Patna High Court
Jagat Kishore Prasad Narain Singh vs Surendra Kumar Bhadani And Ors. on 18 April, 1963
Equivalent citations: AIR1963PAT461, AIR 1963 PATNA 461, ILR 42 PAT 70
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Untwalia, J.
1. This is a miscellaneous first appeal by the judgment debtor from the order dated the 1st of October, 1959, of the learned Subordinate Judge of Biharshariff, dismissing Miscellaneous Case No. 41 of 1959 under Section 47 of the Code of Civil Procedure, hereinafter to be referred to as the Code, in Execution Case No. 34 of 1958. Two objections were taken in the Court below (1) that the execution was bad for the reason that the decree had not been transferred to that Court by the Court which had passed it, in accordance with Jaw; and (ii) that Surendra Prasad Bhadani, one of the decree-holders executing the decree, was a minor but had applied for execution as a major. Both the objections have been overruled by the Court below, and in this appeal the second objection has not been pressed at all for our consideration. The only point urged by learned Counsel for the appellant is that the Subordinate Judge's Court at Biharshariff had no jurisdiction to execute the decree as the Court of 1st Subordinate Judge at Gaya, which had passed the decree had ordered it to be transferred to the Court of Munsif at Biharshariff for execution. Learned Counsel for the decree-holders respondents 1 to 3, hereinafter referred to as the respondents, has not only combated the argument put forward an behalf of the appellant but also supported the decision of the Court of the lower Court on the ground of waiver and constructive res judicata.
2. One Jhari Ram Bhadani since deceased, father of respondents 1 and 2 and husband of respondent 3, obtained a money decree on the 27th of February, 1948, on the basis of a handnote for a sum of Rs. 63,500/- with interest and costs against the appellant and his brother, respondent No. 4, in the Court of the 1st Subordinate Judge at Gaya. On the 13th of February, 1957, the respondents filed an application to the Gaya Court for transfer of the decree "to the Court at Bihar in the district of Patna", stating that, after obtaining the decree on 27-2-48, it was executed in the Court which had passed it in Execution Case No. 157 of 1948; various properties in the district of Gaya were proceeded against but "on some objections being raised by the creatures of the judgment-debtor they were released with the result that no satisfaction of the decree has yet been made and the execution application has been dismissed on 9-1-57";
and that "the defendants have got some landed property in the district of Patna, within the jurisdiction of the Bihar Sub-division and as such to enable the plaintiff to realise the decretal amount it is meet and proper that the decree be transferred to Bihar Sharif, District Patna, under whose jurisdiction the defendants have their ancestral home and have landed properties."
It is to be noticed that the respondents had merely asked for transfer of the decree to the Court at Biharshariff in the district of Patna, but the order which was recorded by the Gaya Court on 16-2-57 runs thus :
"Plaintiff files a petition along with C. C. of decree and suit register and prays to transfer the decree to the Court of Munsiff at "Bihar for execution"....... Call for the record of money suit and put up on 21-2-57 for further order along with the seristedar's report."
Ii may well be that the Court of the Subordinate Judge having been created and established at Biharshariff not long before 16-2-57, perhaps, it was not known to the Subordinate Judge of Gaya that the proper Court to execute this decree of such a high amount was that of the Subordinate Judge at Biharshariff and not of the Munsif. Be that as it may, the order, which was ultimately made on 13-3-57 by the transmitting Gaya Court, was "Let the decree be transferred to Munsiff Bihar and grant dasti cover as prayed for."
In transmitting the decree, however, the procedure presecribed by Order 21, Rules 5 and 6 of the Code was followed. Forms 3 and 4 of appendix E appended to the Code were filled up, and, although in the first paragraph by filling the blank space in form No. 3, it was stated :
"whereas the decree-holder in the above suit has applied to this Court for a certificate to be sent to the Court of Munsif at Bihar for execution of the decree......"
