G.N. Das J.
1. This is an appeal by the decree-holder and is directed against an order of Sri R. R. Biswas, learned Subordinate Judge, Nadia, dated 1-9-1950.
2. The facts are not in controversy and may be briefly stated as follows:
In 1935 the appellant instituted a suit for partition of certain joint lands against the respondents who are her co-sharers. The suit was registered as Title Suit No. 11 of 1935 of the Court of the Subordinate Judge, Nadia, The suit ended in a compromise decree on 30-11-1936. The substance of the terms of the compromise was that the appellant gave a lease of her undivided share in the property in suit in favour of the respondents at a monthly rent of Rs. 100/-.
3. The rents so reserved not having been paid by the respondents, the appellant instituted a suit for recovery of rent being Rent Suit No. 4 of 1946. The Rent Suit was instituted in the Court of the Subordinate Judge, Nadia. The suit was decreed on 23-11-1948. On 13-7-1949 the appellant filed an application for transfer of the decree passed in Rent Suit No. 4 of 1946 of the Subordinate Judge's Court at Nadia to the Subordinate Judge, Alipore, through the District Judge, Alipore. The application for transfer is not printed in the paper book but the affidavit which was filed in support of the application is on the record. It is an affidavit sworn to by one Satish Chandra Banerjee, a son-in-law of the appellant. The affidavit, is somewhat vague and, in my opinion, misleading. It purports to say that the judgment-debtors had no sufficient property in the district of Nadia taut had property in the district of 24-Parganas. The object of the affidavit was to get an order from the Court in terms of Section 39(b)(c), Civil P. C. It appears from the order-sheet that this application for transmission of the decree was registered on the same day, viz., 13-7-1349. The Court directed the matter to be put up on 20-7-1949. On that date the learned Subordinate Judge, Nadia, made an order transmitting the decree passed in Rent Suit No. 4 of 1918 to the Court of the Subordinate Judge, Alipore, through the District Judge, Alipore. No notice was issued on the judgment-debtors.
4. After the decree had been transmitted to the Subordinate Judge, Alipore, the appellant filed an application for execution as required in terms of Order 21, Rule 11, Civil P. C. giving rise to Money Execution Case No. 33 of 1949 of the first Court of the Subordinate Judge, Alipore. It appears that the appellant prayed for sale of certain immovable properties belonging to judgment-debtor 1, who is respondent 1 in this appeal. The property sought to be sold is No. 6B, Kabir Road. After the attachment had been effected on 30-9-1949 the judgment-debtor 1 filed an objection under Section 47, Civil P. C. on 8-11-1949. This gave rise to Misc. Case No, 93 of 1949.
The first objection was that the execution was barred under Section 168A, Bengal Tenancy Act. The second objection was that the judgment-debtor had sufficient property in the district of Nadia and as such the order for transfer was bad in law. This Miscellaneous case came up for hearing before Mr. P. N. Lahiri, learned Subordinate Judge. First Court, Alipore. It appears from his order dated 18-2-1950 that the learned Subordinate Judge merely dealt with the objection under Section 168A, Bengal Tenancy Act. In his opinion, as the decree passed in Rent Suit No. 4 of 194S related to a tenancy governed by the Transfer of Property Act the objection under Section 168A, Bengal Tenancy Act was incompetent. In this view he dismissed the Miscellaneous Case No. 96 of 1949.
5. We have been informed that against this order there was an unsuccessful appeal to this Court. Thereafter the premises No. 63 Kabir Road was put up to sale, the date for sale being fixed on 10-7-1950. On 20-8-1950, judgment-debtor 1 filed an application under Section 39, Civil P. C. It was alleged in this application that the judgment-debtor was a resident of the district of Nadia and he had sufficient property within that district and that the order for transfer was made without notice to him and as such should be recalled. To this petition the appellant decree-holder filed an objection. It was pleaded inter alia that the order for transfer not having been appealed against was final and binding between the parties. It was also pleaded that the judgment-debtor had not sufficient property in the district of Nadia from which the decree-holder's dues could be realised. It was further pleaded that the judgment-debtor having taken identical objections in Misc. Case No. 96 of 1949 was barred by principle of constructive res judicata from re-agitating the matter.
6. The learned Subordinate Judge has overruled, the objections of the decree-holder and has made an order recalling the decree from the Court of the Subordinate Judge, Alipore. It is the propriety of this order which is challenged in this appeal.
