# SHAUKAT HUSSAIN ALIAS ALI Al\RAM & O~ v. SM'I'. BHUNESHW ARI DEVI (Dead)) by L. RS. & ORS

- **Citation:** [1973] 1 S.C.R. 1022
- **Court:** Supreme Court of India
- **Decided:** 1972-08-25
- **Bench:** K. S. Hegde, A. N. G!lOVER, D. G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shaukat-hussain-alias-ali-al-ram-o-v-sm-i-bhuneshw-ari-devi-dead-by-l-rs-ors-5651
- **Pages:** 11

## Headnote

B
Code of Civil Procedure and Order XX/ rule 29--'Constructi7'n ofExecution Court's jurisdiction to grant stay of 11roceedings where decru
mu been granted by another
court-Conditions for
exercis. of powu
.untl~r· rule.
The respondent obtained a money decree against the appellants fram
lhe court of the Subordinate Judge, Gaya exercising Small Cause Court
jurisdiction. The decree was transferred for execution to the Court of
Munsif !st at Gaya.
The judgment-debtors filed a Title Suit in the court
of Munsif !st for setting aside the decree passed by the Small Cause Court
on the ground that it was fraudulent, illegal and without jurisdiction. The
appellants also filed two petitions before the Munsif-one for an injunction againot the respondent restraining her from proceeding with executio•
and the other 'for staying the further proceedings in the execution case
under Order XX! Rule 29 C.P.C. The Munsif issued ex-parte orders oa
the two applications on the same day namely May 11, 1962. The injunction was recalled on June 2, 1962 because the requisites were not filed
for issue of show cause notice to the respondent. The respondent decre•
holder who was not aware th•t there were two ex-parte orders informed
the executing ccurt on April 10, 1963 that the order of stay passed in the
Title Suit had been recalled for non-filing of the requisites and prayed for
proceeding with the execution. The executing court. thereupon passed a•
order vacating the order of stay and calling upon the respondent decreo
holder to take further steps.
In due course the property in dispute wai;
attached and sale proclamation was issued. The appellants 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.
The court held the order to be subsisting
since it had not been withdrawn but made' it conditional on deposit df a
•ecurity of Rs. 550 in the execution case. The execut.!ng court was informed about this order and in due course the executing court fixed 5th
August 1%3 for furni·shing security. · Since the security was not deposited by that date the property was sold on 6th August 1963 under the proclamation already issued. It was
purchased
by· the
decree-holder-
" espondent with the permission of the court.
On an application by tho
appellant judgment-debtors un.der s. 47 of the Code of Civil Procedure
lhe Munsif set aside the sale as illegal on the ground that the proclama1ion of sale had been issued when the stay of execution was still in existence. The Subordinate Judge unheld the order.
In second appeal the
High Court held that the Munsif was incomoetent to stay execution of
1he decree and therefore the sale was legal.
The sale was held valid oH
the further ground that the security was not deposited by the due date.
Ia appeal hv special leave to this Court it was contended on behalf of the
appellants that (i) the property had been sold for paltry sum and this was
'bV itself sufficient to show that the sale was liable to be set aside: (ii\
1he High Court was wrong in holding that the order of st>y was not pass-
,.d by a competent Court.
Dismissing the appeal,
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SHAUKAT v. BHUNESHWAR! DEVI (Palekar, J.)
102~
HELD: (i) The first conteQl.ion was not open to \he appellants on the
materials on record. The application made to the executing court m thu
pre.<ent .case by tho judgment-debtors was not one under Order XXI rule
90 C.P.C.
Had it been the case that on account of fraud or material
irregularity in conducting
the sale,
the sale
required to be set aside,
evidence would have been led on the point and there would have b~ "
clear finding as to the substantial injury.
The judgments of all the tbrea
courts proceed entirely on the basis that the application was one under
•ection 47 C.P.C. and not under Order XXI Rule 99 C.P.C. They do not
deal with the question of material irregularity or fraud in the conduct of
t

## Text

SHAUKAT HUSSAIN ALIAS ALI Al\RAM & O~.
A
v
SM'I'. BHUNESHW ARI DEVI (Dead)) by L. RS. & ORS.
August 25, 1972
[K. S. HEGDE, A. N. G!lOVER AND D. G. PALEKAR, JJ.]
