BHAGWAN DASS Vs. GANGA PRASAD

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of execution proceedings. The decree to he executed was one for costs passed by the High Court in a Civil Revision. The objection taken by the judgment-debtor was that the court of the Munsif bad no jurisdiction to execute the decree, in view of the provisions of Section 38 of the Code of Civil Procedure. The objection was overruled by the executing court and the decision was affirmed in appeal. Learned Counsel has referred me to the provisions of Sections 38 and 37 of the Code of Civil Procedure and relies on a decision of the Calcutta High Court in Durga Charan Banerjee v. Smt. Benodini Devi reported in AIR 1944 Cal 301 (1) (A).

(2.) Section 38 of the Code of Civil Procedure reads as follows :

(3.) Learned Counsel contends that according to Section 38 the decree could be executed only by the High Court which has passed the decree in the Civil revision which the High Court decided. Section 37, it is contended, would not be of any help because the expression 'Court which passed the decree' could mean the court of first instance only if the decree had been passed by the High Court in the exercise of its jurisdiction in an appeal. It therefore becomes necessary to ascertain' the exact import of the words 'appellate jurisdiction.' Ordinarily, the distinction between an appeal and a revision is well known, and if the High Court" hears an appeal it exercises its appellate jurisdiction and if it hears a revision it exercises its revisional jurisdiction. If appellate jurisdiction be considered to have this restricted meaning in Section 37 of the Code of Civil Procedure, it will have to be held that, while a decree passed by the High Court in an appeal can be executed by the court of first instance, a decree passed by the High Court in a Civil revision cannot be executed by the trial Court. Learned Counsel could not give any reason for such a difference in procedure being provided in the two cases. Appellate jurisdiction, however, does appear to have a more comprehensive meaning in Section 37. In the Oxford Dictionary one of the meanings of an 'appeal' is transference of a case from an inferior to a higher court of tribunal in the hope of reversing or modifying the decision of the former. "The court of appeal" has been mentioned in that Dictionary as 'a court occupied in rehearing cases previously tried in inferior courts.' As a verb, one of the meanings given to the word 'appeal' is, to call to a higher Judge or tribunal for deliverance from the adverse decision of a lower; to remove a case formally from an inferior to a higher court.