Debendra Nath Haldar and Others vs G.A. Aratoon

Agarwala, J.—The facts material to this appeal are as follows: G.A. Aratoon & Co., obtained in the Calcutta High Court a decree for Rs. 2000 against Upendra and Debendra, a firm carrying on business at Bundu near Ranchi in this province.

On the application of the decree-holder the decree was transferred for execution to Ranchi. In the Ranch! Court a compromise was entered into under which the judgment-debtors agreed to pay Rs. 100 a month to the decree-holder until the decretal debt should be satisfied. The compromise also provided that in default of any payment the decree-holder should be entitled to realize the entire balance then due. Only one instalment was paid. The Ranchi Court which executed the decree then struck off the execution and returned the decree to the Calcutta High Court with a report that the decree had been satisfied only in part.

Thereafter the decree was again transferred for execution to Ranchi on an application made by the decree-holder for its execution there. On receipt of the report of the process-server by the Court at Ranchi it was learnt that Upendra had died. On the application of the decree-holder the widow and the son of Upendra were substituted in his place in the execution proceedings by the Court at Ranchi to which the decree had been transferred. These persons appeared and objected that the Court at Ranchi had no jurisdiction to execute the decree as against them. They relied upon Section 50, Civil P.C., which provides that:

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

The contention of the objectors therefore was that it was only the Calcutta High Court which could direct the decree to be executed against them. That objection has been considered by the Court below and overruled. They have preferred the present appeal and in support of their appeal a number of decisions relating to the construction of Section 50 have been referred to. The first of these is the decision of the Privy Council in Jang Bahadur v. Bank of Upper India Ltd. AIR 1928 P.C. 162. There it was held that it is the Court which passes the decree which has power u/s 50 to substitute the heirs of a deceased judgment-debtor ; it was, however, observed by their Lordships that the matter was not one of jurisdiction but of procedure, and that in the case that was before them objections to the defect in the procedure of the executing Court had been waived by acquiescence.

The same view has been taken in two cases of this Court, namely, Chandra Chur Deo v. Mt. Shyam Kumari AIR 1932 Pat. 261 and Kalu Ram v. Sheonand Rai Jokhi Ram AIR 1932 Pat. 323 in both of which cases the defect in procedure had been waived by the persons who subsequently challenged the order of the Court on the ground that the procedure was defective. It cannot now be disputed that when the Court to which the decree has been transferred for execution makes an order for substitution u/s 50, it is a matter of procedure and not of jurisdiction.

The question therefore arises whether an appellate Court should interfere with an order u/s 50 made by a Court to which a decree has been transferred for execution where the merits of the case are not affected by the irregularity. Section 99 of the Code provides in unequivocal language that no decree should be reversed or substantially varied, nor any case should be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Unless, therefore, the defect in the procedure of the Court below is a material irregularity which has occasioned injustice to the aggrieved party, this Court, in exercise of its appellate powers, cannot interfere with the order of the Court below.

In Sham Lal Pal v. Modhu Sudan Sircar 22 Cal. 558 it was held that, even assuming that an application u/s 234 of the Code of 1882 (which has been replaced by Section 50 of the Code of 1908) to the Court which passed the decree was a necessary preliminary to proceedings u/s 248 by the Court executing the decree, the omission to make it was only an irregularity which did not affect the merits of the case, and, u/s 578 (which has been replaced by section 99 of the present Code) the order of the Court of first instance could not be reversed on account of such irregularity. This case was referred to in a later decision of the Division Bench of the Calcutta High Court in Amar Chundra Banerjee v. Guru Prosunno Mukerjee (1900) 27 Cal. 488. In that case it was held that an application by the transferee of a decree for execution after substitution of his name can bo entertained only by the Court which passed the decree and the Court to which the decree has been transferred has no jurisdiction to entertain it. With reference to Sham Lal Pal v. Modhu Sudan Sircar 22 Cal. 558 Banerji J. said:

As to the case in Sham Lal Pal v. Modhu Sudan Sircar 22 Cal. 558 that case is distinguishable from the present. The question there was as to the meaning and effect of Section 234, Civil P.C., which provides that an application for executing the decree against the legal representative of a deceased judgment-debtor is to be made to the Court which passed it but does not, like Section 232, leave any discretion in that Court to allow execution or not.

Order 21, Rule 22 has replaced Section 232 of the old Code. Stevens J. agreed with the judgment of Banerji J., but said that he desired to express no opinion with regard to the construction of Section 234.

In the Privy Council case to which I have already referred both these decisions were referred to, and Banerji J.''s explanation of the decision in Sham Lal Pal v. Modhu Sudan Sircar 22 Cal. 558 was accepted. The case before their Lordships of the Privy Council was a case in which the judgment-debtors had acquiesced in the defect of procedure and their Lordships therefore held that they must be taken to have waived the defect. They were not dealing with a case in which it was necessary to decide whether an appellate Court should interfere where a defect of procedure has occurred but where it is not shown that the defect has affected the merits of the case. The case which at first sight supports the contention of the learned advocate for the appellants is a Division Bench decision of this Court in Official Trustee of Bengal and Another Vs. Basdeo Bhagat and Others, . That was a case in which there had been no waiver of the irregularity in the procedure of the Court executing the decree in making an order u/s 50, Civil P.C., but the learned Judges who dealt with that case, after referring to the Privy Council decision, decided that the execution should not be allowed to proceed. The facts were that the executing Court had refused to order the substitution of the representatives of the deceased judgment-debtor, and, it was against that order of refusal that the appeal had been preferred. Mohammad Noor J. delivering the judgment of the Court said:

We are at a stage where no execution has been issued. When it is brought to the notice of the Court that a certain procedure is irregular, and when the proceedings can be regularised by applications to the proper Court, there is no reason why the Court should allow the irregular proceeding to continue.

It will be observed therefore that Mohammad Noor J. was not dealing with a case like the present where the Court has passed an order in favour of continuing the execution proceeding and the appellate Court has to consider whether the order should be interfered with.

The last case to which I propose to refer is the decision of a Division Bench of the Allahabad High Court in S. Marahmat Husain Vs. Oudh Commercial Bank Ltd. and Others, . There it was held that Section 50(1) does not confer exclusive jurisdiction on the Court which passed a decree for the purpose of substituting the names of the legal representatives of a deceased judgment-debtor, but that an application for substitution is also entertainable by a Court to which a decree has been transferred for execution. In delivering the judgment of the Court, Bennet J. observed:

For the judgment-debtor-appellant it was argued that although Section 42 gave jurisdiction to the Court to which a decree was transferred for purposes o� execution that jurisdiction does not include the particular jurisdiction given by Section 50(1), exclusively to the Court which passed the decree. Now if that were so a very remarkable result would follow, because Section 47(3) states that a Court executing a decree shall determine all questions which arise as to whether any person is or is not representative of a party.

In my view the defect in procedure which, has occurred has not affected the merits of the decision and should not be interfered with. The appellants admittedly reside in Ranchi and, prima facie therefore it was more convenient for them to have the matter decided at Ranchi than at Calcutta. It has not been made a matter of grievance that they have been inconvenienced in placing their case before the Ranchi Court or that thay wero not representatives of the deceased judgment-debtor.

I would therefore dismiss this appeal with costs.

Rowland J.

I agree.