B
Code of Civil Procedure and Order XX/ rule 29--'Constructi7'n ofExecution Court's jurisdiction to grant stay of 11roceedings where decru
mu been granted by another
court-Conditions for
exercis. of powu
.untl~r· rule.
The respondent obtained a money decree against the appellants fram
lhe court of the Subordinate Judge, Gaya exercising Small Cause Court
jurisdiction. The decree was transferred for execution to the Court of
Munsif !st at Gaya.
The judgment-debtors filed a Title Suit in the court
of Munsif !st for setting aside the decree passed by the Small Cause Court
on the ground that it was fraudulent, illegal and without jurisdiction. The
appellants also filed two petitions before the Munsif-one for an injunction againot the respondent restraining her from proceeding with executio•
and the other 'for staying the further proceedings in the execution case
under Order XX! Rule 29 C.P.C. The Munsif issued ex-parte orders oa
the two applications on the same day namely May 11, 1962. The injunction was recalled on June 2, 1962 because the requisites were not filed
for issue of show cause notice to the respondent. The respondent decre•
holder who was not aware th•t there were two ex-parte orders informed
the executing ccurt on April 10, 1963 that the order of stay passed in the
Title Suit had been recalled for non-filing of the requisites and prayed for
proceeding with the execution. The executing court. thereupon passed a•
order vacating the order of stay and calling upon the respondent decreo
holder to take further steps.
In due course the property in dispute wai;
attached and sale proclamation was issued. The appellants 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.
The court held the order to be subsisting
since it had not been withdrawn but made' it conditional on deposit df a
•ecurity of Rs. 550 in the execution case. The execut.!ng court was informed about this order and in due course the executing court fixed 5th
August 1%3 for furni·shing security. · Since the security was not deposited by that date the property was sold on 6th August 1963 under the proclamation already issued. It was
purchased
by· the
decree-holder-
" espondent with the permission of the court.
On an application by tho
appellant judgment-debtors un.der s. 47 of the Code of Civil Procedure
lhe Munsif set aside the sale as illegal on the ground that the proclama1ion of sale had been issued when the stay of execution was still in existence. The Subordinate Judge unheld the order.
In second appeal the
High Court held that the Munsif was incomoetent to stay execution of
1he decree and therefore the sale was legal.
The sale was held valid oH
the further ground that the security was not deposited by the due date.
Ia appeal hv special leave to this Court it was contended on behalf of the
appellants that (i) the property had been sold for paltry sum and this was
'bV itself sufficient to show that the sale was liable to be set aside: (ii\
1he High Court was wrong in holding that the order of st>y was not pass-
,.d by a competent Court.
Dismissing the appeal,
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SHAUKAT v. BHUNESHWAR! DEVI (Palekar, J.)
102~
HELD: (i) The first conteQl.ion was not open to \he appellants on the
materials on record. The application made to the executing court m thu
pre.<ent .case by tho judgment-debtors was not one under Order XXI rule
90 C.P.C.
Had it been the case that on account of fraud or material
irregularity in conducting
the sale,
the sale
required to be set aside,
evidence would have been led on the point and there would have b~ "
clear finding as to the substantial injury.
The judgments of all the tbrea
courts proceed entirely on the basis that the application was one under
•ection 47 C.P.C. and not under Order XXI Rule 99 C.P.C. They do not
deal with the question of material irregularity or fraud in the conduct of
the sale, nor do they deal with the injury caused to the judgment-debtors.
The only question which was agitated before the courts was whether th•
sale was illegal in view of the facl that the execution proceedings had
taken place during the. existence of a 'tay issued by a competent court.
It was also common ground that the stay issued by the Munsif was
an
Order passed under Order XX! Rule 29 C.P.C.
The High Court held
that factually there was no stay, when the e<ecution proceedings ended
and further that the Munsif was not competent to grant the stay.
[I 025G- l026DJ
(ii) For a stay to be granted under Order XXI rule 29 it is nat
enough that there is a suit pending by the 11Jdgmcnt-debtor. it is •further
necessary that the suit must be against the holder of a decree of such
court.
The words 'such court' are important.
'Such Court' means in tht
context of that rule the court in which the suit is pending. Jn other words
the suit must be one not only pending in that court but also one against
the holder of a decree of that court. That appears to be the plain meaning
of the rule. [1027G-HJ
It is true that in appropriate
cases a court n1ay grant
an
injunction
against a party not to prosecute a proceeding in sOme other_ court.
