Full Judgment Text
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PETITIONER:
SHAUKAT HUSSAIN ALIAS ALI AKRAM & ORS.
Vs.
RESPONDENT:
SMT. BHUNESHWARI DEVI (Dead)) by L. RS. & ORS.
DATE OF JUDGMENT25/08/1972
BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1973 AIR 528 1973 SCR (1)1022
1972 SCC (2) 731
CITATOR INFO :
F 1982 SC 686 (17)
ACT:
Code of Civil Procedure and Order XXI rule 29-Construction
of--Execution Court’s jurisdiction to grant stay of
proceedings where decree has been granted by another court-
Conditions for exercise of power under rule.
HEADNOTE:
The respondent obtained a money decree against the
appellants front .the court of the Subordinate Judge, Gaya
exercising Small Cause Court jurisdiction. The decree was
transferred for execution to the Court of Munsif 1st at
Gaya. The judgment-debtors filed a Title Suit in the court
of Munsif 1st for setting aside the decree passed by the
Small Cause Court on the ground that it was fraudulent,
illegal and without jurisdiction. The appellants also filed
two petitions before the Munsif-one for an injunction
against the respondent restraining her from proceeding with
execution and the other ’for staying the further proceedings
in the execution case under Order XXI Rule 29 C.P.C. The
Munsif issued ex-parte orders. on the two applications on
the same day namely May 11, 1962. The injunction was
recalled on June 2, 1962 because the requisites were not
filed for issue of show cause notice to the respondent. The
respondent decree holder who was not aware that there were
two ex-parte orders informed the executing court on April
10, 1963 that the order of stay passed in the Title Suit had
been recalled for non-filing of the requisites and prayed
for proceeding with the execution. The executing court
thereupon passed an order vacating the order of stay and
calling upon the respondent decree bolder to take further
steps. In due course the property in dispute was attached
and sale proclamation was issued. The appellants filed an
objection in the Court of the Munsif in the pending Title
Suit requesting the court to clarify whether the order of
stay made by it on May It, 1962 was still subsisting or not.
The court held the order to be subsisting since it had not
been withdrawn but made it conditional on deposit of a
security of Rs. 550 in the execution case. The executing
court was informed about this order and in due course the
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executing court fixed 5th August 1963 for furnishing
security. Since the security was not deposited by that date
the property was sold on 6th August 1963 under the pro-
clamation already issued. It was purchased by the decree-
holderrespondent with the permission of the court. On an
application by the appellant judgment-debtors under s. 47 of
the Code of Civil Procedure the Munsif set aside the sale as
illegal on the ground that the proclamation of sale had been
issued when the stay of execution was still in existence.
The ’Subordinate Judge upheld the order. In second appeal
the High Court held that the Munsif was incompetent to stay
execution of the decree and therefore the sale was legal.
The sale was held valid on the further ground that the
security was not deposited by the due date. In appeal by
special leave to this Court it was contended on behalf of
the appellants that (i) the Property had been sold for
paltry sum and this by itself sufficient to show that the
sale was liable to be set aside; (ii) the High Court was
wrong in holding that the order of stay was not passed by a
competent Court.
Dismissing the appeal,
1023
HELD: (i) The first, contention was not open to the
appellants on the materials on record. The application made
to the executing court in the present case by the judgment-
debtors was not one under Order XXI rule 90 C.P.C. Had it
been the case that on account of fraud or material
irregularity in conducting the sale, the sale required to be
set aside, evidence would have been led on the point and
there would have. been a clear finding as to the substantial
injury. The judgments of all the three courts proceed
entirely on the basis that the application was one under
section 47 C.P.C. and not under Order XXI Rule 99 C.P.C.
They do not deal with the question of material irregularity
or fraud in the conduct of the sale, nor do they deal with
the injury caused to the judgment-debtors. The only
question which was agitated before the courts was whether
the sale was illegal in view of the fact that the execution
proceedings had taken place during the existence of a stay
issued by a competent court. It was also common ground that
the stay issued by the Munsif was an Order passed under
Order XXI Rule 29 C.P.C. The High Court held that factually
there was no stay, when the execution proceedings ended and
further that the Munsif was not competent to grant the stay.
