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Manorath Das Vs. Ambica Kanta Bose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.57
AppellantManorath Das
RespondentAmbica Kanta Bose
Cases Referred and Rajah Muhesh Narain v. Kishanund
Excerpt:
limitation act (xv of 1877), schedule ii, article 179 clause 4 and expln. ii - civil procedure code (act xiv of 1882), sections 223, 226 and 232--application in, accordance with law 'proper court'--decree sent to another court for execution--application for execution to that court by transferee of decree v. without obtaining requisite authority under section 282, c.p.c., from court which passed decree--jurisdiction of that court to entertain second application when first application was struck off for default--construction of article 179 ought not to be in favour of judgment-debtor. - .....applied to the rungpur court for transfer of the decree to the court of the subordinate judge at dacca for execution. on the 18th january 1900, the usual certificate was transmitted to the dacca court under section 224, c.p.c. in due course, the executors who had been granted letters of administration pendenti monoritate of manorath das, the beneficiary under the will, were discharged, and the estate passed into the hands of the said manorath das who is the appellant now before us. on the 12th november 1902, manorath das applied to the court of the subordinate judge at dacca to execute the decree on the basis of the certificate previously received from the rungpur court. this application was made in the usual tabular form under section 235 of the code and contained a recital that.....
Judgment:

1. This is an appeal on behalf of the decree-holder against an order of the District Judge of Dacca reversing the order of the Subordinate Judge, 'who had allowed execution to proceed. The decree now under execution was obtained against the judgment-debtor so far back as the 26th November 1894, in the Court of the Subordinate Judge of Rungpur by the executors to the Will of one Bhagirath Das. The first execution proceeding was in 1896, and was followed by the second, nearly three years later; to the details of these, it is not necessary to refer for our present purposes. On the 13th November 1899, the decree-holders applied to the Rungpur Court for transfer of the decree to the Court of the Subordinate Judge at Dacca for execution. On the 18th January 1900, the usual certificate was transmitted to the Dacca Court under Section 224, C.P.C. In due course, the executors who had been granted letters of administration pendenti monoritate of Manorath Das, the beneficiary under the Will, were discharged, and the estate passed into the hands of the said Manorath Das who is the appellant now before us. On the 12th November 1902, Manorath Das applied to the Court of the Subordinate Judge at Dacca to execute the decree on the basis of the certificate previously received from the Rungpur Court. This application was made in the usual tabular form under Section 235 of the Code and contained a recital that interest of the original decree-holders, the executors to the estate of Bhagirath Das, had vested in the applicant, who had consequently become entitled to proceed with the execution. As the name of Manorath Das did not appear on the face of the record or in the certificate received from the Rungpur Court, the Subordinate Judge granted him time, which was subsequently extended on his application, to enable him to produce an amended, certificate from, the Rungpur Court. On the 15th January 1903 Manorath Das applied to the Rungpur Court for substitution of his own name as decree-holder and that Court issued a fresh certificate on the 28th March following, apparently after notice to the judgment-debtor. On the 4th October 1904, Manorath. Das applied to the Dacca Court on the basis of the new certificate; he prayed that the application might be treated as part of the original application of the 12th November 1902, and an order for execution made. A notice under Section 248, C.P.C., is said to have been served by order of Court in this proceeding, and as no objection was taken on behalf of the judgment-debtor, attachment was directed to issue. The decree-holder, however, did not take any further steps, and as the judgment-debtor also did not appear the execution proceedings were struck off on the 6th June 1905. On the 21st June 1905, Manorath Das again applied to the Dacca Court for execution of the decree. Notice was served on the judgment-debtor and order for attachment was made. The judgment-debtor appeared and objected that all the previous proceedings in the Rungpur as well as the Dacca Court had been taken without service of notice on him and that the application, was barred by limitation. There was no enquiry into any of these allegations and no adjudication. As the decree - holder did not take any further steps, the case was dismissed for non-prosecution on the 24th. March 1906; but the order made on that occasion stated that the attachment was to subsist. On the 12th April 1906, the application which initiated the present proceedings was made to the Dacca Court. Objection was at once taken by the judgment-debtor that the execution was barred by limitation. The Subordinate Judge held that the application of the 12th. November 1902, was an application in accordance with law and to the proper Court to take some step in aid of execution and was therefore sufficient to save the decree from the bar of limitation. Upon appeal the District Judge has held that the view taken by the Subordinate Judge as to the effect to be at tributed to this application is erroneous, and he has, consequently, dismissed the application for execution as barred by limitation. The decree-holder has now appealed to this Court, and it has been argued on his behalf that the application of the 12th November 1902, does save the decree from the bar of limitation. In our opinion this contention is well founded and must prevail.

