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J.C. Galstaun Vs. F.E. Dinshaw and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal581
AppellantJ.C. Galstaun
RespondentF.E. Dinshaw and ors.
Cases ReferredBaijnath Goenka v. F.H. Holloway
Excerpt:
- mukerji, j.1. by two indentures of mortgage, one dated the 31st march 1921 in favour of mr. framroz edulji dinshaw and two others, and another dated the 28th june 1925 in favour of mr. framroz fdulji dinshaw alone, mr. j.c. galstaun borrowed 30 lacs and 2 lacs of rupees respectively on hypothecation of some immovable properties. in february 1926 the mortgagees having attempted to sell the mortgaged properties without the intervention of the court on the strength of a covenant in the deeds, mr. galstaun instituted a suit in the court of the subordinate judge at alipore for a declaration that the mortgagees are not entitled to exercise that power of a sale and for an injunction restraining them from doing so and obtained a temporary injunction to that effect in his favour thereafter the.....
Judgment:

Mukerji, J.

1. By two indentures of mortgage, one dated the 31st March 1921 in favour of Mr. Framroz Edulji Dinshaw and two others, and another dated the 28th June 1925 in favour of Mr. Framroz Fdulji Dinshaw alone, Mr. J.C. Galstaun borrowed 30 lacs and 2 lacs of rupees respectively on hypothecation of some immovable properties. In February 1926 the mortgagees having attempted to sell the mortgaged properties without the intervention of the Court on the strength of a covenant in the deeds, Mr. Galstaun instituted a suit in the Court of the Subordinate Judge at Alipore for a declaration that the mortgagees are not entitled to exercise that power of a sale and for an injunction restraining them from doing so and obtained a temporary injunction to that effect in his favour Thereafter the mortgagees instituted two suits in the High Court of Judicature at Bombay in its Original Jurisdiction for moneys due on the said mortgages being Suits Nos. 1418 and 1420 of 1926, on the basis of the personal covenants contained in them. On the 8th October 1926 decrees were passed in these suits, in the former for Rs. 2,12,686-3-0 and in the latter for Rs. 31,24,373-5-0.

2. Early in November last the two decrees were transferred by the Court which passed them : the decree in Suit No. 1418 of 1926 to the first Court of the Subordinate Judge at Alipore, and that in Suit No. 1420 of 1926 to this Court in its Original Jurisdiction.

3. On the 10th November 1926 an application was made by the decree-holders in the first Court of the Subordinate Judge at Alipore for attachment of the moveable properties of the judgment-debtor, and the learned Judge made an order for attachment under Order 21, Rule 30, Civil P.C. fixing 6th December 1926 for return and further orders, Thereafter on the objection of the judgment-debtor he passed further orders from time to time, allowing the judgment-debtor time to pay up the decretal dues. He eventually passed an order on the 17th November 1926 deferring the issue of the writ to the 27th November 1926 and on the last-mentioned date again deferred it till the 22nd December 1926. Against these two orders the decree-holders moved this Court and obtained a Eule which is Rule No. 1188 of 1926.

4. Rule No. 1188 of 1926 was partly heard by us on the 22nd December 1926. The time granted by the Subordinate Judge having expired, the judgment-debtor applied on the 22nd December 1926 to the learned Judge for further time, and the learned Judge again granted time to the judgment-debtor till the 31st January 1927. The decree-holders moved this Court on the 4th January 1927 against this and a subsequent order passed by the learned Judge on the 23rd December 1926 in connexion with this matter, and we directed the application to be made with notice to the judgment-debtor and we also sent for the judgment-debtor's application upon which the order of the 22nd December 1926 was made. The notice having been given and the application so sent for having arrived, we heard the decree-holders' application on the 7th January 1927. This application will be dealt with along with Rule No. 1188 of 1926.

5. It has been already stated that the decree in Suit No. 1420 of 1926 was transferred to this Court in its Original Jurisdiction early in November last. Thereafter at the instance of the decree-holders in that suit, a precept under Section 46, Civil Procedure Code, was issued by the Bombay High Court on the 2nd December 1926 to the Subordinate Judge of 24-Parganas at Alipore for attachment of certain moveable properties of the judgment-debtor. It was received by the Subordinate Judge 1st Court, Alipore, on the 6th December 1926 and on that day an application was made by the decree-holders to execute the same, and the learned Judge made an order directing a writ of attachment to issue. The judgment-debtor objected to the issue of the writ but his objections were overruled. The issue of the writ, however, was deferred till the afternoon of the 13th December 1926. In the meantime the judgment-debtor moved this Court and obtained a Rule to show cause why the order of attachment should not be set aside on the ground that the precept had been issued without jurisdiction. An interim stay was also obtained. This Rule is Rule No. 1223 of 1926. The judgment-debtor filed an appeal in the alternative in this matter, which is appeal from Original Order No. 467 of 1926. The decree-holders, thereafter, moved this Court and at their instance and for their protection a Rule was issued calling upon the judgment-debtor to show cause why he should not be restrained by an injunction from dealing with or disposing of the properties for the attachment of which the precept had be9n issued, and an interim injunction to the same effect was issued. This Rule is Rule No. 1229 of 1926.