But
ordinarily courts, unless they exercise appellate or rcv~sional jurisdiction
do not have the power to stop proceedings in other courts by an order
directed to such courts.
For this specific provisionS of. law are necessary.
Rule 29 clearly shows that the power of the court to stay execution before
it flows directly from the fact that the execution is at the instance of the
decree-holder whose decree had been passed by that court only. If the
decree in execution was not passed by it, it had no jurisdiction to stay
. the execution.
This is also emphasised by rule 26.
In the present case
the decree sought to be executed was not the decree of Munsif 1st Court,
Ga ya but the decree of the Subordinate Judge, Ga ya passed by him in
exercise <If his Small Cause Court jurisdiction. It was, therefore, obviom
that the order staying execution passed by the Munsif, Gaya would be
indompetent and without jurisdiction. [1027H-1028CJ
Narsidad Nathubhai Vohra V. Manl1a1:1·ing Agarsing Thakor; xxxm
Bombay Law Reporter, 370 distinguished.
·
/naval Beg v. Umr.7o /leg; A .. l.R. 193.0 All. 121 :arproved.
Sarada ~ripa v: Thz Comilla. Union Bank; A.LR.
1934
Cal. 4 disapproved with .the observati~n that the . Calcutta f!igh ~ourt had· wronglr
taken the dec1S1on of the Pnvy Council in the M.abaraw of Bob/1;//'s case
to me.an. t~at. on
tran~fcr of a decree, the origirt'al c6urt had cCascd to
have .iurisd1ct:on ·by virtue of s. 37 C.P.C., the" Court further observin•
that.'" the present case the Subordinate Judge's Court was in exiotence
and ti would have been the only court in which the Small Cause Suit could
'1,we been filed and not the court of Munsif, Gaya.
. Malwrajah of Bobbili v. Narasarajupeda Srilihu/11; 43 Indian Appeals
23i explained.
1024
·SUPREME COURT REPORTS
[1973] I S.C.il.
Jang Bahadur o/ Upper.tndia; 55 1ncti~ppeals 227, Long v. /agwnA
le
/al; 50 Born. ·439, Krishtok1shore Dutt v:·Rvop/al Doss; 8 Indian Law Reports, Cal. 687, Masrab·Khan v. Delinath'iA.l.R. 19tl2 Cal. 3~1, M/s.
Khemachand v. Rambab11; A.LR. 1958 M.P. 131, Raghvender Rao v. Laxminarasllyya A.LR. 1962 Myso;e 89, Solian .Lal v. Rajma/; A.LR. !963 Raj.
4 and M.P.L. Chettyar firm v. Vanappa; A.I.R. 1936 Rangoon 184, referred
, to.
The Judgment of the Court was deiivei:ed by
Palekar, J.
This is an appeal by special leave. Tb.e rtspondent Bhuneshwari Devi obtained a money decree against the
appellants in S.C.C. Suit Wo. 107 /95 of 1939 in the c~urt of
the Subordinate Judge, Gaya exercising Small Cause Court jurisdicrion. At the instance of the decr.ee holder the decree was transferred for execution t? the court of Munsif 1st at Gaya as the
decree holder wanted to proceed against the immovable property
ol ·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 fraudulant, illegal and without jurisdiction'. After filing
the suit the appellants filed two applications in the court of the
Mu,nsif--0ne for an injunctivn against the respondent restraining
her frnm proceeding wi.th execution and the other for staying the
further proceedings in the execution case under Order XXI Rui,,
29 C.P.C. Two ex-parte orders were passed on the same day
namely May I J, J 962. 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 de;cee
holder who was not aware that there were •two-exparte 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 nonfiling of the requisites 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 a,n<l calling upon 1he respondent decree holder to take further steps, In
due course the property in dispute was attached and sale proclamation was issued.
Jt does not appear that the
appellant
judgment-debtor took any objection either to the attachment or
to the sale proclamation though I]O.lices were issued and si;rved
on t~em. 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.
Tiie court,
however.
modified the ex-parte stay order of May 11, 1962 upon
the
judgment-debtors to deposit security to the extent of Rs. 550/-
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SHAUKAT v. BHUNESHWARI DEVI (Palekar, J.)
