMurari Chowdhry and anr.
RespondentSrihary Mundul
Cases ReferredMungal Pershad Dichit v. Grija Kant Lahiri I.L.R.
Excerpt:
limitation - execution of decree--jurisdiction of court where decree was passed--transfer of decree for execution--code of civil procedure, sections 223, 239, 248. - .....decided by the court at beerbhoom. we may refer to section 224(c) under which the court sending a decree for execution by any other court is required to send a copy of any order that may be passed for the execution of the decree. in this case we apprehend that the moorshedabad court would have sent a copy of the order made by it on receipt of the report of the service of the notice under section 248. as it has been held that, but for mungal pershad dichit's case, execution of the decree is barred by limitation, and that case, in our opinion, does not apply, the order of the lower court must be set aside and its finding on the actual facts accepted. in substitution for the orders passed, it will accordingly be declared that execution is barred by limitation. the judgment' debtor will.....
Judgment:

Prinsep and Beverley, JJ.

1. This appeal relates to the execution of a decree passed by the Subordinate Judge of Moorshedabad, which has been transferred under Section 223 of the Code of Civil Procedure, to the District Court of Beerbhoom. The application for transfer was made on the 4th March 1884, and before transferring the decree the Subordinate Judge of Moorshedabad issued the notice required by Section 248 on the judgment-debtors. After report made of due service, the proceedings requisite for transfer of the decree were taken. On the application of the decree-holder, certain properties belonging to the judgment-debtors were attached in the district of Beerbhoom, on which one of the judgment-debtors objected to the attachment, and obtained an order under Section 239 staying execution of the decree so as to enable him to apply to the Moorshedabad Court to consider his objections. The exact terms of this order are not before us, because the order in appeal is from the Moorshedabad Court, and the proceedings of the Beerbhoom Court have not been sent up. However for the purposes of this appeal, it is sufficient to say that the Beerbhoom Court passed an order under Section 239. The Subordinate Judge as the Court which passed the decree and the District Judge in appeal have concurrently rejected the objection made by the judgment-debtor, that execution was barred by limitation, and they have relied on the judgment of the Privy Council in the well-known case of Mungal Pershad Dichit v. Grija Kant Lahiri I.L.R. 8 Cal. 51. It appears to us that both the Courts have misapprehended this judgment of the Privy Council in applying it to the present case. In that case the objection raised was that the sixth application for execution was barred by limitation, and that, therefore, the seventh application, that is, the application under which the proceedings were then being taken, was inoperative. Their Lordships held that no objection had been raised in the course of the proceedings taken on the sixth application, but that the debtor had appeared, and in applying for the postponement of the sale had submitted to the attachment of his property. The Privy Council accordingly held that the Court could not re-open the previous proceedings. In the case before us, the objection is taken to the application now before the Court. The District Judge appears to have held that the objection of limitation cannot be allowed to be raised by the judgment-debtor, because he has submitted to certain proceedings in the Beerbhoom Court. But the only proceeding1 taken by that Court against him was one of attachment of his property, and the judgment-debtor forthwith objected to such attachment, and obtained an order from the Court staying further proceedings under Section 239. There was consequently no adjudication of this point against the judgment-debtor in the Beerbhoom Court.

2. The next question raised is whether the Moorshedabad Court had any jurisdiction to entertain such objection, the decree having been transferred to the Beerbhoom Court for execution. The terms of Sections 239 and 242 seem to us to recognise the jurisdiction of the Moorshedabad Court. The cases which have been cited to us merely show that the Court to which a decree has been transferred for execution has jurisdiction to determine an objection of limitation, such as has been raised in the present case; but none of the cases go so far as to exclude the jurisdiction of the Court which passed the decree. In the present case the notice under Section 248 was passed by the Moorshedabad Court, and the judgment-debtor before us also contends that his objection that no service of this notice was made should be heard by that Court. One of the objects of serving such a notice is to enable the judgment-debtor to object to execution of the decree because it is barred by limitation, and therefore we also think that the Moorshedabad Court from which the notice issued would be the proper Court to determine this matter, although it might also have been raised and decided by the Court at Beerbhoom. We may refer to Section 224(c) under which the Court sending a decree for execution by any other Court is required to send a copy of any order that may be passed for the execution of the decree. In this case we apprehend that the Moorshedabad Court would have sent a copy of the order made by it on receipt of the report of the service of the notice under Section 248. As it has been held that, but for Mungal Pershad Dichit's case, execution of the decree is barred by limitation, and that case, in our opinion, does not apply, the order of the lower Court must be set aside and its finding on the actual facts accepted. In substitution for the orders passed, it will accordingly be declared that execution is barred by limitation. The judgment' debtor will receive his costs of all the Courts.


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