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Gurudas Adhya Vs. Jnanendra NaraIn Bagchi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal268
AppellantGurudas Adhya
RespondentJnanendra NaraIn Bagchi and ors.
Cases ReferredJ.C. Galstaun v. F.E. Dinshaw
Excerpt:
- .....as regards the prayer for the transfer of the decree for execution to the birbhum court the learned judge made this order.on the prayer of the decree-holder let a certificate under order 21, rule 6, civil p. c, be sent to the district judge of birbhum for execution of the decree in the sub-judge's court of that place with the direction that the decree-holder may proceed with his execution there as well as here, but the sale at suri may not actually be held before further direction from this court.2. it may be stated hare that this order was made by the learned judge without giving any notice to the judgment-debtors and without hearing what they had to say as to why the order should not be made. in accordance with the order transferring the decree which was passed by the learned.....
Judgment:

1. This is an appeal by the decree-holder against an order passed by the Subordinate Judge of Birbhum on 21st January 1933. The facts which gave rise to the proceedings in which the said order was passed are as follows: The appellant obtained a decree for money on 23rd August 1932 against the respondents judgment-debtors. The amount of the decree was about Rs. 14,000 or a little more. When the suit, as a result of which the said decree was passed was pending, the appellant obtained an order of attachment of certain properties before judgment. The suit was instituted and tried in the Court of the Subordinate Judge at Murshidabad. On 24th September 1932, the appellant applied for execution of the decree and in the said application it was prayed in the first place that the properties which were under attachment and within the jurisdiction of the Murshidabad Court were to be proceeded against, and nextly it was prayed that certain other properties which the judgment-debtors had within the jurisdiction of the Court at Birbhum might be proceeded against, and that for the latter purpose the decree might be transferred to the Birbhum Court. In the application it was stated that the properties which had already been attached and were within the jurisdiction of the Murshidabad Court would not be sufficient for the satisfaction of the decree because there were certain other decrees which were for very large amounts and which were specified in the application, in consequence of which the said properties had also been attached, and that any amount which might be obtained by the sale of those properties would have to be distributed pro rata amongst the contending decree-holders. On receipt of this application, the Subordinate Judge at Murshidabad made an order on 24th September 1932 directing the sale of the properties lying within the jurisdiction of his Court and which had been attached before judgment. So far as this sale is concerned, he ordered that no fresh attachment was necessary and he ordered notices to issue on the judgment-debtors under Order 21, Rule 66, Civil P.C., fixing 15th November 1932 for return. As regards the prayer for the transfer of the decree for execution to the Birbhum Court the learned Judge made this order.

On the prayer of the decree-holder let a certificate under Order 21, Rule 6, Civil P. C, be sent to the District Judge of Birbhum for execution of the decree in the Sub-Judge's Court of that place with the direction that the decree-holder may proceed with his execution there as well as here, but the sale at Suri may not actually be held before further direction from this Court.

2. It may be stated hare that this order was made by the learned Judge without giving any notice to the judgment-debtors and without hearing what they had to say as to why the order should not be made. In accordance with the order transferring the decree which was passed by the learned Subordinate Judge as aforesaid a copy of the decree was sent to the Court of the Subordinate Judge at Birbhum and also a certificate of non-satisfaction in which it was stated that there had been satisfaction of the decree which was to be executed and that the claim thereunder was Rs. 15,000 odd carrying interest at six per cent per annum. On receipt of this certificate and the copy of the decree from the Court of the Subordinate Judge at Murshidabad, the Subordinate Judge of Birbhum on 27th September 1932 made an order issuing attachment under Order 21, Rule 54 of the Code with regard to the properties within the jurisdiction of his Court which had been specified as being properties against which execution was to be proceeded with. Later on, on 4th January 1933, by which date the attachment ordered as aforesaid had already been effected, an objection was filed on behalf of the judgment-debtors. This objection was heard by the learned Subordinate Judge and he eventually on 21st January 1933 allowed the objection and dismissed the execution case.

3. The learned Subordinate Judge held that the question that arose in the case was whether the Court could hold jurisdiction to execute its decree and at the same time send it to another Court to execute it simultaneously. To this question the learned Judge gave his answsr in the negative. He held that, under Section 39, Clause (b) of the Code, before a decree could be sent to another Court for execution a case must be made out that there was no sufficient property within its own jurisdiction to satisfy the decree and that inasmuch as in the present case the execution proceedings which were pending in the Court of the Subordinate Judge at Murshidabad had not come to an end, it was not possible for that Court to come to any such conclusion as that. He observed next that there was no provision in the Code for the issuing of a conditional certificate and that all that the Court under such circumstances could do was to issue a precept under Section 46 of the Code. He treated the transfer of the decree and the issuing of the certificate of non-satisfaction as amounting to the issuing of a precept under Section 46 of the Code; and finding that the attachment which had been made under that precept had continued for more than the period of two months which the section contemplated, he thought that the attachment must come to an end. In this view of the matter, he held that the judgment-debtors' objections should succeed and he accordingly dismissed the execution case. It is from this order that the present appeal has been preferred.