2. It was ruled by this Court in the case of Amar Chandra Banerjee v. Guru Prosunno Mukerjee 22 C. 558, that an application by the transferee of a decree for execution after substitution of his name can be entertained only by the Court which passed the decree, and that the Court to which the decree has been transferred has no jurisdiction to entertain it. It is not necessary for our present purposes to consider whether this rule can be made to harmonise on principle with the decision in Sham Lal Pal v. Modhu Sudan Sircar 22 C. 558, which, is apparently an authority for the proposition that, when a decree has been transferred for execution and one of the judgment-debtors dies during the pendency of the execution proceedings, it is competent to the Court to which the decree has been transferred for execution, upon application made by the judgment-creditor, to execute the decree against the legal representatives of the deceased judgment-debtor after issue of notice under Section 248, C.P.C. We shall assume that the rule laid down in Amar Chandra Banerjee v. Guru Prosunno Mukerjee 22 C. 558, is founded upon a correct interpretation of Sections 228 and 282 of the Code. In the present case, therefore, when upon the attainment of majority by Manorath Das, the beneficiary under the Will, the authority of the executors terminated, their interest in the decree must be taken to have been transferred by operation of law from them to Manorath Das within the meaning of Section 232, C.P.C. Manorath Das, therefore, before he could proceed with execution of the decree in any Court must have armed himself with authority from the Court which made the decree. It may be conceded, therefore, that if on his application the Dacca Court had proceeded to execute the decree, the execution proceedings might have ultimately proved infructuous. Nevertheless, this does not by any means conclude the question, whether the application of the 12th November 1902, may not still be treated as an application 'in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree within the purview of Article 179, Clause 4 of the Second Schedule to the Limitation Act of 1877'. The Dacca Court had received from the Rungpur Court the decree for the purpose of execution, and it was, therefore, its duty to execute that decree provided that the proceeding's were initiated by a person entitled and authorised to do so. It may be conceded that Manorath Das could, not have proceeded with execution upon his application of the 12th November 1902, till he had obtained an order from the Rungpur Court in his favour under Section 232, C.P.C. But did his failure or omission to produce such an order at the moment when the application to the Dacca Court was made, entirely vitiate that application? In our opinion, it did not. In order to determine the precise effect of that application upon the question now before us, we have to consider two elements, namely, first, whether the application was made to' the proper Court '; and secondly, whether the application was 'in accordance with law.' As regards the first of these elements, we observe that the expression 'proper Court' is defined by the second explanation appended to Article 179 of the Limitation Act to mean 'the Court whose duty it is (whether under Section 226 or 227 of the C.P.C. or otherwise) to execute the decree '. As we have already explained, the decree had been transmitted with the necessary certificate by the Rungpur Court to the Dacca Court, and it then became the duty of the Dacca Court to execute the decree under Section 226 with the same powers as if the decree had been passed by itself. As regards the second element, we observe that the application was, on the face of it, one in accordance with law; for it is not suggested that the application did not comply with the requirements of the Code as to either its form or its contents. Nor has it been denied that the application was made by the only person who a the time was interested in the decree and was entitled to call for its execution. But reliance was placed by the learned Vakil for the respondent upon the cases of Chattar v. Newal Singh 12 A, 64 and. Munewar Hosaain v. Jani Bejoy 27 A. 619, to show that the application was not in accordance with law. Both the cases, however, are distinguishable and are based upon a perfectly intelligible principle, namely, when an application invites the Court to take an action which it is not competent under any circumstances to take, when in fact, it invites the Court to grant a relief which the Court is not competent under any circumstance to grant, the application is not one in accordance with law. In the first of the two cases to which reference has been made, the Court was invited to arrest a judgment-debtor a second time in contravention of the provisions of Section 841 C.P.C., and also to bring mortgaged properties to sale in contravention of Section 99 of the Transfer of Property Act. In the second case, the Court was invited to sell properties not comprised in a mortgage decree in, execution of that decree before a personal decree had been made under Section 90 of the Transfer of Property Act. In each of these cases, therefore, the Court was expressly asked to do something in execution which by law that Court was not competent to do in any circumstance. In this state of facts the learned Judges held, and in our opinion rightly, that applications of this character could not be treated as applications in accordance with law. The same view was taken in the cases of Purna Chandra v. Radha Nath 4 C.L.J. 141 Pandarinath v. Lillachand 13 B. 237 and Onkar v. Onkar 1 N.L.R. 61. These cases, therefore, do not show that the application in the present case was not one in accordance with law.

