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1 - 4 of 4 (0.17 seconds)Amar Chandra Kundu vs Sebak Chand Chowdhury on 23 March, 1907
10. The learned Vakil for the appellant admits that even if we had not taken this view, then on the authority of the decision of the Full Bench in the case of Amar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642; 11 C.W.N. 593; 5 C.L.J. 491; 2 M.L.T. 207 (F.B.) it would have been necessary for us to send the case back to the Subordinate Judge of Patna in order that he might send the decree for execution to the District Judge of Gaya in order that that officer might determine how far the properties of the sons as legal representatives of their deceased father were liable to sale in satisfaction of their father's debt.
The Bank Of Upper India vs Sheo Prasad And Ors. on 7 May, 1897
7. The learned Vakil who appears in support of the appeal admits that if the proceedings in execution had been taken in the Court of the Subordinate Judge of Patna the effect of the dismissal or striking off of the proceedings would not have been to remove the attachment already existing on the property. That this is so is clear from a decision of this Court in the case of Puddomonee Dassee v. Roy Muthoora Nath Chowahry 20 W.R. 133; 12 B.L.R. 411; and from a decision of the Allahabad High Court in the case of Bank of Upper India v. Sheo Prasad 19 A. 482. The learned Vakil, however, argues that as the proceedings in execution were taken in the Gaya Court and as that Court after striking off the case had returned the proceedings to, the Sub-Judge of Patna with a certificate under Section 223 of the Code of Civil Procedure, the Gaya Court then became functus officio and all the proceedings in that Court including the attachment came to an end. We are not prepared to accept this contention. No doubt, under the law the Court to which a decree is sent for execution must, on the termination of the proceedings in that Court, certify to the Court which passed the decree the result of those proceedings, and after such a certificate it is necessary that in order that the decree-holder may subsequently proceed to execute the decree he should make an application to the Court which passed the decree so that the decree may again be sent back for execution to the other Court; but we do not think that it was the intention of the legislature or that it follows from this procedure that when an application for execution has been sent back a second time to the same Court for execution against the same property, it must be held that the attachment of that property which was made in the proceedings in execution in that Court of necessity came to an end when that case was struck off. In our opinion the same effect should follow in the course of the proceedings taken in execution in the Court to which the decree had been sent, under Section 223, Code of Civil Procedure, as would have followed if the proceedings had been taken in the Court which passed the decree and the same principles should apply.
The Sivagiri Zamindar vs Tiruvengada And Anr. on 29 January, 1884
3. On the 9th December 1905, the present respondent put in an application before the Subordinate Judge of Patna praying that as the proceedings in execution in the Gaya Court had failed owing to the death of the judgment-debtor, the decree might be sent to the District Judge of Gaya with a certificate to enable her to realise the balance of the decretal amount through that Court. An objection was taken by the present appellants who had been substituted on the record as legal representatives of the original judgment debtor, on the ground that the Gaya Court was the proper Court in which the application ought to have been made and that the Patna Court had no jurisdiction to entertain it. The Subordinate Judge of Patna, however, held that as the District Judge of Gaya had sent the decree back to his Court under Section 223 of the Civil Procedure Code, his Court being the Court which passed the decree had power to decide whether the decree-holder could execute the decree against the legal representatives of the judgment-debtor. Further he held that as the property of the judgment-debtor, had been already attached by the Court of the District Judge of Gaya and as there had been an order for its sale, the decree-holder was entitled under the law to follow that property in execution against the sons, the present appellants, and in support of this view he relied on the case of The Sivagiri Zamindar v. Tiruvengada 7 M. 339.
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