6. Rule No, 1188 of 1926 and the application were heard on the 7th January 1927.

7. Before dealing with the main question which arises in these two matters it will be convenient to dispose of two questions about which there is a good deal of controversy between the parties and on which a mass of materials has been placed before us. One of these is the question whether the moneys which were borrowed by the judgment-debtor belonged to the decree-holders or to the Maharaja of Gwalior. In my judgment the matter has scarcely any bearing upon the real questions which are before us, and the opinion that we have formed on it only affects the general credibility of the respective parties. It cannot be urged that the rights of the decree-holders, assuming that they are benamidars for the Maharaja of Gwalior, are any less than those of the latter if he was the holder of the decree. For the determination of the main question we have to proceed upon facts which are more or less admitted. The other question is whether the allegations of the judgment-debtor that the decree-holders are actuated by malice or vindictiveness in resorting to the steps that they have taken in consequence of the judgment-debtor's failure or refusal to comply with, Mr. Dinshaw's demands for commission are true or whether, as alleged on behalf of the decree-holders, they instituted the suits bona fide, as they apprehended that the security was or would be impaired and took the steps in execution in the usual course. It has been urged on behalf of the decree-holders that the question of motive is entirely irrelevant and that Courts should not concern themselves with the motives which actuate a party who is asserting a legal right, and reference had been made to King v. Henderson [1898] A.C. 730 and Fitzroy v. Gave [1905] 2 K.B. 364. In my judgment the question of motive cannot in a matter like this be said to be altogether foreign to the enquiry. If there is a discretion in the Courts to allow a party to enforce one remedy in preference to another, where more remedies than one are open, or if an enforcement of a remedy will amount to an abuse of the processes of the Court, motive may in some cases have to be considered; but there again it is not so much to find out what the real motive of the party is, but rather to determine what resultant injury would accrue to his antagonist. It is not necessary to go in detail into the mass of materials that has been placed before us on this head. It is sufficient to state that materials that have been placed before us do not justify us in holding that absolute bona fides have been established on the part of the decree-holders, but they rather indicate that dissatisfied with the neglect on the part of the judgment-debtor to pay up his dues under the mortgages and exasperated at the obstruction that was offered by the injunction, which the judgment-debtor had recourse to and finding that the power of sale without the intervention of the Court which had been conferred on them in the deeds was rendered nugatory and possibly also on account of other differences, they proceeded to stand strictly upon the rights that the law conferred on them. The enforcement of these rights is bound to put the judgment-debtor to difficulty and disgrace, but the decree-holders' attitude seems to be that if they are entitled under the law to the remedy they are seeking, for, they do not mind the consequencas that; will follow. We seldom find a decree-holder who entertains a sympathy for his judgment-debtor; and between want of sympathy and vindictiveness there is only difference in degrees.

8. It will be convenient to refer here to an objection that has bean raised as to the competency of the application for revision in Bale No. 1188 of 1926, and the objection, I take it, will apply equally well to the application we heard on the 7th January 1927. This objection is to the effect that appeals lie from the orders complained of. The objection is based on the view of Section 47, Civil Procedure Code, taken in the cases of Subramaniya v. Kumara Velu [1916] 39 Mad. 541, Chidambaram v. Krishna, Vathiar [1917] 40 Mad. 533 and Venkatasubba Mudali v. Manickammal A.I.R. 1926 Mad. 582. The contrary view has been taken in the cases of Janardan v. Martand A.I.R. 1921 Bom. 208, Hussain Bhai v. Beltu Shah A.I.R. 1924 All. 808, Ram Prasad v. Anukul Chandra [1914] 20 C.L.J. 512 and Rajendra Kishore v. Mathura Mohan [1919] 25 C.W.N. 555. Our attention has been drawn in support of this objection to the observations of Mookarjea, J., to be found in the case of Srinibash v. Kesheo Prosad [1911] 14 C.L.J. 489. This last entioned case has been explained by Mookerjee, J., himself in the later case of Ram Prosad v. Anukul Chandra [1914] 20 C.L.J. 512, where the nature of orders in execution proceedings which may or may not be treated as coming under Section 47 of the Codeahas been clearly pointed out. While I should be inclined, following the decisions of this Court, to hold that no appeals lie from the orders complained of, I do not see much point in this objection, for it is always open to us to allow an application under Section 115 Civil P.C. to be converted into an appeal no question of payment of additional Court-fees arising in the case The matter therefore need not be pursued any further.

