Calcutta High Court
Sham Lal Pal And Ors. vs Modhu Sudan Sircar And Ors. on 15 March, 1895
Equivalent citations: (1895)ILR 22CAL559
JUDGMENT
Macpherson and Banerjee, JJ.
1. In this case a decree of this Court on its Original Side was sent to the Backergunge Court for execution. While the proceedings were pending there, one of the judgment-debtors died, and an application was made to the Backergunge Court to execute the decree against the legal representative of the deceased judgment-debtor. Upon that, notice was issued under Section 248, calling upon the legal representatives to appear and shew cause why the decree should not be executed. They did appear, and the only objection they took was that the Court had no jurisdiction in the matter, as the application to execute the decree against them should, under Section 234 of the Procedure Code, have been made to the Court which passed the decree. This objection was overruled, and they then appealed to the District Judge, who held that the objection was good and allowed the appeal. Whatever the precise meaning and effect of Section 234 may be, it is quite clear that when the enforcement of a decree is applied for against the legal representative of a party to the suit, the Court executing the decree must, under Section 248, issue the notice prescribed in that section to such representative, and can, under Section 249, make an order for execution, after hearing the objections, if any, preferred by the person to whom notice was given. The contention for the respondent is, that, under Section 234-, the Court which passed the decree is the only Court which can order execution against the legal representative of a deceased judgment-debtor, or at least that the application under Section 234 is a necessary preliminary to a notice under Section 248, or an order under Section 249. We find in the Code no warrant for this contention. The power of the Court executing a decree to order execution under Section 249 against the legal representative of a deceased judgment-debtor, after the issue of notice under Section 248, is not cut down by the provisions of Section 234, which simply empowers the decree-holder to apply to the Court which passed the decree to execute it against the legal representative of a judgment-debtor who is dead. Before we can hold that the Court executing the decree could not make the order for execution, which, in this instance, it has made, we must find in the Code some limitation of its power in this respect, or some provision by which the power to order execution in the first instance against a legal representative of a deceased judgment-debtor is conferred exclusively upon some other Court,
2. We think, therefore, that the view taken by the District Judge is wrong. Even assuming that an application under Section 234 to the Court which passed the decree was a necessary preliminary to proceedings under Section 248 by the Court executing the decree, the omission to make it was only an irregularity; and, under Section 578, the order should not have been reversed on account of an irregularity which did not affect the merits of the case. It seems clear that in this case there are no merits, because the objection which was taken to the execution of the decree was a technical one. The legal representatives of the judgment-debtor were not in any way prejudiced by the application being made in the Backergunge Court, as admittedly they then resided within the jurisdiction of that Court.
3. The order of the District Judge must be set aside, and that of the Subordinate Judge restored. The appellants are entitled to their costs both in this Court and in the Lower Appellate Court.