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Kusum Kamini Debi Vs. Sailesh Chandra Chakravarty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal118
AppellantKusum Kamini Debi
RespondentSailesh Chandra Chakravarty and ors.
Cases ReferredPrakash Chandra v. Ramnarain
Excerpt:
- 1. this is an appeal by the decree-holder in an execution case. it appears that the appellant obtained a decree for rs. 6,399-9-6 and costs rupees 4-1-3 against the judgment-debtors. it further appears that on the application of the decree-holder the decree was split up into two parts and a certificate for the execution of one part of the decree, namely rs. 1,500, was sent to the subordinate judge's court at dinajpur. the objection of the judgment-debtors was that the execution case was not maintainable inasmuch as the decree-holder had no right to split up the decree in this way. this objection of the judgment-debtors has been given effect to by the learned subordinate judge and the execution case has been dismissed. hence the present appeal by the decree-holder.2. section 39, civil p.c,.....
Judgment:

1. This is an appeal by the decree-holder in an execution case. It appears that the appellant obtained a decree for Rs. 6,399-9-6 and costs Rupees 4-1-3 against the judgment-debtors. It further appears that on the application of the decree-holder the decree was split up into two parts and a certificate for the execution of one part of the decree, namely Rs. 1,500, was sent to the Subordinate Judge's Court at Dinajpur. The objection of the judgment-debtors was that the execution case was not maintainable inasmuch as the decree-holder had no right to split up the decree in this way. This objection of the judgment-debtors has been given effect to by the learned Subordinate Judge and the execution case has been dismissed. Hence the present appeal by the decree-holder.

2. Section 39, Civil P.C, lays down that the Court which passed a decree may, on the application of the decree-holder send it for execution to another Court. Evidently the section contemplates that the entire decree and not a part of it is to be sent for execution to other Court or Courts. There is no provision in the Civil Procedure Code under which a decree-holder who has obtained a decree can divide a decree into several parts and execute them piece-meal in different Courts or in the same Court. This view is supported by the decisions in Forester v. Baker (1910) 2 KB 636 and in Prakash Chandra v. Ramnarain 1917 Pat 70. We are therefore of opinion that the learned Subordinate Judge was right in dismissing the application for execution. The effect of this order is that the executing Court is to inform the Court which passed the decree that it has failed to execute it inasmuch as the certificate which was sent to it was irregular. The result therefore is that this appeal is dismissed with costs hearing fee being assessed at two gold mohurs.


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