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Smart Summary

Court Opinion — Structured Summary

Factual and Procedural Background

The decree-holder obtained a mortgage decree in the Court of the First Munsif at Kishoreganj; the decree was made final on December 7, 1932. The first application for execution was filed on December 3, 1935 in the Court of the Second Munsif at Kishoreganj (not in the First Munsif that passed the decree), the ground being that the area where the mortgaged property lay had been assigned to the Second Munsif under sec. 13(2) of the Bengal, Agra and Assam Civil Courts Act. That application was dismissed for default on December 10, 1935. The present application for execution was presented in the Court of the First Munsif on November 15, 1938. The trial Court decided the point (concerning whether the earlier application was to a proper Court for limitation purposes) in favour of the decree-holder; the Subordinate Judge, 3rd Court, Mymensingh (Lower Appellate Court) reversed that decision by an order dated August 5, 1939. This appeal, brought on behalf of the decree-holder, challenges that appellate order.

Legal Issues Presented

  1. Whether the first application for execution (filed in the Second Munsif on December 3, 1935) was an application made to the proper Court within the meaning of Art. 182, cl. (5) of the Limitation Act (such that limitation would run from December 10, 1935, the date of the final order in that proceeding).
  2. Two subsidiary legal questions arising from the foregoing: (a) whether the Court of the Second Munsif was a "Court which passed the decree" within the meaning of sec. 37(b) of the Code of Civil Procedure; and (b) whether the business of the First Munsif was transferred to the Second Munsif within the meaning of sec. 150 of the Code of Civil Procedure (so as to make the Second Munsif competent to entertain the execution application).

Arguments of the Parties

Appellant's Arguments (as stated in the opinion)

  • Mr. Roy, for the decree-holder, conceded that the Court of the First Munsif of Kishoreganj had not ceased to exist and remained competent to entertain an execution application.
  • He contended, however, that because the First Munsif could no longer sell the mortgaged property (the property lay outside its territorial jurisdiction after redistribution), it must be treated as having "ceased to have jurisdiction to execute" the decree within the meaning of sec. 37(b) of the Code of Civil Procedure; consequently the Second Munsif (in whose territorial area the property then lay) ought to be regarded as the Court which "passed the decree" for the purposes of sec. 37(b).
  • He relied on decisions of the Court, notably Lutchman Pandeh v. Madan Mohun and Jahar v. Kamini Debi, to support the view that an execution application could properly be made in either the original Court or the Court now territorially competent over the property.

This opinion does not set out any detailed counter-arguments advanced by the Respondents in the record of the judgment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Lutchman Pandeh v. Madan Mohun Held (Division Bench) that an execution application was rightly made to the original Munsif whose decree it was, notwithstanding redistribution of areas; contains observations by Garth, C.J., suggesting the alternative Court might also be regarded as having "passed the decree" under the old sec. 649 (corresponding to present sec. 37). Court considered the case but found it did not help the appellant's contention; it noted that Garth, C.J.'s observations were obiter and that Field, J.'s contrary view (that original Court did not cease to have jurisdiction by reason of alteration of local limits) was directly supportive of the Court's view. The Court followed Field, J.'s approach.
Jahar v. Kamini Debi Interpreted sec. 649 (now sec. 37) and followed the opinion of Garth, C.J. in Lutchman Pandeh, but (as applied) held sec. 649/37 would not apply where there was only redistribution of business under sec. 13(2) of the Civil Courts Act. Court treated this decision as against the appellant's contention: it affirmed that redistribution under sec. 13(2) does not make the alternative Court the Court which "passed" the decree under sec. 37.
Sreenath Chakravarti v. Priyanath Bandopadhyay Drawn on for a distinction between a Court's power to "execute" a decree effectively and its power to "entertain an application" for execution (i.e., the original Court may entertain an application and transmit it for execution elsewhere). Court relied on this distinction to support the view that "jurisdiction to execute" includes competency to entertain an execution application and that inability to sell property outside territorial limits does not amount to cessation of jurisdiction under sec. 37(b).
Kalipada Mukherji v. Dinanath Holds that an order under sec. 13(2) of the Civil Courts Act is a redistribution of civil business and does not effect a transfer of jurisdiction; competency of Courts remains as fixed by the Local Government under sec. 13(1). Court relied on this authority (and the reasoning of Banerjee, J.) to conclude that redistribution under sec. 13(2) did not cause the First Munsif to cease to have jurisdiction to execute the decree.
Raja Jagannath Prosad Singh v. Sheonandan Sahay Patna High Court acceptance of the view that redistribution under sec. 13(2) does not transfer jurisdiction. Cited as further support for the proposition that an order under sec. 13(2) does not curtail the jurisdiction of the originally constituted Court.
Munshi Md. Kasem Ali v. Munshi Niamuddin Held that assignment of business under sec. 13(2) of the Civil Courts Act is not a "transfer of business" within the meaning of sec. 150 of the Code of Civil Procedure. Court followed this authority to reject the attempt to invoke sec. 150 in favour of the decree-holder.
Jitendra Nath Pal v. Birendra Kishore Roy Followed Munshi Md. Kasem Ali and confirmed that assignment under sec. 13(2) is not a transfer within sec. 150. Court relied on this later authority to reinforce the conclusion that sec. 150 could not be used to treat the Second Munsif as having acquired execution jurisdiction by transfer.

