RAM PRASAD MISSER Vs. NAND LALL SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff-decree-holder against the order dated the 15th, of January, 1955, whereby the Court of execution has held that the proceeding taken in the execution of a decree passed by the gram cutcherry in the civil Court is not maintainable. It appears that the plaintiff-appellant got a decree from the gram cut-cherry of Parsa on the 6th of July 1953. Therein the claim originally made was for a sum of about Rs. 1000, but the gram cutcherry on hearing the parties ultimately gave the plaintiff a decree for a sum of about Rs. 501-8/- only. It is this decree which was put under execution giving rise to this appeal in the third Court of the Munsif at Patna. While the execution was pending in that Court, an objection was taken by the judgment-debtor that the same was not maintainable in law. According to the judgment-debtor, the decree passed by the gram cutcherry should have been put under execution before the gram cutcherry itself as is provided in the rules from 35 to 38 of the Bihar Gram Cutcherry Rules 1949, framed under the provisions of Section 80 of the Rihar Panchayat Raj Act, 1947, and not in the civil Court, and therefore, the execution could not be proceeded with. The court of execution has, on hearing the parties, accepted the objection raised by the judgment-debtor and has accordingly dismissed the execution case by its order dated the 5th of August 1954.

(2.) Mr. Mani Lal appearing for the appellant has challenged the validity of the order under appeal on three grounds, namely, (1) that the application for execution was, in substance, an application under Section 73 of the Bihar Panchayat Raj Act, (2) that the decree under execution had been, for all practical purposes, transferred by the gram cut-cherry to the civil court under Section 39 of the Code of Civil Procedure and (3) that the remedy provided under the Bihar Panchayat Raj Act read with the Bihar Gram Cutcherry Rules, 1949, is not exhaustive and there being no provision therein for an execution like the one in the present case, it is open to the decree-holder to fall back on the general law as provided in the Code of Civil Procedure. In my opinion, there is no substance in either of these three points. Section 73 of the Bihar Panchayat Raj Act, 1947, is, in substance, a provision more or less in the nature of a revisional power or in the nature of a power of superintendence over the gram cut-cherry given to the Sub-divisional Magistrate and the Munsif and that also only in respect of the merit of the order passed by the gram cutcherry. That provision does not, in my opinion, contemplate at all an application for execution of a decree which has been passed by the gram cutcherry and has not been thereafter challenged either before the Sub-divisional Magistrate or the Munsif as provided therein. Therefore, the first contention cannot be sustained. Similar is the position with the second point. Section 39 of the Code of Civil Procedure which deals with the transfer of a decree says -

(3.) The above rules when read as a whole un mistakably indicate that they lay down a specific procedure for the execution of a decree passed by a gram cutcherry and they have specifically laid down that in case the money is not realisable as laid down therein within a certain period or by three successive orders of distraint, the decree as a whole has to become void. There is no indication therein, therefore, that if the decree is not realisable, it can be transferred to the civil Court for execution of the same or any relief can be sought with regard to it in any Court other than the gram cutcherry. Further it is a well established rule that it a special act creating certain rights provides a machinery for the remedy of those rights, then the remedy given therein is the only remedy available to vindicate those rights and to that extent the remedy provided in the general law is by implication barred. Here, as is stated above. Rules 35 to 38 of the Bihar Gram Cutcherry Rules, 1949, provide a special machinery for the execution of the decree passed by the gram cutcherry and further the Act itself, as quoted above, lays down that no other Court unless otherwise provided will have jurisdiction to take the cognizance of matters which are within the jurisdiction of the Bihar Panchayat Raj Act, 1947. That being so, I think, the Court below is right in taking the view that it has got no jurisdiction to proceed with the execution and the objection of the judgment-debtor was perfectly sup ported by law. For these reasons, I think, there is no substance in this appeal and it is accordingly dismissed, but in the circumstances of the case there will be no order as to costs.