7. Before I deal with the contentions raised in support of the appeal I may state the findings of the learned Subordinate Judge which are as follows: That no notice under Section 21, Rule 22, Civil P. C. was served on the judgment-debtors, that the decision in Miscellaneous Case No. 96 of 1949 did not operate as res judicata, that the judgment-debtors had sufficient properties within the district of Nadia and as such the order for transfer should be recalled.
8. Mr. Mookerjee who has appeared in support of the appeal has contended in the first place that the finding of the learned Subordinate Judge that the judgment-debtors had sufficient properties in the district of Nadia is not correct. We have been referred to the evidence or, record but having perused the same, we are of opinion that the finding of the learned Subordinate Judge cannot be assailed. (His Lordship considered the evidence and proceeded:) In any view, the value of the properties of the judgment-debtors is more than sufficient to meet the decretal cues. The first contention raised on behalf of the decree-holder must therefore be overruled.
9. Mr. Mookerjee next contended that the order for transfer of the decree by the Court of the Subordinate Judge, Nadia not having been appealed from was binding upon the parties and it was not open to the Subordinate Judge, Nadia, who is the successor-in-office of the learned Judge who made the order, to question the validity or propriety of this order. I have already pointed out that the order for transfer was made ex parts without service of any notice on the judgment-debtors. The order for transfer of a decree is not a ministerial act but is a judicial act and like all judicial acts it did not acquire finality as no notice was served on the parties affected thereby. This view is fully supported by a Bench decision of this Court in -- 'Firm Ganeshdas Badrinarain v. Amulak Chand', : AIR1940Cal161 . A similar view of the effect of an ex parte order was taken by the Madras High Court in -- 'Suryaprakasa Rao v. Venkata Dikshitalu', : AIR1933Mad844 . The ex parte order for transfer cannot therefore be binding on the judgment-debtors. This disposes of the second contention raised by Mr. Mookerjee.
10. The third contention raised by Mr. Mookerjee concerned the effect of the order of dismissal of Miscellaneous Case 96 of 1949 filed by judgment-debtor 1 before the transferee Court, viz., the Court of the first Subordinate Judge, Alipore. As I have said that order disposed of an application under Section 47, Civil P. C. filed by the judgment-debtor 1. In that petition of objection judgment-debtor 1 specifically raised a plea that the order for transfer was bad, because the learned Subordinate Judge in making the order overlooked the fact that the judgment-debtors had sufficient properties is the district of Nadia which would have wiped out the decree obtained by the decree-holder. The order passed by the Subordinate Judge did not decide this objection.
It is contended that although the particular obiection, was not expressly disposed of, on principles of constructive res judicata it must be held that the objection was overruled by the learned Subordinate Judge and as such the decision in Miscellaneous Case No. 96 of 1949 would operate as res judicata disentitling the judgment-debtor 1 from reagitating the self-same objection viz., whether the order for transfer under Section 39(b) and (c) , Civil P. C. was properly passed or not.
Reliance was placed on a recent decision of the Supreme Court in -- 'Mohanlal Goenka v. Benoy Krishna Mukherjee', : 4SCR377 (C). The majority judgment was delivered by Golam Hossain J. It laid down that the principle of constructive res judicata applies to proceedings in execution, even on a matter affecting the jurisdiction of the executing Court. In that case however, tne executing Court was a transferee Court who had received on transfer a decree of this Hon'ble Court, for execution. The question that was mooted was whether the transferee Court had jurisdiction to execute the decree, the ground suggested being that the transferee Court had tost jurisdiction by reason of re-transfer of the decree to the transferor Court, viz., the High Court at Calcutta. This objection had been taken at an earlier stage of the execution proceedings before the transferee Court but had not been pressed and had not been expressly disposed of by any previous order of that Court. The contention was that on principles analogous to constructive res judicata the judgment-debtor was precluded from raising the objection he had taken but on which no decision had been given at an earlier stage of the execution case. The majority of the Supreme Court Judges held that the judgment-debtor was precluded from re-agitating the question.
It must be noted however that in that case the jurisdiction of the transferee Court rested on a question of fact viz., whether the decree had been re-transmitted and a certificate of non-satisfaction had been sent to the transferor Court, viz., the High Court at Calcutta. This fact was specifically pleaded in earlier stages of the execution case in the transferee Court, but had not been disposed of by that Court. No question arose as to whether the transferee Court was competent to decide upon the validity or otherwise of the order for transfer. The only question debated was whether the transferee Court had retained jurisdiction or had lost the same by reason of what had happened in the course of execution proceedings in the transferee Court. This case therefore is not on all fours with the facts of the present case and is distinguishable. The question before us is somewhat different. In the present case an objection had been taken to the jurisdiction of the transferor Court in the transferee Court and this objection had not been adjudicated upon by the transferee Court.
