Badri Ram vs Banwari Lal and another

Wort, J.—This is an appeal from an order of the Subordinate Judge of Saran, rejecting an application against the order of the Munsif under S. 47, Civil P.C. The action out of which the application ultimately arose was an action which was brought before the Punchiest which was brought into existence by the Local Government under the Bihar and Orissa Village Administration Act of 1922, S. 58. It would appear that proceedings in execution were instituted, that is to say, proceedings in execution provided for by the Act "by the distraint and sale of moveable property" in S. 81, with the result that the execution was either infructuous or not completely satisfied. In those Circumstances the Punchayat, more than one year after the decree was given, transferred the case to the civil Court for execution. There is no doubt that the Panchayatpurported to transfer the decree for execution under Sub-S. 3, S. 59, and it is against this transfer that the application to the Subordinate Judge was made by the judgment-debt or under S. 47, Civil P.C.

The point argued in the Court below and in this Court was that there was no jurisdiction to transfer as Sub-S. (3), S. 59, applied only to those Courts brought into existence by the Notification of the Local Government under S. 59 and not Courts which owed their existence to S. 57 or section 58 of the Act of 1922. The other point argued was that the limitation provided by R. 30 of the Rules under the Act was one year, and that the transfer had been made more than one year after the decree had been passed which was 24th April 1932, and therefore the application was barred by limitation. I propose to deal with the second point at once, and it seems to me the answer to that is complete. The method of execution under the Act was, as I have already pointed out, by distraint and sale u/s 81, and R. 30 which was one of the rules made under the authority of the Act provides that:

No amount realizable under a decree shall be recovered by distress and sale after the expiration of one year from the date of the decree.

Now the short answer to that is this, that if the Court had jurisdiction to transfer, then it is quite clear that the CPC applied to the execution which would not be barred by reason of the rule to which I have just referred. Secondly, the rule to which I have made reference, namely, R. 30, is a provision against execution of the decree by distress and sale after the expiration of one year. This was an execution of an immovable property which was not allowed under the Act but under the Civil Procedure Code, and the rule is applicable only to the particular method of execution provided by the Act.

The other point however is a more serious one, and in that point are involved some difficult questions. What was intended is difficult to say; but what the legislature has in fact stated in its provisions does not seem to be very doubtful. Having regard to the policy of the legislature it is rather surprising to find that on one view of this piece of legislation that policy is somewhat frustrated by giving the decree-holder before a Panchayatunder S. 59 of the Act, powers of execution by the method of transfer against immovable property, whereas if that construction is placed on S. 59 in the sense that Sub-S. (3) is applicable only to those Courts erected under S. 59, the powers thus given are wider than the powers given to the Punchayats outside Chota Nagpur. S. 57 deals with the Panchayathaving exclusive jurisdiction in suits where the value of the suit does not exceed Rs. 25; S. 58 deals with Punchayats having concurrent jurisdiction with the civil Courts in suits up to but not exceeding Rs. 200 in value. I have broadly stated the relevant provisions of those two sections which deal with Punchayats outside Chota Nagpur. S. 59 gives either exclusive or concurrent jurisdiction, depending upon the notification of Government to Punchayats and then comes Sub-S. (3) under which the Panchayatwhich is unable to execute the decree in the exercise of its powers of execution under S. 81, may transfer or send the decree for execution to the Court having civil jurisdiction for execution. Now the words are important.

It is contended by Mr. Khurshed Husnain in the first place that Sub-S. (3) gives power to transfer to the classes of Courts mentioned in sections 57, 58 and 59 of the Act. The argument of the learned advocate for the appellant however is that the power to transfer contained in Sub-S, (3), S. 59 applies only to those Courts referred to in S. 59. It seems to me that by reason of one of the clauses in Sub-S. (3) the only construction that I can place upon the section is that for which the appellant contends. The words arc these:

If the Panchayat is unable to execute the decree in the exercise of the powers conferred by S. 81 the panchayat shall send the decree for execution to the Court which would have had exclusive jurisdiction to try the suit, but for the provisions of this section. Such Court shall execute the decree in accordance with the provisions of the Civil Procedure Code, 1908.

Now, it is impossible to hold that Sub-S. (3) is of general application when the section is expressly excluded by these words: "but for the provisions of this section," and let it be noted that the power to transfer is to the Court which would have had exclusive jurisdiction but for this section. It seems to me that the learned Judge had no jurisdiction to transfer as he purported to do under Sub-S. (3), S. 59 of the Act. The power to transfer, I would add, is to the Court which would have had jurisdiction in Chota Nagpur but for the provisions of S. 59. Mr. Husnain contends that quite apart from the section to this sub-section under which the Panchayatpurported to act, the CPC applied and that the Court was entitled to transfer it under S. 39 by reason of the provisions of S. 141, Civil P.C. The only possible clause of the CPC which applied would be CI. (d), S. 39 which provides that the Court may transfer a decree and send it to another Court for execution: if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

Clauses (a), (b) and (c) of that section have no application. But it has been held expressly in a long series of decisions including decisions of the Judicial Committee of the Privy Council, that S. 141 does not apply to proceedings in execution, and it is admitted by Mr. Khurshed Husnain that it is only by reason of the incorporation of the provisions of S. 141 that he can take advantage of S. 39 of the Code. If that is not so, in other words, if the respondent cannot take advantage of the provisions of S. 141, Civil P.C. it is impossible to hold that the Panchayathad jurisdiction to transfer the case under the Civil Procedure Code, in contradistinction to powers such as it possessed, if any, under the Village Administration Act, Sub-S. (3), S. 59.

In those circumstances it seems to me that the appeal succeeds and must be allowed with costs throughout. Leave to appeal under the Letters Patent is granted.