1025
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in the executi9n case whjch was a condition precedent to the stay.
The executing court was infonned about 1his 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 -(1fiklamation which had al-
. B ·read)' been issued and was purchased by the decree-holder-respondent with the pennission of the court.
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On August 26, 1963 one of the appellant judgment-debtors
filed an objection und.er. section ·47 of the Code of Civil Procedure for setting aside ·"the sale.
The learned Munsif set
aside
the sale holding that the
sale was
illegal-the reason
being
that the proclamation of sale had been issued when the stay of
execution was still in existence.
In appeal filed by the degreeholder to the learned Subordinate Judge, the view of the Munsif
was upheld, and the appeal was dismissed.
The decree
holder
re\pondent 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 ex:cution 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 valid.
It is from this order that the judgment-debtors have come to ·
this Court by special leave.
Mr. Chagla appearing on. behalf of the appellants
prefaced
his arguments by sta1ipg that the property attached in executio.n
was a very valuable property worth more than Rs. 20,000/- and
had been sold for a paltry sum due under the decree and thiscircumstance itself was sufficient to show that the sale. was liable
to be se.t aside. . That contention is clearly
not open on · the
materials on record.
A judgment-debtor can ask for setting aside
a sale in execution of a decree under section 4 7 C.P .C. and, in
special circumstances which attract the provisions of Order· XXI
rule 91) he may also apply to the court to set aside the sale on
the ground of materj!ll irregularity or fraud in publishing or conducting the'sale provided he further proves to the satisfaction of
the court· that he has sustained substantial injury by reason of
the
irregularity or fraud.
The applicatio,n made to the execut-·
ing court in the present case by the judgment-debtors was not
one under Order XXI rule 90 C.P.C.
That is conceded by Mr
16--Lli!Sup.cT/72
1026
SUPREME COURT REPORTS
[1973] 1 S.C.R.
Chagla.
Had it been the case that on account of fraud or material irregularity in conducting the sale, the sale required to be
set aside, evidence would have been led on the point and there
would have been a clear finding as to the substantial injury. The
judgments of all the three courts proceed ~ntirely on the basis
that the application was one under section 47 C.P.C. and not un-
. der Order XXI Rule 90 C.P.C. They do not deal with. the question of material irregularity or fraud in the conduct of the sale,
nor do they deal with the injury caused to the judgment-debtors.
The only question which was agitated before the courts was whether the sale was illegal in view of the fact that the execution
proceedings had taken place during the existence of a stay issued
by a competent court.
It was also common ground that
the
stay issued by the Munsif was an Order passed under
Order
XXI Rule 29 C.P.C.
The first two courts held that the stay
was in existence when the executiQn proceedings ended in the sale
while the High Court held that factually it was so because the
sale took place on 6-8-1963, the stay, if any, having ceased to
operate after 5-8-1963.
The High Court further pointed out that
the stay under Order XXI Rule 20 issued by the court of the
Munsif Gaya was null and void as it was passed by a court without competence and, therefore, in law there was no legal stay of
execution and the sale which took place in due course after
attachment and proclamation of sale, was a valid one.
Mr. Chagla, thereupon, contended that the Order of stay
passed by the Munsif was an Order of stay passed by a t:ompetent
court and the view of the Ki gh Court in that respect was not su'-
tainable.
Execution at the instance of the decree-holder
waJ
pending in ~he court oi. the Munsif and a suit at the instance of
the judgment-debtor was also filed in that court and, therefore,
that court was competent under Order XXI rule 29 to stay the
eicecution pending before it.
It was Mr. Chagla's submission
that it was competent for every court to stay execution before it ii
there was a suit pending before that court filed by the judgmentdebtor against the docreo-holder. The point is whether this general
proposition is sustainable on the provisions of order XXI Rule 29
C.P.C.
Order XXI. CPC deals generally with the execution of decre~
and orders. That order is di.vided into several topics, each topic
containing a number of rules.
The first four topics cover rulee
J to 25 and the fifth topic, namely, stay of t'Xt'culion comprise.> 4
rule~. namely, rules 2.6 to 29.
A perusal of these rules.will show
that the first three rules i.e. rules 26 to 28 deal with. the powers
and duties of a court to which decree has been sent for execution.
