Durgaprasad Agarwalla and Another vs Harisankar Killa and Others

Ram Labhaya, J.—This appeal arises out of execution proceedings. The decree in this case was passed by the Calcutta High Court in the exercise of its original jurisdiction. An authenticated copy of the decree of the High Court together with a certificate of non-satisfaction of decree was sent by the Registrar of the High Court of Judicature at Fort William in Bengal (Original Jurisdiction), to the District Judge of Tezpur with the request that the decree may be executed within the jurisdiction of his Court under the provisions of the Code of Civil Procedure.

There was no District Judge at Tezpur. The ex-officio Sub-Judge received the letter with its encloaures. The decree-holder also applied for execution in the Court of the ex-officio Sub-Judge at Tezpur.

Tezpur is within the jurisdiction of the District Judge, Gauhati. The judgment debtors objected to the initiation of proceedings on two grounds. They contended that the ex-officio Sub-Judge had no jurisdiction to entertain the execution application or to execute the decree. They also pleaded that the decree had become time barred. The learned ex-officio Sub Judge by his order dated 23rd March 1949 decided that the application for execution was within time. As regards the objection to his jurisdiction, he held that though the decree should have been transmitted to his Court through the District Judge, Gauhati, the defect was technical and was not fatal to the proceedings. Judgment-debtors have appealed to this Court.

The first question is whether in the circumstances of this case the learned ex-officio Sub Judge had jurisdiction to execute the decree. Order 21, Rule 6, Code of Civil Procedure., provides that:

Where the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed.

It is clear from the language of the rule that it was necessary that the decree should have been sent to the District; Court of the district in which it was sought to be executed. Its execution admittedly was sought at Tezpur. It should have been sent to the District Court of Tezpur which was the Court of the District Judge at Gauhati. The decree was transferred to the District Judge though the address of the District judge was not correctly stated on the letter sent by the Registrar of the Calcutta High Court. He addressed it to the District Judge at Tezpur. The District Judge was in fact at Gauhati. The learned ex-officio Sub-Judge should not have received the papers meant for the District Judge of Tezpur. He, however, received the papers and the decree-holder also applied for execution in his Court. The procedure adopted was in contravention of Rule 5 of Order 21. The learned ex-officio Sub-Judge thought that the irregularity was not material and chat it did not effect his jurisdiction.

We do not think that this view of the matter is correct, The learned Counsel for the appellants has relied on Kunja Behari Singh v. Tarupada Mitra A.I.R.1919 Pat. 324: (4 Pat L. J. 49) in support of his contention that if a decree is sent for execution to another district, it should be sent to the Court of the District Judge. The Subordinate Judge in that district has no jurisdiction to entertain an application for execution of a decree transferred to him direct by the trial Court until it is transferred to him by the District Court. According to this view, non-compliance with the requirements of Rule 6 of Order 21, would affect jurisdiction. There are other authorities also in support of this view. The learned Counsel for the respondent has not tried to support the view taken by the learned ex-officio Sub-Judge.

We are of the view that the decree could not have been sent direct to the ex-officio Sub-Judge. If it had been sent to him direct, be would not have acquired necessary jurisdiction to execute the decree In this case, however, the decree was not sent to him for execution. It was sent to the District Judge, though his address was incorrectly given. In these circumstances, the learned ex-officio Sub-Judge was not justified in receiving the papers which were not meant for him. His receiving the papers meant for the District Judge surely would not confer any jurisdiction on him to execute the decree. The irregularity, in these circumstances, is not curable as it affects jurisdiction.

The learned Counsel for the respondent has pointed out that the High Court of Judicature at Fort William in Bengal has got the power under its rules to send its decrees for execution to any Subordinate Court even outside Bengal. He has not boon able to show us the rule on which his contention is based. Assuming that such powers exist in the Calcutta High Court, in this case these powers were obviously not exercised. The Calcutta High Court sent the decree to the District Judge and not to any Subordinate Court. There can be no doubt, therefore, that the learned Ex-officio Sub-Judge had no jurisdiction to execute the decree.

In these circumstances his decision on the question of limitation also is without jurisdiction. He had no power to take any step in the execution proceedings. We therefore, allow the appeal; reverse his order and send back the case to him with the direction that he shall return the application for execution to the decree-holder for presentation to the proper Court. Papers received by him directly from the Calcutta High Court shall be sent to the District Judge all Gauhati for necessary action. We make no order as to costs.

Thadani, C.J.

I agree.