[1025G-1026D]
(ii) For a stay to be granted under Order XXI rule 29 it is
not enough that there is a suit pending by the judgment-
debtor, it is further necessary that the suit must be
against the holder of a decree of such court. The words
’such court’ are important. ’Such Court’ means in the
context of that rule the court in which the suit is pending.
In other words the suit must be one not only pending in that
court but also one against the holder of a decree of that
court. That appears to be the plain meaning of the rule.
[1027G-H]
it is true that in appropriate cases a court may grant an
injunction against a party not to prosecute a proceeding in
some other court. But ordinarily courts, unless they
exercise appellate or revisional jurisdiction do not have
the power to stop proceedings, in other courts by an order
directed to such courts. For this specific provisions of
law are necessary. Rule 29 clearly shows that the power of
the court to stay execution before it flows directly from
the fact that the execution is at the instance of the
decree-holder whose decree had been passed by that court
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only. If the decree in execution was not passed by it, it
had no jurisdiction to stay the execution. This is also
emphasised by rule 26. In the present case the decree
sought to be executed was not the decree of Munsif 1st
Court, Gaya but the decree of the Subordinate Judge, Gaya
passed by him in exercise of his Small Cause Court
jurisdiction. It was, therefore, obvious .that the order
staying execution passed by the Munsif, Gaya would be
incompetent and without jurisdiction. [1027H-1028C]
Narsidad Nathubhai Vohra v. Manharsing Agarsing Thakor;
XXXIII Bombay Law Reporter, 370 distinguished.
Inavat Beg v. Umrao Beg; A.I.R. 1930 All. 121 approved.
Sarada Kripa v. The Comilla Union Bank; A.I.R. 1934 Cal. 4
disapproved with the observation that the Calcutta High
Court bad wrongly taken the decision of the Privy Council in
the Maharaja of Bobbill’s case to mean that on transfer of a
decree, the original court had ceased to have jurisdiction
by virtue of s. 37 C.P.C., the Court further observing that
in the present case the Subordinate Judje’s Court was in
existence and it would have been the only court in which the
Small Cause Suit could have been filed and not the court of
Munsif, Gaya.
Maharajah of Bobbili v. Narasarajupeda Srinhulu; 43 Indian
Appeals 238 explained.
1024
Jang Bahadur of Upper India; 55 Indian Appeals 227, Long v.
Jagwnlal; 50 Bom. 439, Krishtokishore Dutt v. Rooplal Dass";
8 Indian Law Reports, Cal. 687, Masrab Khan v. Dehnath,
A.I.R. 1942 Cal. 321, M/s. Khemachand v. Rambabu; A.I.R.
1958 M.P. 131, Raghvender Rao v. Laxminarasayya A.I.R. 1962
Mysore 89, Sohan Lal v. Rajmal; A.I.R. 1963 Raj. 4 and
M.P.L. Chettyar firm v. Vanappa; A.I.R. 1936 Rangoon 184,
referred to.