4. The view which the learned Subordinate Judge has taken, namely, that the Court cannot hold jurisdiction to execute its decree and at the same time send it to another Court to execute it simultaneously, is a view which according to the authorities cannot be supported. Many of the decisions bearing upon this question were noticed in J.C. Galstaun v. F.E. Dinshaw 1927 Cal. 581 at pp. 661-662. In view of the decisions referred to there, it must be taken that the view generally accepted by the Courts is that simultaneous execution is permitted by the Court but that in making an order for such execution, care should be taken so that there may not be any hardship to the judgment-debtor. But at the same time we must say that the order which was made by the Murshidabad Court in the present case on 24th September 1932, directing the copy of the decree to be transferred to the Birbhum Court together with a certificate of non-satisfaction is an order which ought not to be supported for one reason, at least if for no other reason, that it was made without giving any opportunity to the judgment-debtors to state what they had to state in opposition to such an order.

5. Our attention has been drawn by Mr. Bhattacharjee appearing on behalf of the respondents to the provisions of Clause (b), Section 39 of the Code and it has been argued by him that in the present case there is nothing to show that in point of fact the properties which are within the jurisdiction of the Murshidabad Court will not be sufficient to satisfy the decree. And he has also argued that Clause (b), Rule 6, Order 21 suggests that it is only where either there has been no execution of a decree or where there has been execution but the decree has not been satisfied in full that an order may be made sending a decree for execution to another Court. We are of opinion that these contentions are not well founded. It is not necessary, in our opinion, for the Court to go through the process of a sale in order to find out whether in point of fact the proceeds of the sale would be sufficient to cover the decree. It would be enough if there are allegations made, supported by an affidavit or some other evidence on which the Court can reasonably rely, which tends to show that there are circumstances present from which it can be safely inferred that the properties within the jurisdiction of the Court would not satisfy the decree. If such circumstances are proved to the satisfaction of the Court, it would be quite open to the Court having regard to the provisions of Clause (b), Section 39 to make an order transferring the decree for execution to another Court. And we are further of opinion that Clause (b), Rule 6, Order 21 only lays down what the Court will have to do at the time when the decree is sent for execution; it only says that a certificate will have to be issued setting out that satisfaction of the decree has not been obtained by execution, or where the decree has been executed in part, the extent to which satisfaction has been obtained. In our opinion nothing that has been said in Clause (b), Rule 6, Order 21 should be considered as indicating that in a case where execution is pending in a Court, the Court is deprived of the power of issuing a certificate of non-satisfaction. We therefore think that it must be held that the view which the learned Judge has taken as regards the competency of the Murshidabad Court to transfer the decree to Birbhum Court to execute is not correct. In our opinion therefore, the learned Subordinate Judge was not right in dismissing the execution case on the ground on which he has proceeded.

6. As we have already stated, the original order which was made by the Court at Murshidabad was not an order properly made. We therefore do not interfere with the order from which the appeal was preferred. We think it only right to point out to the learned Subordinate Judge who made the order for transfer of the decree that he should now go on with the proceedings from the point at which the application was made by the decree-holder on which he made the order of 24th September 1932. He should now order notices to issue on the judgment-debtors so that they may have an opportunity of showing cause as to why an order should not be made under Order 21, Rule 6 of the Code. After hearing the judgment-debtor's objection, if any, as regards the order to be made, the learned Judge will proceed to consider whether sufficient cause has been made out justifying the issue of simultaneous execution under the provisions of Section 39 of the Code. If he decides to make such an order he will consider, having regard to the provisions of Order 21, Rule 26 of the Code as to whether any, and if so what, further order should be made as regards the limitation to be put upon the execution that will take place in the Court in which the decree would be sought to be executed.

7. The result therefore is that the appeal is dismissed, but the attention of the Subordinate Judge of Murshidabad, in whose Court the execution in respect of the aforesaid decree is pending should be drawn to the observations made above so that he may proceed with the case in accordance therewith. There will be no order for costs in this appeal.


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