Which statement, as I have said above, was nor quite correct, in the second part of the form it was ordered that:
"a copy of this order be sent to District Judge, Patna, with a copy of the decree and of any order which may have been made for execution of the same and a certificate of non-satisfaction."
This appeal came up for hearing before us in the first instance on the 29th of March, 1963. There is a statement of the Court below in the order under appeal that, though the prescribed form for transfer of decree mentioned the Court of the Munsif of Bihar as the Court to which the decree was to be sent for execution, the order of the District Judge of Patna passed on 4-4-57 (wrongly-mentioned as 4-4-59 in the order of the Court below) on the back of the said prescribed form clearly showed that the decree was transferred to the Court of the Subordinate Judge, Bihar, for purposes of execution. This statement was not accepted as correct by the appellant's counsel and a request was made to us to call for the entire record of the case from the Court below. The prayer was allowed. The records were called for and the case again came up for hearing before us about a week later. From the records it appears that on 4-4-57 a petition was filed on behalf of the respondents in the Court of the District Judge at Patna praying "to transfer the case and forward the papers to the learned Sub Judge at Biharshariff for the execution of the Decree"
stating that the property in question, was in Biharshariff which was under the jurisdiction of the District Judge and the closed cover from the Court of the 1st Subordinate Judge containing the decree and other necessary papers was being filed. Upon this, it seems, the learned District Judge passed the following order on 4-4-57 on the back of form No. 3.
"Let it be transferred to Subordinate Judge Bihar for needful."
3. Execution Case No. 34 of 1958 thereafter was filed in that Court on 4-10-58. On 7-7-59 the appellant filed an objection under Section 47 of the Code which was numbered and registered as Miscellaneous Case 22 of 1959, taking very many objections to the execution of the decree. The objection which is being considered in this appeal was not taken. Miscellaneous Case 22 of 1959 was dismissed by the Court, below on 31-8-59. Thereafter on 29-9-59 Miscellaneous Case 41 of 1959 taking the two new objections, as mentioned above under Section 47 of the Code was filed by the appellant. The case was taken up for hearing on that very day, arguments were heard and the order under appeal was passed on 1-10-59. In view of the facts stated above, it seems that on the authority of the decision of Supreme Court in Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 followed in a recent decision of the Full Bench of this Court in Baijnath Prasad San v. Ramphal Sahni, 1962 BLJR 110: (AIR 1962 Pat 72) the point of constructive res judicata raised on behalf of the respondents in support of the decision of the Court below has great force, but, since the point does not appear to have been canvassed in the lower Court and discussed by it in the order under appeal, I shall not rest my judgment on this point as in my opinion, the objection itself put forward on behalf of the appellant has got no substance and has been rightly overruled by the Court below.
4. Section 38 of the Code provides :
"A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."
Sub-section (1) of Section 39 empowers the Court which passed a decree to send it for execution to another Court on the application of the decree-bolder under the circumstances mentioned in Clauses (a) to (d) or any of them. Clause (b) runs thus :
"If such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court".
The procedure prescribed for such transfer is to be found in Rules 5 to 8 of Order 21 of the Code. I shall first read Rule 5, which prescribes the mode of transfer, "5. Where the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed."
This rule consists of two parts. The first part enables the transmitting Court to send a decree for execution directly to the transferee Court if both the Courts are situate within the same district. But, according to the second part of the rule, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed the decree shall send it to the District Court of the district in which the decree is to be executed. Rule 6 requires the Court sending the decree for execution either directly to the transferee Court if it is situate in the same district or to District Court if the execution is to be levied in a Court situate in another district, to send the papers mentioned in Clauses (a) to (c) of that rule. Rule 7 says :
"The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof."
It is also to be noticed that the 'Court' receiving copies of decree, etc., would mean both kinds of 'Court' envisaged in the two parts of Rule 5. And then comes Rule 8 which runs thus:
"Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction".