JUDGMENT:
The Judgment of the Court was delivered by
Palekar, J. This is an appeal by special leave. The res-
pondent Bhuneshwari Devi obtained a money decree against the
appellants in S.C.C. Suit No. 107/95 of 1939 in the court of
the Subordinate Judge, Gaya exercising Small Cause Court
jurisdiction. At the instance of the decree holder the
decree was transferred for execution to the court of Munsif
1st at Gaya as the decree holder wanted to proceed against
the immovable property of the judgment-debtors. The
judgment-debtors filed Title Suit No. 104/67 in the court of
Munsif 1st at Gaya for setting aside the decree passed by
the Small Cause Court on the ground that it was fraudulant,
illegal and without jurisdiction’. After filing the suit
the appellants filed two applications in the court of the
Munsif--one for an injunction against the respondent
restraining her from proceeding with execution and the other
for staying the further proceedings in the execution case
under Order XXI Rule 29 C.P.C. Two ex-parte orders were
passed on the same day namely May 11, 1962. Since the
appellants did not file any requisite for issue of show
cause notice to the respondent, the injunction was recalled
on June 2, 1962. The respondent decree holder who was not
aware that there were two-exparte orders informed the
executing court on April 10, 1963 that the order of stay
passed in Title Suit No. 104/1962 had been recalled for non-
filing of the requisites and prayed for proceeding with the
execution. The executing court thereupon passed an order on
the same day i.e. April 10, 1963 vacating the order of stay
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Ind calling upon the respondent decree holder to take,
further steps. In due course the property in dispute was
attached and sale proclamation was issued. It does not
appear that the appellant judgment-debtor took any objection
either to the attachment or to the sale proclamation though
notices were issued and served on them. The appellants, ,
however, filed an objection in the court of the Munsif in
the pending Title Suit requesting the court to clarify
whether the order of stay made by it on May, 11, 1962 was
still subsisting or not. That court by its order dated July
26, 1963 remarked that the proceedings in the execution case
had been stayed on May 11, 1962 and since the same had not
been withdrawn it was still subsisting. The court, however,
modified the ex-parte stay order of May 11, 1962 upon the
judgment-debtors to deposit security to the extent of Rs.
550/-
1025
in the execution case which was a condition precedent to
the stay. The executing court was informed about this order
and in due course the executing court fixed 5th August, 1963
for furnishing security. The security was not furnished
and since the stay did not continue after 5th August, 1963
the attached property was sold on 6th August, 1963 under the
proclamation which had already been issued and was purchased
by the decree-holder-respondent with the permission of the
court.
On August 26, 1963 one of the appellant judgment-debtors
filed an objection under section 47 of the Code of Civil
Procedure for setting aside the sale. The learned Munsif
set aside the sale holding that the sale was illegal-the
reason being that the proclamation of sale had been issued
when the stay of execution was still in existence. In
appeal filed by the degreeholder to the learned Subordinate
Judge, the view of the Munsif was upheld, and the appeal was
dismissed. The decree holder respondent went in second
appeal to the High Court. The High Court held that the
court of the Munsif was incompetent to stay execution of the
decree and, therefore, the order of stay was without
jurisdiction and hence null and void. Therefore, the
proceedings in execution by way of attachment and
proclamation of sale were quite legal and, the sale in
favour of the decree holder was also legal. The learned
Judge further pointed out that even assuming that the
execution had proceeded during a valid stay, that stay, by
virtue of the order of security passed by the court, had
come to end on August 5, 1963 and, therefore, the sale which
took place on August 6. 1963 was valid.
It is from this order that the judgment-debtors have come to
this Court by special leave.
Mr. Chagla appearing on behalf of the appellants prefaced
his arguments by stating that the property attached in
execution was a very valuable property worth more than Rs.
20,000/- and bad been sold for a paltry sum due under the
decree and this circumstance itself was sufficient to show
that the sale was liable to be set aside. That contention
is clearly not open on the materials on record. A
_judgment-debtor can ask for setting aside a sale in
execution of a decree under section 47 C.P.C. and, in
special circumstances which attract the provisions of Order
XXI rule 90 he may also apply to the court to set aside the
sale on the ground of material irregularity or fraud in
publishing or conducting the sale provided he further proves
to the satisfaction of the court that he has sustained
substantial injury by reason of the irregularity or fraud.
The application made to the executing court in the present
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case by the judgment-debtors was not one under Order XXI
rule 90 C.P.C. That is conceded by Mr.
16-L172Sup.CI/72
1026
Chagla. Had it been the case that on account of fraud or
material irregularity in conducting the sale, the sale
required to be set aside, evidence would have been led on
the point and there would have been a clear finding as to
the substantial injury. The judgments of all the three
courts proceed entirely on the basis that the application
was one under section 47 C.P.C. and not under Order XXI Rule
90 C.P.C. They do not deal with the question of- material
irregularity or fraud in the conduct of the sale, nor do
they deal with the injury caused to the judgment-debtors.
