1. The point involved in this Civil revision application is whether an execution proceeding pending in one court can be transferred, under Section 24 of the CPC, 1908, to another court. If so, whether that power should be exercised by me sitting as a revisional court against the decision of the Learned District Judge refusing to transfer this case. I shall shortly state the facts: The decree-holder-petitioners obtained a decree for possession and mesne profits in respect of certain properties situate in the district of Monghyr, in the year 1940. An appeal by the defendant-opposite party to the lower appellate court failed in 1944. His second appeal to this Court was dismissed on the 12th of January 1948. I need not mention about the various endeavours thereafter made to take the matter to the Privy Council and/or to the Supreme Court as they all failed and the defendant did not succeed in any one of them. In the year 1945 by notification no. 215A dated the 24th January 1945 the Government of Bihar established a new Court of Sub-ordinate Judge at Begusarai.
2. The property in regard to which the decree was passed by the Monghyr court came to lie by virtue of this notification within the territorial jurisdiction of the court of the Sub-ordinate Judge at Begusarai. The decree-holders, however, were advised to file their Execution Case no. 12 of 1950 in the Sub-ordinate Judge's 1st Court at Monghyr, i.e the court which had passed the decree. This execution case was filed on the 14th February 1950. Various obstructions were put in the way of the decree-holders in reaping the fruits of their decree. By order dated 16-6-53 passed in Miscellaneous Case no. 15 of 1953 on an application under Section 47 of the CPC filed by the judgment-debtor opposite party the learned Sub-ordinate Judge in whose Court the execution case was pending, held as follows:—
“In view of the authorities mentioned above, I find that this court is competent to entertain the application for execution of the decree for the purpose of saving limitation, but so far as actual delivery of possession is concerned, as the land over which possession is to be delivered lies within the territorial jurisdiction of the court of the Sub-ordinate Judge, Begusarai the decree-holders should apply for transmission of the decree to that court”
The last portion of the order read thus:—
“I am therefore, of opinion that this Court cannot give actual delivery of possession and the remedy of the decree-holders lies in applying for transmission of the decree to the court of the Sub-ordinate Judge of Begusarai by a regular petition”.
3. In my opinion, the view taken by the learned Sub-ordinate Judge in the said miscellaneous case was wrong. The proper court to execute the decree was the court which had passed it, and, that simply because a new court created in the year 1945 got territorial jurisdiction in regard to the property in question was no ground to hold that the court which had passed the decree had no jurisdiction to give delivery of possession. I am fortified in this view by a decision of the Supreme Court in Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87 where at page 93 it has been observed by Venkatarama Ayyar, J.
“And it is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court.”
Be that as it may, the decree-holders, however, were not advised to move the higher court against the decision of the learned Sub-ordinate Judge. But when he was moved for sending the records of the execution case to the Sub-ordinate Judge of Begusarai for effecting delivery of possession, he passed the following order on 19-6-53.
“The record can be sent only under the orders of the District Judge.
The decree-holders thereafter moved the District Judge of Monghyr to transfer the execution case which was filed in the Sub-ordinate Judges Court at Monghyr to the court of the Sub-ordinate Judge at Begusarai. The learned District Judge allowed this application without notice to the judgment-debtor by his order dated 1-7-53. The judgment debtor moved this Court in C.R No. 791 of 1953 and Bench of this Court by order dated the 10th January 1957 took the view that on the application of the decree-holders under section 24 of the Code it was necessary for the District Judge to give notice to the Judgment-debtor and to hear him.
4. The order of the District Judge dated 1-7-53 was therefore set aside and the application for transfer was remanded to him for disposal according to law. The matter has now been disposed of by the third Additional District Judge of Monghyr who has held, on the authority of Ranjit Kumar Banerjee v. Gour Hari Mukherji, AIR 1956 Cal 655, that he has no power to order the transfer of an execution case from one court to another. When requested to transfer the case by the inherent powers under Section 151 of the CPC he held that if the execution case would have been filed in the Court at Monghyr prior to the creation of the Sub-ordinate Judge's court at Begusarai the case could be transferred under section 151: but the present case was in the opinion of the learned Additional District Judge, wrongly filed in the court of the Sub-ordinate Judge at Monghyr lone after the creation of the court of the Sub-ordinate judge at Begusarai and therefore he was not inclined to exercise his inherent powers for the transfer of this case. The decree-holders have therefore, come up in revision to this Court. Mr. Lal Narayan Sinha appearing for the petitioners has not contended before me that if the learned District Judge hod no power to transfer the case under section 24 of the Code, he would have power under section 151 to transfer it but he has vehemently argued that the Calcutta case referred to above was wrongly decided and that correct view of law is the one taken by the Allahabad, Bombay and the Madras High Courts, respectively in Muhammad Habibullah v. Tikam Chand, AIR 1925 All 276 (2); Nasservanii v. Kharsedji Dhunji Shah, ILR 22 Bom 778 and Rajagopala Pandarathar v. Tirupathia Pillai AIR 1926 Mad 421.
