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Hewa Mal Vs. Karunamoy Gupta - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.542
AppellantHewa Mal
RespondentKarunamoy Gupta
Cases ReferredGurdeo Singh v. Chandrika Singh
Excerpt:
jurisdiction - assumption of jurisdiction in irregular manner--objection not taken at proper time--waiver--transfer of pending execution case--bale held irregularly--no application by judgment-debtor to set aside sale--transferee of judgment-debtor, whether competent to question sale--civil procedure code (act xiv of 1882), sections 244, 311. - .....judge has been challenged on two grounds; namely first, that the court by which the execution sale was held was a court of competent jurisdiction and that at any rate as no objection was taken by the judgment-debtor at the time to the jurisdiction of the court, it is too late for the defendant to take exception on that ground on the present litigation; and secondly, that no question of irregularity in the proceedings antecedent to the sale can be raised or considered in the present proceedings. in our opinion, both these objections are well founded and must prevail.3. in support of the first ground, it has -been pointed out by the learned vakil for the appellant that the decree was obtained by the plaintiff on the 17th march 1903 in the court of a munsif who had jurisdiction to try.....
Judgment:

1. This is as appeal on behalf of the plaintiff in a suit for declaration of title to immoveable property and confirmation of possession thereof. The property admittedly belonged to a person by name Dhanukdhari Singh. The case for the plaintiff is that in execution of a money-decree which he held against the admitted owner, he purchased the property On the 19th February 1906, that the defendant in execution of another decree against the same judgment-debtor purchased the property on the 20th January 1907, and that under these circumstances, the defendant has acquired no title to the property and is consequently not entitled to interfere with his possession. The defendant resisted the claim substantially on two grounds, namely, first that the decree which was the foundation of the title of the plaintiff was fraudulent and collusive, and, secondly, that the execution sale was inoperative to pass any title to the plaintiff, because it was (irregular and had been held by a Court which had no jurisdiction to deal with the matter. The Court of first instance, found that the decree was fraudulent and collusive and dismissed the suit, Upon appeal, the Subordinate Judge has reversed that finding and has held that the decree was not fraudulent but was based upon a promissory note executed for valuable consideration. The Subordinate Judge, however, has affirmed the decree of dismissal on the ground that the Court in which the execution proceedings took place had no jurisdiction to deal with the matter, and that, at any rate, the sale was vitiated by grave irregularities.

2. The plaintiff has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been challenged on two grounds; namely first, that the Court by which the execution sale was held was a Court of competent jurisdiction and that at any rate as no objection was taken by the judgment-debtor at the time to the jurisdiction of the Court, it is too late for the defendant to take exception on that ground on the present litigation; and secondly, that no question of irregularity in the proceedings antecedent to the sale can be raised or considered in the present proceedings. In our opinion, both these objections are well founded and must prevail.

3. In support of the first ground, it has -been pointed out by the learned Vakil for the appellant that the decree was obtained by the plaintiff on the 17th March 1903 in the Court of a Munsif who had jurisdiction to try suits of the value of Rs. 2,000. The application for execution of the decree was made in the Court of the same Munsif for recovery of the sum of Rs. 1,707. The properties appear to have been attached but the proceedings were subsequently dismissed for default. There was a second application for execution which was also infrucfcuous. On the 27th September 1905, the decree-holder applied for execution of the decree before the Munsif who had jurisdiction to entertain a suit of the value of Rs. 2,000. This Munsif, however, was subsequently transferred, and the result was that by an order of the District Judge, the execution proceedings pending before iim were transferred to the Court of the Subordinate Judge, Babu Ram Lal Das. No objection was taken by the judgment-debtor, and the sale, as we have already stated, was held on the 19th February 1906. It is now suggested, upon the authority of the decision of this Court in the case of Kishori Mohan Sett v. Gal Mohammad Saha 15 C. 177 that it was not competent to the District Judge to transfer a pending execution proceeding from the Court of the Munsif to that of the Subordinate Judge, and that consequently the Subordinate Judge when he held the sale must be deemed to have acted without jurisdiction. In our opinion, this contention is manifestly fallacious.

