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AsiruddIn Mondol and ors. Vs. Ram Sakhi Debya and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in86Ind.Cas.775
AppellantAsiruddIn Mondol and ors.
RespondentRam Sakhi Debya and ors.
Cases ReferredMahamad Kazem Ali v. Naimuddin Ahmed
Excerpt:
civil procedure code (act v of 1908), sections 2(2), 38 and 47 - bengal, n.w.p. and assam civil courts act (xii of 1887), section 13--execution of decree--application made to court which passed decree--jurisdiction to execute decree, by sale and attachment of immoveable property situate within jurisdiction--assignment of civil business, effect of--order refusing to entertain application--appeal, whether lies--revision. - .....by any order under section 13(2) take away the jurisdiction of the second court to execute the decree passed by it, when (the execution case not having been transferred by it to any other court) it was the only court which could execute it under the provisions of section 38 read with section 37 of the code. in the case of kali pado mukerjee v. dino nath mukerjee 25 c. 315 : 13 ind. dec. (n.s.) 211, a obtained a decree against b in the court of first munsif of howrah. after the decree, the local area, within which the cause of action arose and the judgment-debtor resided, was transferred from the first to the second munsif. on an application by a for the execution of his decree in the court, of the second munsif which allowed execution, it was held that the second munsif had no.....
Judgment:

1. This appeal (Miscellaneous Appeal No. 158 of 1923) and the connected Rule (Rule No. 167 of 1923) arise out of proceedings in execution of a decree under the following circumstances.

2. The decree-holders obtained a decree for money against the judgment-debtor in the Court of the Munsif, Second Court, Bogra on the 11th May 1910. After several applications for execution, the decree-holders finally made an application for execution of the decree in the Court of the Second Munsif on the 11th May 1922, praying for attachment and sale of certain immoveable property situate within the jurisdiction of the Munsif, Third Court, as assigned by the District Judge under Section 13, Clause (2) of the Civil Courts Act. On the same day the Munsif, Second Court held that he had no jurisdiction to entertain the application and directed it to be returned to the decree-holder for presentation to the proper Court within seven days. It is stated that this order was passed in Chambers and was shown to the decree-holder's Pleader on the 13th May who thereupon took the application back and filed it on the same day in the Third Court. That Court directed the decree-holder to file a 'certificate', presumably a certificate of transfer under Section 39, C.P.C. Thereupon the decree-holder applied to the Second Court for a certificate and the latter sent the necessary certificate to the Third Court on the 18th May 1922. Proceedings in execution thereafter were taken in the Third Court. Subsequently upon the judgment-debtor's objection the Third Court, held that the application was barred by limitation. On appeal the Subordinate Judge held that the application was not barred. The judgment-debtors preferred an appeal to this Court, and the case was remanded for certain findings. After the arrival of the findings the appeal was heard, and at the hearing of the appeal a rule was issued calling upon the judgment-debtors to show cause why the order of the Second Court holding that it had no jurisdiction to entertain the application and returning the application for presentation to the proper Court should not be set aside.

3. The question for consideration is whether the Second Court had jurisdiction to entertain the application for execution. The Second Court passed the decree, and under Section 38 of the C.P.C. a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 57 provides that the expression -'Court which passed a decree' shall in relation to the execution of decrees unless there is anything repugnant in the (subject or context be deemed to include, (omitting Clause (a) which has no bearing upon the present question) (5) where the Court of first instance has ceased to exist or to have jurisdiction to execute it the Court which, if the suit wherein the decree was Passed was instituted at the time of making the application for the execution of the decree would have jurisdiction to try such suit.

