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1967 DIGILAW 414 (ALL)

Kunwar Rajendra Pratap Singh v. Srimati Parbati

1967-11-14

JAGDISH SAHAI, R.CHANDRA

body1967
JUDGMENT Jagdish Sahai, J. - These two execution first appeals have been filed by Kunwar Rajendra. Pratap Singh who is the judgment-debtor in two decrees passed by the Civil Judge of Kanpur. The decree-holder-respondents in both the appeals are the same persons i.e. Smt. Parbati widow' of Ram Kumar, Kailash Nath son of Ram Kumar and Rajendra Kumar minor under the guardianship of Sint. Parbati. In Suit No. 402 of 1950, the respondent-decree-holder obtained a decree against the appellant-judgment-debtor on 12-12-1952 for a sum of Rs. 15,300/- as arrears of rent for the building known as Clyde House situate on the Mahatma Gandhi Road in the city of Kanpur. This decree also provided for interest at the rate of 3 per cent, per annum to run from 7-9I950 as also for costs. The first application for execution was made by the decree holder-respondents on 25-1-1953. This was numbered as Execution Case No. of 1953. This application was dismissed on 28-4-1953. The decree-holders then filed a second execution application on 13-12-1954. This was numbered as Execution Case No. 6 of 1954. Inasmuch as the judgment debtor-appellant resided in Unnao district the decree-holders obtained a transfer certificate from the court of the Civil Judge Kanpur in which the aforesaid applications were made for execution at Unnao. Thereafter they made an application to the Civil Judge Unnao. This application was numbered as Execution Case No. 17 of 1954. In this application, it was prayed that the zamindari abolition compensation bonds and also rehabilitation grant bonds belonging to the judgment-debtor appellant be attached. This application was dismissed on the ground that the numbers of the bonds not being given sufficient details of the property sought to be attached were not available. Thereafter the decree-holder-respondents made another application on 21-31963 to the Civil Judge, Kanpur. In this it was prayed that the judgment-debtor be arrested and detained in prison. The address of the judgment-debtor-appellant given in this application' was "Rajendra Motors Works, Kanpur" and it was alleged that it was necessary to get him arrested be-cause the judgment-debtor was likely to abscond. The learned Civil Judge on 28-3-1963 ordered that by 5-4-1963 process fee be deposited and an affidavit be filed stating the grounds on which the arrest of the judgment-debtor was sought. It appears that neither the process fee was deposited nor was the affidavit filed and on 20-41963 the application was dismissed. The learned Civil Judge on 28-3-1963 ordered that by 5-4-1963 process fee be deposited and an affidavit be filed stating the grounds on which the arrest of the judgment-debtor was sought. It appears that neither the process fee was deposited nor was the affidavit filed and on 20-41963 the application was dismissed. On 12-2-1964, another application was made by the decree-holder-respondents. An objection was filed by the judgment-debtor appellant to this application under Section 47 of the Code of Civil Procedure alleging that the application was barred by limitation and was not in accordance with law. The learned Civil Judge dismissed the objection filed by the judgment-debtor-appellant and this has led to the filing of the First Execution Decree Appeal No. 10 of 1964. The decree-holder-respondents obtained another decree against the judgment debtor-appellant for arrears of rent on 20-7-1953 from the court of the Civil Judge Kanpur. The decretal amount in this case was Rs. 25,746/-. On 22-12-1953 an execution application was made by the decree-holder-respondents in the court of the Civil Judge, Kanpur. This application, it seems, was dismissed. A second execution application was made on 9-1-1954. This was numbered as Execution case No. 16 of 1954. The decree-holder-respondents made an application to the learned Civil Judge, Kanpur for a transfer certificate so that execution could be made at Unnao where the judgment-debtor-appellant resided. The learn. ed Civil Judge granted the transfer certificate, whereupon on 15.11-1954, the decree-holder-respondents made an application to the learned Civil Judge Unnao for attachment of compensation bonds and rehabilitation grant bonds belonging to the judgment-debtor-appellant. This application was dismissed on 25-3-1957 on the finding that inasmuch as the numbers of the compensation bonds and rehabilitation grant bonds had not been' given in the application the same was defective for want of necessary details. On 21-3-1963, the decree-holder-respondents made an application to the Civil Judge, Kanpur for the arrest of the judgment-debtor appellant. In this application the following two allegations were made : 1. That the judgment-debtor-appellant resided at Kanpur and was the Proprietor of Rajendra Motor Works there. 2. That he was likely to abscond and therefore should be arrested and detained in prison. The learned Civil Judge passed an order for the deposit of process fee and the filing of an affidavit stating therein the grounds on which the arrest of the judgment-debtor-appellant was sought. 2. That he was likely to abscond and therefore should be arrested and detained in prison. The learned Civil Judge passed an order for the deposit of process fee and the filing of an affidavit stating therein the grounds on which the arrest of the judgment-debtor-appellant was sought. It appears that no affidavit was filed and on 20-4-1963 the application was dismissed. Thereupon, the decree-holder-respondents made an execution application on 12-2-1964. The judgment-debtor appellant filed an objection under Section 47 of the Code of Civil Procedure to this application also. The grounds that he took are : 1. The previous applications were not in accordance with law. 2. That they were not made in a court of competent jurisdiction. 3. That the same were barred by limitation. Where these objections were dismissed, the judgment-debtor-appellant has filed the First Execution Decree Appeal No. 11 of 1964. against the order dismissing this application. The questions that we have to consider are, firstly, whether the previous applications made in connection with the two cases were in accordance with law, secondly, whether they were made in a court of competent jurisdiction and lastly whether the last two applications in these two cases were barred by limitation. Article 182 (5) of the Indian Limitation Act, 1908 which governs the present case reads : "182. For the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908. Three years; or, where a certified copy of the decree or order has been registered, six years. 