3. It was strenuously contended, however, on behalf of the respondents that, as the application was made to the Dacca Court at a time when the petitioner had not obtained a certificate from the Rungpur Court authorising him to proceed with execution, the Court at that time was not competent to grant him any relief and that, therefore, the application ought to be treated as one made neither to the proper Court nor in accordance with law. This argument, in our opinion, is manifestly fallacious. It is perfectly true that it was a condition precedent to the actual execution of the decree by the Dacca Court that the petitioner should obtain the necessary certificate from the Rungpur Court; but nevertheless, as sub-sequent events showed, he was at the moment of the application the person entitled to the benefit of the decree, and the Court to which he made the application, was the Court whose duty it was to execute the decree previously received by transfer from the Court which had made it. The essence of the objection is that, at the moment when the application for execution was made, the petitioner did not produce the authority from the Rungpur Court under which alone he could proceed with execution. But once that order was obtained from the Rungpur Court, it would relate back not merely to the time of the application, but to the time when by operation of law the lights under the decree had become vested in him. In support of this view, we need only refer to the series of decisions in which it has been held that an application for execution of a decree; made by the legal representative of a deceased decree-holder without the production of the certificate made essential by Section 4, Succession Certificate Act of 1889, is nevertheless one made in accordance with law within the meaning of Article 179, Clause 4 of the Limitation Act. Brojonath v. Isswar Chandra, 19 C. 482, Hafiz-ud-Din v. Abdul Aziz 20 C. 755, Mangal Khan v. Salimullah 16 A. 26, Balkishan v. Wagar Singh 20 B. 76 Alagirisumy v. Venkata Chellapathy 31 M. 77. These cases were decided upon the principle that when an application for execution has been presented by the legal representative of a deceased decree-holder without the production of the Succession Certificate the application is nevertheless an application in accordance with law, because, upon the subsequent production of the certificate, it would be competent to the Court to grant the relief sought. 'Similarly, in the case before us the application was made by the person entitled to the benefit of the decree and was made to the court whose duty it was to execute the decree, and upon the production of the certificate contemplated by Section 224, C.P.C., it became competent to the Court to proceed with execution at once on the basis of the original application. In one class of cases, the succession certificate has to be produced, from, another Court, namely, the Court of the District Judge. In the other class of cases, now before us, the necessary authority has to be procured from the Court which originally made the decree. But in both classes of cases, upon the production of the authority the Court became entitled to proceed with execution on the basis of the application previously made. The principle which underlies the two classes of cases, appears to us to be quite clear and the analogy perfectly complete. We may also refer, for illustration, to another class of cases, of which the case of Abdul Majid v. Muhammad Faizullah 13 A. 89 may be taken as the type. In that case, the application for execution was presented by a person who claimed to be the transferee of the decree under an unregistered deed of assignment. The Court held that the deed was inoperative till it was registered in accordance with law. The deed was subsequently registered and fresh application for execution made. The learned Judges of the Allahabad Court ruled that the effect of the registration was to make the title of the assignee relate back to the date of the execution of the document and as therefore the assignee was in fact, the person entitled to call for execution of the decree when he made the application, though he was unable at that time to prove his title by assignment, the application must be treated as one in accordance with law within the meaning of Article 179 Clause 4 of the Limitation Act. It has been repeatedly held (Adhar Chandra v. Lal Mohan) 1 C.W.N. 676, that the language of Article 179 ought not to be strained in favour of a judgment-debtor who has not paid his just debt, and the view that we take as to the applicability of that article to the circumstances of this case certainly does not go as far as some other cases to be found in the books: for instance the case of Balkishen v. Bedmati 20 C. 388 where an application was made against persons who were not representatives of the deceased judgment-debtor, and Bipin Behari Mitter v. Zohra 35 C. 1047, where an application was made against a dead person. In each of these it was held that the application was one in accordance with law and was sufficient to save the decree from the bar of limitation. We must, therefore, hold in the present case that the application of the 12th November 1902 was one made to the proper Court in accordance with law for execution of the decree, which is thus saved from the bar of limitation.