4. In the present case the Second Court passed the decree and it had not ceased to exist. Prima facie, therefore it had jurisdiction to execute the decree. It is true that the property-which the decree-holders sought to attach and sell was situated within the jurisdiction of the Third Court as assigned by the District Judge under Section 13(2) of the Civil Courts Act. The territorial jurisdiction conferred upon the Munsif, Second Court by the Local Government under Section 13(1) extended over the whole of the Munsif Chouki including the place where the property sought to be attached lay. Our attention has been drawn to the wording of Section 13(2) of Act XII. of 1887, viz., may assign to each of them such civil business which is different from the wording of Section 18 of Act VI of 1871 under which the District Judge could assign to each the local limits of his particular jurisdiction. It is necessary, however, to consider the precise meaning of the words 'civil business' for the purposes of the present case, as we do not think that the District Judge could by any order under Section 13(2) take away the jurisdiction of the Second Court to execute the decree passed by it, when (the execution case not having been transferred by it to any other Court) it was the only Court which could execute it under the provisions of Section 38 read with Section 37 of the Code. In the case of Kali Pado Mukerjee v. Dino Nath Mukerjee 25 C. 315 : 13 Ind. Dec. (N.S.) 211, A obtained a decree against B in the Court of First Munsif of Howrah. After the decree, the local area, within which the cause of action arose and the judgment-debtor resided, was transferred from the first to the Second Munsif. On an application by A for the execution of his decree in the Court, of the Second Munsif which allowed execution, it was held that the Second Munsif had no jurisdiction to entertain the application and allow execution and that the application ought to have been made to the Court of the First Munsif which passed the decree. In Bachu Koer v. Golab Chand 27 C. 272 : 14 Ind. Dec. (N.S.) 180 it was held that when Subordinate Judges are appointed by the Local Government with jurisdiction over the whole of a District the District Judge is not competent under Section 13, (2) of the Civil Courts Act to assign them different areas so as to limit or define their respective jurisdiction. See also Mahamad Kazem Ali v. Naimuddin Ahmed (3) and Jagannath Prasad Singh v. Sheonandan Sahay 62 Ind. Cas. 487 : 6 P.L.J. 304 : 2 P.L.T. 374 : (1921) Pat, 186.

5. In the cases reported as Bachu Koer v. Gulab Chand 27 C. 272 : 14 Ind. Dec. (N.S.) 180 and Jaganath Prasad Singh v. Sheonandan Sahay 62 Ind. Cas. 487 : 6 P.L.J. 304 : 2 P.L.T. 374 : (1921) Pat, 186, the decree sought to be executed was a mortgage-decree. We have referred to those cases to show what view was taken of the provisions of Section 13(2) of the Civil Courts Act. On behalf of the respondents we are referred to Prem Chand Dey v. Makhoda Debi 17 C. 699 at p. 703 : 8 Ind. Dec. (N.S.) 1008, where it was held that territorial jurisdiction is a condition precedent to a Court executing a decree. But the question is, did the Second Court in the present case cease to have territorial jurisdiction, and we have held that it did not.

6. It is contended on behalf of the opposite party that the order of the Second Court dated the 11th May 1922 was appealable, and this Court therefore cannot interfere under its revisional powers. Reference is made to the cases, Bachu Koer v. Golab Chand 27 C. 272 : 14 Ind. Dec. (N.S.) 180, Mahamad Kazem Ali v. Naimuddin Ahmed 70 Ind. Cas. 210 : 26 C.W.N. 216 : (1922) A.I.R. (C) 41, and other cases to show that an appeal was preferred in those cases. But in those cases the Court, holding that it had jurisdiction, proceeded to execute the decree. The order was, therefore, one relating to execution of the decree.

7. In the present case the Court declined to entertain the application for execution at all on the ground that it had no jurisdiction. It is contended that it comes under the definition of a 'decree' but assuming that an order in execution of a decree other than those falling under Section 47 and not expressly mentioned in Section 2 comes under 'decree' there was no adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. The Court simply declined to entertain the application and did not go into any question between the parties. We think, therefore, that we can interfere under our revisional powers.

8. In the view we take the appeal must be decreed, with costs in all Courts (the hearing fee in this Court being assessed at two gold mohurs). But the Rule will be made absolute. The order of the Munsif, Second Court, Bogra, dated the 11th May 1922 is set aside, and the case sent back to that Court in order that it may deal with the application for execution according to law. We make no order as to costs in the Rule.


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