4. In the first place, the decision in Kishori Mohan Sett v. Gul Mahomed 15 C. 177 must be deemed to have been impliedly overruled by the decision of the Judicial Committee in the case of Thahur Prasad v. Fakir Ullah 17 A. 106 : 22 I.A. 44. It may be pointed out, that in so far as that case decided that a suit which has been heard in part cannot be transferred, it was not followed in the cases of Mahadeo Prasad v. Gajadhar 10 C.W.N. 12 and Eidyamoye Debya v. Surja Kanta 9 C.W.N. 705 : 32 C. 875. It is also worthy of note that the Legislature has subsequently indicated by the altered phraseology of Section 24 of the Code of Civil Procedure of 1908, that is by the introduction of the words 'at any stage', that the decision in Kishori Mohan Sett v. Gul Mahomed Saha 15 C. 177 did not give effect lo the true intention of the Legislature. The Legislature in substance has approved the contrary view taken by the High Courts of Bombay, Madras and Allahabad in the cases of In re Balaji Ranchhoddas 5 B. 680, Muttalagiri v. Muttayar 6 M. 357; Bandhu Nuik v. Lakhi Kuar 7 A. 342; Palanisami v. Thondama 26 M. 595 and Nassarvanji v. Kharsedji 22 B.778.

5. In the second place, the case of Kishori Mohan Sett v. Gul Mahomed Saha 15 C. 177 is clearly distinguishable. The case before us is not one of transfer of execution proceedings from one Court to another. It appears that by reason of the transfer of the Judicial officer before whom the execution proceedings had been commenced, that Court ceased to exist. The result, therefore, was that under Section 649, Civil Procedure Code of 1882, it became the duty of the Court in which the original suit might have been instituted to take cognisance of the execution proceedings. That Court was clearly the Court of the Subordinate Judge, because it cannot be disputed, upon the materials placed before us, that there was not at the station another Munsif competent to take cognisance of a suit valued at any sum between Rs. 1,000 and Rs. 2,000 cf. Dulal v. Ram Narain 31 C. 1057. Under these circumstances, we are clearly of opinion that the Subordinate Judge had jurisdiction to entertain the execution proceedings under Section 649 of the Code of 1882.

6. In the third place, it may be pointed out that even if it be assumed that the case of Kishori Mohan Sett v. Qui Mahomed Saha 15 C. 177 was correctly decided and applies to the circumstances of the present case, the judgment-debtor, now represented by the respondent, has waived objection to the assumption of jurisdiction by the Subordinate Judge. There is no room for controversy that the Subordinate Judge was competent to execute a decree for more than Rs. 1,000, if it was brought into his Court for execution after the necessary formalities Even if it be assumed, therefore, that the District Judge had no jurisdiction to make an-order for transfer, as it cannot be disputed that the order for transfer might have been made by this Court, the case would clearly be one of assumption of jurisdiction in an irregular manner and not assumption of jurisdiction in a matter over which the Court could not acquire jurisdiction under any circumstances. The objection to assumption of jurisdiction in circumstances like these may clearly be waived See Rai Bulkrishna v. Masumat Bibi 9 I.A. 182 at p. 196 : 13 C.L.R. 232 : 5 A. 142; Gurdeo Singh v. Chandrika Singh 36 C. 193 : 5 C.L.J. 611 : 1 Ind. Cas. 913. We must, therefore, hold that the view taken by the Subordinate Judge cannot be maintained and the execution sale is cot liable to be challenged on the ground that the Court in which the execution proceedings took place had no jurisdiction to held the sale.

7. In so far as the second objection is concerned, it is, in our opinion, equally groundless. The Subordinate Judge has held that as it is not established that any attachment, was effected or sale proclamation issued, the sale must be treated as invalid and inoperative in law. That is a view which clearly cannot e maintained. If the sale was liable to be challenged on the ground that there were material irregularities in connection with the execution proceedings, it was the duty of the judgment-debtor to take appropriate proceedings for reversal of the sale under Sections 241 and 311 of the Code of 1882. The judgment-debtor did not take any such step and the present respondent does not occupy a position of greater advantage. Ho has purchased the right, title and interest of the judgment debtor and he is bound by the same estoppel as would bind the judgment-debtor. The result, therefore, is that the two grounds upon which the validity of the sale, which is the root of the title of the plaintiff, was assailed cannot be sustained; as the defendant purchased the property subsequently to the purchase by the plaintiff, he has obviously acquired no title.

8. The result, therefore, is that this appeal is allowed and the decree made by the Court, below discharged. The suit will stand decreed with costs in all the Courts.


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