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HIGH COURT OF CALCUTTA
G. N. DAS,DEBABRATA MOOKERJEE, JJ.
Saralabala Devi
Versus
Shyam Prosad Chatterjee
A.F.O.O. No.141 of 1950
Decided On : 23-02-1953
TRANSFER OF DECREE - JURISDICTION OF TRANSFEREE COURT - ORDER FOR TRANSFER - VALIDITY - JURISDICTION OF TRANSFEROR COURT TO RECALL - DISCRETION OF COURT UNDER S.39, CIVIL P.C. - PRINCIPLES OF RES JUDICATA - APPLICABILITY TO EXECUTION PROCEEDINGS.
Fact of the Case:
The appellant obtained a decree for rent against the respondents in a suit instituted in the Court of the Subordinate Judge, Nadia. The decree was transferred to the Court of the Subordinate Judge, Alipore, on an application by the appellant under S.39(b)(c), Civil P.C. The judgment-debtor filed an objection under S.47, Civil P.C., in the transferee Court, challenging the validity of the order for transfer. The transferee Court dismissed the objection, holding that the order for transfer was not appealable. The judgment-debtor then filed an application under S.39, Civil P.C., in the transferor Court, praying for the recall of the order for transfer. The transferor Court allowed the application and recalled the decree.
Finding of the Court:
The Court held that the order for transfer was made ex parte without notice to the judgment-debtors and was therefore not binding on them. The Court further held that the transferee Court had no jurisdiction to adjudicate upon the objection raised by the judgment-debtor to the validity of the order for transfer. The Court also held that the principles of constructive res judicata did not apply to the objection raised by the judgment-debtor in the transferee Court, as the objection could not have been raised in the suit or the proceedings in the transferor Court. The Court further held that the transferor Court had exercised its discretion properly in recalling the decree sent by its predecessor to the Court of the second Judge, Alipore.
Issues: 1. Whether the order for transfer was valid? 2. Whether the transferee Court had jurisdiction to adjudicate upon the objection raised by the judgment-debtor to the validity of the order for transfer? 3. Whether the principles of constructive res judicata applied to the objection raised by the judgment-debtor in the transferee Court? 4. Whether the transferor Court had exercised its discretion properly in recalling the decree sent by its predecessor to the Court of the second Judge, Alipore?
Ratio Decidendi: 1. An order for transfer of a decree is a judicial act and like all judicial acts it did not acquire finality as no notice was served on the parties affected thereby. 2. The transferee Court had no jurisdiction to adjudicate upon the objection raised by the judgment-debtor to the validity of the order for transfer, as the powers of the transferee Court are limited to carrying out the purpose of executing the decree. 3. The principles of constructive res judicata did not apply to the objection raised by the judgment-debtor in the transferee Court, as the objection could not have been raised in the suit or the proceedings in the transferor Court. 4. The transferor Court had exercised its discretion properly in recalling the decree sent by its predecessor to the Court of the second Judge, Alipore, as the order for transfer was obtained on the basis of an affidavit which was misleading and vague, no notice was given to the judgment-debtors prior to the order for transfer, and the decree-holder had selected the judgment-debtor 1 as the person against whom the execution would proceed.
Final Decision: The appeal was dismissed.
G. N. DAS, J.:- This is an appeal by the decree-holder and is directed against an order of Sri R.R. Biswas, learned Subordinate Judge, Nadia, dated 1-9-1950.
2. The facts are not in controversy and may be briefly stated as follows:
In 1935 the appellant instituted a suit for partition of certain joint lands against the respondents who are her co-sharers. The suit was registered as Title Suit No.11 of 1935 of the Court of the Subordinate Judge, Nadia. The suit ended in a compromise decree on 30-11-1936. The substance of the terms of the compromise was that the appellant gave a lease of her undivided share in the property in suit in favour of the respondents at a monthly rent of Rs.100/-.
3. The rents so reserved not having been paid by the respondents, the appellant instituted a suit for recovery of rent being Rent Suit No.4 of 1946. The Rent Suit was instituted in the Court of the Subordinate Judge, Nadia. The suit was decreed on 23-11-1948. On 13-7-1949 the appellant filed an application for transfer of the decree passed in Rent Suit No.4 of 1946 of the Subordinate Judges Court at Nadia to the Subordinate Judge, Alipore, through the District Judge, Alipore. The application for transfer is not printed in the paper book but the affidavit which was filed in support of the application is on the record. It is an affidavit sworn to by one Satish Chandra Banerjee, a son-in-law of the appellant. The affidavit is somewhat vague and, in my opinion, misleading. It purports to say that the judgment-debtors had no sufficient property in the district of Nadia but had property in the district of 24-Parganas. The object of the affidavit was to get an order from the Court in terms of S.39(b)(c), Civil P.C. It appears from the order-sheet that this application for transmission of the decree was registered on the same day, viz., 13-7-1949. The Court directed the matter to be put up on 20-7-1949. On that date the learned Subordinate Judge, Nadia, made an order transmitting the decree passed in Rent Suit No.4 of 1946 to the Court of the Subordinate Judge, Alipore, through the District Judge, Alipore. No notice was issued on the judgment-debtors.
4. After the decree had been transmitted to the Subordinate Judge, Alipore, the appellant filed an application for execution as required in terms of O.21, R.11, Civil P.C. giving rise to Money Execution Case No.38 of 1949 of the first Court of the Subordinate Judge, Alipore. It appears that the appellant prayed for sale of certain immovable properties belonging to judgment-debtor 1, who is respondent 1 in this appeal. The property sought to be sold is No.6B, Kabir Road. After the attachment had been effected on 30-9-1949 the judgment-debtor 1 filed an objection under S.47, Civil P.C. on 8-11-1949. This gave rise to Misc. Case No.96 of 1949.
The first objection was that the execution was barred under S.168A, Bengal Tenancy Act. The second objection was that the judgment-debtor had sufficient property in the district of Nadia and as such the order for transfer was bad in law. This Miscellaneous case came up for hearing before Mr. P.N. Lahiri, learned Subordinate Judge, First Court, Alipore. It appears from his order dated 18-2-1950 that the learned Subordinate Judge merely dealt with the objection under S.168A, Bengal Tenancy Act. In his opinion, as the decree passed in Rent Suit No.4 of 1946 related to a tenancy governed by the Transfer of Property Act the objection under S.168A, Bengal Tenancy Act was incompetent. In this view he dismissed the Miscellaneous Case No.96 of 1949.
5. We have been informed that against this order there was an unsuccessful appeal to this Court. Thereafter the premises No.6B Kabir Road was put up to sale, the date for sale being fixed on 10-7-1950. On 20-6-1950, judgment-debtor 1 filed an application under S.39, Civil P.C. It was alleged in this application that the judgment-debtor was a resident of the district of Nadia and he had sufficient property within that district and
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