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PATNA HIGH COURT
N.L.Untwalia, J.
Dasrath Prasad Singh
Versus
Baijnath Prasad Singh
Civil Revision No. 190 of 1958 ;
Decided On : DECEMBER 15, 1959
TRANSFER OF EXECUTION PROCEEDINGS - POWER OF COURT - SECTION 24, CIVIL PROCEDURE CODE, 1908 - WHETHER EXECUTION PROCEEDINGS CAN BE TRANSFERRED FROM ONE COURT TO ANOTHER - INTERPRETATION OF SECTION 24 - SCOPE AND APPLICABILITY - RELEVANCE OF PRIVY COUNCIL DECISION IN THAKUR PERSHAD V/S. FAKIRULLAH - DISTINCTION BETWEEN SECTION 25 OF THE CODE OF 1882 AND SECTION 24 OF THE CODE OF 1908 - MEANING OF 'OTHER PROCEEDING' - EXERCISE OF INHERENT POWERS UNDER SECTION 151, CIVIL PROCEDURE CODE - RELEVANT CONSIDERATIONS.
Fact of the Case:
The decree-holders obtained a decree for possession and mesne profits in respect of certain properties situate in the district of Monghyr in 1940. An appeal by the defendant-opposite party to the lower appellate court failed in 1944. His second appeal to the High Court was dismissed on 12th January 1948. The decree-holders filed Execution Case No. 12 of 1950 in the Subordinate Judge's 1st Court at Monghyr, the court which had passed the decree. The Subordinate Judge held that he was competent to entertain the application for execution of the decree for the purpose of saving limitation, but the actual delivery of possession should be sought from the court of the Subordinate Judge, Begusarai, as the property in question came under its territorial jurisdiction. The decree-holders moved the District Judge of Monghyr to transfer the execution case to the court of the Subordinate Judge at Begusarai. The District Judge allowed the application without notice to the judgment-debtor. The judgment debtor moved the High Court in C. R. No. 791 of 1953, and the High Court set aside the order of the District Judge and remanded the application for transfer for disposal according to law. The Additional District Judge of Monghyr held that he had no power to order the transfer of an execution case from one court to another and declined to exercise his inherent powers under Section 151 of the Civil Procedure Code.
Finding of the Court:
The High Court held that the execution proceeding could be transferred under Section 24 of the Civil Procedure Code, 1908, from one court to another. The court interpreted Section 24 and distinguished it from Section 25 of the Code of 1882, which was the subject matter of the Privy Council decision in Thakur Pershad V/s. Fakirullah. The court held that the words 'other proceeding' in Section 24 included execution proceedings and that the High Court or the District Court had the power to transfer an execution case from one court to another for disposal. The court also held that the Additional District Judge erred in not exercising his powers under Section 24 and in not considering whether the case was fit for transfer.
Issues: 1. Whether an execution proceeding pending in one court can be transferred, under Sec.24 of the Civil Procedure Code, 1908, to another court. 2. Whether the power to transfer an execution proceeding under Sec.24 should be exercised by the High Court sitting as a revisional court against the decision of the Learned District Judge refusing to transfer the case.
Ratio Decidendi: 1. Section 24 of the Civil Procedure Code, 1908, empowers the High Court or the District Court to transfer any suit, appeal, or other proceeding pending before it for trial or disposal to any other court subordinate to it and competent to try or dispose of the same. 2. The expression 'other proceeding' in Section 24 includes execution proceedings. 3. The Privy Council decision in Thakur Pershad V/s. Fakirullah, which held that execution proceedings were not included in the term 'all proceedings' in Section 647 of the Code of 1882, is not applicable to the interpretation of Section 24 of the Code of 1908. 4. The High Court or the District Court has the discretion to transfer an execution proceeding under Section 24, considering the facts and circumstances of each case.
Final Decision: The High Court allowed the Civil Revision application and directed that the execution case be withdrawn from the Subordinate Judge's Court at Monghyr and transferred to the Court of the Subordinate Judge at Begusarai for disposal.
N.L.Untwalia, J.
1. The point involved in this Civil revision application is whether an execution proceeding pending in one court can be transferred, under Sec.24 of the Civil Procedure Code, 1908, to another court. If so, whether that power should be exercised by me sitting as a revisional court against the decision of the Learned District Judge refusing to transfer this case. I shall shortly state the facts: The decree-holder-petitioners obtained a decree for possession and mesne profits in respect of certain properties situate in the district of Monghyr, in the year 1940. An appeal by the defendant-opposite party to the lower appellate court failed in 1944. His second appeal to this Court was dismissed on the 12th of January 1948. I need not mention about the various endeavours thereafter made to take the matter to the Privy Council and/or to the Supreme Court as they all failed and the defendant did not succeed in any one of them. In the year 1945 by notification No. 215A dated the 24th January 1945 the Government of Bihar established a new Court of Subordinate Judge at Begusarai.
The property in regard to which the decree was passed by the Monghyr court came to lie by virtue of this notification within the territorial jurisdiction of the court of the Subordinate Judge at Begusarai. The decree-holders, however, were advised to file their Execution Case No. 12 of 1950 in the Subordinate Judges 1st Court at Monghyr, i.e. the court which had passed the decree. This execution case was filed on the 14th February 1950. Various obstructions were put in the way of the decree-holders in reaping the fruits of their decree. By order dated 16-6-53 passed in Miscellaneous Case No. 15 of 1953 on an application under Section 47 of the Code of Civil Procedure filed by the judgment-debtor opposite party the learned Subordinate Judge in whose Court the execution case was pending, held as follows:-
- "In view of the authorities mentioned above, I find that this court is competent to entertain the application for execution of the decree for the purpose of saving limitation, but so far as actual delivery of possession is concerned, as the land over which possession is to be delivered lies within the territorial jurisdiction of the court of the Subordinate Judge, Begusarai. the decree-holders should apply for transmission of the decree to that court."
The last portion of the order read thus:-
- "I am, therefore, of opinion that this Court cannot give actual delivery of possession and the remedy of the decree-holders lies in applying for transmission of the decree to the court of the Subordinate Judge of Begusarai by a regular petition".
2 In my opinion, the view taken by the learned Subordinate Judge in the said miscellaneous case was wrong. The proper court to execute the decree was the court which had passed it, and, that, simply because a new court created in the year 1945 got territorial jurisdiction in regard to the property in question was no ground to hold that the court which had passed the decree had no jurisdiction to give delivery of possession. I am fortified in this view by a decision of the Supreme Court in Merla Ramanna V/s. Nallaparaju, (S) AIR 1956 SC 87 where at page 93 it has been observed by Veukatarama Ayyar, J.
"And it is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court."
Be that as it may, the decree-holders, however, were not advised to move the higher court against the decision of the learned Subordinate Judge. But, when he was moved for sending the records of the execution case to the Subordinate Judge of Begusarai for effecting delivery of possession, he passed the following order on 19-6-53.
"The record can be sent only under the orders of the District Judge."
The decree-holders thereafter moved he District Judge of Monghyr to transfer the executi
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