Court's Reasoning and Analysis

The Court identified the central statutory provisions that govern the question: sec. 37 of the Code of Civil Procedure (definition of "Court which passed a decree"), sec. 38 (which Court may execute a decree), sec. 150 (effect of transfer of business), and sec. 13(1) and (2) of the Bengal, Agra and Assam Civil Courts Act (local limits and redistribution of business).

The Court recognised two alternative routes by which the decree-holder might save limitation: (1) by showing that the Second Munsif was a "Court which passed the decree" within sec. 37(b); or (2) by showing that the business of the First Munsif had been transferred to the Second Munsif under sec. 150 of the Code (so that the Second Munsif could be treated as the competent executing Court).

As to the first alternative (sec. 37(b)): the Court accepted the concession that the First Munsif had not ceased to exist and remained able to entertain an execution application. It examined the appellant's contention that inability to effect an effective sale (because the property lay outside territorial limits) equated to having "ceased to have jurisdiction to execute" within the meaning of sec. 37(b), thereby making the Second Munsif the substituted "Court which passed the decree."

The Court analysed the language and purpose of sec. 37 and the precedents. It rejected Garth, C.J.'s expansive obiter interpretation in Lutchman Pandeh (that a second Court might also be regarded as having "passed" the decree when the original Court had ceased to have jurisdiction), noting that Field, J.'s contrary view (that the original Court did not cease to have jurisdiction merely by reason of alteration of local limits) was directly on point and that the Court agreed with Field, J.'s approach.

The Court explained its interpretive stance: the term "includes" in sec. 37, while enlarging meaning in one sense, operates to substitute another Court for the original Court in the specific circumstances enumerated in cl. (a) and (b). To come within cl. (b), the original Court must have "ceased to exist or to have jurisdiction to execute" the decree. The Court found it contradictory to say that an original Court had ceased to have jurisdiction and yet remained competent to entertain execution applications. It therefore construed "jurisdiction to execute" to include the competency to entertain such applications. Even where the original Court cannot itself effectively execute (e.g., cannot sell property beyond its territorial limits), it still retains jurisdiction to entertain and transmit for execution elsewhere.

The Court further reasoned that a redistribution of civil business under sec. 13(2) of the Civil Courts Act is not a transfer of jurisdiction: sec. 13(1) fixes jurisdiction by Local Government and sec. 13(2) merely distributes business among multiple Courts for convenience. Drawing on Kalipada Mukherji v. Dinanath and Jahar v. Kamini Debi, the Court held that redistribution under sec. 13(2) does not occasion cessation of the original Court's jurisdiction under sec. 37(b).

Regarding the second alternative (sec. 150): the Court addressed whether the order under sec. 13(2) of the Civil Courts Act could be treated as a "transfer of business" within sec. 150 of the Code of Civil Procedure. It relied on precedents (Munshi Md. Kasem Ali; Jitendra Nath Pal) holding that assignment under sec. 13(2) is not a transfer within sec. 150. The Court found that the District Judge's order merely required future business arising from a particular area to be handled by the Second Munsif; there was no transfer of the decree or its execution, nor a removal of the First Munsif so as to transfer pending cases to another Court.

On both counts, therefore, the Court concluded that the Second Munsif was not the Court which "passed the decree" under sec. 37(b), and sec. 150 could not be invoked to treat the Second Munsif as having acquired execution jurisdiction. Consequently, the first execution application made in the Second Munsif could not be treated as an application to the proper Court for the purposes of Art. 182, cl. (5) of the Limitation Act.

Holding and Implications

Holding: The Court AFFIRMED the decision of the Lower Appellate Court and DISMISSED the appeal.

Implications:

  • The decree-holder's appeal was dismissed; the Court concluded that the decree-holder could not rely on the first execution application filed in the Second Munsif to save limitation under Art. 182, cl. (5) of the Limitation Act.
  • The Court held that (i) redistribution of civil business under sec. 13(2) of the Civil Courts Act does not operate as a transfer of jurisdiction so as to make another Court the Court which "passed the decree" under sec. 37, and (ii) an assignment under sec. 13(2) is not a transfer within the meaning of sec. 150 of the Code of Civil Procedure.
  • The direct effect on the parties is the dismissal of the appeal and the affirmation of the Lower Appellate Court's order; the opinion does not purport to create any new, broader precedent beyond its application of existing principles and authority.
  • There was no order as to costs in the appeal.

