Naresh Chandra Bose v. Sachindra Nath Deb — 1949 DIGILAW 53 (CAL)

Judgement R. P. MOOKERJEE, J. :- This is an appeal an behalf of the judgment-debtor against a decision by the Subordinate Judge, First Court, Alipore disallowing certain objections raised under S. 47, Civil P.C., read with S. 168A, Bengal Tenancy Act. 2. The judgment-debtor, Naresh Chandra Bose, held a patni under the predecessor-in-interest of the decree-holders opposite parties. For the realisation of arrear patni rent, the landlords obtained three decrees in succession in rent suit No. 2 of 1936 on 21st December 1936, rent suit No. 12 of 1337 on 6th April 1938 and rent suit No. 16 of 1939 on 17th February 1940. In execution of the last of the three decrees, the defaulting patni was sold on 15th January 1942 and purchased by two of the three decree-holders. The decree-holders auction purchasers sold the patni on 4th April 1944 to one Provash Mallik. All the rent suits had been brought in the Court of Subordinate Judge, Jessore and the decree-holders applied for the transfer of the decree obtained in rent suit No. 12 of 1937, to the Alipore Court within the district of 24 Parganas. After a certificate had been sent to the Alipore Court on 7th July 1938 the decree-holders levied successive executions. 3. After the decree had been transferred to the Alipore Court and in course of execution case No. 86 of 1938 of the First Court of the Subordinate Judge, Alipore, the decree-holders attached certain properties other than the defaulting tenure, situate in Calcutta an belonging to the judgment-debtors. Subsequently there was an-adjustment between the parties on 20th August 1938. It was agreed inter alia that the attachment as effected aforesaid in execution case No. 86 of 1938 would subsist till the entire decretal dues were paid off in instalments. After the passing of the Bengal Tenancy Amendment Act, incorporating S. 168A, Bengal Tenancy Act, an objection was raised on behalf of the judgment-debtor about the legality of the continuance of the attachment above referred to. The learned Subordinate Judge at Alipore by his order dated 16th April 1943, came to the conclusion that in spite of the sale of the patni in favour of the two out of the three decree-holders there had been no merger and the patni was still in existence and had not either terminated or ceased to exist. The learned Subordinate Judge at Alipore by his order dated 16th April 1943, came to the conclusion that in spite of the sale of the patni in favour of the two out of the three decree-holders there had been no merger and the patni was still in existence and had not either terminated or ceased to exist. Notwithstanding the adjustment, the judgment-debtor was held to be entitled to question the continuance of the attachment. It was further held that the premises attached were not liable to attachment and sale in execution of the rent decree already referred to. The attachment was accordingly withdrawn. 4. Subsequently on 1st March 1947 the decree-holders again filed an application in the Alipore Court for execution of the decree in rent suit No. 12 of 1937 passed by the Court of the Subordinate Judge at Jessore. The prayer was in the alternative for attachment of the properties previously released and for the appointment of a Receiver under S. 51(d). Civil P.C. Objections were raised by the judgment-debtor to the effect that under S. 168A, Bengal Tenancy Act, there could be neither any attachment nor could any receiver be appointed in execution. The learned Subordinate Judge overruled the objection and held (1) that S. 168A, Bengal Tenancy Act, did not preclude the decree-holder from levying execution by the appointment of a receiver and (2) the earlier order dated 16th April 1943 withdrawing the attachment then in force could not bar the present application for execution by the appointment of a receiver. The present appeal is directed against this order dated 24th May 1947. 5. A preliminary point has been raised on behalf of the appellant questioning the jurisdiction of this Court to hear this appeal. Although on 3rd July 1947 when this appeal was presented to this Court, this High Court had no doubt jurisdiction to entertain it but on the passing of the Indian Independence Act the district of Jessore came to be included within East Bengal and since then has been under the jurisdiction of the newly constituted Dacca High Court. It is contended that in terms of Art. 13, High Court (Bengal) Order, this appeal pending there just before 15th August 1947, must be deemed to have been transferred to the Dacca High Court and this Court has now do jurisdiction to hear this appeal. 6. It is contended that in terms of Art. 13, High Court (Bengal) Order, this appeal pending there just before 15th August 1947, must be deemed to have been transferred to the Dacca High Court and this Court has now do jurisdiction to hear this appeal. 