Kumar Kamakhya Narain Singh vs Kalipado Dutt

Wort, Ag. C.J.

The question in this appeal is whether the execution taken out by the present appellant who was the decree-holder, was barred by limitation. The point depends upon whether the application'' made on 1st October 1931, was an application to a proper Court and therefore a step-in.aid of execution. Speaking for myself, it seems to me that the matter is perfectly clear from the provisions of Section 38, Civil P.C. In Maharaja of Bobbili v. Narasaraju Peda Simhulu A.I.R (1916) P.C their Lordships of the Judicial Committee decided a similar question. There the decree had been transferred from the District Court to the Court of the Munsif, and an application to the District Court, after the transfer, was held not to be an application to the proper Court, and, as the question of limitation depended upon whether that application was a step-in-aid of execution, their Lordships held that the application before them was barred by limitation.

Mr. Sinha who appears on behalf of the appellant however contends that the basis of the judgment of their Lordships of the Judicial Committee in that case was the fact that the property which was attached was property within the local limits of the jurisdiction of the Munsif''s Court, and not of the District Judge, and that, had that not been so, the decision would have been different. This Court considered the decision of their Lordships in the case in Jnanendra Nath v. Kumar Jogndra Narain A.I.R (1923) Pat. 384 and took the view that the decision of their Lordships depended not upon the question mooted by Mr. Sinha but upon the fact that the application to the District Judge was after the decree had been transferred to the Munsif. However, the decision is in point; it is a case entirely similar to the one which is before us and the decision of the learned Judges of this Court is therefore binding upon us.

Any suggestion that the case has been wrongly decided is one which, in the circumstances, cannot be sustained, particularly having regard to the statement of Das J. towards the end of the judgment in which he says:

Section 38, Civil P.C., 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,.

which provision, the learned Judge seems to consider is conclusive of the matter, and if I may say so, with respect, I entirely agree with that view. The Section is disjunctive. It is not that a Court to which the decree is transferred as well as the Court from which it is transferred, may execute the decree, but "either or" is the expression used. The matter also seems to me to be still more clear from the provisions of Order 21, Rule 10, which are:

Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

In my judgment, as I have already stated, that puts the matter beyond any doubt. Nor does that view of the matter conflict with the principle which is laid down by Section 46 and is the principle which their Lordships of the Judicial Committee appears to have applied in Sarida Prosaud Mulick v. Luchmeeput Singh (1970) 14 M.I.R. 529. Section 46, as it now is, provides as follows:

Upon the application of the decree-holder, the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and. specified in the precept.

Then the later Sections lay down the conditions applicable to such circumstances. The fact that the executing Court may attach a property by way of precept to any other Courts does not conflict as I have said, with the principle that the Court to which the application for execution is made, must be either the Court which passed the decree or the Court to which the decree has been transferred: in other words, even assuming that the property is to be attached in several Courts, the Court which has control of the proceedings is the Court which passed the decree or the Court to which the decree has been transferred. Therefore quite clearly the application in 1931 to the Hazaribagh Court was not an application to the proper Court inasmuch as it is not the Court to which the decree has been transferred, it having been by that time transferred to the Ranchi Court. The application is therefore not a step-in-aid of execution.

The appeal fails and I would dismiss it with costs.

Manohar Lall, J.

I agree. There is nothing in the argument of Mr. Sinha, appearing on behalf of the appellant, which leads me even to suspect that the decision of this Court in Jnanendra Nath v. Kumar Jogendra Narain A.I.R (1923) Pat. 384 was wrongly decided. The learned Judges in that case applied the decision of their Lordships of the Judicial Committee in Maharaja of Bobili v. Narasaraju Peda Simhulu A.I.R (1916) P.C. 16 to the facts of the case before them, and that decision of the Privy Council equally applies to the facts of the present case. It was argued however that another decision of this Court reported in the same volume; viz. Ram Sumran Prasad v. Ram Bahadur A.I.R (1923) Pat. 224 is an authority in favour of the appellant. But if the facts of that case are examined, it will be seen that the question which is now in controversy before us was never raised in or decided by that case. In that case while the execution in respect of a decree was still pending before the Court which had passed the decree, an application was made to that Court that: some other property belonging to the judgment-debtor should be attached in the form of Rs. 6309-10-0 which was in deposit in the Court of a Subordinate Judge but the Court refused to do that upon its view of the law that it could not issue another execution or execution in another form while the previous execution was still pending and undisposed of before him.

This Court set aside that order holding that there was nothing in the Code to prevent a simultaneous execution being issued by the same Court, in other words, the same executing Court could grant both the reliefs by different applications made on different dates. It may be noticed that the Court which was asked to grant the second relief was the very Court which was in seisin of the whole execution case. It was not a case where the Court which was executing the decree was granting one relief and the Court which passed the decree was being asked to grant another relief. Section 38, Civil P.C. and the case in Maharaja of Bobili v. Narasaraju Peda Simhulu A.I.R (1916) P.C. 16 were not even referred to in that case for the simple reason that the question, as I have already said, did not arise.

I am unable to find anything in this case which helps the appellant. It follows that the appeal fails and must be dismissed with costs.