It is, therefore, clear on reading Rules 5 to 8 together that, if the decree on transfer is to be executed by another Court in the same district, the district Court does not come into the picture, but, if the decree is to be transferred for execution to a Court situate in another district, according to the mode of transfer prescribed by Rule 5, the decree cannot be directly transferred to that Court Rather it has to be sent along with the copies of papers as mentioned in Rule 6 to the district Court Rule 8 empowers the district Court to execute the decree itself or to transfer it for execution to any subordinate Court of competent jurisdiction.
I am unable to find any words either in Section 39 or in Rules 5 to 8 of Order 21 of the Code to warrant the argument put forward on behalf of the appellant that, once the transferee Court is specified, and named by the transmitting Court in its order making the transfer or in form 3 of the appendix E it is that Court and that Court alone to which the district Court is obliged to send the decree for execution and it has no power either to execute it itself or to transfer it for execution to any subordinate Court of competent jurisdiction. To me, it appears that the argument has been advanced under a wrong impression of law derived from some observations made in a Bench decision of the Madras High Court in Juluri Venkataratnam v. Chennyayya, AIR 1940 Mad 214 to the effect.
"Rules 5 and 8 of Order 21, Civil P. C. are distinct and independent."
I shall presently show with reference to the other-cases cited on behalf of the appellant as also some others referred to in them that the said observation in the Madras decision, apart from being obiter dictum, if I may say with great respect, is not quite correct either. On reading the relevant provisions of the Act, I have already stated the connection, meaning and effect of Rules 5 and 8 of Order 21.
5. It may well be that under certain circumstances a Court passing the decree may have to transfer it for execution to the district Court in the same district and one may, therefore, think and argue that even in such a case the district Court is empowered to execute the decree either itself or retransfer it for execution to any subordinate Court of competent jurisdiction. But, such cases are very rare. The question which has ordinarily and generally fallen for decision with reference to Rules 5 and 8 has been in relation to a fact of transfer of a decree by the transmitting Court for execution by a Court situate in another district.
A question arose in the case of Debi Dial Sahu v. Moharaj Singh, ILR 22 Cal 764 that, where a decree for money passed by a Munsif in one district was sent for execution to the Court of a Munsif in another district and not to the district Court, as provided in Section 223 of the old Code, whether the latter Court had jurisdiction to execute it, without there being any express order of the District Judge under Section 226. It was held in that case that it (that Court) had no jurisdiction to execute it. The Calcutta High Court still seems. to be of that view (vide Sachindra Kumar v. Usha Prova De, AIR 1949 Cal 690). A contrary view has been expressed by a Bench of the Lahore High Court in Bhagwan Singh v. Barkat Ram, AIR 1943 Lah 129 and of this Court in Inderdeo Prosad v. Deonarayan Mahton, AIR 1946 Pat 301 and Maharaj Kishore Khanna v. Raja Ram Singh AIR 1954 Pat 164. Referring to the earlier decision of ILR 22 Cal 764, Mitra, J. in Sachindra Kumar Bose's case, AIR 1949 Cal 690 has said :
"That was a case under the Code of 1882. In that case a decree for money was passed by the Munsif of Daltonganj. On application by the decree-holder to have it sent for execution to the Court of the Munsif of Aurangabad, within whose jurisdiction the judgment debtor had immovable properties, the Munsif of Daltonganj in disregard of the last para of Section 223, sent it direct to the, Munsif of Aurangabad instead of sending it to the District Judge of Gaya. Princep and Ghose, JJ. held that it was not a mere irregularity and that the Munsif of Aurangabad had no jurisdiction without an express order of the District Judge of Gaya passed under Section 226 which corresponds to Order 21, Rule 8, of the present Code. The learned Judges added that the scheme of the Code was to vest the District Judge with Supreme authority in the matter of execution of a decree passed by a Court situate in another district and that it was only under an order of the District Judge sending the decree to it for execution that a subordinate Court could acquire jurisdiction in the matter. Until such an order was made no subordinate Court had jurisdiction to execute such a decree."
