Case: Shaukat Hussain Alias Ali Akram &amp; Ors Vs. Smt. Bhuneshwari Devi (Dead)) By L. Rs. &amp; Ors

1. This is an appeal by special leave. The respondent Bhuneshwari Devi obtained a money decree against the appellants in S. C. C. Suit No. 107/95 of 1939 in the Court of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction. At the instance of the decree-holder the decree was transferred for execution to the Court of Munsif 1st at Gaya as the decree-holder wanted to proceed against the immovable property of the judgment-debtors. The judgment-debtors filed Title Suit No. 104/67 in the Court of Munsif 1st at Gaya for setting aside the decree passed by the Small Cause Court on the ground that it was fraudulent, illegal and without jurisdiction. After filing the suit the appellants filed two applications in the Court of the Munsif - one for an injunction against the respondent restraining her from proceeding with execution and the other for staying the further proceedings in the execution case under O. XXI Rule 29, C. P. C. Two ex parte orders were passed on the same day namely May 11, 1962. Since the appellants did not file any requisite for issue of show cause notice to the respondent, the injunction was recalled on June 2, 1962. The respondent decree-holder who was not aware that there were two ex parte orders informed the executing Court on April 10, 1963 that the order of stay passed in Title Suit No. 104/1962 had been recalled for non-filing of the requisite and prayed for proceeding with the execution. The executing Court thereupon passed an order on the same day i. e. April 10, 1963 vacating the order of stay and calling upon the respondent decree-holder to take further steps. In due course the property in dispute was attached and sale proclamation was issued. It does not appear that the appellant judgment-debtor took any objection either to the attachment or to the sale proclamation though notices were issued and served on them. The appellants, however, filed an objection in the Court of the Munsif in the pending Title Suit requesting the Court to clarify whether the order of stay made by it on May 11, 1962 was still subsisting or not. That Court by its order dated July 26, 1963 remarked that the proceedings in the execution case had been stayed on May 11, 1962 and since the same had not been withdrawn it was still subsisting. The Court, however, modified the ex parte stay order of May 11, 1962 calling upon the judgment-debtors to deposit security to the extent of Rs. 550/- in the execution case which was a condition precedent to the stay. The executing Court was informed about this order and in due course the executing Court fixed 5th August, 1963 for furnishing security. The security was not furnished and since the stay did not continue after 5th August, 1963 the attached property was sold on 6th August, 1963 under the proclamation which had already been issued and was purchased by the decree-holder-respondent with the permission of the Court2. On August 26, 1963 one of the appellant judgment-debtors filed an objection under Section 47 of theCode of Civil Procedure for setting aside the sale. The learned Munsiff set aside the sale holding that the sale was illegal-the burden being that the proclamation of sale had been issued when the stay of execution was still in existence. In appeal filed by the decree-holder to the learned Subordinate Judge, the view of the Munsif was upheld, and the appeal was dismissed. The decree-holder respondent went in second appeal to the High Court. The High Court held that the Court of the Munsif was incompetent to stay execution of the decree and, therefore, the order of stay was without jurisdiction and hence null and void. Therefore, the proceedings in execution by way of attachment and proclamation of sale were quite legal and the sale in favour of the decree-holder was also legal. The learned Judge further pointed out that even assuming that the execution had proceeded during a valid stay, that stay by virtue of the order of security passed by the Court, had come to end on August 5, 1963 and, therefore, the sale which took place on August 6, 1963 was valid3. It is from this order that the judgment-debtors have come to this Court by special leave.