6. Under the High Court (Calcutta) Order 1947 made by the Governor General under S. 9, Indian Independence Act, 1947, from alter the appointed date, viz. 16th August 1947, the High Court in Calcutta is to continue to exist, save as expressly provided by S. 13, High Court (Bengal) Order 1947, for all such original, appellate and other jurisdiction S. 9 it had immediately before that date. The relevant portion of S. 13, High Court (Bengal) order is in the following terms : (1) Subject is hereinafter provided, the High Court in Calcutta shall have no jurisdiction in respect of the territories for the time being included in the Province of East Bengal. * * * * (3) Subject to the preceding provisions of this Article, all proceedings pending on the appellate side of the High Court in Calcutta immediately before the appointed day shall, where the Court of origin is, as from that day situated in the Province of East Bengal, stand transferred by virtue of this order to the High Court of East Bengal. 7. 7. Reference has also to be made to S. 4, Indian Independence Legal Proceedings Order 1947, which runs as follows : Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the province of Assam to the Province of East Bengal by the Indian Independence Act, 1947, (1) all proceedings pending immediately before the appointed day in any Civil or Criminal Court [other than a High Court in the Province of Bengal, the Punjab or Assam] shall be continued in that Court as if the said Act had not been passed, and that Court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day ; (2) any appeal or application for revision in respect of any proceedings so pending in any such Court shall he in the Court which would have appellate, or as the case may be revisional, jurisdiction over the Court if the proceedings were instituted in that Court after the appointed day; and (3) effect shall be given within the territories of either of the two Dominions to any judgment, decree, order or sentence of any such Court in the said proceedings, as if it had been passed by a Court of competent jurisdiction within that Dominion. 8. The present appeal was pending in the High Court on the appointed day and therefore under S. 3, High Court (Calcutta) Order, unless the exceptions as contained in the High Court (Bengal) Order, are attracted the jurisdiction of this Court has not been ousted. Under S. 33(1), High Court (Bengal) Order the High Court in Calcutta shall have no jurisdiction in respect of the territories for the time being included in the province of East Bengal. The properties in respect of which the decree had been obtained, which is now being executed and has given rise to the present appeal before this Court, are now admittedly within East Bengal, i.e. within Pakistan, a different State. But the properties in respect of which execution has been levied by appointing a Receiver are under the jurisdiction of the Alipore Court. 9. In the absence of any special provision lex fori exclusively governs execution proceedings. Judgment and execution of judgment are considered to be integral parts of the process which the plaintiff has elected to adopt and are necessarily subject to the lex fori. 9. In the absence of any special provision lex fori exclusively governs execution proceedings. Judgment and execution of judgment are considered to be integral parts of the process which the plaintiff has elected to adopt and are necessarily subject to the lex fori. See in this connection De la Vega v. Visna, (1830) 1 B and Ad. 284 : (2 LJ KB 388); Brettilot v. Sandos, (4 Mutt 201). 10. Under sub-s (3) of S. 13, High Court (Bengal) Order, the present proceedings which were pending in this High Court on the Appellate Side immediately before 15th August 1947, shall if, the Court of origin is, as from that day situated in the province of East Bengal, stand transferred by virtue of this order to the High Court of East Bengal. 11. It is for consideration whether the Court of origin of the present proceedings is the Alipore or the Jessore Court. If the relevant proceedings be deemed to have originated with the filing of either the application for execution which was filed in the Alipore Court on 1st March 1947, or with the filing of the objection under S. 47, Civil P.C., on 3rd April 1947 in the same Court by the judgment debtor Naresh Chandra Bose, the Court of origin will be the Alipore Court. If, on the other hand, the origin of the present proceedings betaken to be either the passing of the decree by the Jessore Court on 1st April 1938 or the application for transfer of the decree for execution filed by the decree-holder in the Jessore Court, the Jessore Court must be taken to be the Court of origin and in that event this appeal stood transferred to the High Court of East Bengal. 