6. This view, was not accepted by the Lahore High Court, vide AIR 1943 Lah 129 and with reference to Rules 5 and 8 it was said by Tek Chand, J.
"Rule 8 says that on receipt of the certificate the District Court may execute the decree itself or transfer it for execution to any subordinate, Court of competent jurisdiction."
Admittedly, the Senior Sub-Judge, Ambala, did not follow this procedure. Instead of sending the certificate to the District Judge, Delhi, who would then have transferred it to the Senior Sub Judge Delhi, he sent it direct to the latter. It is conceded however that if the certificate had been sent to the District Judge, Delhi, he in normal course, would, have transferred it for execution to the Senior Sub Judge, who is competent to deal with suits and execution applications of this class and value. The case therefore, is not one of inherent lack of jurisdiction, territorial or pecuniary over the subject-matter. It is merely one of irregular assumption of it, the irregularity consisting in non-compliance with the procedure prescribed for the transmission of the certificate.'"
The close connection between Rules 5 and 8 has been noticed not only by the Calcutta High Court but also by the Lahore High Court.
In AIR 1946 Pat 301, it would again be noticed that, with reference to a similar point, Meredith, J. (as he then was) while stating the facts of the case, said :
"The decree in question was made by the Munsif, 2nd Court, Bhagalpure, on 6th September, 1932. On 10th May, 1933, 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."
And, then in regard to the question as to whether in such a situation the Monghyr Munsif had jurisdiction to execute the decree or not, his Lordship followed the view expressed by Tek Chand. J. in the Lahore case referred to above and observed further :
"The jurisdiction to transfer a case for execution from one Court to another arises not under Order 21, Rule 5, but under Section 39, Civil P. C. Section 39 prescribed 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."
In AIR 1954 Pat 164 Ramaswami, J. (as my lord the Chief Justice then was), delivering the judgment of the Bench, and rejecting a similar argument, said :
"The jurisdiction to transfer a decree for execution from one Court to another arises not under Order 21, Rule 5 but under Section 39, Civil P. C. Order 21, Rules 5 and 8 merely prescribe the procedure by which the transfer is to be carried out. It is clear that failure to observe the provisions of Order 21, Rule 5 or Rule 8 is a mere irregularity and does not affect the jurisdiction of the Subordinate Judge of Purnea to execute the decree."
I am aware that the decision in Maharaj Kishore Khanna's case, AIR 1954 Pat 164 has been reversed by the Supreme Court in S.K. Sahgal, Additional Collector, Banaras v. Maharaj Kishore Khanna, AIR 1959 SC 809; it has, however, been so done not on the point which is being discussed here but on a different ground altogether. It is, therefore, clear that when a decree is transferred by a Court which passed it for execution by a Court situate in another district the procedure prescribed by Rules 5 and 8 of Order 21 of the Code bas got to be followed. Sending the decree for execution directly to the transferee Court in another district is an illegality which goes to the root of the jurisdiction of the transferee Court to execute it, according to the view of the Calcutta High Court, and is a mere irregularity which does not render the execution proceeding void according to the view expressed by this Court in the two Bench decisions referred to above, following the Bench decision of the Lahore High Court. The view expressed by our Court is not only binding on me, but if I may say so with respect, is the correct one. The point which I however, want to emphasise with reference to the above Lahore and Patna cases cited on behalf of the appellant, is that Rules 5 and 8 are not distinct but are closely connected, rather Rule 8 is complementary to Rule 5.
