Darsan Singh vs Baldeo Das

Meredith, J.—This is an Appeal by the judgment-debtor against an order rejecting his application u/s 47, Civil P.C., in execution proceedings.

The facts are as follows. In the year 1931 one Binjraj and others brought a suit on the basis of a handnote against the Ranis of Lachhmipur and the appellant Darsan Singh. In 1933 a decree was obtained against the Ranis, but not against Darsan Singh, but in appeal, on 4th May 1937, the High Court decreed the suit against all. In the year 1935, the same plaintiffs brought a similar suit in the Calcutta High Court against Anant Prasad as a surety. On 21st June 1987, that suit was compromised, and under the terms of the compromise an instalment decree was passed for a sum of Rs. 13,000. The plaintiffs, moreover, assigned their decree against the Ranis and Darsan Singh to Anant Prasad, and Anant Prasad charged the transferred decrees for satisfaction of the decree against him. It was provided that the charge could be enforced by execution without separate suit.

This decree was transferred to Bhagalpur for execution and in Execution case 186 of 1938 Binjraj and others sought to proceed at Bhagalpur against the properties of Anant Prasad. On 6th December 1938, Anant Prasad took the objection that the decree could only be executed by enforcement of the charge. This objection succeeded, and on 7th July 1939 the execution case was dismissed. According to the execution register, the result was communicated to the Calcutta High Court on 12th September 1939. Meanwhile there was an appeal to the High Court, and on 28th February 1940, the High Court held that there could be no execution against the personal property of Anant Prasad unless and until an attempt had first been made to execute the decree by enforcement of the charge.

Thereafter, on 16th July 1941, an application was made in the Calcutta High Court for enforcement of the charge by the appointment of a Receiver to realise the decree against Darsan Singh. One Mr. D.N. Sinha was appointed Receiver, and authorised to sell the charged decrees. Accordingly, on 30th December 1941, the Receiver sold the decrees to the respondent Baldeo Das. This man then in the present Execution case No. 84 of 1942 sought to execute the decrees transferred to him against Darsan Singh.

Darsan Singh objected u/s 47, Civil P.C., that the transfer of the decrees to Baldeo Das was invalid, since the Calcutta High Court had no jurisdiction to appoint a Receiver, or authorise him to make the transfer. The reason put forward was that as the decree had been transferred to Bhagalpur and the Bhagalpur Court had sent no certificate u/s 41, Civil P.C., to the Calcutta High Court, the latter had no seisin of the case and no jurisdiction to pass any orders for execution. This contention has been rejected by the learned Subordinate Judge. Mr. K.N. Lal for the appellant urges the same point. He contends that the entry in the execution register does not show that there was a certificate sent u/s 41, and in the absence of any such certificate the sole jurisdiction lay with the Bhagalpur Court, and the Calcutta High Court had no jurisdiction.

In the first place, I am of opinion that the entry in the register does indicate sufficient compliance with the provisions of Section 41. Section 41 prescribes no particular form of certificate, and, in my judgment, the sending of an intimation that the execution case had been dismissed as infructuous would amount to sufficient compliance.

In the second place, however, I agree with the Court below that even if it be assumed that no certificate had been sent, still it is not a correct proposition that the transferor Court had no jurisdiction to pass any orders. Mr. Lal has relied upon a number of rulings which I shall deal with very briefly. None of them really touch the point of jurisdiction. In some of them it is held that the transferee Court does not lose its jurisdiction until the certificate u/s 41 is sent. The fact, however, that the transferee Court retains jurisdiction does not necessarily involve that no other Court can have jurisdiction. To hold this would be to hold that simultaneous execution in two Courts is impossible, whereas it is well settled that in proper circumstances there can be simultaneous execution in different Courts; where, for example, the judgment-debtor holds properties in different districts each of them insufficient in itself to satisfy the decree. Others of the rulings cited merely lay down that where a decree had been transferred for execution the proper Court for applications in connection with that execution proceeding is under Order 21, Rule 10, the transferee Court, and not the transferor Court. Applications made to the transferor Court which should have been made to the transferee Court cannot, therefore, be regarded as step-in-aid of execution within the meaning of Article 182, Clause (5), Limitation Act. It is one thing, however, to say that a Court is not the "proper Court" as defined in the explanation to Article 182, and quite another thing to say that it has no jurisdiction in connection with the execution of the decree. On the contrary, it is perfectly evident not only from a number of rulings to which I shall refer, but from certain provisions of the CPC itself, that the transferor Court still retains jurisdiction to pass proper orders in connection with the case. I refer in particular to Order 21, Rule 26, which provides that�to cite only the relevant portions:

