CHANDMAL MARWARI Vs. RAJA SHIB PRASAD SINGH

JUDGEMENT

(1.) The first point for decision in these appeals is as to the proper Court for the execution of a decree against the appellants in favour of the respondents. The suit was instituted by the appellants in the year 1911 in the Court of the Subordinate Judge of Manbhum (who at that time sat at Purulia), for possession of certain lands situated in the Sub-division of Dhanbad, and for mesne profits. The suit was decreed, but an appeal by the respondents to the High Court was successful and the judgment of the High Court was affirmed by the Privy Council. The suit was accordingly dismissed with costs.

(2.) In the mon February, 1931, the respondents the present decree-holders, applied for execution in the Court of the Subordinate Judge of Manbhum, sitting at Purulia. Since 1911 when the suit was begun, by an order of the Lieutenant Governor of Bihar and Orissa, (No. 233-A.P., dated 1 December 1917, duly published in the Bihar and Orissa Gazette): In exercise of the powers conferred by Section 13, sub Section (1) of the Bengal, Agra and Assam Civil Courts Act (Act 12 of 1887) the Lieutenant Governor in Council is pleased to establish with effect from 81 October 1917 a Subordinate Judge's Court at Dhanbad in the district of Manbhum, and to fix with effect from that date the local limits of the executive sub-division of Dhanbad as the local limits of his jurisdiction. By an order of the same date (No. 235 A.P.): In exercise of the powers conferred by Sec. 13, Sub-section (1) of the Bengal, Agra and Assam Civil Courts Act (Act 12 of 1887), the Lieutenant Governor in Council is pleased to declare that the local limits of the executive sub-division of Dhanbad ceased to be included in the local limits of the Subordinate Judge of Purulia with effect from 31 October, 1917.

(3.) The respondents decree holders sought to sell in execution lands situated in the Sub-division of Purulia, that is to say, outside the Sub-division of Dhanbad. The appellants judgment-debtors resisted the execution on the ground that the proper Court in which to institute an execution case was that of the Additional Subordinate Judge of Dhanbad and argued that the Subordinate Judge sitting at Purulia had no proper jurisdiction though it was admitted that the case might afterwards be transferred to him. They rely on Secs.13(1) and 17(1) of Act 12 of 1887. This Act established Civil Courts for Bengal, Bihar and Assam. By Section 3 it is enacted: There shall be the following classes of civil Courts under this Act, namely: (1) the Court of the District Judge; (2) the Court of the Additional Judge; (3) the Court of the Subordinate Judge; and (4) the Court of the Munsif. By Section 13(1), the Local Government may, by notification in the official Gazette, fix and alter the local limits of the jurisdiction of any Civil Court under this Act and by Sub-section (2) if the same local jurisdiction is assigned to two or more Subordinate Judges or to two or more Munsifs the District Judge may assign to each of them such civil business cognizable by the Subordinate Judge or Munsif, as the case may be, as subject to any general or special orders of the High Court, he thinks fit. Section 17 is as follows: (1) Where any civil Court under this Act has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to that case which, if that Court had not ceased to have jurisdiction, might have been had therein may be had in the Court to which the business of the former Court has been transferred. (2) Nothing in this section applies to cases for which provision is made in Section 623 or 8. 649, Civil P.C., or in any other, enactment for the time being in force. Under the Civil Procedure Code of 1908, the references are to Secs.36, 37 and 114 and Rule 1, Order 47. By Section 37, Civil P.C., The expression Court which passed a decree or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include: (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.