MOHANLAL GOENKA Vs. BENOY KISHNA MUKHERJEE

JUDGEMENT

(1.) (Bose J. agreeing) in our opinion, the decision can be rested on either of the grounds which have been raised by our brothers Das and Ghulam Hasan respectively. We would therefore allow the appeal on both the grounds.

(2.) Das J.: I have had the privilege of perusing the judgment delivered by my learned Brother Hasan and I agree with his conclusion that this appeal should be allowed. I would, however, prefer to rest my decision on a ground different from that which has commended itself to my learned Brother and as to which I do not wish to express any opinion on this occasion.

(3.) The relevant facts material for the purpose of disposing of this appeal have been very clearly and fully set forth in the judgment of Hasan J. and I need not set them out in detail here. Suffice it to say that on 12-6-1931 the High Court, Original Side, which is the Court which had passed the decree, transmitted the same for execution to the Asansol Court through the District Judge of Burdwan and that the Asansol Court thereupon acquired jurisdiction to execute the decree against properties situated within its territorial limits. The application for execution made by the decree-holder which was numbered 296 of 1931 was, however, on 27-2-1932, dismissed for default and on 11-3-l932 the Asansol Court sent to the High Court what in form purported to be a certificate under Section 41 of the Code. There is no dispute, however, that the Asansol Court did not return to the High. Court the certified copy of the decree and other documents which had been previously transmitted by the High Court. The decree-holder on 24-11-1932, filed in the Asansol Court another petition for execution of the decree against the same judgment-debtors with the same prayer for the realisation of the decretal amount by sale of the same properties as mentioned in the previous execution case. The application was registered as Execution Case No. 224 of 1932. The judgment-debtors' contention is that the certificate sent by the Asansol Court to the High Court on 11-3-1932, was and was intended to be in form as well as in substance a certificate under S. 41of the Code, and that thereafter the Asansol Court ceased to have jurisdiction as the executing Court and that as there was no fresh transmission of the decree by the High Court the Asansol Court could not entertain Execution Case No. 224 of 1932 and consequently all subsequent proceedings in the Asansol Court were void and inoperative for lack of inherent jurisdiction in that Court. This contention was rejected by the Subordinate Judge of the Asansol Court in his judgment delivered on 30-1-1945 in Misc. Case No. 70 of 1941 but found favour with the High Court in its judgment delivered on 10-2-1950, which is now under appeal before us.