11. It is undoubtedly true that the principles of res judicata apply to proceedings other than suits including proceedings in execution. It must be taken as held by the Supreme Court that the principles of constructive res judicata are also applicable to execution proceedings. But the conditions of applicability of the principles of res judicata actual or constructive, contained in Section 11, Civil P. C. must be complied with in such cases, as far as possible. It is not the law that when a Court applies the principles analogous to res judicata, that Court can override the conditions specified in Section 11, Civil P. C. Those conditions must be fulfilled as far as possible: See -- 'Abinash Chandra v. Madhusudan Mazumdar', : AIR1952Cal673 (D). One of the explanations appended to Section 11 is explanation V. Explanation V requires that a matter would be regarded ar, constructively in issue if such a matter might and ought to have been raised in the suit or the proceedings.
In the present case the question therefore arises whether the objection to the jurisdiction of the transferor Court might and ought to have been raised in the transferee Court. This depends on the extent of the powers which are possessed 'by the transferee Court. These powers are defined in Section 42, Civil P. C. which corresponds to the old S. 228, Civil P. C., 1882. Section 42 provides that the Court executing a decree sent to it for execution.
'shall have the same powers in executing the decree as if it had been passed by itself.'
It is true that the words used are very general but they have to be read in the light of Order 21, Rule 28. Civil P. C. which corresponds to Section 239, Civil P. C., 1882. Order 21, Rule 28 says that an order of the Court which passed the decree in relation to the execution of that decree shall be binding on the Court to which the decree is sent for execution. In other words, the order of a transferor Court in relation to the execution of a decree shall be binding on the transferee Court. If we read Section 42 along with Order 21, Rule 28 Civil P. C. the meaning of the words 'powers in executing the decree' must mean powers in carrying out the purpose of executing the decree. Such powers only pass to the transferee Court. The transferee Court acts under delegated authority from the transferor Court and must, in my opinion, accept the order of the transferor Court under which the delegated authority is conferred on it. That this is the correct view is fully supported by a number of decisions to which our attention was drawn by Mr. Mitter on behalf of the respondents.
In -- 'Beerchunder Manikya v. Maymana Bibi', 5 Cal 736 (E), it was laid down that the transferee Court cannot question the propriety or correctness of the order for transfer and that if the transferee Court makes an order challenging the propriety or correctness of an order of the transferor Court, the order of the transferee Court must be deemed to be ultra vires.
The same view was taken in -- 'Ramlal v. Radheylal', 7 All 330 (P); -- 'Mulla Abdul Hussein v. Sakhinaboo', 21 Bom 456 (G) and -- 'Kannappa v. 'Ishaar Singh', AIR 1937 Rang 477 (H). The Court of the Subordinate Judge, 1st Court, Alipore, which had disposed of the Miscellaneous Case No. 96 of 1949 was therefore not competent to adjudicate upon the objection raised by the judgment-debtor 1 before it, to the effect that the transferor Court, viz., the Nadia Court had no power to make an order for transfer. In regard to such an objection it cannot be said that the principles of constructive res judicata would apply. The third contention raised by Mr. Mookerjee must therefore be overruled.
12. A further question arises, viz., whether thg Subordinate Judge, Nadia, should have in the exercise of his discretion under Section 39, Civil P. C., recalled the order made by his predecessor. An order under Section 39, Civil P. C. is a judicial order and like all judicial orders the discretion vested in the Court must be judicially exercised. In the present case the following facts appear from the record. The order for transfer was obtained on the basis of an affidavit which, in my opinion, was somewhat misleading and vague. No notice was given to the judgment-debtors prior to the order for transfer. After the decree had been received in the Court of Alipore, the decree-holder chose to select the judgment-debtor 1 as the person against whom the execution would proceed. It is true that the liability of the judgment-debtors is joint and several. But in my opinion, having regard to the findings of the learned Subordinate Judge that the judgment-debtors have sufficient properties in the district of Nadia of the value of about a lac of rupees and to the facts just stated, the conduct of the decree-holder in getting the decree transferred from the Court of Nadia to the Court at Alipore cannot be regarded as entirely bona fide. In these circumstances, in my opinion, the learned Subordinate Judge exercised his discretion properly in recalling the decree sent by his predecessor to the Court of the second Judge. Alipore. The order complained of must therefore stand.
13. In the result this appeal is dismissed but having regard to the fact that the decree-holder has not been able to realise the decretal dues for a long period I direct that the parties will bear their own costs in this Court and in the Court below.
Debabrata Mookerjke J.
14. I agree.