Firm Nandram Narayandas vs Firm Gopaldas Laxminarain and Others

This appeal arises out of execution proceedings of a decree passed by the Bombay High Court in favour of the Appellant-firm and against the Respondents. The decree was transferred by the Bombay High Court for execution to the Court of District Judge, Gwalior. After this transfer, the decree-holder presented an application before the transferee Court praying that the decree be transferred to the Court of District Judge, Morena for execution.

The learned District Judge of "Gwalior accepted this prayer and transferred the decree to the Morena Court. The learned District Judge of Morena however refused to execute the decree and rejected the decree-holder''s application for execution on the ground that the Court of District Judge Gwalior being itself a transferee Court had no Jurisdiction to transfer the decree for execution to any other Court. It is against this order of the learned District Judge of Morena that this appeal has been preferred by the decree-holder.

The sole question raised in this appeal is whether a transferee Court has the power to transfer the decree to Anr. Court for execution. Mr. Bhagwandas Gupta learned Counsel for the Appellant submitted that a transferee Court has this power inasmuch as u/s 42, CPC the transferee Court has in execution a decree the same powers as those of the Court which passed the decree.

It was also said that there was no express provision in the Code prohibiting the transferee Court from sending the decree to Anr. Court, for execution learned Counsel placed reliance on certain observations of Shah J., in Ranga Swami Shetti v. Sheshappa Manjappa Shimpi AIR 1922 Bom. 359 (A).

I am unable to accept this argument of the learned Counsel which overlooks the significance of the words "in execution such decree" which occur in Section 42. u/s 42 the transferee Court can exercise only those powers which the Court passing the decree itself would have exercised in executing the decree and not all the power for the execution of decree. There is a difference between the expression "powers for the execution of a decree" and "powers in executing a decree". Whereas the former expression connotes powers for the general object of the execution of the decree, the latter expression means power exercised in actually enforcing the decree.

That the power to transfer a decree for the execution to Anr. Court is quite different from a power exercised in executing a decree and is not included in it, is clear from Section 39 itself when it says that the Court which passed a decree may send it for execution to Anr. Court. There is ample authority for the proposition, that an order by a Court passing a decree, for the transmission of the decree for execution to Anr. Court is not an order for the execution of the decree itself. See ''Jeewandas v. Ranchoddas'' 35 Bom 103 (B); Nilmony Singh Deo v. Biressur Banerjee 16 Cal 744 (C) and Suja Hossein v. Manohar Das 22 Cal 921 (D).

Again the fact that there is an express provision in the Code, namely, Section 39, empowering the Court which passed a decree to transfer it for execution to Anr. Court also indicates that the power to transfer a decree for execution is not a part of the power exercised in executing a decree. If it had been so, then there would have been no necessity for the insertion of Section 39.

It seems to me that if, the power to transfer a decree for execution to Anr. Court were to have been included in Section 42, CPC one would have expected the word "while" or the word "for" instead of the word "in" and Section 42 would have said "the Court executing a decree sent to it shall have the same powers while or for executing such decree as if it had been passed by itself." Such a phraseology would have conferred on a transferee Court the power which the Court passing he decree has u/s 39. It must also be noted that the Court to whose jurisdiction the subject-matter of the decree is transferred acquires jurisdiction over the same by reason of such transfer See Merla Ramanna Vs. Nallaparaju and Others,

If then a transferee Court acquires authority to execute the decree by reason of the transfer and from the transferor Court, then clearly it cannot re-delegate this delegated authority to any other Court. If the transferee Court is unable to execute the decree, then it can under. Section 41, CPC only certify to the Court which passed the decree the circumstances in which it was unable to execute the decree.

Reading Sections 39, 41 and 42 together, I do not think it can be maintained with any degree of force hat a transferee Court has the power to transfer, he decree for execution to Anr. Court. All hat Section 42 means that a transferee Court has the same powers In executing a decree which the Court massing it, itself would have exercised in executing the decree instead of transferring it to Anr. Court for execution.

This view is supported by the decision in Muthu Rama Reddi Vs. Motilal Daga, trading under name and style of Sait Balakisandas Motilal and Others, where it has been held that Section 42 does not empower a transferee Court to send the decree to mother Court for execution. The Bombay case cited by the learned Counsel for the Appellant did not directly deal with the question whether a transferee Court has the power to transfer the decree to Anr. Court for execution.

In that case Shah J., no doubt made certain observations which support the Appellant. But with great deference to the learned Judge, I must say that those observations do not take into account the significance of the expression "powers in executing such decree" used in Section 42, Code of Civil Procedure.

For all these reasons I am of the opinion that the decision of the learned District Judge, Morena is right and this appeal must be dismissed with costs of the Respondent Bhagwandas.

Khan, J.

I agree.