GHANASHYAMDAS KEJRIWAL Vs. DURGA DEVI

JUDGEMENT

(1.) THE judgment-debtor is the appellant. A decree was passed on 4-12-1952 by the Subordinate Judge, Raipur, in the State of Madhya Pradesh. After certain executions had. been levied, the Subordinate Judge, Raipur, sent the decree directly to the Munsif, Titiligarh in the district of Bolangir in the State of Orissa, on 8-8-1955. After transfer of the decree, the decree-holders did not file any execution case before the Munsif of Titalagarh, who sent a certificate on 17-81958 to the Subordinate Judge, Raipur, under Section 41, Civil Procedure Code stating that the execution case was barred by time. Meanwhile, on 2-8-1958 another application had been filed by the decree-holders before the Subordinate Judge, Raipur, for transfer of the decree to the District judge, Bolangir, which was despatched on 11-8-1958 to the District Judge, who received and transferred it to the Munsif, Titila-garh on 25-8-1958. The present execution case was filed before the Munsif, Titilagarh on 14-2-1959. Various objections were raised under Section 47 Civil Procedure Code. The Courts below have overruled these objections. This miscellaneous appeal has been filed against the order of the learned District Judge, dated 15-7-1961.

(2.) MR. Ranga Rao raises two contentions : (i) Under Order 21, Rules 5 and 8, the Mun sif Court at Titilagarh has no jurisdiction to execute the decree unless it is transferred to it by the Dist rict Judge of Bolangir. As the decree was directly transferred by the subordinate Judge, Raipui, on 8-8-55 to the Munsif of Titilagarh, the latter had no jurisdiction to execute the decree, and the proceed ing pending before the Munsif, Titilagarh from 8-8-55 to 17-8-1958 was without jurisdiction, and the pre sent application is barred by time. (ii) Assuming that the aforesaid proceeding be-fore the Munsif, titilagarh, was not without jurisdiction, the Subordinate Judge, Raipur, had no further jurisdiction to entertain the application dated 2-8-1958 for transfer of the decree to the District Judge Bolangir, as the decree previously transferred was pending execution before the Munsif of titilagarh, till 17-8-1958 when the Certificate under Section 41, Civil procedure Code was despatched.

(3.) IT is conceded by Mr. Dhal that if the proceeding pending before the Munsif of titilagarh, from 8-8-1955 to 17-8-1958 was without jurisdiction, then the present application for execution would be barred by time. It is, therefore, necessary to examine if the proceeding was without jurisdiction. On this point there is sharp conflict of authorities. One view is that the words used in Order 21, Rules 5 and 8 are mandatory and do not leave any room for exercise of discretion in the matter by the Court which passed the decree. On receipt of the decree, the District Judge may choose to execute the decree himself and may not send it to any Subordinate Court at all. Until the District Judge has, passed an order of transfer under Rule 8, no subordinate Court has any jurisdiction in the matter. The best exposition of this view is to be found in Sachindra Kumar v. Usha Prova De, AIR 1949 Cal 690. Durgaprasad v. Hari Shankar, AIR 1950 Assam 163 and Syed Mohammad v. Syed Zainuddin Hasan Mirza, AIR 1957 Pat 654 advocate the same view. The other view is that the case is not one of lack pf inherent jurisdiction, territorial or pecuniary, over the subject-matter. It is merely one of irregular assumption of it, the irregularity consisting in non-compliance with the procedure prescribed for the transmission of the Certificate. If the judgment-debtor allows the proceeding in the transferee Court to go without objection, he must be taken to have waived it. The best exposition of this view is found in Bhagwan Singh v. Barkat Ram, AIR 1943 Lah 129. This has been approved and followed in Inderdeo Prosad v. Deonarayan Mahton, AIR 1946 Pat 301, Radheyshiam v. Firm Sawai Modi Basdeo prasad, AIR 1953 Raj 204 (FB) and Gau'ri Shankar v. Firm Dulichand Laxmi narayan, AIR 1959 Madh Pra 188. It is not necessary to refer to other authorities in support oi one view or the other.