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1931 DIGILAW 317 (CAL)

Paran Chandra Sen v. Blackwood and Blackwood and Co. , Decree-Holders

1931-12-16

body1931
JUDGMENT Guha, J. - The Respondents in this appeal, the firm of Messrs. Blackwood and Blackwood and Co., succeeded in obtaining a decree against the Appellants, Paran Chandra Sen and brothers, a firm carrying on business as hardware merchants, for Rs. 43,470-12 ans with interest at the rate of 6 per cent, per annum. This decree was passed in the Original Side of this Court on the 27th of June, 1930. Proceedings were taken in this Court in the Original Side for execution of the decree so passed in favour of the decree-holders Respondents. Eventually it became necessary to have the decree transferred to Howrah for execution and this Court on the Original Side sent it to the District Judge of Howrah for execution. As there was no District Judge at Howrah, the Additional District Judge took action in the matter of execution of the decree transferred by this Court. Eventually the proceedings in execution were transferred to the Court of the Subordinate Judge, 1st Court at Howrah, where the certificate received from the High Court Original Side, was registered as also the application filed by the decree-holders for execution of their decree. To the application for execution so filed, various objections were taken by the judgment-debtors. It is not necessary to mention those objections in detail at this stage for the reason that the principal objections raised before the executing Court are the grounds of appeal that were urged in support of this appeal to this Court. The application for execution which was registered in the Court of the Subordinate Judge at Howrah contained statements to this effect: The certificate sent by the High Court may be attached to this petition for execution. The partners of the judgment-debtors' firm, Paran Chandra Sen, Rakhal Chandra Sen and Rangalal Sen, have been adjudged as partners of the said firm in suit No. 2,248 of 1929 of the Hon'ble High Court; and the specific prayer made in the prayer column of the application for execution was this: The prayer is for realising the amount by arresting them under warrant and if the whole amount is not realised thereby, realisation of the same may be made from other movable and immovable properties of the judgment-debtors or from their person. 2. 2. After over-ruling the objections raised by the judgment-debtors, the learned Subordinate Judge in the Court below passed an order on the loth August, 1931, allowing the prayer of the decree-holders to proceed with the execution in the manner stated in the application before the Court. As against this order made by the learned Subordinate Judge, this appeal has been preferred by the judgment-debtors. 3. The first ground raised on behalf of the judgment-debtors in support of the appeal to this Court is that the Court below had no jurisdiction to execute the decree by issue of warrant of arrest. It is said that the Court was not competent to execute the decree, inasmuch as it was not in proper seisin of the proceedings in execution. The form in which this objection as stated before this Court was raised in the Court below in the petition of objection filed by the judgment-debtors was " that the execution case cannot proceed in this Court, as the decree has not been transferred according to law." In support of the contention urged before us in this appeal very great stress has been laid upon the fact that the decree was transferred by the High Court in its Original Jurisdiction to the Court of the Additional District Judge of Howrah and not to the District Judge of Hooghly who only had the jurisdiction to entertain an application for execution of a decree transferred by the High Court for execution. It was stated to us that the Additional District Judge at Howrah had not the power to direct execution of the decree transferred to it, in view of the specific provisions of the Code of Civil Procedure, contained in the matter of execution of transferred decrees. Whether the Additional District Judge at Howrah had the jurisdiction to start proceedings in execution of a decree transferred by the High Court or not, was not attempted to be made out in the Court below and nothing has been made out here before us to show that the Additional District Judge at Howrah had no such power assigned to him by the District Judge of Hooghly. In view of the definite provisions of the law of evidence as contained in sec. In view of the definite provisions of the law of evidence as contained in sec. 114 of the Evidence Act, and regard being had to Illustration (e) added to that section, we may presume that judicial acts had been performed regularly; nothing has been done by the judgment-debtors to rebut the legal presumption that arises against them in this behalf; and we can safely presume that the functions of a District Judge relating to all matters cognizable exclusively by the District Judge under any Act for the time being in force had been assigned under the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887, to the Additional District Judge at Howrah. We are unable, therefore, to give effect to the contention as raised before us by the learned Advocate for the Appellants bearing upon the question of jurisdiction. 4. So far as the precise questions raised before the learned Subordinate Judge in the Court below and which had been dealt with at some length by the learned District Judge in his order, are concerned, they have, in our judgment, been correctly dealt with by the learned Judge. It appears to us that secs. 42 and 150 as also the provisions contained in sec. 99 of the CPC amply support the conclusions arrived at by the Court below. On the whole we find no reason to differ from the conclusion arrived at by the Court below. The judgment-debtors' objection on the score of the want of jurisdiction of that Court or want of jurisdiction of the Additional District Judge of Howrah to transfer the proceedings in execution to the Subordinate Judge cannot possibly be entertained. 5. The next question raised in support of this appeal is that the learned Judge in the Court below has allowed execution to proceed without a determination of the question as to whether the judgment-debtors Appellants were partners of the firm against which the decree was passed by the Original Side of this Court, and that therefore the warrant of arrest as directed by the learned Judge in the Court below, could not possibly be issued. We have satisfied ourselves by reference to the proceedings before the Original Side of this Court; and the proceedings before the Subordinate Judge also indicate that the judgment-debtors Appellants before us were partners of the firm against which the decree of the Original Side of this Court was passed. The Subordinate Judge was right in holding that a warrant of arrest was issued against the judgment-debtors by the High Court which passed the decree, and that it followed by implication that there was an adjudication of the matter in the said Court. 6. The last question raised in support of this appeal relates to this, that the Court below should not have allowed the decree-holders to proceed with execution by arrest of the judgment-debtors Appellants until the disposal of the insolvency proceedings which is now under appeal to this Court. So far as this question is concerned, it need only be mentioned that inasmuch as the Provincial Insolvency Act of 1920 makes no provision for an ad interim protection pending the hearing of an application for adjudication of an insolvent, the appeal by the judgment-debtors Appellants to this Court against an order dismissing an application for adjudication cannot be of any avail to them: see in this connection the case of Jewraj Kharewalla v. Lalbhai Kalyanbhai and Co. 30 C.W.N. 834 (1926). 7. In the view we have taken of the questions raised in this appeal, the order made by the learned Subordinate Judge in the Court below must be affirmed, and this appeal dismissed with costs. We assess the hearing-fee at three gold mohurs. The record of the case is to be returned to the Court below, as soon as possible. M.C. Ghose, J. I agree.