Case: Fatma Haji All Mohammad Hajiand Others Vs. The State Of Bombay

decree; (b) through a Revenue court or officer by issuing a certificate to that court or officer. The language employed in this section does not place the Registrar on the same pedestal as a court passing the decree under the Civil Procedure Code. Under the Code a civil court passing a decree is also the court executing the decree. It has a dual capacity, (1) of the court passing the decree, and (2) of the executing court. The Registrar, it appears, has the first capacity of a civil court but he has not been placed in the matter of execution in the same capacity as a civil court passing a decree. The only jurisdiction conferred on the Registrar is that he can issue a certificate and on that certificate he can send a decree either to the civil court or to a revenue officer. It may be that after issuing a certificate he may be entitled to cancel the certificate or issue another, or he may by with - drawing the certificate withdraw execution from a civil court and send it to a revenue court and vice versa. On the plain words of the section it cannot be held that the Registrar has been constituted an executing court or that any powers in the matter of the execution of the award decree have been conferred upon him. The question that arises for consideration is whether in view of this construction of the section it was open to the Registrar to intervene during execution proceedings that were pending in a civil court on the basis of the certificate granted by him. In order to determine this point it is necessary to see precisely what the Registrar actually did in this case. After a default had been made in the payment of the first instalment and the whole decree debt had become due and execution had been taken out for recovery of the amount, the Registrar accepted the amount of the first instalment and asked the executing court to stop further proceedings. The act of the Registrar in accepting the first instalment was a clear trespass on the duties of the executing court. It is only in the executing court where payment towards satisfaction of the decree, the execution of which had been taken out, could be made, unless the court passing the decree has also the jurisdiction to execute it. As already indicated,, this jurisdiction is not possessed by the Registrar. That being so, in our opinion, the requisition of the Registrar to the executing court to stop execution proceedings and his act in accepting the first instalment were in excess of the jurisdiction conferred on him and the executing court was entitled to ignore it. Moreover, the Registrar could not alter or amend the decree passed by the Arbitrator at this stage. (4) All the courts below have interpreted the section to mean that the Registrar as the court passing the decree has the same power as the court executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil courts is not available in interpreting this Act. Under the Civil Procedure Code the parent court, i.e., the court passing the decree, always retains jurisdiction to execute the decree even if it has been transferred to one or more courts for the purpose of execution. Primarily it is the function of the court passing the decree to execute it but when it is found that it is not possible for it to effectively execute it provision has been made in the Code authorising it to send it to other courts the purpose of execution; but none of these provisions in any way affect the jurisdiction of the court passing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other courts does not take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given no jurisdiction to execute his own decree. The only power conferred on him is to get it realized through a civil court or a revenue court and the only authority conferred on him is to issue a certificate for that purpose. (5) The High court in this case has, in our opinion given a decision contradictory to its own findings. It has been held that the first appellate court was in error in the view that the default clause in the decree stood condoned by the payment of the first instalment by the judgment-debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had no jurisdiction to condone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this conclusion the High court still maintained the decision of the two courts below adjourning the execution proceedings. The logical result of the High courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil court to stay execution proceedings pending before it is a clear encroachment on the powers of the executing court and is in excess of his statutory powers and should have been ignored by the courts. (6) As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to consider the contention of the learned counsel that there was no proper certificate in this case and the proceedings in execution therefore were without jurisdiction.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds](4) All the courts below have interpreted the section to mean that the Registrar as the court passing the decree has the same power as the court executing it. We are unable to agree in this view in view of the clear language employed in the section. The analogy of decisions given in respect of civil courts is not available in interpreting this Act. Under the Civil Procedure Code the parent court, i.e., the court passing the decree, always retains jurisdiction to execute the decree even if it has been transferred to one or more courts for the purpose of execution. Primarily it is the function of the court passing the decree to execute it but when it is found that it is not possible for it to effectively execute it provision has been made in the Code authorising it to send it to other courts the purpose of execution; but none of these provisions in any way affect the jurisdiction of the court passing the decree to execute it whenever it thinks fit to do so and the order transferring execution to other courts does not take away its jurisdiction in the matter. The position however in the case of the Registrar is entirely different. He himself has been given no jurisdiction to execute his own decree. The only power conferred on him is to get it realized through a civil court or a revenue court and the only authority conferred on him is to issue a certificate for that purpose(5) The High court in this case has, in our opinion given a decision contradictory to its own findings. It has been held that the first appellate court was in error in the view that the default clause in the decree stood condoned by the payment of the first instalment by the judgment-debtor in the office of the Registrar and it has been positively found that once a default has been made the Registrar had no jurisdiction to condone it and that the decree-holder was entitled to execute the decree for the full decretal amount with interest. Having reached this conclusion the High court still maintained the decision of the two courts below adjourning the execution proceedings. The logical result of the High courts decision is that the certificate stands and the execution application has been properly made and the decree-holder is entitled to the relief claimed but in spite of it has been held that the Registrar can stay the proceedings. It seems to us that the act of the Registrar in asking the civil court to stay execution proceedings pending before it is a clear encroachment on the powers of the executing court and is in excess of his statutory powers and should have been ignored by the courts(6) As a fresh certificate was issued by the Nazim in order to cure a defect that might be said to exist in the original certificate because of its having been sent by the Madadgar Nazim, it is unnecessary to consider the contention of the learned counsel that there was no proper certificate in this case and the proceedings in execution therefore were without jurisdiction.