7. Another Bench decision of this Court in Syed Mohammad Mehdi v. Syed Zainuddin Hassan Mirza, AIR 1957 Pat 654 cited on behalf of the appellant is again, in my opinion, against the contention put forward on his behalf. What happened in that case was that on an application being made by the decree-holder in the Court of the Subordinate Judge, Purnea, which had passed the decree, for its transfer to the Court of the Subordinate Judge at Patna for its execution, an order was made by the transmitting Court, obviously, as required by Rule 5 of Order 21, transmitting the decree to the District Judge at Patna for execution. No order, however, was made by the District Judge under Rule, 8, transferring the decree for execution to the Subordinate Judge, Patna. The execution case was filed in the latter Court by the decree-holder. In that situation, it was held that the Subordinate Judge, 1st Court, at Patna, had no jurisdiction to execute the decree. That the view expressed is clearly against the appellant's contention is apparent from the following passage in the judgment :
"Thus it is clear that unless the provisions of Order 21, Rule 8, Code of Civil Procedure, had been complied with, the Subordinate Judge, First Court. Patna, had no jurisdiction to execute the decree. The decree-holders could even have obtained, an order of transfer from the District Judge, Patna, for execution of the decree by the Court of the Subordinate Judge first Court, Patna. But no such order was passed. The decree-holders have placed no materials to show that the Provisions of Order 21, Rule 8 of the Code of Civil Procedure had been complied with. We also did not find anything on the record to show that the provisions of Order 21, Rule 8 were at all observed."
8. In the instant case it has been noticed that the decree-holders had merely asked the Gaya Court to transfer the decree for execution to a Court at Biharsharif, it was rightly sent to the District Judge of Patna, as required by Rule 5, and he made the order in accordance with Rule 8 of Order 21 of the Code, transferring it to the Subordinate Judge of Biharsharif for execution.
9. The only irregularity which, in my opinion, was of no consequence in this case was that the Gaya Court in its order as also in form 3 of appendix, E had ordered the decree to be transmitted to the Munsiff's Court at Biharshariff for execution, which was obviously wrong, as that Court had no pecuniary jurisdiction to execute this decree nor was the District Judge, it is clear to me, bound to follow the directions of the transmitting Court, and he rightly transferred the decree to the Subordinate Judges Court at Biharsharif for execution.
10. Now coming to the decision of the Madras High Court in AIR 1940 Mad 214 decided by a Bench of that Court consisting of Burn and Stodart, JJ., which led to the advancing of the strenuous argument on behalf of the appellant, it is to be noticed that the question which was decided in that case, was one of limitation. Although the facts are not stated in the Judgment in any detail, what can be gathered from it are these. The Subordinate Judge's Court at Guntur had passed the decree and on the 29th of August, 1936 had made an order for transmission of the decree for execution to the Sub Court, Vizigapatnam. What happened thereafter is not clear. But it has been mentioned in the judgment that G. R. P No. 139 (Some special rule of the Madras High Court) forbade the decree-holder to make any application to the District Court for execution of the decree. The District Court had no power to execute the decree itself. It was merely to transfer the decree to some Court at Vizigapatam for execution. In that connection, it has been observed:
"Rule 8 of Order 21 applies only to these cases in which the decree is sent for execution to the District Court in another District, (or for that matter in the same district). In such cases, the District Court is not obliged to execute the decree itself but may transfer it for execution to any subordinate Court having jurisdiction. If the decree is not sent for execution to the District Court, the District Court cannot execute it but must merely transmit it to the Court specified in the order of the Court which passed the decree."
