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HIGH COURT OF CALCUTTA
HARRIES,SARKAR, JJ.
Benoy Krishna, Mukerjee
Versus
Mohanlal Goenka
A. F. O. O. No. 95 of 1945
Decided On : 10-02-1950
CIVIL PROCEDURE CODE - S. 41 - CERTIFICATE OF NON-SATISFACTION - JURISDICTION OF TRANSFEREE COURT - CERTIFICATE OF NON-SATISFACTION SENT BY TRANSFEREE COURT TO COURT WHICH PASSED DECREE - TRANSFEREE COURT CEASES TO HAVE JURISDICTION - SUBSEQUENT PROCEEDINGS IN TRANSFEREE COURT WITHOUT JURISDICTION - SALE HELD IN SUCH PROCEEDINGS - SALE SET ASIDE.
Fact of the Case:
The decree-holder obtained a decree in Suit No. 1518 of 1923 on the Original Side of the Calcutta High Court. The decree was eventually transferred for execution by the High Court to the Court of the Subordinate Judge at Asansol through the District Judge of Burdwan. A certificate of non-satisfaction under S. 41, Civil P.C., was sent by the High Court which was transmitted to the Asansol Court. The decree-holder Nagarmull Rajgharia commenced Money-Execution case No. 296 of 1931 in the Court of the Subordinate Judge at Asansol, but that case was eventually dismissed for default on 27th February 1932. The Court at Asansol sent what purported to be a certificate of non-satisfaction under S. 41, Civil P.C., to the High Court. The decree-holder appealed against this order getting aside the sale, but his appeal was dismissed by the High Court. The records of Misc. case No. 224 of 1932 were returned to the High Court by the Asansol Court on 17th September 1935 and the execution case was revived. The property, namely, Sripur Colliery, was again sold in an execution sale to the decree-holder for Rs. 12,000 but this sale was set aside. The property was again resold and purchased by the decree-holder for Rs. 2,50,000 on 27th May 1938. The appellant made an application to set aside this sale which was rejected. He preferred an appeal to the High Court which was ultimately dismissed and an application by him for leave to appeal to the Privy Council failed. The appellant instituted a suit being Title Suit No. 3 of 1936 in the Court of the Subordinate Judge at Asansol to recover a sum of money and to enforce a charge against the Sripur Colliery and for permission to redeem a charge declared in favour of the said decree-holder Nagarmull Rajgharia in Suit No. 1518 of 1923. The appellants suit was dismissed in the Court at Asansol, but on 13th August 1940 an appeal from that decree was allowed in the High Court. The appellant instructed his attorney to search the records of that suit and it is paid that as a result of that search the appellant came to know for the first time on 23rd August 1940 that the Asansol Court had sent a certificate of non-satisfaction in Money Execution case No. 296 of 1931 to the High Court and that no fresh certificate of non-satisfaction had been sent by the High Court to the Court at Asansol. The appellant then realised for the first time that the Court at Asansol had no jurisdiction to entertain the second execution case, namely, Money Execution case No. 224 of 1932 and that all the proceedings in that case were null and void as they were without jurisdiction. It seems that an application to review the order of the High Court dismissing the application to set aside the sale for Rs. 2,50,000 was made but was rejected. But no point was made on this matter and it does not appear when that application was made. As the appellant alleged that the Court at Asansol had no jurisdiction to entertain the second application for execution and therefore no jurisdiction to order or conduct a sale, an application was made to the Court at Asansol under S3. 47 and 151, Civil P.C., praying that the sale be set aside as it was a sale without jurisdiction.
Finding of the Court:
The High Court held that the Court at Asansol had no inherent jurisdiction to execute a decree made on the Original Side of the High Court. A decree of the High Court however could be transferred to Asansol for execution under the provisions of R. 39, Civil P.C. Section 41 of the Code provides that the Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure. When a decree is sent by the Court which passed it to another Court for execution a copy of the decree together with a certificate of non-satisfaction or part satisfaction is sent to the Court which has to execute the decree and it is clear that when the Court to which these documents are sent, receives the documents it then has jurisdiction to execute the decree. It was admitted that the High Court sent a copy of the decree and a certificate of non-satisfaction to the Asansol Court and therefore that Court had jurisdiction to execute the decree and therefore had jurisdiction to entertain the first application for execution which resulted in Money Execution case No. 296 of 1931. As the High Court had sent a certificate of non-satisfaction to the Asansol Court, that Court ceased to have jurisdiction over the execution of this decree and that being so, it should not have entertained the second application for execution. It however did so and two sales in the second execution were set aside and eventually a sale for Rs. 2,50,000 was effected which the Court refused to set aside. The High Court held that the Court of the Subordinate Judge at Asansol had no inherent jurisdiction to entertain an application for execution of a decree made on the Original Side of the High Court. A judgment delivered by a Court not competent to deliver it cannot operate as res judicata and in the High Court's view the orders of the Subordinate Judge of Asansol, being wholly without jurisdiction cannot be relied upon to found a defence upon the principles of res judicata.
Issues: 1. Whether the Court at Asansol had jurisdiction to entertain the second application for execution? 2. Whether the appellant was barred by the doctrine of res judicata from raising the point that the Court at Asansol had no jurisdiction?
