Bhagwan Das vs Gomti Bai and Another

Srivastava, J.—The short question raised by this execution first appeal is whether simultaneous execution is permissible in two courts, one being the Court to which the decree has been transferred for execution u/s 39 CPC and the other being the Original Court which passed the decree.

The facts are that the decree-holder having obtained his decreed got it transferred to a Court in Gwalior and put in an application for execution there. Before a certificate could be sent by the Gwalior Court, he put in a second execution application in the Court which had passed the decree and wanted to proceed against some property of the judgment-debtor situated within the jurisdiction of that Court. Objection was taken to the second application on the ground that it was not maintainable in law. Relying on the case of Makkhan Lal Vs. Mt. Bhagwana Kuer, , the learned Civil Judge rejected the objection. His order is being questioned by the present appeal.

The question was considered recently by a learned Single Judge of this Court in Aftab Ahmad and Others Vs. The Hindustan Commercial Bank Ltd., Aminabad, Lucknow, . The facts were similar and it was held that the second application for execution in the Court which had passed the original decree was maintainable. The same view appears to have been taken by a Division Bench of Rajasthan High Court in Ramkumar Chunilal Agarwala and Others Vs. Hazarimal Bansilal Kumbhar and Others,

The only decision to the contrary is that of a learned Single Judge in Parsottam Pasi Vs. Pt. Raj Narain Sharma and Another, . The question that arose for decision in Parsottam Pasi Vs. Pt. Raj Narain Sharma and Another, was not exactly the same. There the question, was whether an application made in the transferee Court after a decree had been transferred to another Court, could be treated as an application in aid of execution and the learned Single Judge answered that question in the negative. The attention of the learned Single Judge was apparently not drawn to the Makkhan Lal Vs. Mt. Bhagwana Kuer, . We respectfully agree with the decisions in Makkhan Lal Vs. Mt. Bhagwana Kuer, and Aftab Ahmad and Others Vs. The Hindustan Commercial Bank Ltd., Aminabad, Lucknow, and are of the opinion that the application for execution made in the transferor Court was not barred by any provisions of law and was therefore maintainable. The impugned decision of the learned Civil Judge is therefore correct and the appeal must fail. It is accordingly dismissed with costs. The stay order is discharged.