For the reasons already stated by me, with great respect I must express my dissent from the view expressed by the Bench of the Madras High Court in Venkataratnam's case, AIR 1940 Mad 214. There does not seem to be any warrant for this view either in the language of Rule 5 or 8 of the Order 21 or in any decided cases. Their Lordships of the Madras High Court in their short judgment have dissented from the view expressed in Debi Dial Sahu's case, ILR 22 Cal 764 and have followed the case of Modali Ademna v. Venkatasubbaya, ILR 56 Mad 692: AIR 1933 Mad 627. This case was referred to and decided by the Division Bench on account of a conflict of opinion of two Single Judges in Arimuthu Chetty v. Vyapuripandaram, ILR 35 Mad 588 and the other in Nanjunda Chettiar v. Nallakaruppan Chettiar, 55 Mad LJ 120 : AIR 1928 Mad 496 (2). In Arimuthu's case, ILR 35 Mad 588 the question at issue was as to the right of the decree-holders for rateable distribution under Section 73 of the Code of Civil Procedure. It is not necessary to state all the facts. Suffice it to say that on behalf of the one of the decree-holders it was argued that the transfer of the decree was complete when the order was made by the Munsif who had passed the decree and that the receipt of the decree by the District Court on the next day had nothing to do with his right to apply to the district Court for rateable distribution. In that context, it was observed by the learned Judge :
"I am, not at all sure, having regard to the provisions of Rules 6, 7, and 8 of Order 21, that the Court to which a decree is sent for execution is authorised to execute it before a copy of the decree is received; but I think there is force in the contention that, when once an order is made sending a decree to another Court for execution, that by itself is sufficient to entitle the decree-holder to apply to the Court to which the decree is sent for execution. In this view the application to the District Court after Munsif's order sending the decree to the District Court would be perfectly competent and sufficient to satisfy the requirements of Section 73."
11. In the case of Nanjunda Chettiar, 55 Mad LJ 120 : (AIR 192S Mad 496 (2)), the question for determination again was whether the application of one of the decree-holders was an application to the Court for execution or the decree for the payment of money as contemplated by Section 73 of the Code. Jackson, J. expressed the view :
"an application cannot be made to a Court in anticipation that it may subsequently receive the decree by way of transfer."
Taking a contrary view to the one expressed in ILR 35 Mad 588; the learned Judge said :
"The mode of transfer in Order 21, Rule 5, Civil Procedure Code is by dispatch of the decree, and a Court is presumably only seised with authority to execute when it has received the decree."
This difference was resolved by the Bench of the Madras High Court in the case of Modali Ademma's case, ILR 56 Mad 692 : (AIR 1933 Mad 627) and the earlier view was held to be the correct one. Sir Owen Beasely, C. J. delivering the Judgment on behalf of the Bench, said :
"In my opinion, the two things do not necessarily go together. For one thing, a Judicial order dates from the time when the order is made and therefore the transfer of a decree to another Court for execution dates from the date when the order of transfer is made."
12. In Venkataratnam's case, AIR 1940 Mad 214, as I have said above, the question for determination was one of Limitation and following the case of ILR 56 Mad 692 : (AIR 1933 Mad 627), it was held that the order of transfer in that case took effect on the 29th August, 1936, that the sub-Court at Vizigapatam had jurisdiction to execute the decree thereafter and that the decree-holders' application on 31st August, 1936 was not barred by limitation. Only in that context, the view expressed in ILR 22 Cal 764 to the effect that it was only by an order passed by the district Court that any subordinate Court in that district was empowered to proceed to execute a decree transferred to that district for execution, seems to have been dissented from. I have already discussed the dissentient view of the Lahore High Court and of this Court in this regard.
13. On a careful consideration of the earlier Madras cases, I do not find anything in any of them supporting the view expressed by Burn and Stodart, JJ, in the case of AIR 1940 Mad 214 that "Rules 5 and 8 of Order 21, Civil P. C. are distinct and independent." I also could not appreciate from the facts stated in the judgment as to how such an interpretation of Rules 5 and 8 of Order 21 of the Code was necessary for the decision of the point of limitation which fell to be and was decided in that case. I am, therefore, unable to follow this decision as laying down the correct proposition of law. In the instant case, no question of limitation has arisen for decision at any stage and, applying the law to the facts of this case, it must be held that the Subordinate Judge's Court at Biharshariff had jurisdiction to execute the decree.
14. In the result, the appeal fails and is dismissed with costs payable to decree-holders, respondents 1 to 3.
Ramaswami, C.J.
15. I agree.