12. The language used in Sub-s. (3) of S. 13 clearly indicates that the Court of origin is to be determined with reference to the proceedings then pending in the High Court, that is, the particular proceedings out of which the matter arises which are pending in the High Court. The proceedings in the High Court originated either on the filing of the application for execution by the decree-bolder in the Alipore Court or, more strictly speaking, on the filing of the objection under S. 47, Civil P.C., by the judgment-debtor. The proceedings in the High Court originated either on the filing of the application for execution by the decree-bolder in the Alipore Court or, more strictly speaking, on the filing of the objection under S. 47, Civil P.C., by the judgment-debtor. The present appeal arises directly out of the miscellaneous case started on the filing of the objection under S. 47, Civil P.C., the proximate connection is with that objection and the said miscellaneous case. The more distant connection is with the filing of the execution in the Alipore Court. Passing of the decree by the Jessore Court or the filing of the application for transferring the decree to Alipore Court can not be considered to be the starting point of the proceedings now pending in the High Court. In this view the Court of origin of the present proceedings now pending before this Court is the Alipore Court. To test the conclusion so reached reference may be made to certain circumstances. 13. If this appeal be now deemed to have been transferred to the High Court of East Bengal this appeal will be either dismissed or allowed in full; or, there may be an order for remand by the Dacca High Court for consideration of some points requiring further determination. To which Court will the order of the High Court of East Bengal be communicated ? The execution proceedings out of which the present appeal arises are now pending in the Alipore Court and the Dacca High Court can have no jurisdiction to issue any direction on the Alipore Court which is under the jurisdiction of this High Court. The question whether the Alipore Court can or cannot proceed to levy execution by appointing a Receiver over properties situate within the jurisdiction of the Alipore Court cannot be effectively decided by the Dacca High Court. Prom the practical point of view it is this High Court alone which can pass an effective order on the Alipore Court. 14. It must not also be overlooked that there is no provision in the High Court (Bengal) Order which has the effect of withdrawing the jurisdiction of the Alipore Court is continuing to deal with the execution case which was pending in that Court from before the appointed date. 14. It must not also be overlooked that there is no provision in the High Court (Bengal) Order which has the effect of withdrawing the jurisdiction of the Alipore Court is continuing to deal with the execution case which was pending in that Court from before the appointed date. On the other hand S. 4, Indian Independence Legal Proceedings Order, 1947, provides for the continuance of the pending proceedings in the Alipore Court and the enforceability in both the Dominions Orders passed by that Court. Interpreting the expression the Court of origin to mean the Jessore Court, in the present case, will lead to such anomalies and absurdities that, even if there be any doubt as to the clear meaning of this term, under the accepted rules of interpretation such an anomalous interpretation should be avoided. Only such interpretation should be adopted as will be more reasonable and be free from anomalies. 15. It has been argued that if this High Court is held to be the competent Court for dealing with the pending appeal from the Alipore Court and the latter Court is to have seisin over the execution proceedings; there may be difficulties as the certificate of satisfaction under S. 41, Civil P.C., cannot be sent by the Alipore Court to the Jessore Court, the latter being now in a different State. It is not necessary for our present purpose to decide whether the Alipore Court can send a certificate to the Jessore Court. Even if it be held that the Alipore Court has no jurisdiction to send the certificate of satisfaction to Jessore Court that will not give rise to any practical difficulty. After a decree is transmitted by the Court which passed it to another Court the former does not lose entire seisin of the decree. Gobindanath tisku, Choudkury v. Durga Narain Saha, ILR (1939) 2 Cal 173 : (AIR (27) 1940 Cal 171 ). It can among other things sanction an agreement for payment of the decree in instalments. Gandharap Singh v. Sheodarshan Singh, 12 All 671 : (1890 A. W. N. 197 ), Paramananda Das v. Mahabeer Bossji, 20 Mad 378 : (7 MLJ 89 ). It is further competent for the transferor Court under certain circumstances to make an order for simultaneous execution by another Court; Dwarkadas Gobindram v. Sahkram Rekhraj, 17 Pat 617 : (AIR (26) 1939 Pat 144). It is further competent for the transferor Court under certain circumstances to make an order for simultaneous execution by another Court; Dwarkadas Gobindram v. Sahkram Rekhraj, 17 Pat 617 : (AIR (26) 1939 Pat 144). It must not also be overlooked that simultaneous execution, in the Court in which the decree had been passed and in other