9. Turning now to the substance of the thing, the main question is whether a executing Court has jurisdiction to make orders of the description that have been made in this case, or, in other words, whether that Court is competent to pub off the execution in the exercise of its discretion upon grounds other than those provided for by the Code.

10. Order 21, Rule 17, Sub-rule (4) says that when the application is admitted and that is the stage from which we may begin, the Court shall enter in the proper-register a note of the application and the date on which it was made and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application. The proviso is not relevant for our present purposes. The expression 'subject to the provisions hereinafter contained' must necessarily refer to some provision in the Code itself, Order 21, Rule 24, Sub-rule (1) says that when the preliminary measures (if any) required by the foregoing rules have been taken the Court shall, unless it seas cause to the contrary, issue its process for the execution of the decrees. Speaking of the words 'unless he sees cause to the contrary' which occurred in the corresponding section, viz., Section 250 of the Code of 1882 in the case of Ishan Chandra Roy v. Ashanulla Khan [1884] 10 Cal. 817 in which the words had been relied on as indicating the existence of a discretionary power in the Court to refuse to execute a decree against which no appeal had been preferred and the time for appealing against which had expired, this Court observed thus:

Sections 239 and 250 have been referred to, and the words in the latter section, unless ha sees cause to the contrary have been relied upon as indicating the existence of such a discretionary power. It appears to us that these words are sufficiently explained by a reference to express provisions contained in other sections of the Code (see for example Section 246) which provide for setting off cross-decrees against each other, the effect being that no execution of the decree for the smaller amount will take place. We may also refer to Section 213, and we may bear in mind that when a decree-holder dies, while execution proceedings are pending, the Court may properly see cause not to issue its warrant until a proper person has been substituted on the record in the place of the deceased decree-holder. We are therefore unable to say that there are any provisions in the Code which indirectly empower a Court of first instance to refuse to execute a decree against which no appeal has been preferred, and the time for appealing against which has expired and we think that we would not be justified in importing into the Code a provision which the legislature has not thought fit to insert expressly or by necessary implication.

11. These observations so long as they are confined to the facts of the particular case with which the learned Judges were then dealing are, if I may say so without being guilty of presumptuousness, perfectly correct but if they were intended to serve as a general interpretation of the expression aforesaid, I would take leave to dissent, especially in view of the express provisions made in the Code of 1908 for the exercise of such powers ex debtic justitiae, subject to the provisions of the Code, as, the exigencies of any particular case may require. There is nothing in the words themselves to indicate that they are to be taken in that limited sense. An inherent power in a Court to stay or defer the issue or operation of its own processes in cases demanding the exercise of : such power in the interest of justice has been always recognized : see Nanda Kishore Singh v. Ram Golam Sahu [1912] 40 Cal. 95.

12. On behalf of the decree-holders, it has bean urged that there is no discretion at all in the Court not to allow a decree to be executed except such as is provided for in the Code itself, e.g., as in Order 21, Rules 21, 26 and 37 and elsewhere. These rules, however, in my opinion, do not exhaust jail the discretion that there is in an executing Court. The provisions of Order 20, Rule 11 have also bean referred to on their behalf as suggesting that if the payment of the amount decreed in the case of a decree of payment of money is to be (postponed, the power to grant such postponement is in the Court which passes the decree. This is a rule which, a it stood in the Code of 1882, enabled a Court to pass an instalment decree, and by the amendments introduced in 1908, now enables the Court also to postpone the payment of the decreed amount notwithstanding anything contained in the contract under which the money is payable. This rule, in my opinion, does not, in the case of a decree for money, limit or restrict any jurisdiction or discretion which an executing Court may have in respect of any decree that is before if for execution. In England judgments and orders for the recovery of payment of a sum of money, except such as are usually enforced by proceedings for contempt and except in such cases as according to the rules cannot be enforced without the leave of the Court, and except in cases where the judgments or orders impose a restriction upon the right of immediate enforcement, may, generally speaking, be enforced immediately upon signing the judgment or drawing up or otherwise completing the order by the issue of a writ of fieri faciss (on goods, chattels, money and securities) or of alegit (on land only) : Land Credit Co. v. Lord Fermroy [1870] 5 Ch. 323. So also with regard to a judgment for recovery of possession of land for which a writ of possession will issue. That it is the duty of the judgment-debtor to find the judgment-creditor and pay him the amount of the : judgment-debt provided the latter is within the realm cannot be disputed. In re a debtor [1911] 1 K.B. 53, Cozens Hardy, M.E., referring to this rule that it is found in very old authorities, Coke upon Littleton and Sheppard's Touchstone, and that it has been undoubtedly affirmed and reiterated in more modern authorities. Farwell, L.J., in the same case at page 62 observed:

The judgment is in the common form that the plaintiffs do recover so many pounds. It states no place of payment, and it is obvious of course that execution might issue at once;

and further,

supposing the ordinary rule, therefore, which has bean established since Coke wrote upon Littleton to apply, the debtor would have to find his creditor, provided the creditor is within the jurisdiction.

13. It follows, therefore, that the right of the decree-holder to execute his decree unless the decree itself imposes a restriction upon the right of immediate enforcement, arises as soon as the decree is complete. But, consistently with this right, if the Court finds that its processes for its enforcement should be delayed for a while, I am of opinion the Court is not powerless; but the discretion that it has lies within very narrow limits and it is quite easy to conceive of cases in which this discretion may rightly and justly be exercised.

14. The view of the law I take does not absolve us from the necessity of examining the orders now before us, for we have got to see the exact nature and scope of the discretion that has been exercised.

15. Once it is held that the Court had jurisdiction to defer its processes in execution and that it decided to adopt that course a very wide margin must be allowed and in a matter of judicial discretion its exercise will not be readily overruled. It is necessary, therefore, to examine the orders from this point of view.

16. The writ of attachment under Order 21, Rule 30 was ordered to issue on the 10th November 1926. Thereafter the judgment-debtor files a petition for stay of execution for three days to enable him to put in an objection. The Subordinate Judge heard the parties on the next day, and on thel2th November 1926 he definitely held that there was no ground for objection as to the execution of the decree. By order which he passed on that day he appears to have been of opinion that he ought to give the judgment-debtor a short time to enable the judgment-debtor to arrange for payment and that the decree holder would not be prejudiced there by. He proceeded to pass an order which ran in these words:

I allow time up to Wednesday next the 17th instant, and expect the judgment-debtor to tie ready with the money on that date or at least to be in position to state definitely when payment will be made. If no payment is made on the 17th instant I shall pass such order as may be necessary for safeguarding the decree-holder's interest. Put up on 17th November 1926 for further orders.

17. On the 17th November 1926 the money was not ready. New matters were then brought to the notice of the Court-the-fact some negotiations were going on with the Imperial Bank of India for raising a loan that the money for which the decree had been obtained was still secured by a mortgage-a question which barely arose in execution and that the judgment-debtor's credit would be injured. As regards a definite statement by the judgment-debtor as to when the payment was to be made there was none offered by the judgment-debtor, but an assurance was given that the loan was expected to be finally sanctioned by the Imperial Bank within ten days. It does not appear what justification the Court had for accepting this assurance. The Court then proceeded to pass an order in these terms:

I, therefore, allow the judgment-debtor ten days' time for the present. If at the end of that period I am informed that the loan has been definitely sanctioned I shall be ready to, grant further time such as may be necessary to have the transaction completed and the money paid, I think I could mention that I am convinced about the judgment-debtor's bona fide intention of payment and that I feel it to be my duty to afford him facilities for that purpose. Put up on the 27th November 1926, for further orders.

18. It thus appears that neither of the two conditions laid down in the order of the 12th November, one as to payment, and the other as regards a definite statement as to the date on which payment would be made was fulfilled, and yet the learned Judge granted a further stay, without any attempt made to safeguard the decree-holders interest and by the order which he passed, he appeared to be willing to grant a further stay if he was satisfied that the loan was definitely sanctioned by the Imperial Bank. On the 27th November 1926, the judgment-debtor was not in a position to satisfy the Court even on that point and all that the learned Judge was able to find was that the negotiations had made some progress. On this, and being of opinion that the decree-holders had sufficient security for the decretal amount ha gave further time to the judgment-debtor till the 22nd December 1926. Still no order was made by him for the protection of the decree-holders. Two valuable race-horses, it is admitted, were sold by the judgment-debtor; and though I am prepared to accept the statement that the sale was in the ordinary course and not with a view to prejudice the decree-holders the fact remains and it is net disputed that the money realised by the sale never reached the decree-holders. On the 22nd December 1926 the Subordinate Judge was asked by the judgment-debtor to grant a month's further time and all that the learned Judge was informed was that the valuer had made a favour able report and that the Bank had offered to consider the question of the loan if the judgment-debtor agreed to certain conditions. He then granted further time till the 31st January 1927. This time he thought of the decree-holders' safety and found that an interim injunction had already been issued by this Court. This order was passed by him ex-parte, but the decree-holder was heard on the next day and he saw no reason to alter his order. These are the facts.

