GURUDAS ADHYA Vs. JNANENDRA NARAIN BAGCHI

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order passed by the Subordinate Judge of Birbhum on 21 January 1933. The facts which gave rise to the proceedings in which the said order was passed are as follows: The appellant obtained a decree for money on 23rd August 1932 against the respondents judgment-debtors. The amount of the decree was about Rs. 14,000 or a little more. When the suit, as a result of which the said decree was passed was pending, the appellant obtained an order of attachment of certain properties before judgment. The suit was instituted and tried in the Court of the Subordinate Judge at Murshidabad. On 24 September 1932, the appellant applied for execution of the decree and in the said application it was prayed in the first place that the properties which were under attachment and within the jurisdiction of the Murshidabad Court were to be proceeded against, and nextly it was prayed that certain other properties which the judgment-debtors had within the jurisdiction of the Court at Birbhum might be proceeded against, and that for the latter purpose the decree might be transferred to the Birbhum Court. In the application it was stated that the properties which had already been attached and were within the jurisdiction of the Murshidabad Court would not be sufficient for the satisfaction of the decree because there were certain other decrees which were for very large amounts and which were specified in the application, in consequence of which the said properties had also been attached, and that any amount which might be obtained by the sale of those properties would have to be distributed pro rata amongst the contending decree-holders. On receipt of this application, the Subordinate Judge at Murshidabad made an order on 24 September 1932 directing the sale of the properties lying within the jurisdiction of his Court and which had been attached before judgment. So far as this sale is concerned, he ordered that no fresh attachment was necessary and he ordered notices to issue on the judgment-debtors under Order 21, Rule 66, Civil P.C., fixing 15 November 1932 for return. As regards the prayer for the transfer of the decree for execution to the Birbhum Court the learned Judge made this order. On the prayer of the decree-holder let a certificate under Order 21, Rule 6, Civil P. C, be sent to the District Judge of Birbhum for execution of the decree in the Sub- Judge's Court of that place with the direction that the decree-holder may proceed with his execution there as well as here, but the sale at Suri may not actually be held before further direction from this Court.

(2.) It may be stated hare that this order was made by the learned Judge without giving any notice to the judgment-debtors and without hearing what they had to say as to why the order should not be made. In accordance with the order transferring the decree which was passed by the learned Subordinate Judge as aforesaid a copy of the decree was sent to the Court of the Subordinate Judge at Birbhum and also a certificate of non-satisfaction in which it was stated that there had been satisfaction of the decree which was to be executed and that the claim thereunder was Rs. 15,000 odd carrying interest at six per cent per annum. On receipt of this certificate and the copy of the decree from the Court of the Subordinate Judge at Murshidabad, the Subordinate Judge of Birbhum on 27 September 1932 made an order issuing attachment under Order 21, Rule 54 of the Code with regard to the properties within the jurisdiction of his Court which had been specified as being properties against which execution was to be proceeded with. Later on, on 4 January 1933, by which date the attachment ordered as aforesaid had already been effected, an objection was filed on behalf of the judgment-debtors. This objection was heard by the learned Subordinate Judge and he eventually on 21 January 1933 allowed the objection and dismissed the execution case.

(3.) The learned Subordinate Judge held that the question that arose in the case was whether the Court could hold jurisdiction to execute its decree and at the same time send it to another Court to execute it simultaneously. To this question the learned Judge gave his answsr in the negative. He held that, under Section 39, Clause (b) of the Code, before a decree could be sent to another Court for execution a case must be made out that there was no sufficient property within its own jurisdiction to satisfy the decree and that inasmuch as in the present case the execution proceedings which were pending in the Court of the Subordinate Judge at Murshidabad had not come to an end, it was not possible for that Court to come to any such conclusion as that. He observed next that there was no provision in the Code for the issuing of a conditional certificate and that all that the Court under such circumstances could do was to issue a precept under Section 46 of the Code. He treated the transfer of the decree and the issuing of the certificate of non-satisfaction as amounting to the issuing of a precept under Section 46 of the Code; and finding that the attachment which had been made under that precept had continued for more than the period of two months which the section contemplated, he thought that the attachment must come to an end. In this view of the matter, he held that the judgment-debtors objections should succeed and he accordingly dismissed the execution case. It is from this order that the present appeal has been preferred.