NANDA DULAL DEY Vs. MAYA DEY

JUDGEMENT

(1.) BOTH these civil revisions are taken up together for analogous consideration as both the civil revisions are directed against the same order being No. 56 dated 23.04.2004 passed by Sri N.K. Biswas, the learned Judge, Second Bench, City Civil Court at Calcutta rejecting the Miscellaneous Case No. 1700 of 2002 and 1701 of 2002 under Section 47 of the Code of Civil Procedure (hereinafter referred to as 'Code' only). It may be mentioned that common order was passed by the learned Judge in connection with Execution Case No. 39 and 40 both of 2001. Those two Execution Cases arose out of Money Suit Nos. 576 both of 1997 respectively.

(2.) INSTEAD of going into the details of the facts of the cases I like to confine myself to the facts which have come up before me at the time of arguments made by the learned Advocates for both the parties. It appears from the submissions that the petitioner did not appear before the learned Trial Court despite several opportunities given for which the ex parte decrees were passed in both the suits on 5.5.2000. Thereafter both the decrees were put into execution on 17.7.2001. On 17.8.2001 the decree -holder failed a petition for transfer of the decrees to Chinsurah Court, Hooghly. The said petition was allowed by the Executing Court. In such circumstances the petitioner/ defendant/judgment -debtor filed two petitions both under Section 47 of the Code, one before the Chinsurah Court where the decrees were transferred and the other before the City Civil Court, Calcutta. The petition under Section 47 of the Code was rejected by the City Civil Court whereas the other petition filed by the petitioner/Judgment -debtor under Section 47 of the Code is still pending before the Chinsurah Court. It is also gathered from Mr. Jiban Ratan Chatterjee, the learned counsel apppearing for the petitioners that petitions under Order 9 Rule 13 of the Code for setting aside the ex parte decree were filed by the petitioner before the Trial Court and those are still pending. That being the position the present revisional applications under Article 227 of the Constitution of India have been filed before this Court.

(3.) MR . Bidyut Banerjee, the learned senior counsel appearing for the decree -holder/opposite party/plaintiff submits that in view of the petition under Section 47 filed before the City Civil Court the Judgment debtor prayed before Chinsurah Court for adjournment of the hearing of application under Section 47 of the Code and as such the said application before Chinsurah Court is still pending. Mr. Banerjee contends that even after transfer of decree the principal Court is not denuded of its power to determine the questions under Section 47 of the Code of Civil Procedure and in this connection he has referred to the ratio decided in the case of Amarendra Nath Mallick v. Balai Chand Ghatak : AIR1936Cal267 . It was decided in that case that even after transfer of a decree for execution to another Court, the transferring Court retains its jurisdiction over the execution, though for certain specific purposes only. A similar decision was made in the Judgment of the Full Bench of Patna High Court in the case of Radheshyam and Ors. v. Devendra, : AIR1952Pat213 . It was decided in that case that where a decree is transferred for execution to another Court the transferee Court gets jurisdiction to execute the decree to the limits of its jurisdiction to execute its own decrees. It retains the jurisdiction until it sent a certificate under Section 41 of the CP Code. The transferor Court is not, however, deprived of all its jurisdiction to execute the decree. The transferor Court still retains jurisdiction to execute the decree except to the extent that jurisdiction to execute the decree which has been given to the transferee Court. It was observed by the Full Bench of Patna High Court in that case that the Court which passed the decree has, therefore, jurisdiction to execute the decree in certain circumstances inspite of absence of any certificates under Section 41 of the Code from the transferee Court.