The only question which was agitated before the courts was
whether the sale was illegal in view of the fact that the
execution proceedings had taken place during the existence
of a stay issued by a competent court. It was also common
ground that the stay issued by the Munsif was an Order
passed under Order XXI Rule 29 C.P.C. The first two courts
held that the stay was in existence when the execution
proceedings ended in the sale while the High Court held that
factually it was so because the sale took place on 6-8-1963,
the stay, if any, having ceased to operate after 5-8-1963.
The High Court further pointed out that the stay under Order
XXI Rule 20 issued by the court of the Munsif Gaya was null
and void as it was passed by a court without competence and,
therefore, in law there was no legal stay of execution and
the sale which took place in due course after attachment and
proclamation of sale, was a valid one.
Mr. Chagla, thereupon, contended that the Order of stay
passed by the Munsif was an Order of stay passed by a
competent court and the view of the High Court in that
respect was not sustainable. Execution at the instance of
the decree-holder was pending in the court of the Munsif and
a suit at the instance of the judgment-debtor was also filed
in that court and, therefore, that court was competent under
Order XXI rule 29 to stay the ,execution pending before it.
It was Mr. Chagla’s submission that it was competent for
every court to stay execution before it if there was a suit
pending before that court filed by the judgmentdebtor
against the docree-holder. The point is whether this
general proposition is sustainable on the provisions of
order XXI Rule 29 C.P.C.
Order XXI, CPC deals generally with the execution of decrees
and orders. That order is divided into several topics, each
topic containing a number of rules. The first four topics
cover rules 1 to 25 and the fifth topic, namely, stay of
execution comprises 4 rules, namely, rules 26 to 29. A
perusal of these rules will show that the first three rules
i.e. rules 26 to 28 deal with the powers and duties of a
court to which decree has been sent for execution. Under
rule 26, that court can stay the execution of the decree
transferred to it for execution for a reasonable time to
enable the judgment-debtor to apply to the court by which
the decree was
1027
passed or to any court having appellate jurisdiction over
the former for an order to stay execution or for any other
order relating to the decree or execution which might have
been made by the court of first instance or the appellate
court. It will be seen, therefore, that under rule 26 the
transferee court has a limited power to stay execution
before it. Moreover, under sub-rule (2) if any property is
seized by it in the course of execution, it may even order
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the restitution of the property pending the result of the
application made by the judgment-debtor to the court of the
first instance or to the appellate court. Rule 27 says that
any such restitution made under sub-rule (2) of rule 26 will
not prevent the property of the judgment-debtor from being
retaken in execution of the decree sent for execution. Rule
28 provides that any order of the court by which the decree
was passed, in relation to the execution of such decree,
shall be binding upon the court to which the decree was sent
for execution. And then we have rule 29 which deals with a
different situation. The rule is as follows :
" Where a suit is pending in any court against
the holder of a decree of such court, on the
part of the person against whom the decree was
passed, the court may, on such terms as to
security or otherwise, as it thinks fit, stay
execution of the decree until the pending suit
has been decided."
It is obvious from a mere perusal of the rule that there
should be simultaneously two proceedings in one court. One
is the proceeding in execution at the instance of the
decree-holder against the judgment-debtor and the other a
suit at the, instance of the judgment-debtor against the
decree-holder. That is a condition under which the court in
which the suit is pending may stay the execution before it.
If that was the only condition, Mr. Chagla would be right in
his contention, because admittedly there was a proceeding in
execution by the decree-holder against the judgment-debtor
in the court of Munsif 1st Gaya and there was also a suit at
the instance of the judgment-debtor against the decreeholder
in that court. But there is a snag in that rule. It is not
enough that there is a suit pending by the judgment-debtor,
it is further necessary that the suit must be against the
holder of a decree of such court.The words "such court"
are important. "Such court" means inthe context of that
rule the court in which the suit is pending.In other words,
the suit must be one not only pending in thatcourt
but also one against the holder of a decree of that
court.That appears to be the plain meaning of the rule.
