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Kedar Nath Mana Vs. Jogendra Nath Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.815
AppellantKedar Nath Mana
RespondentJogendra Nath Das
Cases ReferredShamsunder Saha v. Anath Bandhu Saha
Excerpt:
presidency small cause courts act (xv of 1882), section 31 (b) - decree, transfer of, for execution by small cause court to munsif direct, legality of--mistake, clerical, in name of decree--holder in copy of decree transmitted, whether of consequence. - .....appeal arises out of the following circumstances. one benode behari bose obtained a decree in the presidency small cause court against the appellant and subsequently sold this decree to one jogendra nath das. at the instance of jogendra nath dass the decree of the small cause court was transferred for execution to the munsif at uluberia, before the munsif three objections were taken and they were all overruled by him. there was an appeal to the subordinate judge but that was dismissed. the first objection taken in this court is that in the certificate, as also in the copy of the decree, the name of benode behari das was written in place of benode behari bose. this apparently was merely a clerical error and is of no consequence.2. the second objection relates to the notice of assignment......
Judgment:

1. This appeal arises out of the following circumstances. One Benode Behari Bose obtained a decree in the Presidency Small Cause Court against the appellant and subsequently sold this decree to one Jogendra Nath Das. At the instance of Jogendra Nath Dass the decree of the Small Cause Court was transferred for execution to the Munsif at Uluberia, Before the Munsif three objections were taken and they were all overruled by him. There was an appeal to the Subordinate Judge but that was dismissed. The first objection taken in this Court is that in the certificate, as also in the copy of the decree, the name of Benode Behari Das was written in place of Benode Behari Bose. This apparently was merely a clerical error and is of no consequence.

2. The second objection relates to the notice of assignment. The objections that were pressed in both the lower Courts were of an entirely different nature. We cannot, therefore, go into the question regarding the notice of assignment.

3. The third point is as follows. The decree was sent by the Small Cause Court direct to the Munsif without the intervention of the District Judge. It is said that this is an error and in consequence the subsequent proceedings will not merely be irregular but utterly void, and our attention has been drawn to the case of Debi Dial Sahu v. Maharaj Singh 22 C. 764 : 11 Ind. Dec (N.S.) 507. But under Section 31 (b) of the Presidency Small Cause Courts Act it is laid down that the Court may in all other cases (that is to say, other than the cases where execution is sought against immoveable property situate within the local limits of a High Court) send the decree for execution to any Civil Court within the local limits of whose jurisdiction any immoveable property of the judgment-debtor may be found. The Small Cause Court at, Calcutta reads that Section as meaning that the provision of Order XXI, Rule 5, of the Code of Civil Procedure, which requires that when the decree is transferred to another Court for execution that decree should be sent in the first instance to the District Judge, does not apply to the decrees of Presidency Small Cause Courts and the printed notice which accompanies the decree sent for execution invites the attention of the Court to which the decree is transferred to the fact that Order XXT, Rule 5 does not apply, I do not, of course, suggest that this statement by the Small Cause Court, has any legal effect, but I mention it merely to show that in sending the decree direct to the Munsif the Small Cause Court was following its usual practice. Looking at Section 31 (b). I cannot myself understand why there should be such a clause if it did not mean that the procedure of the Small Cause Court was put on a different footing from that of Other Courts in the matter of transferring decrees for execution. The question is one which does not appear to have been discussed on many occasions; but in the case of Shamsunder Saha v. Anath Bandhu Saha 6 Ind. Cas. 97 : 37 C. 574 : 14 C. W. N. 662 reference is made to this point and it appears to me that the proper interpretation to be put upon the judgment delivered by the late Chief Justice is that he held in that case that [he transfer of the decree to the Munsif direct was perfectly good under Section 31 (b) of the Presidency Small Cause Courts Act and that the incompetency of the Munsif in that case sprang solely from the fact that his pecuniary jurisdiction was not large enough to cover the decree sent to him. On the authority of this ruling as also upon what appears to be the plain meaning of Section 31 (b), I think that the objection is not tenable. I must add that the learned Vakil has expressly withdrawn the argument that the Munsif had not territorial jurisdiction to deal with the decree. I am of opinion that the appeal should be dismissed with costs. I assess the hearing fee at two gold mohurs.


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