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1957 DIGILAW 25 (GAU)

Sukriti Bala Dutta v. Hemanta Kumar Nag Choudhury

1957-05-08

H.DEKA, SARJOO PROSAD

body1957
This appeal arises out of an execution case and is directed against an order dated 26th April, 1954 passed by the Ex-officio Sub­ordinate Judge, Shillong. (2) The respondent decree-holder obtained a decree for recovery of a certain sum of money ag­ainst the defendant judgment-debtor Durga Kumar Datta, the husband of the present appellant before us. The decree was for a sum of Rs. 14,495/14/- in addition to costs and was passed by the Assistant to the Deputy Commissioner, Shil­long in Suit No. 78 (s) of 1948 on 4th January, 1951. In due course it was put into execution in the Court in question ; but eventually the parties filed an application for an adjustment of the de­cree before that Court on 24th February, 1951. On the terms of that application the decree-holder agreed to accept a sum of Rs. 9,000/- in full satisfaction of the decree. Out of this a sum of Rs. 500/- was paid on the date of the adjustment and the balance was payable in quarterly instal­ments of not less than Rs. 500/- each. It was fur­ther stipulated that the appellant who stood sure­ty for the payment of the decretal amount so ad­justed, was to remain liable to the decree-holder for the stipulated sum of Rs. 9,000/- and her pro­perty described in the schedule to the application was to remain under attachment until the amount in question had been paid off. It was also provided that in case of default the decree-holder would have the right to execute the decree by putting up to sale the said property ; but in any case the decree holder was not entitled to realise more than a sum of Rs. 9,000/- out of the sale proceeds in satisfaction of his decree. This compromise was duly recorded by the Court and the terms incorporated in its order. Subsequently it appears that there was default in payment of the decretal dues and the Court where the execu­tion case was pending then granted a certificate of non-satisfaction on 7th September 1952 and also made an order at the instance of the decree-holder for transfer of the decree for execution, to the Ex-officio Subordinate Judge, Shillong. The Ex-officio Subordinate Judge who also happens to be the Deputy Commissioner of Shil­long, then proceeded to execute the decree. The Ex-officio Subordinate Judge who also happens to be the Deputy Commissioner of Shil­long, then proceeded to execute the decree. The appellant who was a party to the execution case raised various objections to the execution but her objections were rejected by the order under appeal. It is against this order that the appellant has come up to this Court. (3) Mr. Lahiri in support of the appeal has raised various points. One of his important con­tentions is that the Assistant to the Deputy Com­missioner had no power to transfer the decree to the present executing Court, namely the Court of Ex-officio Subordinate Judge, nor had the Ex-officio Subordinate Judge any power to entertain the ex­ecution case and to proceed with the execution. He submits that in the Rules for the Administra­tion of Justice in the Khasi and Jaintia Hills there is no provision for transfer of the decree for execu­tion to any other Court. It is not disputed that the decree passed in the case was passed by a competent Court and the Assistant to the Deputy Commissioner had juris­diction to pass the decree because the parties al­though non-tribals, were residents of the area which is called the Adrninstered Area, in other words the area which formed part of the original Khasi States though falling within the munici­pality of Shillong. Rule 25 of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills provides that "the administra­tion of civil justice in the Khasi and Jaintia Hills is entrusted to the Deputy Commissioner, his Assistants, Sardars and dolois and other chief vil­lage authorities". It was in accordance with this rule that the decree in question was passed by the Assistant to the Deputy Commissioner who in the first instance also proceeded to execute the decree and recorded the adjustment on an application filed by the par­ties. It is true that on the face of this rule there is no provision for transfer of the decree, but the Courts in this area are to be guided by the spirit of the Code of Civil Procedure, although order 21 Rule 5 of the Code of Civil Procedure may not in terms apply to the case. It is true that on the face of this rule there is no provision for transfer of the decree, but the Courts in this area are to be guided by the spirit of the Code of Civil Procedure, although order 21 Rule 5 of the Code of Civil Procedure may not in terms apply to the case. It was open to the Deputy Commissioner who under the rules was entrusted with the administra­tion of civil justice in the area to take up the execu­tion case for execution in his capacity as Ex-officio Subordinate Judge, because the property against which the execution was sought to be levied was situated in what was known as the. 