NEHAR GANGULI Vs. RAI ANATH NATH BASU

JUDGEMENT

(1.) This is an appeal by the decree-holders against an order dated 3-7-1950 passed by the Subordinate Judge of Gaya in Rent Suit No. 1 of 1946 directing the recall of a decree transferred to the Calcutta High Court for execution.

(2.) The facts which gave rise to the proceedings in which the said order was passed may be shortly stated as follows: The decree-holders-appellants obtained a decree on contest for arrears of rent for a sum of Rs. 14,600/127- with costs in respect of a mokarrari tenure against the respondents, the mokarraridars, on 19-7-1946, in Bent Suit No. 1 of 1946 in the Court of the 1st Subordinate Judge, Gaya, The decree-holders executed the decree in Execution Case No. 66 of 1947 by attachment and sale of the tenure in question. The respondents objected to the execution on various grounds but unsuccessfully. Subsequent to the said decree, the decree-holders obtained two other decrees for rent and cess in respect of the said mokarrari tenure for a total sum of Rs. 22,900/- and odd. The rent for subsequent period also accrued due, and the decree-holders had to file another suit for recovery of rent about Rs. 52,000/-. In the meantime, in December, 1949, the Bihar Government issued a notification published in the Bihar Gazette of December, 1949, for taking over the management of the estate of the respondents along with other estates under the Bihar State Management of Estates and Tenures Act, 1949. The consequence of the taking over of the management of the estate by the State was that the tenure in question would no longer be available for satisfaction of the decrees obtained by the decree-holders. Apprehending that they would be absolutely without any remedy against the respondents for realisation of the decrees in case the management of the tenure was assumed by the State, they applied for transfer of the decree to the Calcutta High Court for execution on 10-12-1949. On 31-1-1950, the application was allowed and the decree was transferred to the Registrar of the Calcutta High Court for execution. This order was passed ex parte without notice to the respondents, and it is the legality of this order which is challenged in this appeal. On 2-5-1950, the appellants levied execution of the decree on the Original Side of the Calcutta High Court in Execution Case No. 11 of 1950, and in execution of the decree moveable properties worth about Rs. 12,0007- belonging to respondents 1 and 2 were attached on 12-5-1950. On 18-5-1950, the respondents appeared before the Calcutta High Court and filed objection disputing the legality of the attachment and the executability of the decree. Their objection was first heard on 19-5-1950 and the respondents obtained adjournment. In the meantime, on 29-5-1950, they filed an application before the Subordinate Judge, 1st Court, Gaya, to recall the order of transfer on the ground inter alia, that the order was without jurisdiction and illegal and liable to be set aside. They also obtained an ad interim order of stay of the proceedings in execution pending in the Calcutta High, Court. This application was heard by the Subordinate Judge, and by his order dated 3-7-1950, he recalled the decree from the Calcutta High Court. In the opinion of the learned Subordinate Judge the order transferring the decree to the Calcutta High Court was illegal, as it was passed ex parte without notice to the judgment-debtors before transmission. It is against this order that the present appeal has been filed.

(3.) Mr. G. C. Mukharji, appearing for the appellants, argued that the order recalling the decree which was transmitted to the Calcutta High Court in due process of law was illegal and without jurisdiction. On the other hand, Mr. R. P. Katriar on behalf of the respondents contended that the learned Subordinate Judge 'was right in recalling the order, because the order transferring the decree to the Calcutta High Court for execution was wholly illegal as the order was made without affording the judgment-debtors an opportunity of being " heard. There appears to be no warrant in law for hearing the judgment-debtors before transferring the decree to another Court for execution. Section 39, Civil P. C. provides for transfer of decree, and Sub-section (1) lays down that on fulfilment of any of the four conditions specified therein, "the Court which passed a decree may, on the application of the decree-holder send it for execution to another Court". Sub-section (2) enacts that the Court which passed a decree, may of its own motion send it for execution to any subordinate Court of competent jurisdiction. The Court, therefore, which passed a decree may transfer the decree either suo motu or on the application of the decree-holder. When the transfer is made on the application of the decree-holder, one or other of the conditions laid down in Clause Clauses (a) to (d) of Sub-section (1) must be satisfied. When the Court orders transfer of the decree for execution on its own motion, the fulfilment of the conditions specified in ,Sub-section (1) is not necessary. But, in such a case the transfer cannot be made to any Court other than a subordinate Court of competent jurisdiction. In the matter of transfer of the decree the judgment-debtor has no voice, and, I think, rightly. This provision has been enacted entirely for the benefit of the decree-holder to facilitate speedier and fuller satisfaction of the decree. Subject to any contract, or directions of a Court of law, it is for the decree-holder to decide the venue of the execution and the property which may be taken in satisfaction of the decree. The judgment-debtor cannot legitimately impose any limitation or restriction upon the power of the decree-holder to obtain satisfaction of the decree in the manner provided by Sections 38, 39, Civil p. C. It is for this reason that none of these sections provides for hearing the judgment-debtor before transferring the decree for execution to another Court. In the case of Narain Das Dutt v. Banku Behari, 1925 Cal 213 (AIR V 12) (A), a Division Bench of the Calcutta High Court observed as follows: