Juanendra Nath Ghosh vs Kumar Jogendra Narain Sinha

Das, J.—The only question which arises in this appeal is whether the Court below has rightly dismissed the execution petition of the appellant on the ground that it was presented beyond time.

The appellant obtained a decree as against the respondent so far back as the 8th of July 1921, in the Small Cause Court in Calcutta. It appears that the execution case was first transferred to the Pakaur Court and then transferred to the Small Cause Court sometime between 1912 and the 10th January, 1916. On the 10th January 1916, the decree-holder obtained another transfer of the execution case to the Pakaur Court.

Now it is admitted that between the 10th January, 1916, and the 4th of April 1921, no steps were taken by the decree-holder for execution of his decree in the Pakaur Court. On the 4th of April, 1921, however, he did present an application for execution of his decree in the Pakaur Court.

The learned Judge in the Court below has come to the conclusion that that application could not be entertained by him as it was clearly barred by limitation. But it appears that the decree-holder sometime in September, 1918, applied to the Small Cause Court in Calcutta for the issue of a sealed warrant in connection with the decree which had been obtained by him against the respondent. Nothing seems to have come out of that application, but the appellant contends that if the application which was made by him in September 1918, in the Small Cause Court in Calcutta was an application asking the Court to take some step-in-aid of execution then his present application is within time.

It seems to me that the contention advanced before us on behalf of the appellant must fail. Section 38 of the CPC provides that a decree may be executed either by the Court which passes it or by the Court to which it is sent for execution. Section 39 gives power to the Court to send the decree for execution to another Court on the happening of certain conditions which are specified in that section. It seems to me that on a consideration of these two sections it must follow that the decree cannot be executed simultaneously in two Courts. This view was taken by the Judicial Committee in the case of 21 CWN 162 (Privy Council) . In my opinion the decision of the learned Judge in the Court below is right and must be affirmed.

I would dismiss this appeal with costs.

Adami, J.

I agree.