19. While it is impossible to define what judicial discretion is, it is quite possible to give instances of what in a matter like this would be instances of an exercise of the discretion, right or wrong; and these instances would stand apart from cases where all bounds of such discretion are clearly overstepped and the exercise of it is altogether arbitrary. The orders passed on the 10th and the 12th would come within the former category, but when by gradually enlarging the conditions upon which the discretion was b9ing exercised the Court ultimately passed its order on the 17th and the 27th November 1926 and again took a much wider view of its power as an executing Court on the 22nd December 1926, and stayed the execution upon the mere ground that the decree-holders had ample security and the judgment-debtor was making bona fide efforts to raise a loan, the discretion which the Court exercised in passing those orders surpassed all conceivable limits and the orders that were passed on these dates were clearly arbitrary as ignoring the just rights of the decree-holders and putting them off indefinitely. These orders therefore in my opinion cannot possibly be supported.

20. To enable us to hold that the orders should not be interfered with it has been brought to our notice that the agreement in the terms proposed by the Bank has now been signed between the parties and an affidavit sworn to by Mr. Galstaun on 7th January 1927 has been placed before us. To take cognizance of these matters, however, would be to countenance a position which has been brought about undercover of orders which the Court had no right to pass. I am constrained to hold that the orders must be set aside. The Rule accordingly is made absolute with costs 10 gold mohura and the application of the decree-holder heard on the 7th January 1927 granted, the order complained of therein being set aside.

21. The learned Subordinate Judge on the records arriving in his Court will pass proper orders for issuing the writ of attachment.

22. Appeal from Original Order No. 467 of 1926 and Rule No. 1223 of 1926.

23. The judgment-debtor's objection as regards the precept is that it was issued without jurisdiction. His contention is that once a decree is transferred by the Court which passed it to a Court for the purpose of execution the former Court loses all powers of execution except with regard to matters specifically provided for by the Code and ceases to have such powers until it withdraws the decree from the executing Court or until the latter Court returns the decree to it with a certificate op non-satisfaction and that until then the only Court which has seisin of the execution proceedings is the Court to which the decree has been sent for execution and the Court which passed it has no jurisdiction to entertain an application for execution. In support of this proposition reliance has been placed upon the wording of Rule 10 of Order 21, Civil P. C, and the authorities relied upon are the decisions of the Judicial Committee in the cases of Maharaja of Bobbili v. Narasaraja [1916] 39 Mad. 640, affirming on appeal the decision,' of the Madras High Court in Maharaja of Bobbili v. Narasaraja [1912] 37 Mad. 231. Jnanendra v. Kumar Jogendra Narain A.I.R. 1923 Patna 384, Rangaswami v. Sheshappa A.I.R. 1922 Bom. 359, and some other cases. On behalf of the decree-holders it has been contended that these cases are distinguishable and that notwithstanding the want of specific provision for simultaneous execution of a decree in several Courts in any of the earlier Codes it has always been held that such execution is permissible, and reference has been made in this behalf to the decisions in the cases of Saroda Prosad Mullick v. Luchmeeput Sing Deogar [1872] 14 M.I.A. 529, as under the Code of 1859, Krishto Kishore Dutt v. Rooplal Das [1882] 8 Cal. 687 as under the Code of 1877. Baijnath Goenka v. F.H. Holloway [1905] 1 C.L.J. 315 as under the Code of 1882. Now the power to make an order for simultaneous or-concurrent execution of a decree in more Courts than one is not the same as the power to make an order for execution after a decree is no longer on the file of the Court having already been transferred to another Court for execution. On the other hand the decision of the Judicial Committee in the case of Maharaja of Bobili v. Narasaraja [1916] 39 Mad. 640 in my opinion cannot, having regard to the words in which it is expressed, be regarded as a settler on the question. But a the words of Order 21, Rule 10, Civil P.C., favour the view contended for on behalf of the judgment-debtor and that is howthe law is generally understood. Moreover there are weighty considerations that make it the more acceptable view. It is conceded, however, that after the transfer of the decre9 for execution, the Court passed it retains jurisdiction for certain purposes specially provided for by the Code see Baijnath Goenka v. F.H. Holloway [1905] 1 C.L.J. 315. I do not see why Section 46 should not be regarded as one of those purposes. The object of a precept is to enable a decree-holder to obtain an I interim attachment when there is ground to apprehend that he may otherwise be deprived of the fruits of his decree and seeing that all that can be got under it is an attachment of properties for a ' limited period, so that they may be held under attachment pending an application for execution to be subsequently made. I do not see why this should not be the view to betaken of the section. Effect must, in my opinion, be given to the words 'whenever it thinks fit' which appear in the Sub-section (1) of this section. I am accordingly of opinion that there was no want of jurisdiction in the issue of the precept.