Under rule 26'. that court can stay the execution of the decree
transferred to it for execution for a reasonable time to enable the
judgment-dchtor to apply to the court by which the decree was
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SHAUKAT v. BHUNESHWARI DEVI (Palekar, J.)
!027
passed or to any court having appellate jurisdiction over the
former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the
court of first instance or the appellate court. h will be seen,
therefore, that under rule 26 the tran·sferee court !.as a limited
power to stay execution before it. Moreover, under sub-rule (2)
if any property is seized by it in the course of execution, it may
even order the restitution of the property pending the result of the
apPlication made by the judgment-debtor to the court of the
first instance or to the appellate court.
Rule 27 says that any
£uch restitution made under sub-rule (2) of rule 26 will not prevent the property of the judgment-debtor from being retaken in
execution of the decree sent for execution. Rule 28 provides that
any order of the court by which the decree was passed, in relation
to the execution of such decree, shall be binding upon the court
to which the decree was sent for execution. And then we have
rule 29 which deals with a different situation.
The rule is as
follows :
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"Where a suit is pending in any court against the
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holder of a decree of such court, on the part of the
person against whom the decree was passed, the court
may, on such terms as to security or otherwise, as it
thinks fit, stay execution of the decree until the pending suit has been decided."
It is obvious from a mere perusal of the rule that t:llere should be
simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against
the judgment-debtor and the other a suit at the instance of the
judgment-debtor against the decree-holder. That is a condition
under which the court in which tho suit is pending may stay the
execution before it. If that was the only condition, Mr. Chagla
would be right .in his c9ntention, because admittedly there was
ii proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also .
a suit at the instance of the judgment-debtor against the decree'
holder in that court. But there is a snag in that rule. It is not
enough that .there is a suit pending by the judgment-debtor, it is
further necessary that the suit must be against the holder of a
decree of such court.
The words "such court'' are important.
"Such court" means in the context of that rule the court in which
the suit is pending.
In other words, the suit nnst be one not
only pending in that court but also one against the holder of a
. decree of that court.
That appears to be the plain meaning of
H
the rule.
It is true that in appropriate cases a court may pnnt an injunction against a party not to prosecute a proceeding in some other
1028
SUPREME COURT REPORTS
(1973] 1 S.C.R.
court.
But ordinarily courts, unless they exercise appellate or
revisional jurisdiction, do not have the power to stop proceedinos
in other courts by an order directed to such courts.
For this
specific provisions of law are necessary.
Rule 29 clearly shows
that the power of the court to stay execution before it flows directly from the fact that the execution is at the instance of the decreehoJder whose decree had been passed by that court only. If the
decree in execution was not passed by it, it had no jurisdiction to
stay the execution. In fact this is emphasised by rule ·26 already
referred to. In the case before us the denee sought to be executed
was not the decree of Munsif 1st Court Gaya but the decree of
the Subordinate Judge, Gaya passed by him in exercise of his
Small Cause Court jurisdiction. It is, therefore, obvious that the
Order staying execution passed by the ".\1unsif, Gaya would be
incompetent and without jurisdiction.
Mr. Chagla sought to rely on a decision of the Bombay High
Court in Narsidas Nathubhai Vohra
v.
Manharsing Agarsing
Thakor( 1 ) and specially the observations made at page 373. The
vbservations are : "If the execution of a decree is transferred for
execution to another court and a suit is brought in the Court in
which the execution proceedings were first started against the
holder of a decree of that Court, the Court in which the suit is
brought would have jurisdiction to pass an Order under Order
XXL rule 29, though the execution proceedings may be actually
pending before another Judge to whom the execution proceedings
may have been transferred by the Court."
In order to unders(and these observations, we must know .the facts of that case.
One Narsidas obtained a money decree against Manharsing in the
court of the First Class Subordinate Judge, Ahmedabad.
The
principal Subordinate Judge of that court was Mr. Jhaveri and
the Joint Subordinate Judge was Mr. Yajnik.
Narsidas filed an
application for executing the decree in that court. The judgmentd.ebtor Manharsing filed a suit in the same court for setting aside
the decree against him. Thus simultaneously there were two proceedings in the same court namely the court of the First Class
Stib<irdinate Jtidge, Ahmedabad between the two parties-0ne
being a suit filed by the judgment-debtor against the decree-holder
an.d the other being an eitecution proceeding by the decree-holder
against the Judgment-debtor in respect of a decree passed by the
same court. That brought in directly the provisions of Order XXI
rule 29 and there was no dispute that the execution proceeding
~ould be stayed. The question, however. was whether Mr. Yajnik
hefo-e whom the suit was pending could stay the execution of
the decree which was pending &fore Mr. Jhrveri. It was contended that Mr. Yafnik had no jurisdiction
to pass an
Order.
Under Order XXT rule 29 as the execution proceedinl!s were not
<1) XXXTIT Bombny lrl\V Rep0rter. ~70.
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SHAUKAT v. BHUNESHWARJ DEVI (.Palekar, l.)
1029
pending before him but were pending before the First Class' Subordinate Judge Mr. Jhaveri. This contention was over-ruled. It
was pointed out that though there were two Judges attached to
the court, the court was one and Order XXI ·rule 29 did not refer
to any individual Judge but to the court. Therefcre, either Judge
of the court in charge of the suit was capable of staying the execution in that court regardless of the Junge before whom the execution was pending. It is in that context that the above observations
were made.
The observations contemplate a case where after
the institution of the execution proceeding in the First, Class Subordinate Judges' Court the same is transferred in due course of
distribution of business, to another Judge attached to that Court.
Some little confusion is created by the words 'another tourt' when
they first. appear in the above observations.
The words 'another
court' really stand for 'another Judge of that courl' as it
clear
from the last clause of the very sentence. Having :uade the above
observations, the court further observed "It is not, therefore, necessary in our opinion that the execution
proceedings
must ·be
pending before the same Judge before whom the suit is pending.
It is sufficient if the suit is pending in any court against the holder
of a decree o[ such court."
The decision is no authority for the .•
contention put forward by Mr. Chagla.
In lnayat Reg v. Umrao Beg(') .the Allahabad High Court had.
,
held that where a decree was transferred for execution to a court,
the latter could not, under Order 21 rule 29 C.P .C., stay execution
of that decree in a suit at the instance of the judgment-debtor,
the reason being that the decree songht to be executed was not the
decree of 'such court', that is, the court in which the suit was pending.
That view was dissented from by the Calcutta High Court
in Sarada Kripa v. The Camilla Union Bank('). The reasoning
was that the Privy Council had held in Maharajah of Bobbili '"
Narasarajupeda Srinhulu (') that on transfer of a decree, the original court had ceased to have jurisdiction by virtue of section 37
C.P .C.
The holder of a decree of 'such court' will include the
court to which the decree has been transferred, the latter having
the same powers in executing the decree as if il had been passed
by it under section 42 C.P .C.
The above reasoning in the Calcntta case is based upon erroneous assumptions.
The Privy Council was not concerned in
Maharajah of Bobbili v. Narasarajupeda Srinbulu(')
with
the
impact of sections 37 & 42 on Order 21 rule 29 C.P.C. It was
only concerned to see whether the District" Court was the 'proper
court' within foe meaning of Art 182(5) of the 1st Schedule of
the Limitation Act, 1908 in which to apply 'for execution or to
(!) A.T.R. 1930 All. 121.
(2) A.LR. 1934 Cal. 4.
(3) 43 J ndian Appeals 238,
1030
SUPREME· COURT REPORTS
[1973] 1 s.c.R.
take same step in aid of execution'. The District Court of Vizagapatam had passed the money decree in April 1904 and sent it for
execution to the court of Munsif Parvatipur in September 1904.
The copy of the decree with the non-satisfaction certificate had
not been returned to the Di~rict Court till August 3, 1910.
However the decree holder applied to the District Court on December
13, 1907 for execution of the decree by sale of immovable property of the J .D. which was within the local limits of the jurisdiction of the Munsif's court. The question was whether this application to the District Court was an application to a 'proper court'
m order to save limitation. It was held having regard to Sections
223, 224, 228 & 230 of the C:P.C. of 1882 (which are reproduced in the Code of 1908 as sections 38, 39, 41, 42 and Order
21 rule 4, 5, 6 & 10) that when the application of December 13,
1907 was made, the District Court was not the 'proper court' toi
which the application to execute the decree by sale of immovable
property which had been attached by the court of the Munsif
should have been made, the proper court being the court of the
Munsif Parvatipur.
