LAWS(GAU)-1952-4-14

KAMINI KUMAR PAL Vs. THE STATE OF ASSAM

Decided On April 10, 1952
Kamini Kumar Pal Appellant
V/S
The State Of Assam Respondents

JUDGEMENT

(1.) THIS is a second Miscellaneous Appeal from the order of the First Additional District Judge, U. A. D., by which the order of the Sadar Munsif of Silchar disallowing the objection raised by the judgment -debtor to the execution of the decree was reversed and the decree found to be inexecutable. The decree -holder has questioned the correctness of the appellate decision. The facts giving rise to this appeal are as follows:

(2.) A suit was pending in the Court of the Munsif at Habiganj in the district of Sylhet in 1947. Judgment was delivered in the case on the 8th August, 1947. The decree was signed by the Munsif on the 21st August, 1947. It was transferred to the Court of the Munsif at Silchar for execution after the 15th August, 1947 and the decree -holder applied for its execution. The State of Assam, the judgment -debtor, put in objections contending that the decree could not be executed at Silchar, a Court within the Dominion of India. The learned Munsif found that as the decree was signed on the 21st August 1947. The suit in which it was passed was a pending proceeding within the meaning of S. 4 of the Indian Independence (Legal Proceedings) Order, 1947, and effect could be given to the decree under S. 4(3) of the said Order.

(3.) THE question on which the Courts below have come to different conclusions has ceased to be material at this stage. Decrees and orders falling within the scope of S. 4(3) of the Indian Independence (Legal Proceedings) Order, 1947, cannot now be given effect to by any Court in this Dominion by reason of the provisions contained in the Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952. Even if the decree, in this case, was covered by the provisions of S. 4(3) of the Indian Independence (Legal Proceedings) Order, it cannot be given effect to now. We have already held in 'Union of India, New Delhi Representing the Assam Railway Etc. v. Mahim Chandra', First Misc. Appeal No. 9 of 1950, that the Act applies to pending execution cases if the decree had not been given effect to before the Act came into force. This case is covered by that decision. The decree in this case not having so far having been given effect to has become incapable of execution as no Court in this Dominion has now got any Jurisdiction to give effect to it.