DOMINION OF INDIA Vs. HIRALAL BOTHRA

JUDGEMENT

(1.) THE decree -holder opposite party obtained a decree on 15th May 1947, from the Court of Munsif, Jamalpur, within the district of Mymensingh, against 'The Governor -General of India in Council, New Delhi and B. A. Railway, having its Head Office at 3 Koilaghat Street, Calcutta.' The nature of particulars of the claim on which the decree was passed cannot be ascertained from the records. On 8th December 1947, the decree -holder applied to the Court of Munsif, Jamalpur, under Order 21 Rule 6, Civil P. C., for a certificate of non -satisfaction, A certificate was issued accordingly and a copy o! the order was, as applied for by the decree, holder, directed by the Munsif at Jamalpur to be sent to the Registrar, Court of Small Causes, Calcutta with a copy of the decree. This order was passed in Money Execution Case No. 86 of 1947. On 13th March 1948, the decree -holder opposite party filed in the Court of Small Causes, Calcutta, an application for execution of the decree so transferred. Execution was prayed for against the parties as described in the decree and stated already. Objection was raised on behalf of the Dominion of India as to the maintainability of the execution proceedings in the Court of Small Causes, Calcutta and as against this Dominion. The learned Judge having overruled the said objections, the Dominion of India has moved this Court in revision.

(2.) UNDER the Indian Independence Act, 1947, 15th August 1947 was the appointed day and as from that date two new independent Dominions, known respectively as India and Pakistan were set up, No proceedings were pending on that day either in the Jamalpur Court or in the Court of Small Causes, Calcutta. Accordingly, the only question, so far as affecting the jurisdiction of the Court of Small Causes, is whether after the appointed day it is competent for the Calcutta Court to entertain an application for starting proceedings in execution of a decree which had been passed by the Jamalpur Court before the appointed day. Had there been proceedings pending either in the High Court or in the Court of Small Causes, Calcutta on 15th August 1947, the legal position would have been altogether different : See Naresh Chandra Bose v. Sachindra Nath Deb, Appeal from Original Decree No. 111 of 1947 decided on 24th January 1949 : : AIR1950Cal8 .

(3.) SECTION 18(3), Indian Independence Act provides :