24. In the next place, in challenging the validity of the precept various matters have been placed before us which would go to establish that in the circumstances of the case no precept should have been issued. This contention, if accepted would only amount to this : that in the circumstances of the case the Bombay High Court was wrong in according to the decree-holder's prayer for issuing the precept. The Court to which the precept has been issued can hardly vest itself with jurisdiction to question the validity of the precept on grounds such as these or embark upon an enquiry of this character.

25. Lastly it has been contended that the provisions of Sub-section (2) of Section 46 indicate that the Court to which a precept is sent has that discretion in the matter of executing it as it has as a Court executing a decree and in a fit case may stay the execution of the precept and defer the making of the attachment. The subsection, however, deals only with the manner in which the attachment is to be made and the procedure to be adopted in connexion therewith. In my opinion the issuing Court makes the order and the Court to which it is sent has only to carry it out. If any variations is to be made it is the issuing Court which is competent to make it.

26. The grounds urged on behalf of the judgment-debtor therefore fail, and the appeal and the Rule accordingly must fail, The appeal is dismissed with costs 10 gold mohurs and the rule is discharged.

Graham, J.

27. These Rules have arisen out of certain execution proceedings, which are pending in the Court of the first Subordinate Judge of Alipore following upon two decrees made by the Bombay High Court on the 8th October last. The first of these Rules No. 1188, which was obtained by the decree-holders, F.E. Dinshaw and others, is directed against two orders of the Subordinate Judge, dated the 17th and 27th November granting time to the judgment-debtor J.C. Galstaun to satisfy the decree.

28. Thereafter the judgment-debtor obtained Rule No. 1223 to show cause why a writ of precept issued by the Bombay High Court to the Subordinate Judge of Alipore should not be declared to have been issued without jurisdiction and subsequently on a further application by the decree-holders an injunction was granted restraining the judgment-debtor from dealing with or disposing of any of the properties in respect of which the attachment order had been issued. At a later stage an application was made by the decree-holders for a Rule to show cause why two further orders of the Subordinate Judge, dated the 22nd and 23rd December, granting further time to the judgment-debtor, should not be set aside as having been made without jurisdiction.

29. The facts so far as they appear to be material for present purposes are as follows:

The judgment-debtor Galstaun borrowed large sums of money from the decree-holders on the security of house properties in Calcutta. According to the decree-holders the value of these properties has depreciated, and, becoming apprehensive about their security, they instituted two suits in the Bombay High Court, and obtained two decrees on the 8th October last for money in the first instance, one for Rs. 31,24,378-5 and the other for Rs. 2,12,686-3, reserving their rights under mortgages. The decree for the smaller sum was transferred to the Court of the Subordinate Judge of Alipore for execution and the larger decree is said to have been transferred to this Court. On the 10th November an application was made by the decree-holders in the Court of the Subordinate Judge for attachment of the moveable properties of the judgment-debtor and a writ was ordered to be issued. On the following day the judgment-debtor applied for a stay of execution for three days, and orders were reserved till the next day. On the 12th November the judgment-debtor asked for time to put in an objection to the execution; and time was allowed until the 17th November.

30. On the 17th November the judgment-debtor made a further application for time to enable him to raise a loan, and the learned Subordinate Judge being of opinion that the decree-holders had no real ground for apprehension; and that the credit of the judgment-debtor would suffer, if attachment were resorted to, granted ten days further time to enable him to complete certain negotiations which had been entered into with the Imperial Bank.

31. On the 27th November there was a further application for time by the judgment-debtor on the ground that the negotiations with the Bank had made further progress, and he annexed with his petition copies of the correspondence, and of a resolution of the Bank. The learned Subordinate Judge thereupon allowed a further postponement of execution until the 22nd December.