'British Area of Shillong'. He had as much seizin of the case under the rule as his Assistant and could pass any j order that he thought fit to meet the ends of jus­tice. (4) Mr. Lahiri has pointed out that the Shil­long (Execution of Decrees) Act, 1943 (Assam Act 12 of 1943) had no application to the case because the Act in question applied only to the British portion of the Khasi and Jaintia Hills District. He sub­mits that although the Act purported to provide the Civil Courts having jurisdiction over the Bri­tish portion of Shillong with the power to send de­crees for execution to the Civil Courts having juriH-diction in the Khasi States, and also power to execute decrees sent to them for execution by the Civil Courts having jurisdiction in the Khasi Sta­tes, the Act cannot be given effect to in so far as the Khasi States area is concerned, because ac­cording to the contention of the learned counsel the Assam Legislature could not legislate in regard to that particular area. Section 4 of this Act is relevant and it is pro­vided by this section that if any Civil Court having jurisdiction in Shillong receives for execution a decree from any Civil Court established or continu­ed by the authority of the Central Government or the Crown Representative in the Khasi States, it shall proceed to execute such decree. It is unnece­ssary for us at present to deal with this contention of Mr. Lahiri. We find here that the Deputy Com­missioner fulfilled both these functions. It is unnece­ssary for us at present to deal with this contention of Mr. Lahiri. We find here that the Deputy Com­missioner fulfilled both these functions. He was the person entrusted with the civil ad­ministration of the area in which the decree was passed and he was also the Ex-officio Subordinate Judge in the British Area of Shillong and although under tie rules there was no specific provision for transfer of the execution case, yet acting under the spirit of the Code of Civil Procedure, the Deputy Commissioner could as Ex-officio Subordinate Judge, proceed to execute the decree. We are therefore not satisfied that the contention of the learned counsel is well founded. (5) His next contention is that there wag no personal obligation on the part of the appellant to pay the decretal amount or the stipulated sum of Rs. 90007- as provided by the adjustment bet­ween the parties. This contention is repelled by the plain language of the compromise petition which was filed in the case. Paragraph 7 of the petition clearly recites that the surety shall remain liable to the decree-holder for the stipulated sum of Rs. 90007- and her property described in the schedule thereunder would be subject to attach­ment until the said amount had been duly paid to the decree-holder. Obviously therefore it created a personal liability against the surety to the extent of the amount mentioned and the decree-holder was therefore entitled to execute the decree as ag­ainst the appellant and proceed to attach and-sell, the property in question. (6) Mr. Lahiri has further contended that the document required registration inasmuch as the property was not the subject matter of dispute and under Section 17 of the Registration Act the document had to be registered before any charge could be created in respect of the property. The answer to this contention is two-fold. In the first place the Registration Act did not apply to the area where the decree in question was passed or the adjustment recorded. Even if the document required registration for the purpose of creating a charge over the property, the point would not help the contention of the ap­pellant for the simple reason that on the terms of the document there was a personal liability aga­inst the appellant for the payment of the stipula­ted amount due. Even if the document required registration for the purpose of creating a charge over the property, the point would not help the contention of the ap­pellant for the simple reason that on the terms of the document there was a personal liability aga­inst the appellant for the payment of the stipula­ted amount due. That being so, the decree-holder could still proceed to execute his decree against the appellant and in execution attach and sell her pro­perty. It may be finally observed that even if it is conceded that there was some irregularity in the Deputy Commissioner starting execution as Ex-officio Subordinate Judge and conferring jurisdic­tion on himself as such, we do not think that there was any inherent lack of jurisdiction and it is open to us to rectify that irregularity if any, under Rule 36 of the Rules and pass any order that we may think fit in the ends of justice. In the cir­cumstances we find that there is no substance in any of the points urged by the learned counsel for the appellant. The appeal is accordingly dismiss­ed with costs. K. S. B. Appeal dismissed.