5. Mr. Prem Lal appearing for the judgment-debtor opposite party has, on the other hand, contended that the Calcutta view is the correct view and it is the cursus curiae of the Calcutta High Court which ought to be followed by me in this Court and specially sitting as a single judge. He also made a request to me to refer this case to a Division Bench for hearing, in case, I am not inclined to follow the Calcutta view. Mr. Prem Lal's argument and suggestion to that extent are correct, as, ordinarily this Court follows the Calcutta view, but not necessarily, and I would have accepted his suggestion to refer this case to a Division Bench, but for the special circumstances of this case which are, as pointed out by Mr. Lal Narayan Sinha, that the decree in this case, as passed by the trial Court, was confirmed by this Court in a second appeal on 12-1-48 and 12 years would be expiring within a few days, and if I refer this case to a Division Bench it is not likely to be heard before the 12th of January 1960. Seeing force in what has been said on behalf of the decree-holder-petitioners, I decided to hear this case and dispose it of sitting singly by expressing my own view in the matter.
6. For appreciating the various decisions it would be necessary to keep in view the language of Section 25 of the CPC of 1882 which read as follows:—
“The High Court or District Court may, on the application of any of the parties after giving notice to the parties and hearing such of them as desire to be heard or of its own motion without giving such notice withdraw any suit whether pending in a court of first instance or in a court of appeal Sub-ordinate to such High Court or District Court as the case may be and try the suit itself, or transfer it for trial to any other such Sub-ordinate court competent to try the same in respect of its nature and the amount or value of its subject-matter. For the purposes of this section the courts of Additional and Assistant Judges shall be deemed to be Sub-ordinate to the District Court.
The Court trying any suit withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit be deemed to be a Court of Small Causes.”
7. The corresponding 24th Section of the Code of 1908 runs thus—
“1. On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage—
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court Sub-ordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any court Sub-ordinate to it, and
(i) try or dispose of the same: or
(ii) transfer the same for trial or disposal to any court Sub-ordinate to it and competent to try or dispose of the same: or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
2. Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which thereafter tries such suit may, subject to any special direction in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
3. For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be Sub-ordinate to the District Court
4. The court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.”
8. The important words of difference in the two sections to be noticed are that under section 25 of the former Code the words “other proceeding” were not there as are to be found in section 24 of the later Code and the word “disposal” was also not to be found in the 23th Section, whereas it is to be found in the 24th one. Section 373 of the Code of 1882 corresponded to the provisions of Order 23, Rule 1 of the CPC, 1908. More or less, the provisions were the same. The only word “suit” was there in section 373 and so is it in order 23, rule 1.
9. The argument before the Privy Council in Thakur Pershad v. Fakirullah, 22 Ind App 44 (PC) which case is the basis of the Calcutta decision, was that if an execution proceeding were withdrawn without the leave of the court a second application for execution was not maintainable in view of the provisions of section 373 of the Code of 1882 read with section 647 of that Code (which corresponds to section 141 of the Code of 1908). The Privy Council repelled that argument and held that—
“Their Lordships think that the proceedings spoken of in section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions”.
10. It would appear from the observations in the last but one paragraph of the judgment of Lord Hobhouse who delivered the judgment of the Board in the Privy Council case that their Lordships' attention had also been called to the new provisions of the Code of 1892. That provision probably was on the lines of the provisions of Order 23, rule 4 of the Code of 1908, whereby expressly the application of Order 23 has been excluded to the proceedings in execution. The observations of the Privy Council in Thakur Pershad's case 22 Ind App 44 (PC) were interpreted by Das Gupta, J. (as he then was) to exclude execution proceedings from the operation of Section 24 of the CPC of 1908 also and on that ground alone, if I have been able to appreciate his Lordship's judgment all right, the different view taken by the other High Courts was dissented from. With utmost respect I venture to say that the observation of the Privy Council has been wrongly extended to exclude execution proceedings from the operation of the 24th Section of the Code of 1908.
11. The Privy Council in that case was concerned to interpret section 647 of the Code of 1882, which, ??? I have stated above corresponds to section 141 of the Code of 1908. The Privy Council refused to accept the argument that in view of the provisions of that section the words “execution proceedings” should be deemed to have been included in procedure provided in section 373 of that Code. It held that “all proceedings” in section 647 did not include execution proceedings and various reasons were given for adopting this view. Their Lordships of the Judicial Committee were neither concerned nor have they made any observation indicating that execution proceedings could not be transferred under Section 25 of the Code of 1882.