Reasoning: 12. Relying on the above provision the Calcutta High Court in the Comilla Union Bank, AIR 1934 Cal 4  , case seems to have thought that the expression "holder of decree of such Court" to be found in Rule 29 will include the Court to which the decree was transferred as the transferor Court had ceased to have jurisdiction to execute the decree. In the first place, there is nothing in the Privy Council case to suggest that there Lordships had thought that the District Court of Vizagapatam had ceased to have jurisdiction to execute the decree within the meaning of Section 37. Their Lordships had not addressed themselves to that question. They were merely considering if the application to execute made in 1907 to the District was an application to the proper Court as understood in Art. 185 (5) of the Limitation Act. They held it was not a proper Court because the sale sought was of property within the jurisdiction of another Court. On the other hand, there is a long series of decisions which go to show that in spite of transfer of a decree for execution to another Court, the Court which passed the decree does not cease to have jurisdiction. For example in Jang Bahadur v. Bank of Upper India 55 Ind App 227 = (AIR 1928 PC 162) the Privy Council has observed at page 233 "On such transfer the former Court (that is the Court which transferred the decree) does not altogether lose seisin of the decree". It was held in that case, that when a judgment-debtor dies after transfer of the decree, the proper Court to order execution against his legal representatives under Section 50 of theCPC is the Court which passed the decree. Under Order 21 Rule 26 it has jurisdiction to pass orders which are binding on the transferee Court under R. 28. It can withdraw the decree - Lang v. Jaswantlal, ILR 50 Bom 439 = (AIR 1926 Bom 271  ) or order simultaneous execution by another Court-Krishtokishore Dutt v. Rooplall Dass, (1882) ILR 8 Cal 687. It would not, therefore, be correct to say that upon the transfer of a decree to another Court, the Court which passed the decree ceases to have jurisdiction to execute the decree within the contemplation of Section 37 C.P.C. As pointed out in Masrab Khan v. Debnath, AIR 1942 Cal 321 the word includes in Section 37 while inclusive in one sense is exclusive in another and under the circumstances specified in clauses (a) and (b) of the section it excludes (a) and (b) of the section it excludes the original Court and substitutes another which, for the purposes of the section is to be regarded as the only Court which passed the decree. Moreover, the expression jurisdiction to execute it" in clause (b) means and includes the competency of the Court to entertain an application for execution of the decree.It may happen that in certain circumstances a Court may not effectively execute a decree, but that does not mean that it has ceased to have jurisdiction to execute it. It still remains the competent Court for the purposes of execution though the decree holder might have to apply for transmission of the decree to another Court for obtaining the relief which he wants. Thus in our case the Subordinate Judges Court which continued to be in existence was still a competent Court to entertain an application for execution. It could withdraw the decree from the Munsifs Court and execute the decree itself or transfer it to any other Court for execution, or, in other words, had still full control in relation to the execution of the decree. And since under Section 37 there could be only one Court at a time answering the description of a Court passing the decree, the Subordinate Judges Court both factually and in law was the Court which passed the decree and it was not necessary to have recourse to clause (b) of Section 37 to discover which Court should be substituted for the former13. Then again, assuming that the original Court ceases to have jurisdiction to execute the decree on its transfer to the transferee Court thhere is no warrant for the conclusion that the latter Court becomes the Court which passed the decree in view of the fact that under Section 42, it can exercise all the powers of the original Court.Under clause (b) the substitute Court is specifically declared to be not the transferee Court, but the Court which if the suit wherein the decree was passed was instituted at the time of making the execution application would have jurisdiction to try the suit. So far the purposes of Section 37, the transferee Court is not named to be the Court which passed the decree, but the Court in which the suit would have to be filed at the time of the execution. It may turn out to be the Court to which the execution is transferred or it may not be that Court. In the case with which we are concerned the Subordinate Judges Court Gaya was in existence and it would have been the only Court in which the Small Cause suit could have been filed and not the Court of Munsif Gaya14. In our view the decision in AIR 1934 Cal 4   is erroneous. A contrary view is taken by several other High Courts after recording specific dissent See : Khemchand v. Rambabu, AIR 1958 Madh Pra 131, Raghvender Rao v. Laxminarasayya, AIR 1962 Mys 89, Sohan Lal v. Rajmal, AIR 1963 Raj 4   and M. P. L. Chettyar Firm v. Vanappa, AIR 1936 Rang 184. All these cases agree in the view taken by the Allahabad High Court in AIR 1930 All 121  15. Since in the present case the decree sought to be executed by the Court of Munsif Gaya was not the decree of that Court but decree of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction, the Court of the Munsif had no competence under Order 21 rule 29 to stay the execution of the decree. The High Court, is therefore, plainly right in holding that the stay granted by that Court is null and void and, consequently, the sale which took place after attachment and proclamation could not be regarded as invalid on the ground that the execution had proceeded during the existence of a valid stay order. The result, therefore, is that the present appeal fails. But in the circumstances of the case parties shall bear their own costs in this Court.