End of summary — based exclusively on the contents of the provided opinion.

Show full summary ...

    Masrab Khan v. Debnath Mali

    The Judgment of the Court was as follows:

    Mukherjea, J.:— This appeal is on behalf of the decree-holder and it is directed against an Appellate order of the Subordinate Judge, 3rd Court, Mymensingh, dated August 5th, 1939, reversing the order of the Munsif, First Court, Kishorganj, made in a proceeding under sec. 47 of the Code of Civil Procedure.

    2. The material facts lie within a narrow compass and are not disputed. The Appellant obtained a mortgage decree against the Defendants Respondents in the Court of the First Munsif at Kishoreganj and the decree was made final on December 7th, 1932. The first application for execution was made on December 3rd, 1935, and it was filed in the Court of the Second Munsif at Kishoreganj and not in that of the First Munsif which passed the decree, the ground alleged being that subsequent to the passing of the decree the particular area where the mortgaged property was situated was assigned to the Munsif, Second Court, under sec. 13 (2) of the Bengal, Agra and Assam Civil Courts Act. This application was dismissed for default on December 10th, 1935.

    3. The present application for execution was presented in the Court of the First Munsif on November 15th, 1938.

    4. The whole controversy centres round the point as to whether the first application for execution was an application made to the proper Court within the meaning of Art. 182, cl. (5) of the Limitation Act. If it was, limitation would run from December 10th, 1935, when the final order was made in the proceeding, and the present application would be in time. If not, the application must be held to be time-barred. The trial Court decided this point in favour of the decree-holder. The Lower Appellate Court has decided against him. The sole point for our consideration in this appeal is whether the view taken by the Lower Appellate Court is right.

    5. To determine this point it is necessary first of all to turn to the relevant provisions of the Code of Civil Procedure. Under sec. 38 of the Code a decree can be executed by the Court which passed the decree, or by the Court to which it is sent for execution. Sec. 37 defines the expression “Court which passed a decree,” and cl. (b) of that section lays down that the expression shall be deemed to include “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.”

    6. The only other relevant provision is contained in sec. 150 of the Code of Civil Procedure which runs as follows:

    “Save as otherwise provided, where the business of any Court is transferred to any other court, the court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the court from which the business was so transferred.”

    7. The decree-holder can succeed in saving limitation in the present case, if he can make out either of two alternatives, namely, that the Court of the Second Munsif of Kishoreganj was a Court which passed the decree within the meaning of sec. 37 (b) of the Code of Civil Procedure, or that the business of the Court of the First Munsif was transferred to that of the Second Munsif as contemplated by sec. 150 of the Code.

    8. So far as the first alternative is concerned, it is conceded by Mr. Roy who appears for the decree-holder that the Court of the First Munsif of Kishoreganj not only had not ceased to exist, but it was quite competent even now to entertain an application for execution of the decree which was passed by it. He contends, however, that as it could not sell the property which was no longer within its territorial jurisdiction, it must be deemed to have ceased to have jurisdiction to execute the decree within the meaning of sec. 37 (b) of the Code of Civil Procedure, and as a mortgage suit in respect of the same property would now have to be instituted in the Court of the Second Munsif, that Court must be regarded as the Court which passed the decree as contemplated by sec. 37 (b).

    9. Mr. Roy's contention in substance is that the application for execution could be filed either in the Court of the first Munsif or in that of the Second Munsif, and in support of his contention he relies upon certain decisions of our Court which are to be found in Lutchman Pandeh v. Madan Mohun (1) and Jahar v. Kamini Debi(2).

    10. In Lutchman Pandeh v. Madan Mohun(1), there was a mortgage decree passed by the Court of the Munsif at Manbazar on December 5th, 1876. On December 5th, 1879, an application was made to the same Court which was then sitting at Burrabazar for execution of the decree. In the meantime the particular area in which the mortgaged property was situated had been removed from the Munsifi of Manbazar to the Munsif of Katra. Objections were raised that the application for execution had not been made to the proper Court and that the execution creditor was bound to apply to the Munsif of Katra within whose jurisdiction the mortgaged property then was. This contention was given effect to by both the Courts below, but their decision was reversed on second appeal by a Division Bench of this Court, which held that the application for execution was rightly made to the Court of the Munsif at Manbazar.