12. I have quoted the 25th section of the previous-Code as well as the 24th Section of the present Code to show the difference between the provisions of the two sections. Even if, on the strength of the Privy Council decision in Thakur Pershad's case, 22 Ind App 44 (PC) it could be contended that the 25th Section of the Code of 1882, with the help of section 647 of that Code, could not mean that an execution proceeding could be transferred from one court to another, in my Opinion, that argument after the Code of 1908 is not available for the simple reason that the 24th section of the present Code has got to be interpreted and can be interpreted without the help of section 141 of this Code.
13. The clear provisions of section 24 are that the High Court or the District Court may transfer any suit, appeal or other proceeding pending before it for trial or disposal to any other court for trial or disposal. Of course, that court must be competent to try or dispose of the same and what is meant by such competency has been, if I may say so with respect, clearly explained in the Madras case of AIR 1926 Mad 421. The 25th Section of the Code of 1882 was interpreted by the Bombay High Court in ILR 22 Bom 778, to include the case of transfer of an execution proceeding with the help of section 647 of that Code.
14. It may well be that the Bombay decision, in view of the decision of the Privy Council in Thakur Pershad's case, 22 Ind App 44 (PC) may be open to some doubt. The Allahabad High Court also has, more or less, taken a similar view in Muhammad Habibullah's case in AIR 1925 All 276 (2). It has held that the word “suit” in section 24 includes execution proceedings and for this they have relied upon their earlier Full Bench decision in Gaya Parshad…(Decree-Holder); v. Bhup Singh…(Judgment-Debtor)., ILR 1 All 180, which was a case decided under the Code of 1859. But I am in full agreement, with respect, with the reasons and the view expressed by Venkatasubba Rao, J. in the Rajagopala's case, AIR 1926 Mad 421.
15. If I may add a few words of my own also, I am of the view that execution proceedings are covered by the expression “other proceeding” in section 24 of the Code and therefore the High Court or the District Court has got power in appropriate cases under that section to transfer an execution case from one court to another for disposal.
16. The only Calcutta decision which was brought to my notice after the enactment of the Code of 1908 is the one referred to above namely, AIR 1956 Cal 655. The other three Calcutta decisions relied on by Mr. Prem Lal are:— Kedar Nath Mahata v. Bungshee Dhur Roy, 17 Suth WR 45, Shaikh Hamidooddeen v. Bhadae Sahoo, 18 Suth WR 345, and Kishori Mohan Sett v. Gul Mohamed Shaha, ILR 15 Cal 177. But all the three cases were decided before the Code of 1908 and I have shown above that the language in the 25th Section of the Code of 1882 was different in material particulars from the one in the 24th section of the Code of 1908, and that is also one of the reasons that I have preferred to follow the Madras view and not the Calcutta one.
17. The court below so far the exercise of powers under section 24 is concerned, has failed to exercise it by taking a wrong view of the law that it has no such power and has not applied its mind as to whether this was a fit case for transfer. The reasons which it has given for not exercising its powers, if any, under section 151 of the Code are erroneous as I have shown above on the authority of the Supreme Court decision in (S) AIR 1956 SC 87 that primarily the proper court where the execution case ought to have been levied was the Monghyr court.
18. It is no doubt true that the decree-holders were ill-advised in not moving the higher court against the erroneous order dated the 16th June 953 of the Monghyr Court, but that, in my opinion, is no ground for refusing to exercise the powers under section 24 of the Code for transferring the execution case no. 12 of 1950 pending in the court at Monghyr to the Court at Begusarai. It is to be seen that the plaintiffs succeeded throughout in getting their decree for possession and mesne profits and it would be unfortunate if they would be debarred from reaping the fruits of their decree because of the said erroneous order.
19. That order was followed by another wrong order dated the 19th June 1953 when the learned Sub-ordinate Judge of Monghyr observed that the case would be transferred only under the orders of the District Judge. If he would have treated that application of the decree-holders as one under Section 39 of the CPC, he could lave transmitted the decree for execution to the court at Begusarai, but that course also was not adopted.
20. The last course left to the decree-holders was to apply under section 24 of the Code to the District Judge for transferring the execution case itself in view of the Sub-ordinate Judge's orders dated 16-6-53 and 19-6-53, and in this the decree-holders have failed on the ground that an execution proceeding cannot be transferred under section 24 of the Code, a view which I have dissented from.
21. In my opinion, therefore, this is a fit case where transfer should be ordered. I, therefore allow this Civil Revision application and direct that the execution case no. 12 of 1950 pending in the Court of the Sub-ordinate Judge, first court, Monghyr, shall be withdrawn and be transferred to the Court of the Sub-ordinate Judge at Begusarai for disposal. I would, however, make no orders as to costs.
DD/K.S.B
22. Revision allowed.