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Ranjit Kumar Banerjee Vs. Gour Hari Mukherji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1993 of 1954
Judge
Reported inAIR1956Cal655,60CWN752
ActsCode of Civil Procedure (CPC) , 1908 - Section 24
AppellantRanjit Kumar Banerjee
RespondentGour Hari Mukherji and ors.
Appellant AdvocateBimal Kumar Banerji, Adv.
Respondent AdvocateSudhir Kumar Datta, Adv. (for No. 1) and ;Murari Mohan Mukherji, Adv. (For No. 2)
Cases ReferredKishori Mohun Sett v. Gul Mohamed Shaha
Excerpt:
- .....subordinate to such court of sadar dewanny adawlut, to transfer to a principal sudder ameen any civil proceedings, whether miscellaneous or summary which may be pending at the time when such order is issued ............ and all proceedingstransferred shall be disposed of by the said principal sudder ameen............'in 'kedarnath mahata v. bungshee dhur roy', 17 wr 45 (c), glover j., had to consider whether under this section, the district judge could transfer execution cases from his own court to the court of the subordinate judge, and held that the section gave no authority to the district judge to transfer execution cases.4. in act 8 of 1859 the code of civil procedure which became law on 22-3-1859, there wasa provision in section 6 that 'the sudder court may order that the.....
Judgment:

Das Gupta, J.

1. This Rule was directed against the order of the learned District Judge of Howrah, refusing an application made by the present petitioner, who has obtained two separate decrees for ejectment and has put them into execution in. two different Courts, for transferring the same to one of these Courts.

2. It appears to us that whatever might have been said on the merits, the position in law is that such a transfer cannot be allowed under Section 24, Civil P. C. The relevant provisions of Section 24, Civil P. C. arc that the High Court or the District Court may withdraw any suit, appeal or other proceeding pending in any Court tubordi-nate to it and transfer the same for trial to any Court subordinate to it and competent to try or dispose of the same. The question is whether an execution proceeding is within the words 'suit or other proceeding.' In several other High Courts, the view has been taken that an execution proceeding is really a part of a suit and consequently an execution proceeding can be transferred under S. 24, Civil P. C. (Vide - 'Muhammad Habib Ullah v. Tikam Chand : AIR1925All276 . It appears, however, that no notice was taken in these cases of the decision in - 'Thakur Pershad v. Fakir Ullah', 22 Ind App 44 (B), where the Judicial Committee of the Privy Council decided that Section 373 of the old Code which refers to withdrawal of suits did not apply to execution proceedings. It is important to note that in the above decision, the Judicial Committee considered the further question whether execution proceedings fell within the words, 'other proceedings' as used in the old Section 647, corresponding to the present Section 141, Civil P. C. They answered the question In the negative and observed

'that the proceedings spoken of in E. 647 include original matters in the nature of suits such as proceedings in probstes, guardianships, and so forth, and do not include executions.'

They pointed out further that the explanation added by Act 6 of 1892 that nothing in Section 647 will apply to execution proceedings added nothing to the law. If the words, 'other proceedings' appearing in Section 647 of the old Code of Civil Procedure be interpreted in view of the Privy Council decision to exclude execution proceedings, it is difficult to see how the words occurring in Section 24 of the present Code can be interpreted to include execution proceedings. I think that we are bound, on the authority of 'Thakur Pershad's case (B)', to hold that Section 24, Civil P. C., does not apply to execution proceedings.

3. It is important to note in this connection that this Court has all along taken the view that execution proceedings cannot be transferred under the general provisions in the Code permitting transfer of proceedings or suits. In Act 25 of 1837, Section 8 provided that

'it shall be competent to either of the Courts . of Sudder Dewanny Adawlat ........ to authorise the Judge of any Zilla or City Court, subordinate to such Court of Sadar Dewanny Adawlut, to transfer to a Principal Sudder Ameen any Civil Proceedings, whether miscellaneous or summary which may be pending at the time when such order is issued ............ and all proceedingstransferred shall be disposed of by the said Principal Sudder Ameen............'

In 'Kedarnath Mahata v. Bungshee Dhur Roy', 17 WR 45 (C), Glover J., had to consider whether under this section, the District Judge could transfer execution cases from his own Court to the Court of the Subordinate Judge, and held that the section gave no authority to the District Judge to transfer execution cases.

4. In Act 8 of 1859 the Code of Civil Procedure which became law on 22-3-1859, there wasa provision in Section 6 that

'the Sudder Court may order that the cognizance of any suit or appeal which may be insti- tuted in any Court subordinate to such Sudder Court, shall be transferred to any other Court subordinate to its authority.........,,..'

5. In 'Shaikh Hamidooddeen v. Bhadae Sahool, 18 WR 345 (D), which was decided in the year 1872, Sir Richard Couch C. J. and Ainslie J., decided that the Judge had no power to make an order transferring certain proceedings in execu- f tlon to the Subordinate Judge when the Court of the Sudder Ameen of Gya ceased to exist.

6. In comparatively recent years, this Court had to consider the question in - 'Kishori Mohun Sett v. Gul Mohamed Shaha', 15 Gal 177 (E), and decided to adhere to the view which had all along been taken by this Court that there was no power to transfer execution proceedings. At the time of this decision the Civil Procedure Code of 1882 was in force there. Section 25 corresponding to the present Section 24 did not include the words 'other proceedings' but Section 647 without the explanation added by Act 6 of 1892 was in force.

7. I have, therefore, come to the conclusion that having regard to the view consistently taken in this Court and on the authority of - 'Thakur Pershad's case (B)', we should hold that execution proceedings cannot be transferred under S. 24, Civil P. C.

8. The Rule is therefore discharged.

9. There will be no order as to costs.

Guha, J.

10. I agree.


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