Mohammed Kazemali v. Niamuddin Ahamed — 1921 DIGILAW 326 (CAL)

JUDGMENT 1. This appeal arises out of proceedings in execution of a decree for money. The decree was passed by the 3rd Subordinate Judge's Court 24-Pergannahs in respect of a claim, the cause of action of which arose within Diamond Harbour. The previous application for execution of decree was made in that Court. 2. Subsequently, the business arising within the local limits of the Munsif of Diamond Harbour, was assigned to the 4th Subordinate Judge's Court by the District Judge under S. 13 (2) of the Bengal and Assam Civil Courts Act (Act XII of 1887). The present application for execution was made in the 4th Subordinate Judge's Court, and a question was raised in the Court below, whether the latter Court had jurisdiction to execute it. The question was answered in the affirmative by the Court below. 3. The judgment-debtors have appealed to this Court, and it is contended on their behalf that under S. 13 (2) of Act XII of 1887 the business is not transferred, but is merely assigned to the Subordinate Judge, so that the case does not come under S. 150 of the Code, and that even if it does, that provisions of that section are subject to those of Ss. 37 and 38 of the Code. 4. S. 13 of Act XII of 1887 runs as follows: (1) The local Government may by notification in the Official Gazette fix and alter the local limits of the jurisdiction of any Civil Court under this Act. (2) If the same local jurisdiction is assigned to two or more Subordinate Judges or to two or more Munsifs, the District Judge may assign to each of them such Civil business cognizable by the Subordinate Judge or Munsif as the case may be subject to any general or special orders of the High Court as he thinks fit. 5. The effect of re-distribution of business by the District Judge under S. 13 of Act XII of 1887, upon the power of the Court to execute decrees was considered in some cases under Act XIV of 1832. 6. In the case of Kalipada Mukerjee v. Dinonath Mukerjee (1897) 25 Cal. 315 A obtained a decree against B in the Court of the first Munsif of Howrah. 6. In the case of Kalipada Mukerjee v. Dinonath Mukerjee (1897) 25 Cal. 315 A obtained a decree against B in the Court of the first Munsif of Howrah. After the decree, the local area within which the cause of action arose and the judgment-debtor resided, was transferred (evidently under S. 13 of Act XII of 1887, from the first to the second Munsif. 7. On an application by A for the execution of his decree in the Court of the second Munsif which allowed execution it was held that the second Munsif had no jurisdiction to entertain the application and allow execution, and that the application ought to have been made in the Court of the first Munsif which passed the decree. 8. Similarly in the case of Bechu Koer v. Golab Chand (1899) 27 Cal. 272 it was held that the Court of Subordinate Judge which passed a decree is the only Court competent to execute it, and that the District Judge is not competent under S. 13(2) of Act XII of 1887 to assign to them different areas so as to limit or define their respective jurisdictions, the local limits of their jurisdiction being fixed by the local Government under S. 13 (1) of the Act. 9. In cases of transfer of local jurisdiction by order of the local Government, it has been held with reference to the provisions of S. 649 of Act XIV of 1882, that the application for execution of the decree may be made either to the Court which passed the decree, or to the Court to which the local jurisdiction has been transferred. See Latchman Pande v. Madan Mohan (1880) 6 Cal. 513 = 7 C.L.R. 521, Jahar v. Kamini Deb (1900) 28 Cal. 238 = 5 C.W.N. 150 and Udit Narain v. Maihura Prosad (1908) 35 Cal. 974 = 12 C.W.N. 859. 10. The Court below relied upon the pro-visions of S. 37 (b) and S. 150 of the present Code. There were no provisions in the old Code corresponding to those of S. 150 of the present Code. 238 = 5 C.W.N. 150 and Udit Narain v. Maihura Prosad (1908) 35 Cal. 974 = 12 C.W.N. 859. 10. The Court below relied upon the pro-visions of S. 37 (b) and S. 150 of the present Code. There were no provisions in the old Code corresponding to those of S. 150 of the present Code. S. 150 lays down: Save as otherwise provided where the business of any Court is transferred to any other Court the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred. 11. We think that an assignment of business under S. 13 (2) of Act XII of 1887 is not the same thing as transfer of business under S. 150 of the Code and that being so the provisions of S. 153 do not apply to the present case. 12. In Aminuddin v. Atarmoni (1920) 47 Cal. 1100 = 57 I.C. 879 = 24 C.W.N. 899 there was no assignment of business by the District Judge under S. 13 (2) of Act XII of 1887 as in the present. 13. It was held in the circumstances of that case that the Subordinate Judge's Court, so far as it related to suits up to the value of Rs. 2,000, must be taken to have been transferred to the second Munsif's Court, upon that Court being vested with powers to try suits up to Rs. 2,000 in value which evidently was conferred by the local Government under S. 19 (2) of Act XII of 1887. 14. The question what effect the words, "save as otherwise provided" in the opening line of S. 150, have upon the power of the Court to which business is transferred, to execute decree passed by the Court from which the business is transferred, does not in the view, we take of this case, arise for decision. 15. The fourth Subordinate Judge's Court did not pass that decree, nor was the decree sent to it for execution, and the 3rd Subordinate Judge's Court has not ceased to exist nor has ceased to have; jurisdiction to execute the decree. 16. 15. The fourth Subordinate Judge's Court did not pass that decree, nor was the decree sent to it for execution, and the 3rd Subordinate Judge's Court has not ceased to exist nor has ceased to have; jurisdiction to execute the decree. 16. We are accordingly of opinion that the fourth Subordinate Judge's Court had no jurisdiction to entertain the application for execution of the decree passed by the 3rd Subordinate Judge's Court in this case. The appeal is accordingly allowed, and the order of the Court below set aside. 17. The application for execution of the decree will be returned to the decree-holder for presentation to the proper Court. 18. No order as to costs. Let the records be sent down at once.