"That was the court whose duty it then wa5
to execute the decree so far as it could be executed by that court."
Consequently the Ptjyy Councir·held that the December 13, 1907
~pplic?.tlon was not an application to the proper court either for
execution or for taking a step in aid of execution of the decree.
It is to be noted that the Privy Council was not concerned with the
problem before us nor with the interpretation of section 37.
Section 3 7, so far as is material is as follows :
'The expression "court which passed a decree", or
words to that effect, shall, in relation to the execution of
decree, unless there is anything repugnant in the subject
or context, be deemed to include-
(a)
(b) where the court of first instance has ceased . to
exist or to have jurisdiction to execute it, the
court which, if the suit wherein the decree was
passed was instituted at the time of making tha
application for the execution of the decree, would
have jurisdiction to try such suit.
Relying on the above provision the Calcutta High Court in the
Comi//a Union Bank 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 tramferor court had ceased to have jurisdiction to execute th~ decree.
In the first place, there is· nothing in the Privy Council case to
suggest that their Lordships had thought that the District Court of
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SHAUKAT v. BHUNESHWARI DEVI (Palekar, J.)
I 031
Vizagapatam had ceased to have jurisdiction to execute the decree·
within the meaning of Section 37. Their
Lord~hips had not
nddressed themselves to that question.
They were merely considering if the application to execute made in 1907 to the District
Court was an application to 'the proper court' as understood in
Art. 185 ( 5) of the Limitation Act.
They held it was not a pro·
per court because the sale sought was of property within the juris·
diction 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(') the Privy Council has observed at page
23 3 "On such transfer the former court. (that .is the court which
transferred the decree) does not altogether Jose 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 the CPC
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 rule 28.
It can withdraw the decree-Lang v. Jaswantla/(2) or order simultaneous execution by another courtKrishtokishore Dutt v. Roop/all Dass('). Jt 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('), the word
'includes' in section 37 while inclusive in ooe sense is exclusive in
another and under the circumstances specified in clauses (a) & (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
conrt which passed the decree. Moreover, the expression 'jnris:
diction 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 Munsif's court and
execute the decree itself or transfer it to any other conrt for execu·
tion, or, in other words, had still full control in relation to the
execution of the decree.
And since under section 37 there could
(!) SS Indian Appeals 227.
(2) 50 Born. 439.
(3) 8 Indian Law Report•, Cal. 6F
(4) A.I.R. 1942 Cal. 321.
1032
SUPREME COURT REPORTS
[1973) 1 S.C.R.
be only one court at a time answering the description of a court
passing the decree, the Subordinate Judge's 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 former.
Then again. assuming that the original court ceases to have
jurisdiction to execute the d'ecree oti its transfer to the transferee
court, there is no warrant for the conclusion that the latter court
becomes the court which passed the decree in view of the fact that
und~r 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 where·
in the decree was passed was instituted at the time of making the
execution application would have jurisdiction to try the suit.
So
for the purposes of section 3 7, 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.
lt
may turn out to be the court t9 which the execution is transferred
or it may not be that court.
Iii the case with which we are
CO>;-
cerned the Subordinate Judge's court Gaya was in existence ao1J it
would have been the only court in which the Small Cau3e
suit
could have been filed and not the court of Munsif Gaya.
In our view the decision in Sarada Kripa v.
Camilla
u11ion
Bank( 1) is erroneous.
A contrary view is taken by several other
High Courts after recording specific dissent.
See : MI s Khemachand v. Rambabu('); Raghvender Rao v. Laxminarasayyn(');
Sohar-, Lal v. Rajmal(') and M. P. L. Chettyar firm v. Vanappa( 6 ).
All these c~ses agree in the view taken by the Allahabad High
Court in lnayat Beg v. Umrao Beg(').
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 the
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 prese.nt appeal fails.
But in the circumstances of the
case partkc shall bear their own costs in this Court.
G.C.
Appeal dismi;.;cd.
(I) A.I.R. 1934 Cal. 4.
(2) A.LR. 1958 M. 131.
(3) A.I.R. 1962 Mysore 80.
(4) A.LR. 1963 Raj. 4.
15) A.LR. 1936 Rangoon 184.
(6) A.I.R. l930All.121.
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