Inderdeo Prosad Rai vs Deonarayan Mahton

Meredith, J.—This is a judgment-debtor''s second appeal arising from an order of reversal, rejecting his contention that the execution of the decree was barred by limitation. The appeal first Came before Sinha, J. sittin g singly, who has referred it to a Divisional Bench.

The decree in question was made by the Munsif, 2nd Court, Bhagalpur, on 6th September 1982. On 10th May 1988, on the application of the decree-holder the decree was sent to a Munsifs Court, Monghyr, for execution. The provisions of Order 21, Rules 5 and 8, were not strictly complied with, because the papers were sent direct to the Monghyr Munsif instead of through the District Judge, Monghyr. That defect apparently remained unnoticed for a number of years. On 30th April 1985, an application for execution was filed by the decree-holder in the Court of the Monghyr Munsif. This was dismissed for default on 28th November 1935. The decree-holder did nothing more until 1988, when he filed another application for execution in the Monghyr Court which was dismissed for default in the same year. He then did nothing until the year 1941, when he filed one more application for execution in the Monghyr Court, and this also was dismissed for default in the same year. Another application was then filed on 11th November 1941 also in Monghyr and in the course of argument upon an application u/s 47, in which the point had not been raised, it was urged that the Monghyr Court was incompetent to execute the decree as it was not in proper seisin of the case. On 28th November 1942, the learned Munsif made over the papers to the decree-holder for getting the defect removed, without dismissing the application for execution. He remarked that he saw no justification for dismissing the application and that he could have stayed the case until the necessary formality was gone through but that was unnecessary, as the decree was not going to be time-barred.

The decree-holder got the irregularity cured, and then filed the present execution case on 1st February 1943. In this case the point was raised that execution was barred, because the previous applications made before the Monghyr Court in the years 193S to 1941 could not be considered as steps-in-aid made to the proper Court in accordance with law within the meaning of Article 182(5), Limitation Act. This objection Succeeded before the learned Munsif, but, as I have said, was rejected by the learned Subordinate Judge.

Mr. B.N. Rai for the appellant urges this same point. He bases his argument on two premises. The first is that if the provisions of Order 21, Rules 5 and 8 are not strictly com-plied with, the transferee Court has no jurisdiction to entertain the application for execution. In support of this contention, he relies upon two cases, Bhikhad Bhunjan Narain Tewari v. Upendra Nath Roy AIR 1919 Pat. 207, a Division Bench case of this Court, and Debi Dial Sahu v. Moharaj Singh (95) 22 Cal. 764 Both these cases support Mr. Rai''s proposition.

Mr. Rai''s second premise is that where the decree-holder asks the Court to do what it has in fact no power to do that is not a step-in-aid of execution. For this premise Mr. Rai relies on three Patna cases and an Allahabad case. They are: Amrit Lal v. Murlidhar AIR 1922 Pat. 188, Sital Prosad v. Babu Lal AIR 1932 Pat. 309, Mahidar v. Kalyani Prasad AIR 1945 Pat. 71 and Ram Raj Dassundhi Vs. Mt. Umraji and Another, . All these cases lay down that if the decree-holder asks a Court to do what it has no jurisdiction to do that is not a step-in-aid in accordance with Article 182(5).

Secondly, Mr. Rai contends that Section 14(2), Limitation Act, which has been discussed before us, is of no avail to the respondent.

I may say at once that I do not think Section 14, Limitation Act, can help the decree-holder in this case. What Section 14(2) provides is for exclusion of

the time during which the applicant has been prosecuting with due diligence another civil proceeding, etc., etc, in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

The expression "good faith" in this connection itself involves due care and attention, as appears from the definition of "good faith" in Section 2(7), Limitation Act. It is difficult to hold that where the decree-holder, as in the present case, has no less than three times allowed his application to be dismissed for default he has been showing due diligence. Apart from that I think, though I have not been able to find any ruling directly upon the point, that the time that can be excluded u/s 14 is merely the time during which the other proceeding is actually being prosecuted with due diligence.

In the present case, there are long gaps of almost three years on two occasions between one application and another. The decree-holder was apparently doing nothing during those long periods. He cannot be said, in my opinion, during such intervals to have been actually prosecuting a proceeding within the meaning of Section 14. No doubt, if the delay had been short, and such as had been necessary for taking steps, acquiring information and so on, different considerations might arise, but I am not prepared to hold that long periods of idleness could ever have been meant to be excluded by the provisions of Section 14. Now, the two applications which were in, order were applications of 10th May 1988 for transfer, and of 1st February 1948, for execution. There is an interval of nearly ten years. Even if the maximum possible period be deducted on account of the pendency of the various execution cases in the interval, the balance left will still be much more than the three years specified in Article 182(5) as the maximum between one application and the next. Therefore, Section 14 is not material in the present case.

