1960 Supreme(Cal) 28

HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, NIYOGI
JUGAL CHARAN MONDAL, JUDGMENT-DEBTOR - Appellant
Versus
PANKAJINI DASI, DECREE-HOLDER - Respondent
A. F. A. O.  13  Of  1958
Decided On : FEBRUARY 4, 1960

A Court, which has competently passed a decree, does not lose jurisdiction to execute it, merely by reason of loss of territorial or pecuniary jurisdiction in the meantime.

Headnote:

EXECUTION OF DECREE - JURISDICTION - COURT PASSING DECREE - LOSS OF JURISDICTION - JURISDICTION TO EXECUTE - TRANSFER OF DECREE - SECTION 47 OF THE CODE OF CIVIL PROCEDURE.

Fact of the Case:

The decree-holder obtained a decree for Rs. 2178/- with interest and costs. The decree was put into execution before the same Court and the same learned Judge, who had pecuniary jurisdiction up to Rs. 3500/-. The Court issued a writ of attachment, notice under Order XXI Rule 66 of the Code of Civil Procedure, and sale proclamation. The judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure on the ground that necessary leave to proceed against him as receiver had not been obtained by the decree-holder. The execution proceedings were stayed till the disposal of the Misc. case. Meanwhile, the original Presiding Officer of the Court was transferred and he was succeeded by another Judge, who had powers only up to Rs. 2000/-. The Misc. case remained pending till it was dismissed for default by the said learned Munsif. The judgment debtor applied under Section 151 of the Code of Civil Procedure for restoration of the said Misc. case but the execution case proceeded and sale proclamation was issued. The sale date was fixed by the learned Munsif. The learned Munsif also fixed the restoration Misc. case for peremptory hearing and directed the judgment debtor's fresh application for stay to be put up. On the said date, the learned Munsif recorded an order that the Court has got no power to try the case as the valuation of its original suit is over Rs. 2000/- and transferred the case to another Munsif, who had powers up to Rs. 3500/-. The said Munsif directed the sale to be held. The judgment-debtor filed another Misc. case objecting to the sale on the ground of lack of jurisdiction. The sale was adjourned and the Misc. case was dismissed. The sale was held and the decree-holder purchased the disputed property. The confirmation of the sale was stayed by an order of the Appellate Court in the appeal, filed by the judgment-debtor, but, thereafter, the sale appears to have been confirmed and the Execution case appears to have been dismissed on full satisfaction.

Finding of the Court:

The Court held that the dismissal of the Section 47 objection (Misc. case No. 211 of 1956) in the present case by Sri S. K. Roy must be held to have been without jurisdiction and, in the eye of law, that Misc. case must be deemed to be still pending and as by a valid order, passed by a competent Judge, Sri K. K. Chakravarty, the execution proceedings were stayed till the disposal of the Misc. case, the sale held must be found to be invalid in law and without jurisdiction and it is, accordingly, liable to be set aside in the present Section 47 proceeding.

Issues: Whether the dismissal of the Section 47 objection (Misc. case No. 211 of 1956) in the present case by Sri S. K. Roy was without jurisdiction?

Ratio Decidendi: The Court held that the Court, which has competently passed a decree, does not lose jurisdiction to execute it, merely by reason of loss of territorial or pecuniary jurisdiction in the meantime. But this "jurisdiction to execute" means merely jurisdiction to entertain the execution application and to transfer it to the proper Court for execution, as appearing hereinbelow, and it does not extend beyond that and it docs not entitle the said Court, in such circumstances, to proceed further with the execution which has to be done by the appropriate Court, having territorial and pecuniary jurisdiction in the matter, on appropriate transfer to it of the particular decree for execution, that is, for such purposes.

Final Decision: The Court decreed the appeal, set aside the decision of the two Courts below, allowed the present Misc. case under Section 47 of the Code of Civil Procedure and set aside the impugned sale. The execution proceedings will now be revived and they will continue according to law and the decree-holder will take necessary steps for sale of the property or for other reliefs, as she may desire to obtain in the matter, after the records go back to the executing Court.