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HIGH COURT OF CALCUTTA
R. P. Mookerjee
SURENDRA NATH DUTTA - Appellant
Versus
MOHINI MOHAN CHAKRAVARTY - Respondent
Civil Revn. Case 2403 Of 1951
Decided On : JULY 18, 1952
EXECUTION OF DECREE - RESTORATION OF DISMISSED EXECUTION CASE - JURISDICTION OF COURT - LIMITATION - APPLICATION UNDER SECTION 151, C. P. C. - COURT'S DISCRETION - REVISION - JURISDICTION OF HIGH COURT UNDER SECTION 115, C. P. C. - BANKING COMPANIES ACT, 1949 (ACT 10 OF 1949), SECTIONS 45A, 45B - BANKING COMPANIES (AMENDMENT) ACT, 1950 (ACT 20 OF 1950), SECTION 11 - INDIAN LIMITATION ACT, 1908 (ACT 9 OF 1908).
Fact of the Case:
The Bank of Commerce obtained a decree against the debtor petitioner in the Court of Small Causes at Calcutta on 11-8-1938. Attempts were made to realise the decretal amount on different occasions, and on 8-8-1950, the last application for execution was filed. The Official Receiver was appointed as liquidator of the decree-holder Bank on 7-9-1950. The execution case was dismissed for default on 13-12-1950. The Official Receiver filed an application on 26-4-1951 under Section 151, C. P. C. to set aside the order of dismissal.
Finding of the Court:
The Court held that the application under Section 151, C. P. C. was maintainable and the learned Munsiff had jurisdiction to set aside the earlier order of dismissal. The Court further held that it had no jurisdiction under Section 115, C. P. C. to interfere with the discretionary order passed by the trial Court.
Issues: 1. Whether the Basirhat Court had jurisdiction to entertain the application under Section 151, C. P. C. filed by the Official Receiver? 2. Whether the application under Section 151, C. P. C. was barred by limitation? 3. Whether the Court had jurisdiction under Section 115, C. P. C. to interfere with the discretionary order passed by the trial Court?
Ratio Decidendi: 1. The Court held that the provisions of Sections 45a and 45b of the Banking Companies Act, 1949, read with Section 11 of the Banking Companies (Amendment) Act, 1950, were not applicable in the present case as the execution proceedings were started more than four months after the amending Act came into force. 2. The Court held that the application under Section 151, C. P. C. was not barred by limitation as the period of one year immediately preceding the date of the order for the winding up of the banking company was excluded under Section 45p of the Banking Companies Act, 1949. 3. The Court held that it had no jurisdiction under Section 115, C. P. C. to interfere with the discretionary order passed by the trial Court as there was no ground for interference and laches on the part of the decree-holder had not been proved.
Final Decision: The Court discharged the Rule with costs.
( 1 ) THIS is a debtor's application for the revision of an order passed by the Munsif at Basirhat, directing that an earlier order dismissing for default a certain execution case be set aside and the case restored to file along with the miscellaneous case which had been started in connection with those execution proceedings.
( 2 ) TO appreciate the point raised before this Court, it will be necessary to refer in short to the relevant facts leading to the order of dismissal mentioned above. The Bank of Commerce obtained a decree against the debtor petitioner in the Court of Small Causes at Calcutta on 11-8-1938. Attempts were made to realise the decretal amount on different occasions, and on 8-8-1950, the last application for execution was filed. This was after an order was obtained from the Court of Small Causes for transfer of the decree to a Court in the District of 24 Pargannas. Prom the ordersheet it appears that the pleader who was engaged took various steps in connection with this execution case, though on 7-9-1950, an order had been passed by the Original Side of this Court appointing the Official Receiver as liquidator of the decree-holder Bank. No steps were, however, taken to bring on the record the name of the Official Receiver in place of the original Bank as decree-holder. All the offices of the Bank were locked up, and the directors and the employees of the Bank had no authority after 7-9-1950, to act in any manner on behalf of the Bank.
( 3 ) ON behalf pf the Official Receiver it has been stated that he was first apprised of the pendency of these execution proceedings about 23-11-1950, from a letter which had been written by the pleader who had been in charge of the execution case to one of the ex-employees of the Bank. On" 28-11-1950, the Official Receiver addressea a letter to the Munsif in whose court the proceedings were pending and intimated him that he had been appointed liquidator, and some time might be given for taking formal steps. This letter was put up before the Munsif on 30-11-1950. From a note made by the Munsif on this letter it appears that he directed that the letter might be put up along with the record. On 13-12-1950, the next date of the hearing of the execution case along with the miscellaneous case which had been started in the meantime, the letter in question was not put up, and the execution case was dismissed for default.
( 4 ) IT was not till 15-1-1951, that the Court in charge of the liquidation proceedings permitted the Official Receiver to proceed with the pending cases. A copy of this order was obtained by him on 14-2-1951, when the Official Receiver directed steps to be taken in all the pending proceedings and litigations in the different Courts. He came to know for the first time on 28-3-1951, that the execution case in question had already been dismissed for default on 13-12-1950. On 26-4-1951, an application purporting to be under Section 151, C. P. C. was filed on behalf of the Official Receiver for setting aside the order of dismissal passed on 13-12-1950. In this application most of the facts which are referred to above were referred to. Simultaneously, another application was filed on the same day for bringing on the record the name of the Official Receiver on behalf of the decree-holder Bank. The learned Munsif after allowing the parties to adduce evidence allowed the application on 21-7-1951. It is against this order that the judgment-debtor has moved this Court and obtained the present Rule.
( 5 ) TWO points have been urged on behalf of the judgment-debtor petitioner. It is contended that on the date the application under Section 151 had been filed, the Basirhat Court had no jurisdiction as under Sections 45a and 45b, Banking Companies Act, 1949, (Act 10 of 1949) read with Section 11, Banking Companies (Amendment) Act, 1950 (Act 20 of 1950), the only Court which had Jurisdiction was the Court in which the liquidation proceedings were pending, vi
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