It is true that in appropriate cases a court may grant an
injunction against a party not to prosecute a proceeding in
some other
1028
court. But ordinarily courts, unless they exercise
appellate or revisional jurisdiction, do not have the power
to stop proceedings in other courts by an order directed to
such courts. For this specific provisions of law are
necessary. Rule 29 clearly shows that the power of the
court to stay execution before it flows directly from the
fact that the execution is at the instance of the decree-
holder whose decree had been passed by that court only. If
the decree in execution was not passed by it, it had no
jurisdiction to stay the execution. In fact this is
emphasised by rule 26 already referred to. In the case
before us the decree sought to be executed was not the
decree of Munsif 1st Court Gaya but the decree of the
Subordinate Judge, Gaya passed by him in exercise of his
Small Cause Court jurisdiction. It is, therefore, obvious
that the Order staying execution passed by the Munsif, Gaya
would be incompetent and without jurisdiction.
Mr. Chagla sought to rely on a decision of the Bombay High
Court in Narsidas Nathubhai Vohra v. Manharsing Agarsing
Thakor(1) and specially the observations made at page 373.
The observations are : "If the execution of a decree is
transferred for execution to another court and a suit is
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brought in the Court in which the execution proceedings were
first started against the holder of a decree of that Court,
the Court in which the suit is brought would have
jurisdiction to pass an Order under Order XXI, rule 29,
though the execution proceedings may be actually pending
before another Judge to whom the execution proceedings may
have been transferred by the Court." In order to understand
these observations, we must know the facts of that case.
One Narsidas obtained a money decree against Manharsing in
the court of the First Class Subordinate Judge, Ahmedabad.
The principal Subordinate Judge of that court was Mr.
Jhaveri and the Joint Subordinate Judge was Mr. Yajnik.
Narsidas filed an application for executing the decree in
that court. The judgmentdebtor Manharsing filed a suit in
the same court for setting aside the decree against him.
Thus simultaneously there were two proceedings in the same
court namely the court of the First Class Subordinate Judge,
Ahmedabad between the two parties-one being a suit filed by
the judgment-debtor against the decree-holder and the other
being an execution proceeding by the decree-holder against
the judgment-debtor in respect of a decree passed by the
same, court. That brought in directly the provisions of
Order XXI rule 29 and there was no dispute that the
execution proceeding could be stayed. The, question,
however, was whether Mr. Yajnik before whom the suit was
pending could stay the execution of the decree which was
pending before Mr. Jhaveri. It was contended that Mr.
Yajnik had no jurisdiction to pass an Order. Under Order
XXI rule 29 as the execution proceedings were not
(1) XXXIII Bombay Law Reporter,. 370.
1029
pending before him but were pending before the First Class
Subordinate Judge Mr. Jhaveri. This contention was over-
ruled. It was pointed out that though there were two Judges
attached to the court, the court was one and Order XXI rule
29 did not refer to any individual Judge but to the court.
Therefore, either Judge of the court in charge of the suit
was capable of staying the execution in that court
regardless of the Judge before whom the execution was
pending. It is in that context that the above observations
were made. The observations contemplate a case where after
the institution of the execution proceeding in the First
Class Subordinate Judges’ Court the same is transferred in
due course of distribution of business, to another Judge
attached to that Court. Some little confusion is created by
the words ’another court’ when they first appear in the
above observations. The words ’another court’ really stand
for ’another Judge of that court’ as it clear from the last
clause of the very sentence. Having made the above
observations, the court further observed "It is not,
therefore, necessary in our opinion that the execution
proceedings must be pending before the same Judge before
whom the suit is pending. It is sufficient if the suit is
pending in any court against the holder of a decree of such
court." The decision is no authority for the contention put
forward by Mr. Chagla.
In Inayat Reg v. Umrao Beg(1) the Allahabad High Court had
hold that where a decree was transferred for execution to a
court, the latter could not, under Order 21 rule 29 C.P.C.,
stay execution of that decree in a suit at the instance of
the judgment-debtor, the reason being that the decree sought
to be executed was not the decree of ’such court’, that is,
the court in which the suit was pending. That view was
dissented from by the Calcutta High Court in Sarada Kripa v.