4. It was finally contended by the learned Vakil for the respondent that after the application of the 4th October 1904, had been dismissed on the 6th June 1905, the Dacca Court had no jurisdiction to proceed with execution upon the application of the 21st June 105, or that of the 12th April 1906. In support of this contention ho relied upon the decision of this Court in Raja Bhoop Singh v. Sunkur Dutt 6 W.R. Mis. 47, in which, it was held that, when a case is transferred by the Court which passed the original decree to another Court in order that the decree might be executed and the proceedings on the application for execution has been struck off the file for default, the proper Court to apply to for fresh issue of execution is the Court which passed the original decree and not the Court to which the decree had been transferred for execution. This decision, however, must be taken to have been impliedly overruled by a Full Bench in Bagram v. Wise 1 B.L.R. 91; 10 W.R., 46, F.B., in which the principle was laid down that when a decree of one Court has been transmitted to another Court for execution the latter Court has jurisdiction to entertain the application for execution even if a previous application had been struck off for default. The same view was affirmed by the Allahabad High Court in Abda Begam v. Muzaffar Husen 20 A. 129, in which it was ruled that the Court to which a decree had been transferred for execution, retained its jurisdiction to execute the decree until execution had been withdrawn from it or until it had fully executed the decree and had certified that fact to the Court which sent the decree, or had executed it, so far as that Court was able to do within its jurisdiction and certified that fact to the Court which sent the decree. This view is obviously supported by Section 223 C.P., C. which provides that the Court to which a decree is sent for execution shall certify to the Court which passed it, the fact of such execution or, where the former Court fails to execute the same, the circumstances attending such failure. We observe that the Punjab Chief Court has gone even further and has held that when a decree has been sent for execution to another Court and return has been made to the Court which passed the decree, an application subsequently made to the Court to which it had been sent by the Court which passed it, may be entertained by that Court even though the application is not accompanied by a fresh certificate, and that it would be the duty of that Court to grant execution, making any enquiry that it considered necessary, from the Court which passed the decree, as to execution since the date of its first return, Harbhaj v. Makan Lal 168 P.R. 1888. It is not necessary for our present purpose to go quite as far as the Punjab Chief Court has gone and we must not be taken to approve of the extended rule enunciated by that Court. But it seems to us to be quite clear, upon principle as well as upon the authorities, that till the Court to which a decree has been sent for execution has made its return to the court which made the decree, it has jurisdiction to entertain successive applications for execution. As was pointed out by Their Lordships of the Judicial Committee in Puddomomonee v. Mathoora Nath 20 W.R. 133; 12 B.L.R. 41 and Rajah Muhesh Narain v. Kishanund 9 M.I.A. 324; 5 W.R. 7 (P. C), the mere fact that an execution proceeding has been struck off does not indicate the final determination of the execution proceedings in that Court. In this view of the matter, it would be impossible to hold that the order of the 6th June 1905 deprived the Dacca Court of jurisdiction to entertain the subsequent application for execution of the decree over which it still undoubtedly retained control. We may add with reference to the decision of the Punjab Chief Court to which we have referred, that the learned Judges further held that the application made to the Court to which the decree had been transferred for execution even after it had made its return to the original Court might be treated as an application in accordance with law and to the proper Court for execution of the decree. The case before us is unquestionably much stronger. Here the Dacca Court had, at any rate, seisin of decree and jurisdiction to execute it. The only difficulty was that the person who made the application, was not named in the certificate sent from the Rungpur Court and had accordingly to produce the necessary certificate in proof of the validity of his title to execute the decree. In the case before the Punjab Chief Court, there was not only this defect of the want of the necessary certificate, but also the fact that the Court to which the application for execution was presented had already made its return to the Court which had sent the decree for execution. On all these grounds we feel no doubt that the view put forward on behalf of the appellant, is well founded on principle and ought to be upheld.

5. The result, therefore, is that this appeal must be allowed, the order of the District Judge reversed and that of the Subordinate Judge restored. This order will carry costs both in this Court and in the Courts below. We assess the hearing fee in this Court, three gold mohurs.


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