32. It is these orders of the 17th and 27th November which form the subject-matter of the first Rule. Shortly stated, the point involved is whether the Subordinate Judge had jurisdiction to grant time, or whether he was bound to issue attachment as soon as the application was presented to the Court by the decree-holders. The learned Counsel for the judgment-debtor argued that under Order 21, Rules 17, 24 and 26 of the Code of Civil Procedure the Subordinate Judge had jurisdiction to extend the time for satisfying the decree. Sub-Section (4) of Rule 17, Order 21 lays down that when an application for execution of a decree has been admitted the Court 'shall subject to the provisions hereinafter contained, order execution of the decree.'

33. Rule 24 provides that

when the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

34. Rule 26 relates to stay of execution and the portion, which has been relied upon, reads as follows:

The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court which passed the decree...for an order to stay the execution.

35. It is contended on the basis of the above rules that the Subordinate Judge-had jurisdiction; and that he had a discretion to postpone attachment, if he considered that there were sufficient grounds for allowing time, It was further argued that the Subordinate Judge exercised his discretion, and that unless it can be shown that he exercised that discretion arbitrarily, and in such a manner as to cause irreparable loss or injury to the aggrieved party, this Court ought; not in the exercise of its revisional jurisdiction to interfere.

36. It was next contended that, apart' from these provisions of the Code conferring a discretion upon the Court in' express terms, every Court has inherent-jurisdiction to pass such orders as may be necessary for the ends of justice. The Court below, it was pointed out, had not refused to execute the decree, but had merely allowed time to the judgment-debtor to arrange for payment. The security, it was argued, is ample, and therefore there can be no question of irreparable injury or loss.

37. So far as Rule 26 of Order 21 is concerned it seems to be plain that it can be of no avail to the judgment-debtor, inasmuch as the ground on which it was sought to stay execution is not the ground mentioned therein. There was apparently no suggestion of making any application to the Bombay High Court for stay of execution.

38. Adverting to Rule 24(1) the words 'unless it sees cause to the contrary' have been relied upon, and they would appear at first sight to confer a discretion upon the executing Court to postpone execution. It was held, however, in the case of Ishan Chandra Roy v. Ashanullah Khan [1884] 10 Cal. 817, that these words are to be explained by reference to express provisions in the Code, e.g., Sections 343 and 246 (corresponding to Order 21, Rule 29, and Order 21, Rule 18 respectively in the present Code.) It was held further that it is not open to a Court of execution to refuse to execute a decree against which no appeal has been preferred, and in respect of which the time for appeal has expired. Upon general grounds this view seems to commend itself, since the function of an execution Court is to execute the decree, and as a general rule a person, who has obtained a judgment, is entitled to obtain execution forthwith. Moreover it can hardly have been intended by the legislature that a Court exercising the limited functions of an executing Court should have discretion to postpone execution from time to time, the consequence of which might well be to frustrate the decree and perhaps to render it in fructuous. In the absence of any such power plainly conferred by the Code, and of any authority in favour of such power, we must in my judgment hold that the orders postponing execution were made without jurisdiction. At the same time I should like to make it clear that I am not prepared to go so far as to hold that an executing Court has under no circumstances whatever any discretion to allow time. There may be circumstances in which the Court would have discretion to grant reasonable time, e.g., in case of illness of the judgment-debtor, or again in the circumstances referred to in the specific provisions of the Code already mentioned above. Bat that discretion would not extend to repeatedly postponing execution of the decree in such a way as to prejudice the rights of the decree-holder, and where, as here, such a course has been adopted, I think it must be held that the executing Court has failed to exercise a jurisdiction vested in it by law. In my opinion therefore this rule must be made absolute.

39. In Rule No. 1223 the question involved is whether the precept issued by the Bombay High Court should not be declared to have been issued without jurisdiction. In this connexion allegations and counter-allegations have been made as to vindictiveness on the part of the decree-holders, it being alleged on behalf of the judgment-debtor that the decree-holders has been actuated by malice because he failed to obtain from the judgment-debtor a large sum of money by way of commission for securing a renewal of the mortgages, while on behalf of the decree-holders on the other hand it has been represented that, so far from betraying any vindictive spirit, he has treated the judgment-debtor with every possible consideration, and has repeatedly given him time to make payment.

40. The question as to the notice which actuated the decree-holders is entirely irrelevant, and the matter must be decided with reference to the legal rights of the parties, and not upon any such extraneous considerations.