Ratio Decidendi: 1. The High Court held that the Court at Asansol had no inherent jurisdiction to execute a decree made on the Original Side of the High Court. A decree of the High Court however could be transferred to Asansol for execution under the provisions of R. 39, Civil P.C. Section 41 of the Code provides that the Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure. When a decree is sent by the Court which passed it to another Court for execution a copy of the decree together with a certificate of non-satisfaction or part satisfaction is sent to the Court which has to execute the decree and it is clear that when the Court to which these documents are sent, receives the documents it then has jurisdiction to execute the decree. It was admitted that the High Court sent a copy of the decree and a certificate of non-satisfaction to the Asansol Court and therefore that Court had jurisdiction to execute the decree and therefore had jurisdiction to entertain the first application for execution which resulted in Money Execution case No. 296 of 1931. As the High Court had sent a certificate of non-satisfaction to the Asansol Court, that Court ceased to have jurisdiction over the execution of this decree and that being so, it should not have entertained the second application for execution. It however did so and two sales in the second execution were set aside and eventually a sale for Rs. 2,50,000 was effected which the Court refused to set aside. 2. The High Court held that the Court of the Subordinate Judge at Asansol had no inherent jurisdiction to entertain an application for execution of a decree made on the Original Side of the High Court. A judgment delivered by a Court not competent to deliver it cannot operate as res judicata and in the High Court's view the orders of the Subordinate Judge of Asansol, being wholly without jurisdiction cannot be relied upon to found a defence upon the principles of res judicata.
Final Decision: The High Court allowed the appeal, set aside the order of the lower Court, set aside the sale and held the whole proceedings to be void and of no effect.
HARRIES, C.J. :- This is an appeal from an order of a learned Subordinate Judge of Asansol, dismissing an application to set aside a sale. the application was made under Ss. 47 and 151 Civil P.C.
2. To appreciate the points in issue it will be necessary to state the facts in some detail.
3. Nagarmull Rajgharia, now deceased, whose personsl representative has been brought on the record as respondent in his stead, obtained a decree in Suit No. 1518 of 1923 on the Original Side of this Court. The decree was eventually transferred for execution by this Court to the Court of the Subordinate Judge at Asansol through the District Judge of Burdwan. A certificate of non-satisfaction under S. 41, Civil P.C., was sent by this Court which was transmitted to the Asansol Court, the decree-holder Nagarmull Rajgharia commenced Money-Execution case No. 296 of 1931 in the Court of the Subordinate Judge at Asansol, but that case was eventually dismissed for default on 27th February 1932. The Court at Asansol sent what purported to be a certificate of non-satisfaction under S. 41, Civil P.C., to this Court and it is to be observed that the decree was never again transferred to the Court at Asansol for execution. Later, however, the decree-holder made another application for execution at Asansol and Money Execution case NO. 224 of 1932 was commenced. In the course of that execution the decree-holder purchased the Sripur Colliery on 9th June 1933, but the sale was set aside on 29th January 1934 on an application by one of the judgment-debtors, the appellant in this appeal, under O. 21, R. 90, Civil P.C. A certificate purporting to be a certificate under S. 41, Civil P.C., was sent by the Asansol Court to the High Court. The decree-holder appealed against this order getting aside the sale, but his appeal was dismissed by this Court. The records of Misc. case No. 224 of 1932 were returned to this Court by the Asansol Court on 17th September 1935 and the execution case was revived.
4. The property, namely, Sripur Colliery, was again sold in an execution sale to the decree-holder for Rs. 12,000 but this sale was set aside. The property was again resold and purchased by the decree-holder for Rs. 2,50,000 on 27th May 1938. The appellant made an application to set aside this sale which was rejected. He preferred an appeal to this Court which was ultimately dismissed and an application by him for leave to appeal to the Privy Council failed.
5. It appears that the judgment-debtor instituted a suit being Title Suit No. 3 of 1936 in the Court of the Subordinate Judge at Asansol to recover a sum of money and to enforce a charge against the Sripur Colliery and for permission to redeem a charge declared in favour of the said decree-holder Nagarmull Rajgharia in Suit No. 1518 of 1923. The appellants suit was dismissed in the Court at Asansol, but on 13th August 1940 an appeal from that decree was allowed in this Court.
6. In order to ascertain the amount due to the decree-holder, Nagarmall Ragharia in Suit No. 1518 of 1923 the appellant instructed his attorney to search the records of that suit and it is paid that as a result of that search the appellant came to know for the first time on 23rd August 1940 that the Asansol Court had sent a certificate of non-satisfaction in Money Execution case No. 296 of 1931 to this Court and that no fresh certificate of non-satisfaction had been sent by this Court to the Court at Asansol. The appellant then realised for the first time that the Court at Asansol had no jurisdiction to entertain the second execution case, namely, Money Execution case No. 224 of 1932 and that all the proceedings in that case were null and void as they were without jurisdiction. It seems that an application to review the order of the High Court dismissing the application to set aside the sale for Rs. 2,50,000 was made but was rejected. But no point was made on this matter and it does not appear when that application was made.
7. As the appell
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