The Comilla Union Bank(2). The reasoning was that the Privy
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Council had held in Maharajah of Bobbili v. Narasarajupeda
Srinhulu (3 ) that on transfer of a decree, the original
court had ceased to have jurisdiction by virtue of section
37 C.P.C. The holder of a decree of ’such court’ will
include the court to which the decree has been transferred,
the latter having the same powers in executing the decree as
if it had been passed by it under section 42 C.P.C.
The above reasoning in the Calcutta case is based upon erro-
neous assumptions. The Privy Council was not concerned in
Maharajah of Bobbili v. Narasarajupeda Srinbulu(3) with the
impact of sections 37 & 42 on Order 21 rule 29 C.P.C. It was
only concerned to see whether the District Court was the
’proper court’ within the meaning of Art. 182(5) of the 1st
Schedule of the Limitation Act, 1908 in which to apply ’for
execution or to
(1) A.T.R. 1930 All. 121. (2) A.I.R. 1934 Cal. 4.
(3) 43 Indian Appeals 238.
1030
take same step in aid of execution’. The District Court of
Vizagapatam had passed the money decree in April 1904 and
sent it for execution to the court of Munsif Parvatipur in
September 1904. The copy of the decree with the non-
satisfaction certificate had not been returned to the
District Court till August 3, 1910. However the decree
holder applied to the District Court on December 13, 1907
for execution of the decree by sale of immovable property of
the J.D. which was within the local limits of the jurisdic-
tion of the Munsif’s court. The question was whether this
application to the District Court was an application to a
’proper court’ in order to save limitation. It was held
having regard to Sections 223, 224, 228 & 230 of the C.P.C.
of 1882 (which are reproduced in the Code of 1908 as
sections 38, 39, 41, 42 and Order 21 rule 4, 5, 6 & 10) that
when the application of December 13, 1907 was made, the
District Court was not the ’proper court’ to which the
application to execute the decree by sale of immovable
property which had been attached by the court of the Munsif
should have been made, the proper court being the court of
the Munsif Parvatipur. "That was the court whose duty it
then was to execute the decree so far as it could be
executed by that court." Consequently the Privy Council held
that the December 13, 1907 application was not an
application to the proper court either for execution or for
taking a step in aid of execution of the decree. It is to
be noted that the Privy Council was not concerned with the
problem before us nor with the interpretation of section 37.
Section 37, so far as is material is as
follows :
"The expression "court which passed a decree",
or words to that effect, shall, in relation to
the execution of decree, unless there is
anything repugnant in the subject or context,
be deemed to include-
(a)..............................
(b) where the court of first instance has
ceased to exist or to have jurisdiction to
execute it, the court which, if the suit
wherein the decree was passed was instituted
at the time of making the application for the
execution of the decree, would have
jurisdiction to try such suit.
Relying on the above provision the Calcutta High Court in
the Comilla Union Bank case seems to have thought that the
expression "holder of decree of such court" to be found in
rule 29 will include the court to which the decree was
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transferred as the transferor court had ceased to have
jurisdiction to execute the, decree. In the first place,
there is nothing in the Privy Council case to suggest that
their Lordships had thought that the District Court of
1031
Vizagapatam had ceased to have jurisdiction to execute the
decree within the meaning of Section 37. Their Lordships
had not addressed themselves to that question. They were
merely considering if the application to execute made in
1907 to, the District Court was an application to ’the
proper court’ as understood in Art. 185(5) of the Limitation
Act. They held it was not a proper court because the sale
sought was of property within the jurisdiction of another
court. On the other hand, there is a long series of
decisions which go to show that in spite of transfer of a
decree for execution to another court, the court which
passed the decree does not cease to have jurisdiction. For
example in Jang Bahadur v. Bank of Upper India(1) the Privy
Council has observed at page 233 "On such transfer the
former court (that is the court which transferred the
decree) does not altogether lose seisin of the decree". It
was held in that case, that when a judgment-debtor dies
after transfer of the decree, the proper court to order
execution against his legal representatives under section 50
of the CPC is the court which passed the decree. Under
Order 21 rule 26 it has jurisdiction to pass orders which
are binding on the transferee court under rule 28. It can
withdraw the decree-Lang v. Jaswantlal(2) or order
simultaneous execution by another court--Krstokishore Dutt
v. Rooplall Dass(3). It would not, therefore, be correct to
say that upon the transfer of a decree to another court, the
court which passed the decree ceases to have jurisdiction to
execute the decree within the contemplation of section 37
C.P.C. As pointed out in Masrab Khan v. Debnath(4), the word
’includes’ in section 37 while inclusive in one sense is
exclusive in another and under the circumstances specified
in clauses (a) & (b) of the section it excludes the original
court and substitutes another which, for the purposes of the
section is to be regarded as the only court which passed the
decree. Moreover, the expression ’jurisdiction to execute
it" in clause (b) means and includes the competency of the
court to entertain an application for execution of the
decree. It may happen that in certain circumstances a court
may not effectively execute a decree, but that does not mean
that it has ceased to have jurisdiction to execute it. It
still remains the competent court for the purposes of
execution though the decree holder might have to apply for
transmission of the decree to another court for obtaining
the relief which he wants. Thus in our case the Subordinate
Judges’ court which continued to be in existence was still a
competent court to entertain an application for execution.