The Court to which a decree has been sent for execution shall upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed,...for an order to stay execution, or for any other order relating to the decree or execution which might have been made by Such Court...if execution had been issued thereby, or if application for execution had been made thereto.

It is sufficiently obvious from this provision that the framers of the Code never contemplated that after the order of transfer the transferor Court should lose all jurisdiction in connection with the case. Not only that, but Order 21, Rule 28 expressly provides that

any order of the Court by which the decree was passed...in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution.

Coming now to Mr. Lal''s rulings, he relies, in the first place, upon the Privy Council decision in Maharajah of Bobbili v. Narasaraju Peda Sinhulu AIR 1916 P.C. 16. This however, was merely a decision as to whether a certain application to the transferor Court after transfer of the decree could be regarded as a step-in aid to save limitation. It was held that it was not an application to the proper Court, because after the transfer no certificate had been sent u/s 41, nor had the decree been returned, and also the application was one to the transferor Court to sell property which lay within the jurisdiction of the transferee Court and had already been attached by the latter. It was obviously an application which the transferor Court had no jurisdiction to entertain. This decision should not be carried further than what it actually says, and as such it clearly does not touch the point before us.

Next Mr. Lal relies upon Rangaswami Shetti v. Sheshappa Manjappa Shimpi AIR 1922 Bom. 359 That was merely a decision which followed the Privy Council case just referred to, and held that an application to the transferor Court in certain circumstances was not a step-in-aid.

The other decisions are those in which it has been rightly, if I may say so with respect, held that the transferee Court retains jurisdiction until it sends the certificate. They do not really touch the point before us, for the reason I have already given.

In Sheshaiyer Rajamanner Aiyer v. Madanmohan Patnaik AIR 1932 Pat. 286 it was held that the transferee Court still retains jurisdiction until the certificate is sent. The same thing was held in Shivlingappa v. Shidmallappa AIR 1924 Bom. 359 which, it be noted, was a decision in favour of the creditor.

In Muhammad Ibrahim v. Chhatoo Lal AIR 1926 Pat. 274 it was held that the transferee Court ceases to have jurisdiction after it has sent the certificate.

The last case of Jwala Prasad v. Thakur Dwarka Dhishji AIR 1937 All. 474 is a single Judge decision wherein it was held that the mere sending of the certificate u/s 41 does not terminate the jurisdiction of the transferee Court if the copy of the decree has been retained. I desire to express no opinion on the correctness of that decision, and will merely say that it does not touch the point which we have to decide.

None of Mr. Lal''s cases seem to me really to support the proposition he has put forward. On the other hand, there are not wanting many decisions in which the contrary view has been clearly taken. There is Privy Council authority for the proposition that the transferor Court does not lose all seisin of the case. In Jang Bahadur v. Bank of Upper India, Ltd. AIR 1928 P.C. 162 their Lordships said:

Under Clause (c) of Section 39 of the Code of 1908, a decree, directing the sale of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, may be transferred for purposes of execution to the Court within whose jurisdiction the property is situated. On such transfer the former Court does not altogether lose seisin of the decree. But the Court of transfer obtains jurisdiction to deal with that particular execution proceeding and retains such jurisdiction until such execution is withdrawn or stayed or until it certifies to the Court which passed the decree either that the decree has been executed or if it fails to execute the decree, the circumstance attending such failure (Section 41). If the judgment-debtor dies, before any such certificate is issued, the Court of transfer does not lose its jurisdiction over the execution proceeding, which does not abate by reason of the death. But before execution cam proceed against the legal representative of the deceased judgment-debtor, the decree-holder must get an order for substitution from the Court which passed the decree. This is a matter of procedure and not of jurisdiction.

