VISHWANATH KESHAV JOSHI Vs. BMSUKHADWALLA

JUDGEMENT

(1.) The matter comes up before me for trial of issue as to the jurisdiction of this Court to entertain proceedings in execution of a decree passed by this Court, the decree being for an amount above Rs. 2,000 and below Rs. 10,000. The decree was passed in the suit on April 2, 1948, and this application for execution was made by the judgment-creditor on September 22, 1948.

(2.) A point was raised as to whether in view of the passing of the Bombay City Civil Court Act, XL of 1048, this Court had jurisdiction to entertain this application for execution of the decree. The Bombay Act XL of 1948 was enacted by the Legislature and received the assent of the Governor General on May 10, 1948. It came into force by a notification in the official Gazette from August 16, 1948. Section 3 of that Act provided that notwithstanding anything contained in any law, the Bombay City Civil Court was to have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value and arising within the Greater Bombay, except for certain exceptions therein laid down which are not relevant for the determination of the present issue before me. Section 12 of the Act provided that notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court. Section 18 of the Act further provided that all suits and proceedings cognizable by the City Court and pending in the High Court, in which issues had not been settled or evidence had not been recorded on or before the date of the coming into force of this Act shall be transferred to the City Court and shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction thereof as if they had been originally instituted in that Court. These are the relevant provisions of this Act which have got to be borne in mind for the purposes of the determination of this issue.

(3.) The jurisdiction of the Bombay City Civil Court was to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value. The ban of the jurisdiction of the High Court also was in respect of the trial of suits and proceedings cognizable by the City Court, and what had got to be transferred to the City Civil Court were also suits and proceedings cognizable by the City Court and pending in the High Court in which issues had not been settled or evidence recorded on or before August 16, 1948. The question, therefore, which has to be determined is what is included in the suits and proceedings cognizable by the City Court; and the whole difficulty in this particular matter has arisen because the suit has been already determined, a decree has been passed therein, and what is sought to be done is the execution of that decree. The question, therefore, which arises is whether an application for execution of the decree already passed by the High Court having had jurisdiction to do the same, can be said to be proceedings cognizable by the City Court, because the suit has certainly ended in so far as it has resulted in a decree being passed in favour of the plaintiff. It has been contended that the proceedings which are mentioned in these three sections are by analogy with Section 141 of the Civil Procedure Code and according to the decision of the Privy Council in Thakur Prasad V/s. Faldrullah (1894) I.L.R. 17 All. 106, 111, P. c original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and not execution proceedings. In so far as this was a matter which was important and would lay down the principle for all proceedings in execution in similar suits where decrees have been passed by this Court before August 16, 1948, I requested Mr. B.J. Diwan to argue the matter per amicus curiae and he was good enough to do so and presented the arguments before me at the adjourned hearing of this application today. It was pointed out by him that the word "proceedings" in Section 141 of the Civil Procedure Code no doubt has come to be interpreted in this manner by the Privy Council, but execution proceedings are also to be regarded as proceedings though they are subsequently adopted by the party after the decree in a suit has been passed. They are separate from the proceedings adopted by the parties in furtherance of the progress of the suit or what may be otherwise described as the previous steps in the suit. As has been laid down in Deb Narain Dutt V/s. Narendra Krishna (1889) I.L.R. 16 Cal. 267, 279 execution has to be regarded as separate proceedings from the previous steps in the suit. Even though the expression "suits and other proceedings" has been used in the sections of the Bombay City Civil Court Act which I have noted above, proceedings in suits as well as proceedings of a civil nature which are contemplated after the decree in a suit is passed are nonetheless proceedings within the expression as used therein. Those proceedings may be proceedings which are contemplated within Section 141 of the Civil Procedure Code and which have been interpreted by the Privy Council as original matters in the nature of suits such as proceedings in probate, guradian-ship and so forth. These proceedings can also be proceedings by way of execution proceedings which have been held in Deb Narain V/s. Narendra Krishna as separate proceedings from the previous steps in the suit, which may be taken by a party after the suit has materialised into a decree. There is no warrant to read "proceedings of a civil nature" which has been used in the Bombay City Civil Court Act in a restricted or limited sense as is contended on behalf of the judgment-credtior.