5. where the application next hereinafter mentioned has been made the date of the final order -passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order." Therefore all that we have to see is whether the earlier applications made in the two cases could be said to be in accordance with law. We may point out that merely because there are some defects in an application which can be cured by proper steps being taken would not result in making an application incompetent. All that is meant by the expression "applying in accordance with law" is applying to the court to do something in execution which by law that court is competent to do. All that is meant by the expression "applying in accordance with law" is applying to the court to do something in execution which by law that court is competent to do. It does not mean applying to the court to do something which, either to the decree-holder's direct knowledge in fact, or from his presumed knowledge of the law, he must have known the court was incompetent to do. (See Chattar v. Newal Singh, ILR XII Alld. 64). It has been contended by Mr. Mohammad Husain, Learned counsel for the judgment-debtor-appellant that inasmuch as the judgment-debtor did not reside in Kanpur but resided in Unnao at the time the execution application were made, the same were not in accordance with law. The learned Civil Judge has recorded evidence in the case and has found that it has been established by the evidence on the record that the judgment-debtor-appellant left Kanpur after December, 1952 or January, 1953, but that he used to visit Kanpur in connection with his private work even during the year 1963. The learned Civil Judge has held that inasmuch as the judgment-debtor-appellant used to visit Kanpur in the year 1963 the Kanpur court had jurisdiction to execute the decree against him. He placed reliance upon Arratoon and Co. v. Mimrai Purannzu, A.I.R. 1947 Calcutta 262 where it was observed as follows : "On the principle and on authority, therefore I hold that this Court, in execution of its own decree, has power to issue a writ of arrest to be executed within its local limits, even though at the date of the order the judgment-debtors reside or carry on business outside those local limits. Such a writ can be executed as and when the judgment-debtors come within the jurisdiction of this Court." In the present case also the decrees had been passed by the court of the Civil Judge, Kanpur and it was that court which was executing the decrees. This case therefore does lend support to the view of the learned Civil Judge that the applications that were made for execution of the decrees in the Civil Judge's court at Kanpur were competent. The next case on which the learned Civil Judge places reliance is Krishna Frasad v. Bidya Nanda, A.I.R. 1918 Patna 427. This case therefore does lend support to the view of the learned Civil Judge that the applications that were made for execution of the decrees in the Civil Judge's court at Kanpur were competent. The next case on which the learned Civil Judge places reliance is Krishna Frasad v. Bidya Nanda, A.I.R. 1918 Patna 427. In this case the Patna High Court held that merely be cause the judgment-debtor did not reside at the time of the execution application within the jurisdiction of a court would not necessarily preclude that court from issuing a warrant for the arrest of the judgment-debtor and that if the decree-holder has information that the judgment-debt is about to come within the jurisdiction of the court he can validly make an application for a warrant for the arrest of the judgment-debtor as soon as he comes within the jurisdiction of the court. This case also supports the view of the court below. A large number of cases have been cited before us by the learned counsel for the parties, but we do not think it necessary to refer to them because they are all distinguishable. Sec. 38 of the Code of Civil Procedure provides that a decree may be executed either by the court which passed it, or by the court to which it is sent for execution. Section 37 (b) however, provides that 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 the application for the execution of the decree, would have jurisdiction to try such suit. The expression "jurisdiction to execute" as used 'in Section 37 (b) does not mean to exclude the competency of court to entertain an application for execution of the decree. A court which passed the decree would still have jurisdiction to entertain the application, but if it cannot effectively execute the decree because the judgment-debtor is not available within its jurisdiction or if the properties sought to be attached do not lie within its jurisdiction, the court would transfer the decree to another court for the purpose of obtaining the relief which it wants. We find support for our view from Masrab Khan v. Debnath Mali alias Abhu Mali, AIR 1942 Calcutta 321. We find support for our view from Masrab Khan v. Debnath Mali alias Abhu Mali, AIR 1942 Calcutta 321. See also Ram Narain., v. Trilok Hosiery Mills, Lashkar, A.I.R. 1959 MP 423 (87). We are therefore of opinion that the applications that were made in the execution cases relating to the two decrees mentioned above were made in accordance with law within the meaning of Article 182 clause 5 of Schedule I of the Indian Limitation Act, 1908. In view of the fact that the applications that were made were competent and the circumstance that they were made in a court which had passed the decrees, it must be held that the court to which they were made (the court of the Civil Judge at Kanpur) was competent to receive them. We are also satisfied that inasmuch as the applications were made within three years from 20-4-1963 on which date the last two execution applications were dismissed, they were within limitation under Article 182 aforesaid and are not barred by limitation. We find no merits in the two appeals before us and are satisfied that the orders passed by the execution court are correct and do not require any interference. We therefore dismiss both the appeal with costs. Appeal dismissed.