transferee Courts, is possible, but is always subject to certain safeguards. Care should be taken that no hardship is caused to the judgment-debtor. The transferor Court must also, while sanding the decree to another Court for simultaneous execution, take into consideration whether any, and if so, what further order should be made as regards the limitation to be put upon the execution by the transferee Court (Gurudas Adhya v. Jnanendra Narain Bagchi, 39 C. W. N. 165 : (AIR (22) 1935 Cal 268). The relevant provisions of the Code of Civil Procedure as adapted after the Indian Independence Act, for the two Dominions are the same. 16. The pendency of execution proceedings in the Alipore Court cannot debar the decree-holder from putting the decree into execution in the Jessore Court. It will further be possible for the judgment-debtor to bring to the notice of the Jessore Court not only the fact of the pendency of the proceedings in the Alipore Court but also about the result of the execution case here. There is practically little chance or risk of the decree-holder being allowed to realise the decretal amount twice over as the judgment-debtor will have full opportunity to take necessary steps to safeguard his own interest. 17. In my view, therefore, the Court of origin in respect of the present appeal is the Alipore Court and not the Jessore Court. As a result of the passing of the Indian Independence Act and the Orders issued by the Governor-General there under this appeal which was pending in this High Court on the appointed day did not stand transferred to the Dacca Court and this appeal must be held to be pending in this Court. 18. We are, therefore, required to consider the merits of the appeal. 19. As regards the interpretation of S. 1684, Bengal Tenancy Act, the point in issue has been settled in a long series of decisions of this Court. 18. We are, therefore, required to consider the merits of the appeal. 19. As regards the interpretation of S. 1684, Bengal Tenancy Act, the point in issue has been settled in a long series of decisions of this Court. Reference need be made only to Sudhir Krishna Ghose v. Satish Chandra Hui, 48 C. W. N. 835 : (AIR (31) 1944 Cal 418 FB), Section 168A does not debar the executing Court to direct appointment of a Receiver in respect of property other than the defaulting tenure, respective of the fast whether the tenure continues to exist or not. 20. A further contention on behalf of the judgment-debtor, appellant is that properties other than the defaulting tenure had previously been attached before S. 168A. had been introduced by the amending Act XVIII [18] of 1940; after the introduction of this new section, the judgment-debtor had raised an objection about the legality of the continuance of the attachment order. The learned Subordinate Judge 1st Court Alipore held that the attachment order previously made must be withdrawn. It was also held that some only of the co-sharers had auction-purchased the defaulting patni in execution of a subsequent tent decree and accordingly the patni was still in existence and it had simply changed hands : The puntni exists and continues so far as the other landlords are concerned. Apparently there has been no merger. The putni is liable for rent and not the ex-putnidar. I find that the putni exists and continues and it has not terminated or ceased to exist. 21. It is urged by Mr. Sanyal appearing on behalf of the judgment-debtor that this decision by the Subordinate Judge at a previous stage of the execution proceedings raised a bar of res judicata and the decree-holder was not entitled to apply for levying execution of the same by the appointment of receiver. But the previous decision was that the putni continued to exist and the premises in respect of which an attachment was subsisting must be released from attachment. The Court had no occasion to consider whether a receiver can be appointed is respect of those premises being a property other than the defaulting tenure. It cannot be held that the question now in issue was actually or could have at all been raised or decided in the previous proceedings. The Court had no occasion to consider whether a receiver can be appointed is respect of those premises being a property other than the defaulting tenure. It cannot be held that the question now in issue was actually or could have at all been raised or decided in the previous proceedings. The only point for which a bar of res judicata may be raised is on the question that the putni has not ceased to exist. The existence of the patni, however, does not disentitle the decree-holder under the provisions of S. 168A, Bengal Tenancy Act to apply for the appointment of a receiver in aid of execution. This objection also must therefore be overruled. 22. The appeal is accordingly dismissed. In the circumstances of this case there will be no order for costs in this Court. 23. Certificate under S. 205, Government of India Act is granted. K. C. CHUNDER, J. :- I agree. Appeal dismissed.