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Rajani Kanta Pattadar Vs. Kazi Saiyed Golam MahiuddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal99
AppellantRajani Kanta Pattadar
RespondentKazi Saiyed Golam MahiuddIn and ors.
Cases ReferredJatindra Kumar Das v. Mohendra Chandra
Excerpt:
- .....said execution case was dismissed on part satisfaction on 30th april 1930. on 5th april 1933 the present application was filed by the decree-holders in the court of the subordinate judge of alipur. on 12th april 1933 the subordinate judge of alipur wrote to the district court at ranchi enquiring about the decree, but got a reply which was wrong; and thereafter wrote again, and then on 19th june 1933 received a reply dated 17th june 1933 in which it was stated that execution case no. 2 of 1929 had been dismissed on part satisfaction on 30th april 1930. on the said 19th june 1933, on receipt of the said reply, the present execution was registered. the judgment-debtor's contention was that the execution was barred. that contention having been overruled, he has preferred the present.....
Judgment:

1. The facts of this case are quite simple. The appeal is by a judgment-debtor who alleges that a decree which is being sought to be executed against him is barred. The decree was passed on 17th February 1926 by the Court of the Additional Sub-Judge of Alipur. On 21st January 1929 it was transmitted to the District Court at Ranchi and was executed in Execution Case No. 2 of 1929 in the Court of the Subordinate Judge of Ranchi. Thereafter the said execution case was dismissed on part satisfaction on 30th April 1930. On 5th April 1933 the present application was filed by the decree-holders in the Court of the Subordinate Judge of Alipur. On 12th April 1933 the Subordinate Judge of Alipur wrote to the District Court at Ranchi enquiring about the decree, but got a reply which was wrong; and thereafter wrote again, and then on 19th June 1933 received a reply dated 17th June 1933 in which it was stated that Execution Case No. 2 of 1929 had been dismissed on part satisfaction on 30th April 1930. On the said 19th June 1933, on receipt of the said reply, the present execution was registered. The judgment-debtor's contention was that the execution was barred. That contention having been overruled, he has preferred the present appeal.

2. The appellant relies on the decision of this Court in the case of Jatindra Kumar Das v. Mohendra Chandra 1933 Cal 906. The appellant's contention is that the application of 5th April 1933 was not an application made to a proper Court, since on that date the position was that the decree and the certificate of non-satisfaction had not been sent by the Ranchi Court to the Alipore Court where the application was made. The decision no doubt supports the appellant's contention. But with the utmost respect to Mitter, J. whose decision it is, we are unable to agree in his appreciation of the true effect of the decision of the Judicial Committee in the case of Maharaja of Bobilli v. Narasaraj 1916 PC 16 on which he has proceeded. In our opinion, the point upon which Their Lordships rested their decision was that the decree-holder wished to attach and sell certain land which was within the jurisdiction, not of the decreeing District Court but of the Court of the Munsif to which the decree had been transferred on his application, and the application relied upon to save limitation was an application made to the District Court, after such transfer, for an order for sale of the said land, which as already stated was not within its jurisdiction but within the jurisdiction of the Court of the Munsif, and therefore for an order which the District Court was not competent to make. We are in agreement with the view taken of the decision in Maharaja of Bobilli v. Narasaraj 1916 PC 16 in Fateh Chand v. Jitmul 1929 Bom 418 and K.K. Deb v. N.L. Chouddhry 1927 Rang 258. It has been pointed out to us that a passage in the decision of this Court in Sreenath v. Priyanath 1931 Cal 312, at p. 84, Col. 2, suggests the contrary interpretation accepted by Mitter, J. in Jatindra Kumar Das v. Mohendra Chandra 1933 Cal 906. The passage, in our opinion, was intended to mean that after a decree has been transferred by the Court which passed it to another Court for execution, and after execution proceedings have been started in the transferee Court, any further application in furtherance of the same execution proceedings would not lie, in the Court which passed the decree, but would lie in the transferee Court. To adopt Mitter, J's view in Jatindra Kumar Das v. Mohendra Chandra 1933 Cal 906 would land us in this difficulty: that we shall have to hold that simultaneous executions are not possible, a proposition which would be contrary to a number of authoritative decisions: vide the cases cited in Galstaun v. Dinshaw 1927 Cal 581.

3. Though we are not in agreement with the view taken in the case of Jatindra Kumar Das v. Mohendra Chandra 1933 Cal 906 we do not consider it necessary in the present case to make a reference to a Full Bench because we find that in that case the question which directly called for decision is not the same as has to be decided in the present case. In that case the application was relied upon for the purpose of saving limitation in respect of a subsequent application for execution and therefore the question was whether that previous application was made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree within the meaning of Clause 5 of Article 182, Limitation Act; and it may be that having regard to the definition of 'proper Court' contained in Expln. 2 to that Article the Court in which the application was made had at that moment no duty to perform in the matter of execution of the decree. But we are not expressing any opinion on this question and are only noticing a point of distinction. The question in the present case is whether the application of 5th April 1933, which in form as well as in substance was an application made to the Court which passed the decree with a prayer to transmit the decree to the Ranchi Court and to order execution in that Court, was not a good application as on the date on which it was filed. The execution which had been taken in the Ranchi Court had terminated on 30th April 1930 with an order dismissing the execution proceedings thereon part satisfaction. The decree-holder was evidently ignorant of the fact that the decree and the certificate of non-satisfaction had not arrived in the Alipur Court. It is the date of the certificate, 30th April 1930, and not the date on which the certificate arrived in the Alipore Court which is of any relevancy. At a time when no other execution proceedings in respect of the decree was pending any where, but only the certificate of non-satisfaction had not arrived, the present application was made with prayers which are competent. On the date of the application, it is true, the Court was not in a position to grant the prayers in the absence of the certificate of non-satisfaction. But we do not think there is any justification to treat the application as not made or made to a Court without jurisdiction.

4. We accordingly see no reason to hold that the application was barred. The appeal is dismissed. But we make no order as to costs.


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