DASRATH PRASAD SINGH Vs. BAIJNATH PRASAD SINGH

JUDGEMENT

(1.) The point involved in this Civil revision application is whether an execution proceeding pending in one court can be transferred, under Section 24 of the Civil Procedure Code, 1908, to another court. If so, whether that power should be exercised by me sitting as a revisional court against the decision of the Learned District Judge refusing to transfer this case. I shall shortly state the facts: The decree-holder-petitioners obtained a decree for possession and mesne profits in respect of certain properties situate in the district of Monghyr, in the year 1940. An appeal by the defendant-opposite party to the lower appellate court failed in 1944. His second appeal to this Court was dismissed on the 12th of January 1948. I need not mention about the various endeavours thereafter made to take the matter to the Privy Council and/or to the Supreme Court as they all failed and the defendant did not succeed in any one of them. In the year 1945 by notification No. 215A dated the 24th January 1945 the Government of Bihar established a new Court of Subordinate Judge at Begusarai. The property in regard to which the decree was passed by the Monghyr court came to lie by virtue of this notification within the territorial jurisdiction of the court of the Subordinate Judge at Begusarai. The decree-holders, however, were advised to file their Execution Case No. 12 of 1950 in the Subordinate Judge's 1st Court at Monghyr, i.e. the court which had passed the decree. This execution case was filed on the 14th February 1950. Various obstructions were put in the way of the decree-holders in reaping the fruits of their decree. By order dated 16-6-53 passed in Miscellaneous Case No. 15 of 1953 on an application under Section 47 of the Code of Civil Procedure filed by the judgment-debtor opposite party the learned Subordinate Judge in whose Court the execution case was pending, held as follows:--

(2.) In my opinion, the view taken by the learned Subordinate Judge in the said miscellaneous case was wrong. The proper court to execute the decree was the court which had passed it, and, that, simply because a new court created in the year 1945 got territorial jurisdiction in regard to the property in question was no ground to hold that the court which had passed the decree had no jurisdiction to give delivery of possession. I am fortified in this view by a decision of the Supreme Court in Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87 where at page 93 it has been observed by Veukatarama Ayyar, J.

(3.) For appreciating the various decisions it would be necessary to keep in view the language of Section 25 of the Code of Civil Procedure of 1882 which read as follows:--