DURGA CHARAN CHATTERJEE Vs. SMBENODINI DEBI

JUDGEMENT

(1.) THIS appeal is by the judgment-debtor. The decree under execution is one for costs. It consists of three parts (1) the costs awarded to the respondent by the 4 Subordinate Judge at Alipur in connexion with the respondent's application for probate (2) the costs awarded by this Court dismissing an appeal by the appellant, and (3) the costs awarded by this Court refusing the appellant leave to appeal to the Privy Council. The respondent applied to the Subordinate Judge for a transfer of the decree and he transferred it under Section 39, Civil P.C. to the District Judge at Howrah. He transferred it to a subordinate Court, i.e., the Court of the 2nd Munsif. The appellant then filed an objection under Section 47, Civil P.C. to the effect that the Court had no jurisdiction to execute the decree in these proceedings. The point of the appellant's case was that the Subordinate Judge had no power to execute the Order of costs made on the application for leave to appeal to the Privy Council. The Munsif thought that this was a matter to be decided by the Subordinate Judge at Alipur. On that view he should have kept the matter pending until the question was decided. He however dismissed the objection. The appellant appealed. The District Judge held that the matter was to be decided by the Munsif and reached the conclusion that the objection had no substance in it. After that a certain property has been sold for a sum larger than the amount to be recovered by the execution. The learned District Judge was largely influenced by the fact that he thought that no harm had been done to the appellant by the procedure adopted. The harm done to the appellant is that his property has been sold for an inadequate sum. If the price paid had been adequate, the appellant would not have bothered to file the appeal and the respondent would not have refused to offer to take the whole of the money due. Inasmuch as the appellant's case is that the proceedings were without jurisdiction, it is quite immaterial whether he has suffered any loss or not.

(2.) IT is not disputed that the respondent was entitled to apply to the Court of the Subordinate Judge for execution with regard to the first two items. In view however of the definition of "the Court which passed the decree" in Section 37, item 3 cannot possibly come within the jurisdiction of the Court of the Subordinate Judge. This Order for costs was not made by this Court in appeal but in a special jurisdiction. That the Subordinate Judge had no jurisdiction to deal with the matter will be apparent from the decision of the Privy Council in Venkata Subbamma V/s. Venkatarama ( 01) 24 Mad.1 (P.C.) and a decision of this Court in Hurro Pershad V/s. Bhupendra Narain ( 81) 6 Cal. 201 On behalf of the respondent Mr. Chatterjee attempted to take advantage of the decision in Jogendra Chandra V/s. Wazidunnissa ( 07) 34 Cal. 860. That decision merely amounts to this that if this Court has no power to transfer the decree for execution Under Section 39 then it must have inherent jurisdiction to do so. IT does not say that a mere application for execution in the Court of the Subordinate Judge gives him jurisdiction. The Order made by this Court on the appellant's application for leave to appeal has been placed before me. IT was contended that it is an Order to the Court for execution. I have perused it and it is nothing more than an ordinary copy sent to subordinate Court for information. But supposing it was an Order for execution that would entitle the Subordinate Judge at Alipur to execute the decree but it would not enable him to transfer it Under Section 39. Thus whatever view is taken of the matter it is quite clear that the Munsif in Howrah had no jurisdiction to deal with the case. As Mr. Chakravarty states that the whole of the decretal amount would be paid off out of Court, it is really only a matter of academic interest now. The appeal must accordingly be allowed. The orders of the Court below are set aside and the application of the appellant Under Section 47 will be allowed. The execution case is dismissed and all proceedings subsequent to 1 May 1940 when the objection was filed, will be quashed. I make no Order as to costs. Leave to appeal under Claues 15, Letters Patent, is refused.