It could withdraw the decree from the Munsif’s court and
execute the decree itself or transfer it to any other court
for execution, or, in other words, had still full control in
relation to the execution of the decree. And since under
section 37 there could
(1) 85 Indian Appeals 227.
(2) 50 Bom. 439.
(3) 8 Indian Law Reports, Cal. 687.
(4) A.I.R. 1942 Cal. 321.
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be only one court at a time answering the description of a
court passing the decree, the Subordinate Judge’s court both
factually and in law was the court which passed the decree
and it was not necessary to have recourse to clause (b) of
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section 37 to discover which court should be substituted for
the former.
Then again, assuming that the original court ceases to have
jurisdiction to execute the decree on its transfer to the
transferee court, there is no warrant for the conclusion
that the latter court becomes the court which passed the
decree in view of the fact that under section 42, it can
exercise all the powers of the original court. Under clause
(b) the substitute court is specifically declared to be, not
the transferee court, but the court which, if the suit
wherein the decree was passed was instituted at the time of
making the execution application would have jurisdiction to
try the suit. So for the purposes of section 37, the
transferee court is not named to be the court which passed
the decree, but the court in which the suit would have to be
filed at the time of the execution. It may turn out to be
the court to which the execution is transferred or it may
not be that court. In the case with which we are concerned
the Subordinate Judge’s court Gaya was in existence and it
would have been the only court in which the Small Cause suit
could have been filed and not the court of Munsif Gaya.
In our view the decision in Sarada Kripa v. Comilla Union
Bank(1) is erroneous. A contrary view is taken by several
other High Courts after recording specific dissent. See :
M/s Khemachand v. Rambabu(2); Raghvender Rao v.
Laxminarasayya(3); Sohan Lal v. Rajmal (4 ) and M. P. L.
Chettyar firm v. Vanappa(5). All these cases agree in the
view taken by the Allahabad High Court in Inayat Beg v.
Umrao Beg(6).
Since in the present case the decree sought to be executed
by the court of Munsif Gaya was not the decree of that court
but the decree of the Subordinate Judge, Gaya exercising
Small Cause Court jurisdiction, the court of the Munsif had
no competence under Order 21 rule 29 to stay the execution
of the decree. The High Court, is therefore, plainly right
in holding that the stay granted by that court is null and
void and, consequently, the sale which took place after
attachment and proclamation could not be regarded as invalid
on the ground that the execution had proceeded during the
existence of a valid stay order. The result, therefore, is
that the present appeal fails. But in the circumstances of
the case parties shall bear their own costs in this Court.
G.C. Appeal dismissed.
(1) A.I.R. 1934 Cal. 4. (2) A.I.R. 1958 M. 131.
(3) A.I.R. 1962 Mysore 80. (4) A.I.R. 1963 Raj. 4.
(5) A.I.R. 1936 Rangoon 184. (6) A.T.R. 1930 All. 121.
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