Upon the other point I find myself unable to accept Mr. Rai''s contention, despite the apparent weight of authority in support of it. Mr. L.K. Jha for the respondent has relied mainly upon Bhagwan Singh v. Barkat Ram AIR 1943 Lah. 129. In that case Tek Chand J. has exhaustively considered the whole position with regard to the jurisdiction of the transferee Court where the transfer has not been made strictly in accordance with Order 21, Rule 5. I am in complete agreement with his discussion of the subject, and feel I cannot improve upon his reasoning. He has pointed out that a distinction must be made between inherent lack of jurisdiction and the irregular exercise of jurisdiction. The jurisdiction to transfer a case for execution from one Court to another arises not under Order 21, Rule 5, but u/s 39, Civil P.C. Section 39 prescribes the power, and the circumstances in which the transfer may be made. Order 21, Rules 5 and 8 merely prescribe the procedure by which the transfer is to be carried out. This fact is in no way altered by the provision in Section 121, Civil P.C., that the rules'' shall have effect as if enacted in the body of the Code. No matter where it stood, Order 21, Rule 5 would still be merely a rule prescribing a particular mode of procedure, as indeed the side note to the rule indicates.

If Order 21, Rule 5 merely prescribes the procedure, it does not touch the jurisdiction. The transferee Court, if the transfer is made under one of the conditions specified in Section 89, acquires its jurisdiction by the transfer. We may assume that it has already the necessary territorial and pecuniary jurisdiction. Once, therefore, the decree has been sent and received, the transferee Court has obtained jurisdiction, and we are dealing with a mere irregularity.

Mr. Rai relies upon the fact that under Article 182(5) the Court must not only have jurisdiction, but must also be the proper Court, and the application must be in accordance with law. "Proper Court" is defined in the explanation to Article 182 as the Court whose duty it is to execute the decree.

This, in my opinion, does not help the appellant. Once the application for sending the decree is made, it is for the Court to see that it is done through the proper channel. The decree-holder need not concern himself with the channel. It seems certain that all he knew was that he had applied for a transfer of the Court and it had been made, and the Monghyr Court had received the case. His application was, therefore, made in Monghyr to the proper Court as far as he was concerned. The Bhagalpur Court having transferred the decree could no longer entertain an application for execution. The Monghyr Court had jurisdiction, and consequently it was its duty to execute the decree once it had received it on transfer, and it is not alleged that, except for the fact that it was made to the Monghyr Court, the application was not otherwise strictly in accordance with law.

In the decision I have just been considering it was also pointed out on the authority of the Privy Council that a mere defect in procedure may be waived, and in certain circumstances waiver may be presumed. The case in question is Jang Bahadur v. Bank of Upper India, Ltd. AIR 1928 P.C. 162.

In that case the application u/s 50, Civil P.C., which should have been made to the Court which passed the decree, was in fact made to the Court executing it. This Court was allowed to proceed without objection until the last moment when the property was being actually put up for sale. Their Lordships proceeded to make the distinction between inherent lack of jurisdiction and defect in the exercise of jurisdiction. They held that the provisions of Section 50 were merely matters of procedure. Before execution can proceed against the legal representative of a deceased judgment-debtor the decree-holder must get an order for substitution from the Court which passed the-decree. "This," they say,

is a matter of procedure, and not jurisdiction. Jurisdiction over the subject-matter continues as-before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is noncompliance with such procedure, the defect might, be waived and the party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings.

After considering all the circumstances, their Lordships came to the conclusion that the transferee Court (Hardoi Court) had jurisdiction to deal with the matter of the execution transferred to it; that the exercise of such jurisdiction as against the appellant, though irregular in the first instance, was submitted to for a considerable time by him. He could not then be heard to object to the-exercise of such jurisdiction, and it would be to permit a gross abuse of procedure if he was allowed to do so.

If Section 50 is a matter of procedure, it is apparent that Order 21, Rule 5 is for even stronger reasons merely a matter of procedure. The channel through which a transfer is made is more obviously a mere matter of procedure-than the question of which Court should entertain the application u/s 50.

The cases relied upon by Mr. Rai for the proposition that an application to a Court, to do something which it cannot do is not a, step in aid of execution; Sital Prasad v. Babu Lal AIR 1932 Pat. 309 and Amrit Lal v. Murlidhar AIR 1919 Pat. 207 were both cases of transfer to a Court not having the necessary pecuniary jurisdiction. These were, therefore, clearly cases of complete lack of jurisdiction, not of irregularity. Mahidar v. Kalyani Prasad AIR 1945 Pat. 71 was a case where the Court was asked to proceed against property lying outside its jurisdiction, and here again there was a lack of jurisdiction. A similar distinction can be made with regard to Ram Raj Dassundhi Vs. Mt. Umraji and Another, .

