BISHWANATH SINGH Vs. MOHAMMAD HUSSAIN

JUDGEMENT

(1.) THIS is a judgment-debtor's second appeal from the decree of the District Judge, Ballia confirming that of the Civil Judge, Ballia, dismissing his objections against the execution of a decree. The decree-holder applied for execution by sale of certain mortgaged plots of land. On February 1956 the execution court. (Civil Judge, Ballia) sent the case to the Collector Ballia under Section 68 C.P.C. for the sale of the plots. While the proceedings for sale were pending before the Collector, the decree-holder died. Thereupon the Collector returned the file of the case to the execution Court for substitution of the legal representatives of the deceased decree-holder. The Court ordered substitution. Meanwhile on 2nd December 1956 the Code of Civil Procedure Amendment Act (Act No. 66 of 1956) was passed omitting sections 68 to 72 of the Code which had conferred jurisdiction on the Collector, but saving his jurisdiction in cases already transferred. Thereupon the present decree-holders applied to the execution Court for the dismissal of the application. This was opposed by the judgment-debtor but the execution court dismissed the execution as prayed. Then the decree-holders filed the present application for execution of the decree by the sale of the mortgaged plots. It was filed before the execution Court. It was opposed by the judgment-debtor on the ground that it was incompetent and the Court had no jurisdiction to entertain it. He contended that the Collector Ballia was still seized of the execution and the execution court had no jurisdiction either to dismiss the previous application for execution or entertain the present one.

(2.) THE execution Court held that a decree-holder always has the right to get his execution dismissed and the execution court has the power to dismiss it. It held that the present application was competent and the Court had jurisdiction to entertain it, and dismissed the objection. On appeal the learned District Judge confirmed this decision, and the judgment-debtor has come to this Court in second appeal.

(3.) EVEN after a decree is sent to the Collector for execution under Section 68 C.P.C. the execution court is not divested of its ordinary jurisdiction in matters other than those relating to execution by sale of immovable property. The appeal is dismissed.