KSHIRODE CHANDRA PAL CHOUDHURY Vs. BRAHMANATH PAL CHOUDHURY

JUDGEMENT

(1.) This appeal has been preferred by the judgment-debtors against whom the respondents had recovered a decree for money in the Court of the Munsiff at Ranaghat in the year 1930. The question involved in this appeal is a question of limitation, namely, whether the application for execution made on 5 February 1935 is barred by time. In 1931, the decree- holders, two in number, namely Brahma Nath Pal Choudhury and Pratap Chandra Pal Choudhury, applied for execution of the decree in the Court of the Munsiff at Ranaghat in the District of Nadia and some immoveable properties of the judgment debtors were attached. Two claims were preferred by two persons and were registered by the said Munsiff on 6 May and 23 May 1931 respectively. Another set of persons had obtained a decree against the same judgment debtors and they applied for execution in the Court of the Subordinate Judge at Nadia. Some of the immoveable properties attached were common in these two execution cases, which were proceeding simultaneously. One of the claimants who filed his claim in the Court of the Munsiff at Ranaghat also filed a claim in the Court of the Subordinate Judge at Nadia. On 30 June 1931 the Munsiff of Ranaghat being apprised of these facts transferred the execution case as also the claim cases pending before him to the Court of the Subordinate Judge at Nadia, but not at the instance of the decree-holders.

(2.) The Subordinate Judge registered the claim cases so transferred to him on 26 August 1931 and the execution case on 6 February 1932. In the meantime Protap Chandra Pal Choudhury, one of the decree-holders, had died on 16 July 1931. The said fact being brought to the notice of the Subordinate Judge on 6 February 1932 he on the same date dismissed the execution case. The present application is within three years of this date and would be in time if Clause 5, Art. 182, Lim. Act, is applicable. The learned advocate for the appellants raised two points. He says firstly that the execution was at an end when one of the decreeholders Pratap Chandra, died on 16 July 1931. Hence he says that the order dated 6 February 1932 has no value in the eye of the law. His second contention is that the Court of the Subordinate Judge at Nadia was not the proper Court within the meaning of Clause 5 of Art. 182. He says that the Munsiff of Ranaghat had no power to transfer the execution case to that Court. In support of his first contention he relies upon the case in Akhoy Kumar v. Surendra Lal Pal 1926 Cal 957. I think that case is distinguishable. There a sole decree-holder had died and in the interval between his death and the application of his legal representatives to continue the execution certain funds were received by the executing Court in another man's execution. A claim for rateable distribution by the said legal representatives was negatived on the ground that at the date of the receipt of assets by the executing Court there was no execution at their instance pending, there being no provision for substitution of legal representatives in execution proceedings. In the case before me the application for execution was by two persons and on the death of one of them the execution proceedings cannot be said to have terminated automatically. The surviving decree holder could continue the same for the benefit of himself and the legal representatives of his codecree-holder and all that he was required to do was to state to the Court the fact of death of his co-decree holder and the names of the legal representatives. I accordingly overrule the first point.

(3.) The second point has been formulated by the learned advocate for the appellant in the following way: He says that a Court which has passed a decree can transfer a decree for execution to another Court, but cannot transfer an execution case pending before it to another Court. Such a transfer, the transfer of an execution case, says he, can only be made by the District Judge or the High Court, as the case may be, under Section 24 of the Code. He further contends that even in the case of transfer of a decree for execution by another Court that Court which passed the decree can do so only on the application of the decree-holder. He accordingly urges that the Subordinate Judge had no jurisdiction to entertain and proceed on with the execution case transferred to him by the Munsif at Ranaghat. He was not, says he, the proper Court, and the order passed by him on 6 February 1932 cannot be taken to be a fresh starting point for limitation. There cannot be any doubt that the Munsif of Ranaghat could have transferred this decree or execution to the Court of the Subordinate Judge at Nadia directly as the two Courts are situate in the same district (Order 21, Rule 5). In this case before me the Munsif of Ranaghat had in substance transmitted the decree for execution to the Subordinate Judge of Nadia. The decreeholders had acquiesced in the transfer though the transfer was not made on an express prayer made by them. There may be some irregularity in the manner of transfer, but in my judgment that did not prevent the Subordinate Judge of Nadia from having the seisin over the execution. In accordance with the provisions of Section 38 of the Code he could execute it. I accordingly hold the application for execution on transfer was pending in a proper Court and the decreeholders before me have the right to call in their aid Clause 5 of Art. 182, Lim. Act. I hold accordingly that the present application for execution is in time and dismiss this appeal with costs, hearing fee two gold mohurs.