It remains to deal with the two cases in which it was held that in these circumstances there is no jurisdiction in the transferee Court. I have given the reasons why, following Sardar Bhagwan Singh v. Lala Barkat Ram AIR 1943 Lah. 129, consider these decisions wrong. Debi Dial Sahu v. Moharaj Singh (95) 22 Cal. 764 need not trouble us. A Calcutta decision is not binding upon us. Kunja Behan Singh v. Tarapada Mitra AIR 1919 Pat. 324 is, however, a decision of this Court and ordinarily we would be bound to follow it, or refer the matter to a Full Bench. There is, however, no discussion at all of the point at issue in this case. It appears the word "jurisdiction" was used in the wider sense, without considering the distinction between complete absence of jurisdiction and irregular exercise of jurisdiction. This case was decided in 1918, long before the decision in Jang Bahadur v. Bank of Upper India, Ltd. AIR 1928 P.C. 162 which was in 1928. In so far as the distinction just referred to has not been made, I think that Kunja Behari Singh v. Tarapada Mitra AIR 1919 Pat. 324 must be considered to have been overruled by this Privy Council decision, upon which the reasoning in Sardar Bhagwan Singh v. Lala Barkat Ram AIR 1943 Lah. 129 is largely founded.

Mr. Jha for the respondent-has further urged that the question now raised is barred by res judicata. I do not think, however, that the question of limitation was actually raised and definitely decided by the learned Munsif in his order of 28th November 1942. He made a mere casual observation that he did not consider it necessary to stay the proceedings because the decree was not going to be barred. There is no question of res judicata, in my judgment, but upon the other ground the appeal must, in my opinion, fail. It is true that there is nothing definitely to show that the appellant ever received any notice of the applications of 1985, 1938 and 1941, but it is highly probable that he must have done, and apart from the question of waiver, which is more strictly relevant regarding what should have been done by the Munsif in 1942, the fact remains that these applications for execution were in accordance with law and must be held to have been made to the proper Court in the circumstances. They, therefore, came within Article 182(5) and saved limitation.

I would dismiss the appeal with costs.

Ray, J.

I entirely agree and for the same reasons. I wish to add a few words to what my learned brother has said. One-of the premises of Mr. B.N. Rai''s argument was that it is the District Judge who alone would confer jurisdiction on the transferee Court. He, therefore, contends that sending through the District Court is a matter of substance, and not of mere form. He does not, in fact, challenge the validity of the order transferring the decree for execution, nor does he challenge the competence of the Monghyr Court to which the decree was transferred. On the other hand, he concedes that the transferee is one of the competent Courts within the meaning of Section 39, Civil P.C. The pith and substance of his argument, therefore, is that there was lack of jurisdiction because the District Judge, who alone could confer jurisdiction upon any of his subordinate Courts to execute the decree transferred from another district, had not conferred that jurisdiction.

In my view, he is completely wrong in this contention of his. The subordinate Courts, such as, Munsifs and Subordinate Judges, do not derive their jurisdiction, either pecuniary or territorial, primarily from orders of the District Court. The subject of constitution of civil Courts and their jurisdiction is dealt with in Bengal, Agra and Assam Civil Courts Act, 1887. Section 9 of the Act lays down:

Subject to the superintendence of the High Court, the District Judge shall have administrative control over all the civil Courts under this Act within the local limits of his jurisdiction.

Section 13 (1) provides:

The Local Government may, by notification in the Official Gazette, fix and alter the local limits of the jurisdiction of any civil Court under this Act.

And Sub-section (2) of the Section empowers the District Judge to make an assignment of civil business by way of apportioning the work as between several Munsifs or several Subordinate Judges, as the case may be, appointed by the Provincial Government, with the same local jurisdiction assigned to them. That the assignment of civil business arising from a local area to a particular Munsif or Subordinate Judge does not confer any jurisdiction, will be apparent from the provisions of Sub-section (3) where it is laid down that a decree or order passed by a Munsif or Subordinate Judge shall not be invalid for the reason only of the case having arisen in a place beyond a local area assigned to him under Sub-section (2). Their pecuniary jurisdiction; so far as it goes, is'' provided for in Chap. 3 of the Act. So the subordinate civil Courts in the district derive their jurisdiction, either pecuniary or territorial, from the statute.

The District Judge, as is apparent, has simply an administrative control over them. His power of transferring appeals and other special proceedings to Subordinate Judge or Munsifs, as the case may be, is derived from Sections 22, 23, etc., of the Act. The premises, aforesaid, make it clear that this mode of transfer, through the District Court, is a matter of form and ceremony, of course, not without a purpose, which presumably, is that in the event of its being necessary to execute the decree in any other subordinate Court of the District, which event may arise under multifarious contingencies, it will no longer be necessary to approach the Court that passed the decree for a fresh transfer. The purpose rather is to vest the District Court with power to execute and the power to transfer from one Court to another in his district as the exigencies of the matter may require.

It is not the decision that we have arrived at on the question at issue, but the decision of this Court in the case of Kunja Behari Singh v. Tarapada Mitral AIR 1919 Pat. 324 that gave me the most concern at the hearing; but after consideration I am convinced that the word "jurisdiction" was rather loosely used in that decision. The nature of the objection that was taken, as was taken in the case before us, is in its nature the same as an objection to place of suing a matter amply provided for in Sections 15 to 21, Civil P.C. In Sections just referred to, the word "jurisdiction" is also used but with no such efficacy in relation to validity of proceedings as it would otherwise be where there will appear inherent lack of jurisdiction (vide Section 21).