RANJIT KUMAR BANERJEE Vs. GOUR HARI MUKHERJI

JUDGEMENT

(1.) This Rule was directed against the order of the learned District Judge of Howrah, refusing an application made by the present petitioner, who has obtained two separate decrees for ejectment and has put them into execution in. two different Courts, for transferring the same to one of these Courts.

(2.) It appears to us that whatever might have been said on the merits, the position in law is that such a transfer cannot be allowed under Section 24, Civil P. C. The relevant provisions of Section 24, Civil P. C. arc that the High Court or the District Court may withdraw any suit, appeal or other proceeding pending in any Court tubordinate to it and transfer the same for trial to any Court subordinate to it and competent to try or dispose of the same. The question is whether an execution proceeding is within the words "suit or other proceeding." In several other High Courts, the view has been taken that an execution proceeding is really a part of a suit and consequently an execution proceeding can be transferred under S. 24, Civil P. C. (Vide 'Muhammad Habib Ullah v. Tikam Chand', 47 All 57: (AIR 1925 All 276 (2) ) (A). It appears, however, that no notice was taken in these cases of the decision in 'Thakur Pershad v. Fakir Ullah', 22 Ind App 44 (B), where the Judicial Committee of the Privy Council decided that Section 373 of the old Code which refers to withdrawal of suits did not apply to execution proceedings. It is important to note that in the above decision, the Judicial Committee considered the further question whether execution proceedings fell within the words, "other proceedings" as used in the old Section 647, corresponding to the present Section 141, Civil P. C. They answered the question In the negative and observed "that the proceedings spoken of in E. 647 include original matters in the nature of suits such as proceedings in probstes, guardianships, and so forth, and do not include executions." They pointed out further that the explanation added by Act 6 of 1892 that nothing in Section 647 will apply to execution proceedings added nothing to the law. If the words, "other proceedings" appearing in Section 647 of the old Code of Civil Procedure be interpreted in view of the Privy Council decision to exclude execution proceedings, it is difficult to see how the words occurring in Section 24 of the present Code can be interpreted to include execution proceedings. I think that we are bound, on the authority of 'Thakur Pershad's case (B)', to hold that Section 24, Civil P. C., does not apply to execution proceedings.

(3.) It is important to note in this connection that this Court has all along taken the view that execution proceedings cannot be transferred under the general provisions in the Code permitting transfer of proceedings or suits. In Act 25 of 1837, Section 8 provided that