In Baij Nath Goenka v. F.H. Holloway (05)1 Cri.L.J. 315 it was argued that when a decree has been transferred by the Court which made it that Court has no jurisdiction to entertain any application four execution in respect thereof and that there could not be two simultaneous executions of the same decree. The Court rejected these contentions. Mookerjee J. said:

As regards the first branch of the contention, I think it is clear from the Code, that when the Court which has made a decree, has transferred it for execution to another Court, it does not thereby completely lose all jurisdiction in respect of execution thereof.... I find it difficult to hold that the decree-holder himself cannot make an application for execution, because execution is pending in some other Court. In my opinion although a decree may have been transferred for execution it is open to the decree-holder to make an application for execution, in order to enable him to obtain rateable distribution u/s 295, Civil P.C., to the Court which passed the decree and which holds the assets realised.

Their Lordships also referred to several cases in which it had been held that simultaneous execution was possible.

J.C. Galstaun Vs. F.E. Dinshaw and Others, was a case where the Bombay High Court had transferred a decree for execution to the Subordinate Judge of Alipore. To the latter an application was made for attachment of, the moveables of the judgment-debtor. The Subordinate Judge kept allowing time after time to the judgment-debtor instead of making attachment. Thereupon an application was made to the Bombay High Court to issue a precept u/s 46 of the Code to the Subordinate Judge of Alipore to attach the moveables. This was done. The matter was taken in appeal to the Calcutta High Court, and it was contended that the order of the Bombay High Court was without jurisdiction, as the decree had been transferred by it. This contention was rejected, and it was held that the precept was valid and must be carried out by the Subordinate Judge of Alipore. In this case Graham J. observed:

It is well settled, and this has not been disputed, that the Court which passes a decree can issue executing writs simultaneously to more than one. If that is so, there does not seem to be any reason why a Court having already transferred a decree for execution should not issue a precept which is but another and a special form of execution, to another Court.

Rajani Kant v. Golam Mohiuddin AIR 1985 Cal. 99 was a case where a decree passed by the Court of Alipore had been transmitted to the Court at Ranchi, where it was executed and the execution case was dismissed on part satisfaction on 30th April 1930. In April 1933, an application was filed by the decree-holders in the Court of Alipore. Thereupon the Court of Alipore wrote to the Court at Ranchi inquiring about the decree, and on 19th June 1933, a reply was received in which it was stated that the execution case had been dismissed on part satisfaction. Thereupon the execution was registered. It was held that though on the date of the application to the, Alipore Court it might not have been in a position to grant it until it had made inquiries from the Ranchi Court, yet there was no justification for treating the application made to the Alipore Court as being made to a Court without jurisdiction.

In Krishna Prosanna Lahiri and Another Vs. Sarojini Debi, it was held that where a decree, that had been transferred to another Court for execution, is returned unexecuted, production of a certified copy of the order of the transferee Court containing all the essentials of a certificate of non-satisfaction is a sufficient compliance with the requirements of Section 41, Civil P.C., and a new petition for execution will be competent, even if the certificate of non-satisfaction of the transferee Court has not arrived, provided that no other execution proceedings are pending elsewhere.

In Dwarka Nath Chakravarty Vs. Imperial Bank of India, it was said:

There is no principle on which it can be said that simultaneous execution in the Court which passed the decree and the Court within the local limits of the jurisdiction of which the judgment-debtor resides is illegal.

Obviously if there can be simultaneous execution in both Courts, it is clear that the Court which passed a decree has not lost jurisdiction merely by reason of the transfer.

