ANANTA KUMAR SHYAM ROY Vs. SURENDRA KUMAR MITRA

JUDGEMENT

(1.) This appeal is on behalf of the judgment-debtor. The appellant borrowed money on a mortgage from the respondent and another person. In 1932 a mortgage suit was instituted, being Suit No. 42 of 1932 of the Second Court of the Munsif at Dacca by the respondent against the appellant, the co-mortgagee being added as a pro forma defendant in the suit. On 2-11-1932, the mortgage suit was decreed for a sum of Rs. 868-8-0. The decree directed that the respondent will get a moiety share of the aforesaid sum of Rs. 868-8-0 plus the full costs of the suit which was, assessed at Rs. 183-13-9. The proforma defendant being entitled to the remaining moiety share of Rs. 868-8-0. This decree was executed in 1933 in title execution case No. 69 of 1933 of the Second Court of the Munsif at Dacca. The respondent decree- holder alone executed that decree. The application for execution is not on record and it is difficult to say what the terms of the said application were. The application, however, was held to be not maintainable by an order dated 10-8-1933. There were several intermediate executions. The last execution case with which we are now concerned was started on an application filed on 4-9-1944, in the 2nd Court of the Munsif at Dacca. On the same date the respondent-decree-holder made an application for transfer of the decree to the sixth Court of the Munsif at Dacca. As this application for transfer remained pending before the Second Court of the Munsif, Dacca and 12 years from the date of the decree was about to expire the respondent decree-holder filed another application for execution in the sixth Court of the Munsif at Dacca on 28-10-1944. On 9-11-1944, the Second Court of the Munaif at Dacca made an order for transfer of the decree to the sixth Court of the Munsif at Dacca. On 4-12- 1944, the certificate of non-satisfaction of the decree was signed by the Mansif Second Court at Dacca and the certificate and requisite papers were transmitted to the sixth Court of the Munsif at Dacca on 21.12-1944. The execution then proceeded in the sixth Court of the Munsif at Dacca. The judgment-debtor appellant objected to the execution of the decree under Section 47, Civil P.C., on a two-fold ground, namely, that the execution was barred under Section 48, Civil P.C., and that the execution as laid was not maintainable in view of Order 51, Rule 15, Civil P.C. These contentions having been overruled by the Courts below, the judgment-debtor has come up on second appeal to this Court.

(2.) Mr. Mitter appearing on behalf of the appellant has argued in the first instance that the application for execution is barred under Section 48, Civil P.C. His argument is that the transferee Court assumes jurisdiction at the earliest when the order transmitting the decree is passed and as in this case the order for trans, mission was made on 9-11-1944, the application for execution filed in the transferee Court became operative on that date and that as this date was beyond 12 years of the date of the decree the application was barred under Section 48, Civil P.C. Mr. Mitter has placed reliance on two decisions of the Madras High Court viz. the case in Nanjunda Chettiar V/s. Nallakaruppan Chettiar and the case in Modali Ademma V/s. L. Venkata Subbayya 20 A.I.R. 1933 Mad. 627. In the case reported in Nanjunda Chettiar v. Nallakaruppan Chettiar , Jackson J. observed as follows: A Court must obtain jurisdiction by some definite act. If the receipt of the decree from the Court which passed it is not the essential act, what is it? It is not enough to say that the receipt is discretionary or that the mere despatch is enough; and a Court cannot arrogate jurisdiction to itself. It must be held, therefore, that until a Court has received the decree, it has no jurisdiction to entertain an application. This view of Jackson J. was, however, not accepted in a later decision of the same Court in Modali Ademma V/s. L. Venkata Subbayya 20 A.I.R. 1933 Mad. 627. Where Beasley C.J. and Bardswell J. preferred to follow the view taken by Krishnaswami Ayyar J. in Arimuthu Chetty V/s. Vyapuripandaram (10) 35 Mad. 588 at p. 590 which was to the effect that "once an order is made sending the decree to another Court for execution that by itself is sufficient to entitle the decree-holder to apply to the Court to which the decree is sent for execution."

(3.) Mr. Mitter contends that according to the view taken in either of these cases the application for execution in the present case would be barred under Section 48, Civil P.C. This no doubt is so, but the view taken by the Madras High Court does not seem to have found favour with our Court. In Lokenath Roy V/s. Mahim Chandra De Mitter J. relying on the decision in Appu Baker Saheb V/s. Mohidia Saheb ( 97) 20 Mad. 10, held that omission by the Court which passed the decree to send the certificate of non-satisfaction under Order 21, Rule 6, Civil P.C. to the Court to which the decree is transmitted for execution is a mere irregularity and does not affect the jurisdiction of the latter Court to execute the decree. In this view, Mitter J. directed the execution to proceed in the transferee Court provided the decree-holder filed the requisite certificate later on before the execution was proceeded with.