Decided on January 31,1900



Banerjee, J - (1.) This appeal arises out of certain proceedings in execution of a decree. The decree was passed by the Small Cause Court at Sealdah, and it was subsequently transferred by that Court for execution to the Munsif's Court at Alipore. After various proceedings taken in the Alipur Munsif's Court, execution was ordered to proceed at the instance of Jogendra Haldar, who was an assignee of the decree. While the proceeding instituted by Jogendra Haldar was going on, the decree was transferred by him to Guru Prosunno Mukerjee, and applications were made to the Munsif's Court at Alipur by him and Guru Prosunno Mukerjee for allowing the latter to carry on the execution case. Thereupon notice was given to the judgment- debtors; they objected to the decree being enforced by the transferee; but the Court overruled their objection, and having found that the alleged transfer of the decree was true, allowed Guru Prosunno Mukerjee's application. Against this order of the Munsif, Amar Chundra Banerjee, one of the judgment-debtors, appealed to the District Judge, but his appeal has been dismissed, and hence this second appeal.
(2.) It is contended by the learned Vakil for the appellant, judgment-debtor, that having regard to the provisions of Section 232 of the Civil P. C., the application for execution of the decree by the transferee, Guru Prosunno Mukerjee, could be entertained only by the Court which passed the decree, and that the Court to which the decree had been transferred for execution had no jurisdiction to entertain it. And in support of this contention the cases of Sheonarain Singh V/s. Hurbuns hall (1870) 14 W.E., 65; Nakoda Ismail V/s. Kasam (1872) 9 B.H.C. Rep., 46; and Kadir Bakhsh V/s. Ilahi Bakhsh (1879) I.L.R., 2 All., 283, are relied upon.
(3.) On the other hand it is argued for the respondent that Section 232 is only a permissive provision which does not restrict the operation of Section 228 by which the Court executing a decree sent to it has the same powers in executing such decree as if it had been passed by itself; and that even if an application to the Court, which passed the decree, was a necessary preliminary under Section 232, the order of the Court below made in the absence of such an application involved only an irregularity not affecting the merits of the case, and that order ought not be set aside merely by reason of such irregularity, having regard to the provisions of Section 578 of the Code; and in support of this argument the case of Sham Lal Pal v. Modhusudan Sirkar (1895) I.L.R., 22 Cal., 558, is cited.;

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