Then there is the case of Makkhan Lal Vs. Mt. Bhagwana Kuer, This is a case very much in point. It was held that there is no bar against execution in one Court against the property and in another Court by another means. Where a decree passed by one Court is transferred to another for execution, the decree-holder is entitled to make an application to the transferor Court, inasmuch as concurrent execution of decrees is permissible, and if it appears to such Court that the judgment-debtor is making no efforts to pay up the decretal amount it can direct execution of the decree by arrest of the judgment-debtor.

In this decision reference was made to a previous decision of the Allahabad High Court, Sarasti Prasad Vs. The People''s Industrial Bank, Ltd. where it was held:

Where a decree is passed by one Court and is transferred to another for execution the decree-holder is entitled to make an application for execution to the former Court, inasmuch as concurrent execution of decrees is permissible.

Lastly, reference may be made to a Single Judge decision of the Bombay High Court, Fatehchand Rampratap Marwadi v. Jitmal Rupchand AIR 1929 Bom. 418 wherein it was held that having regard to Sections 38 to 42, Civil P.C., the Court which passed the decree had jurisdiction to pass orders in execution proceedings notwithstanding that the decree had been transferred for execution to another Court. His Lordship emphasised the distinction between an order which is wrong and an order without jurisdiction as pointed out by the Privy Council in Malkarjan v. Narhari (01) 25 Bom. 337. He pointed out that because a decreeing Court may not be a proper Court in which a certain step-in-aid of execution may be taken it does not follow that it is, therefore, a Court entirely without jurisdiction in respect of the decree which it has itself made. After referring to Sections 39 to 42 of the Code he says:

None of these sections suffices as a basis for the argument that a decreeing Court not merely delegates but also deprives itself of jurisdiction by the mere act of transferring the decree, and the provisions as to certification are meant to safeguard the judgment-debtor against unnecessary harassment and not to deprive the decreeing Court of its jurisdiction.

With respect I agree with these observations. The effect of a perusal of the relevant provisions of the Code and of the decisions I have just dealt with is to my mind to make it clear that the Court which passes the decree even after transferring still retains jurisdiction to pass proper orders in connection with execution in proper circumstances, and the jurisdiction of the transferee Court is subordinate to that of the Court which has made the decree. In the present case I have already held that there is no reason to believe that an intimation equivalent to a certificate was not sent, but in any event there is nothing upon which it could be held that the order of the Calcutta High Court appointing a Receiver and authorising him to sell, the decree was without jurisdiction. I may observe further that the assignment of the decree has not been challenged by the decree-holder, and it is difficult in the circumstances to see how it can lie in the mouth of the judgment-debtor to challenge the assignment. There is, in my view, no substance in Mr. Lal ''s contention. The order of the Court below upon this point is correct.

Mr. Lal has also sought to raise a point of limitation. He points out that both the decrees were passed in 1937. He argues that Execution case No. 186 of 1938 could not be regarded as a step-in-aid, since it was held that it was infructuous, execution being sought against property which was not liable, unless and until the charge had been enforced. That application was finally disposed of by the appellate Court on 28th February 1940, and the application in the Calcutta High Court was not made until July 1941, more than three years after the date of the decree. Without agreeing with Mr. Lal that the application could not be regarded as a step-in-aid it is unnecessary to decide that point. It is enough to say that it is irrelevant. The decree under execution is the decree against Darsan Singh. Even if it be assumed that execution of the decree against Anant Prasad had become time-barred, that would not necessarily render the assignment void, or bar execution of the decree against Darsan Singh. There is nothing whatever before us to show that execution of the decree against Darsan Singh was ever allowed to become barred. A point of limitation was taken before the Court below, but it appears that it was not pressed and no materials were placed before the Court below to show that that decree was barred by limitation.

In the circumstances it is clear that it cannot be contended before us, completely without any material, that that decree was time-barred.

In the result I would dismiss the appeal with costs.

Ray, J.

I entirely agree.