RAMCHAND RAO Vs. RAM PERSAD
HIGH COURT OF MADHYA PRADESH
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Abdul Hakim Khan, J. -
(1.)THIS appeal arises out of an order in execution proceedings passed by the Small Cause Court at Lashkar.
(2.)THE facts arc that the decree -holder applied to the Small Cause Court, Lashkar, for execution of his decree and prayed that his decree be transferred to the Cantonment Court, Lashkar, within whoso jurisdiction the immovable property of the judgment -debter was situated. The decree wag transferred as desired. After sometime the decree -holder again applied for execution to the Small Cause Court, but the Court rejected the application saying that execution could not simultaneously be carried out in two Courts. This decision was upheld in appeal and now the decree holder has filed this revision.
Section 38, Code of Civil Procedure, is very clear. It says that 'a decree may be executed either "by the Court which passed it or by the Court to which it is sent for execution'. The wordings are clear enough and the section means that execution can be taken out either in one Court or in the other. The words do not warrant the construction that at one and the same lime execution proceedings can be carried on in both the Courts. No doubt there are some British Indian rulings to the contrary: see Krishtokishore v. Roop Lall Dass, 8 Cal. 687 :, 10 C.L.R. 609; Fatechand Rampratap v. Jitmal Rupchand 53 Bom. 844 :, A.I.R. 1929 Bom. 418; Makkhan Lal v. Mt Bhagwana Kuer, : A.I.R. 1936 ALL. 655 : 163 I.C. 51. But in these rulings their Lordships have not given any reasons for putting that construction on Section 38, Code of Civil Procedure And may one respectfully ask that when the decree is before the transferee Court, on what basis the Court that transferred the decree would proceed to entertain the application for execution? I find support for my views in Maharaja of Boblili v. Narasaraju Peda, A.I.R. 1916 P.C. 16 :, 39 Mad. 640. This point was not directly before their Lord -ships of the Privy Council, but indirectly it was decided in a case involving a point of limitation. The question was when a decree has been transferred to another Court, was the transferring Court, the proper Court to receive a subsequent application for execution. It was held that as the copy of the decree with non -satisfaction certificate had not been returned, the Court that transferred the decree was not the proper Court. I regard it as an authority for the proposition that as long as a decree with non -satisfaction certificate is not received the Court that pissed the decree was not the proper Court to entertain a subsequent application for the execution of the decree. In the case under consideration, the decree with non -satisfaction certification was not returned to the Small Cause Court and in the circumstances the Small Cause Court cannot entertain another application for the execution of the decree, because it is not the proper Court.
(3.)REVISION is rejected with costs.
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