Sheshaiyer Rajamanner Aiyer vs Madanmohan Patnaik

Fazl Ali, J.—This is an appeal by the decree-holder against the decision of the Subordinate Judge of Cuttack dismissing his application for the execution of a decree on the ground that it is not capable of execution. It appears that the decree in question was passed by the Munsif of Berhampur on 16th February 1922. Subsequently it was transferred to the Subordinate Judge of Cuttack for execution and some property belonging to the judgment-debtor was sold and purchased by the appellant.

On 18th February 1925, the appellant applied for delivery of possession and possession was delivered to him. On 31st October 1924, the execution case was dismissed on part satisfaction and it appears that an intimation of this fact was sent to the Court at Berhampur on 3rd November 1924. On 31st October 1927, the appellant made another application for execution to the Subordinate Judge of Cuttack, but his application was returned to him by the learned Subordinate Judge who was of the opinion that it could not be executed without there being a fresh certificate of transfer from the Court at Berhampur. The appellant accordingly applied at Berhampur on 10th December 1927, for the transmission of the decree but this application was dismissed for default. On 7th July 1928, he filed a fresh application at Berhampur for the transfer of the decree which was granted. The decree was received by the District Judge of Cuttack on 4th December 1928, and was sent by him to the Subordinate Judge of Cuttack for execution. On 16th April 1929, the present application was filed by the decree-holder.

The view taken by the learned Subordinate Judge is that as the first application for execution was disposed of on 31st October 1924, and the subsequent application for transfer was made on 10th December 1927, the execution is barred and the decree cannot be executed. The appellant tried to save limitation by contending before the learned Subordinate Judge that his application for delivery of possession made on 18th February 1925, was a step-in-aid of execution. This contention was however overruled on the ground that it had been definitely decided by this Court in Triloke Nath Jha and Others Vs. Bansman Jha and Others, that an application for delivery of possession by the decree-holder auction-purchaser is not a step-in-aid of execution.

The point which is raised now in appeal by the decree-holder is that the application for execution filed by him before the Subordinate Judge of Cuttack on 31st October 1927, was an application made to the proper Court in accordance with law. It is contended that the Subordinate Judge of Cuttack would continue to have the jurisdiction to execute the decree until a certificate was transmitted by it to the Court which passed the decree as required u/s 41, Civil P.C. Now, as a proposition of law, it is true that the Court to which a decree is sent for execution retains its jurisdiction to execute the decree until a certificate is transmitted to the Court which passed the decree u/s 41, Civil P.C.

In Abda Begum v. Muzaffar Husen Khan [1897] 20 All. 129 it was held that the Court to which the decree is transferred for execution will retain its jurisdiction to execute the decree until the execution has been withdrawn from it, or until it has fully executed the decree and has certified that fact to the Court which sent the decree or has executed it so far as the Court has been able to execute it within its jurisdiction and has certified that fact to the Court which sent the decree, or until it has failed to execute the decree and has certified that fact to the Court which forwarded the decree. The same view was held in Manorath Das v. Ambika Kant Bose 1 Ind.Cas. 57 Vithu Daulata Patil v. Ganesh Ramchandra AIR 1923 Bom. 396 and Muhammad Ibrahim and Others Vs. Chhatoo Lal and Others, .

Before however the appellant can succeed on this point, it is necessary for him to show that no certificate was transmitted in this case by the Subordinate Judge of Cuttack u/s 41, Civil P.C. It is contended by the learned advocate for the respondent that the question whether a certificate required by Section 41 was transmitted by the Subordinate Judge of Cuttack to the Court of Berhampur or not is a question of fact and the appellant should have asked the Court below to investigate it. Not having done so in the Court below, the matter cannot, it is contended, be investigated by this Court. It is to be remembered however that the appeal from the order of the Court below to this Court lies on questions of fact as well as on questions of law and although, as a rule, this Court will be reluctant to investigate facts for the first time in appeal, yet there is nothing in law to prevent such facts being investigated when the interests of justice so require. The decree which is sought to be executed is for a substantial amount and the appellant should not be allowed to be defeated on a mere technical ground.

The learned advocate for the respondent raises two further contentions. It is said in the first place that as the application for execution which was presented by the appellant to the Subordinate Judge of Cuttack on 31st October 1927, was returned to him by the Subordinate Judge to be re filed and as it was never presented to the Subordinate Judge again, that application has to be regarded as not being presented at all. The question however to be considered is whether assuming that this application is not an "application made to the proper Court in accordance with law," it may still not be regarded as a step-in-aid of execution. It appears to me that if the Subordinate Judge of Cuttack still retained jurisdiction to execute the decree, the mere fact that an application which was properly made to him was returned by him under a misapprehension will not prevent the making of the application from being tantamount at least to a step-in-aid of execution.

The second question urged by the learned advocate for the respondent is that as both the Courts at Cuttack and Berhampur appear to have proceeded on the assumption that a certificate u/s 41 had been transmitted by the Cuttack Court after the first execution had been dismissed on part satisfaction, the matter is res judicata and cannot be opened again. It is true that it has often been held that orders passed at one stage of the execution may be res judicata at a subsequent stage; but in this particular case the question as to whether a certificate was actually sent u/s 41 by the Subordinate Judge of Cuttack to the Court at Berhampur or not was never specifically raised or decided and I do not think that it is too late yet to investigate it. The fact however that both the Courts have proceeded on the assumption that a certificate u/s 41 had been transmitted on the former occasion may be taken into consideration, if no other evidence is available to show whether a certificate was in fact transmitted or not. In my opinion the best course would be to send the case back to the lower Court in order to enable it to come to a final decision after ascertaining whether a certificate as required by Section 41, Civil P.C., had already been transmitted to the Court of Berhampur or not.

It may be mentioned here that in the Register of Execution Cases there is a note in the remarks column that an intimation was sent on 3rd January 1924, to the Court of Berhampur. The question however remains as to whether the intimation referred to in the Register was the same as a certificate required by Section 41, Civil P.C. I would therefore set aside the order of the Court below and remand the case to that Court for disposal according to law in the light of the remarks made above. Both the parties will be allowed to offer evidence which will be confined only to the question of certificate. Costs will abide the result.

Macpherson, J.

I agree.