41. The general question as to the jurisdiction of an executing Court to go behind a decree was recently considered by a Full Bench of this Court in the case of Gora Chand Haldar v. Profulla Kumar Roy : AIR1925Cal907 . It has been urged on behalf of the judgment-debtor that that decision concludes the matter, and that the Court below not only had jurisdiction, but that it was its bounden duty to refuse to act upon the precept, if it was of opinion that it had been issued without jurisdiction. The present case, however, would hardly appear to be covered by the Full Bench decision. What was held in that case was that, where it was apparent that the Court which made the decree had no jurisdiction, whether pecuniary or territorial, to make it, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. No such question arises here, and it cannot be said that the precept on the face of it is bad. No question of pecuniary or territorial jurisdiction is involved. The allegation here is that the Bombay High Court had no jurisdiction to issue the precept by reason of the fact that it had already transferred the decree to this Court for execution, and therefore had no longer any seisin of the case. That is a question of law not altogether free from difficulty, the decision of which must depend upon the interpretation of Section 46 and other sections and rules of the Code of Civil Procedure, and it seems to me that the execution Court is not the proper Court to consider such matters. The function of an executing Court is to execute, and not to decide intricate questions of law, such power as it has to decide being limited to questions arising out of the decree itself. When a decree has been transferred, or precept issued, the existence of a decree, or precept susceptible, and capable of execution is assumed, and it seems to me that it is the duty of the executing Court to proceed upon that assumption. Hasan Ali v. Guari Ali Mir [1903] 341 Cal. 179. The proper place to raise the question of jurisdiction is in the Court which passed the decree, or precept, and to allow such a question, as is involved here, to be raised in the executing Court would in my opinion be to adopt a most dangerous principle fraught with possibly mischievous consequences. If the Court had no jurisdiction to issue the precept, the ordinary course would be to assail the order by way of review or appeal. I venture to think that it can never have been intended that such a matter should be raised and decided in the executing Court, the result of which would be that the executing Court would be virtually sitting in appeal over the Court which issued the precept.

42. Adverting to Section 46 of the Code of Civil Procedure the material portion of that section lays down that the Court which passed the decree may, whenever it thinks fife, issue a precept. It has been urged on behalf of the judgment-debtor that the Bombay High Court, having transferred the decree to this Court, had no longer any seisin of the case or jurisdiction to issue the precept. It is well settled, and this has not been disputed, that the Court which passes a decree can issue executing writs simultaneously to more Courts than one. If that is so, there does not seem to be any reason why a Court having already transferred a decree for execution, should not issue a precept, which is but another and a special form of execution to another Court. It is no doubt true that what the section appears to contemplate is the issue of the precept in the first instance, i.e., before the decree is transferred, the object of the procedure apparently being preventive, and not to bring the properties to sale, but to enable the decree-holder to obtain an interim attachment where there is ground to apprehend that he may otherwise be deprived of the fruits of his decree. But, if the jurisdiction to issue the precept exists, the position cannot be altered in any way by reason of the fact that the precept was not issued until after the decree had been transferred, It is conceivable that circumstances might arise after the decree had been transferred which might render the issue of a precept necessary. It is clear from the language of the section that the Court which passed the decree can alone issue the precept, and that the Court to which the decree has been transferred, would not have jurisdiction to do so. The result therefore would be that in the event of such circumstances arising after transfer of the decree, if the Court which passed the decree ceased to have any jurisdiction, the provision as to procedure by precept would be rendered nugatory and the decree-holder would be without remedy. I do not think that that can possibly have been the intention. The section itself says in plain terms that the Court which passed the decree can whenever it think fit issue a precept,' and I do not think that it can be held to lose that jurisdiction by reason of the fact that it has previously transferred the decree to another Court for execution. There is authority for the view that when the Court which has made a decree has transferred it for execution to another Court, it does not completely lose all jurisdiction in respeet of execution thereof see Baijnath Goenka v. F.H. Holloway [1905] 1 C.L.J. 315. In the case in question this was illustrated by reference to Sections 232 and 295 of the former Code of Civil Procedure (corresponding to Order 21, Rule 16 and Section 73 respectively of the present Code), Reference may also be made in this connexion to Order 21, Rule 26 of the Code, which supports the same conclusion.

43. In my judgment we must hold that the Subordinate Judge had no jurisdiction to question the validity of the precept upon the ground which has been urged here, and I would hold further that, if he had jurisdiction, the Bombay High Court had in fact jurisdiction to issue the precept. I am also of opinion that upon the application for attachment being presented to the Subordinate Judge he was bound under Section 46 to proseel with the attachment. The language of Sub-section (2) of Section 46 is clear and unambiguous, and says that 'the Court, to which a precept is sent, shall proceed to attach the property.'

44. In my judgment therefore this rule must be discharged.

45. The result is that I agree with the conclusions at which my learned brother has arrived, and with the orders which he has made in disposing of these rules.


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