    11. The decision itself is of no assistance to Mr. Roy, for it would only support the contention that the Court of the First Munsif of Kishoreganj was still the proper Court to which his client could apply for execution of the decree. Mr. Roy, however, relies on certain observations made by Garth, C.J, in course of his judgment, which were to the effect that the Court of the Munsif of Katra could also be regarded as a Court which passed the decree within the meaning of sec. 649 of the old Civil Procedure Code, which corresponds to sec. 37 of the present Code.

    12. In construing sec. 649 (now sec. 37) of the Code of Civil Procedure, the learned Chief Justice observed as follows:—

    “This clause which explains the meaning of the expression the Court which passed the decree' does sot exclude the Court which originally passed the decree, as being a Court to which the application should be made, but only includes another court; and I take the meaning of the clause to be this that when the Court which passed the decree had ceased to have jurisdiction to execute it, the application for execution may be made either to that Court, although it had ceased to have jurisdiction to execute the decree, or to the Court which, if the suit wherein the decree was passed were instituted at the time of making the application to execute it, would have jurisdiction to try the suit.”

    13. As it was not necessary to decide for purposes of that case as to whether the Katra Court was a competent Court to which the application for execution could properly be made, these observations could rank only as obiter, though, coming from such a high authority, they are entitled to the greatest respect. It is pertinent, however, to point out that Field, J., who sat with the learned Chief Justice did not endorse that view of the law, and, on the other hand, expressly held in course of his judgment that the Court at Man-bazar did not cease to have jurisdiction to execute the decree within the meaning of sec. 649 (now sec. 37) of the Code of Civil Procedure by reason of the alteration of the local limits of its jurisdiction.

    14. Speaking for ourselves, we find it somewhat difficult to accept the interpretation which Garth, C.J, put upon sec. 649 of the Code of Civil Procedure. It seems to us that the word “includes” as used in the section, though it extends the meaning of the expression “Court which passed the decree” in one sense, does in another sense restrict it, and that the effect of the word is to exclude, under the circumstances specified in cl. (a) and cl. (b) of the section, the original Court and substitute for it another Court which for purposes of the section is to be regarded as the only Court which passed the decree.

    15. Thus when a decree is passed in exercise of Appellate Jurisdiction as contemplated by cl. (a) of sec. 37, it cannot be said that the word “include” would not exclude the Appellate Court which passed the decree, and that both the original and the Appellate Courts are proper Courts for execution, to either of which an application for execution of the decree could be made. Similarly, to bring a case within the purview of cl. (b) of the section, it is essential that the Court which originally passed the decree has ceased to exist or to have jurisdiction to execute it, and then only can the other Court, which would be entitled to try the suit if it was then instituted, be regarded as the Court which passed the decree. The other Court is substituted for and not added to the original Court. If the original Court has ceased to exist, no question arises of applying to it for purposes of execution. If it still exists, but has ceased to have jurisdiction to execute the decree, it is a contradiction in terms to say that it still remains a competent Court for purposes of execution. We cannot imagine how an application for execution could be made to the original Court, if it had ceased to have jurisdiction to execute the decree.

    16. A distinction indeed has been drawn in some cases between executing a decree and entertaining an application for its execution [vide Sreenath Chakravarti v. Priyanath Bandopadhyay(3)], and it has been said that even if the original Court cannot execute the decree in the sense that it cannot do it effectively by selling a property which is beyond its territorial jurisdiction, it can certainly entertain the application itself and then transmit the decree for execution to another Court.

    17. In our opinion, the expression “jurisdiction to execute it” as used in sec. 37 (&) of the Code of Civil Procedure does mean and include the competency of the Court to entertain an application for execution of the decree. Even if in the circumstances of a particular case a Court cannot effectively execute the decree, that would not mean that it has ceased to have jurisdiction to execute it. It still remains the competent Court for purposes of execution, though the decree-holder might have to apply for transmission of the decree to another Court for the purpose of obtaining the relief which he wants. This was the view taken by Field, J., in Lutchman Pandeh v. Madan Mohan and in that view we respectfully agree.

    18. But even assuming that the view taken by Garth, C.J, is the proper view to take, it is well-settled by decisions of this Court, including that of Jahar v. Kamini Debi, upon which Mr. Roy himself relies, that a case like this, where there was a mere redistribution of civil business by the District Judge under sec. 13 (2) of Act XII of 1887, does not come within the purview of the rule enunciated by the learned Chief Justice.

    19. Under sec. 13 (1) of the Bengal, Agra and Assam Civil Courts Act it is the Local Government which can by notification in the official gazette fix and alter the local limits of the jurisdiction of any Civil Court under the Act. The local limits thus fixed by the Local Government determine the jurisdiction of the Courts. Cl. (2) of sec. 13 then provides that if the same local jurisdiction is assigned to two or more Subordinate Judges or to two or more Munsifs, the District Judge may assign to each of them such civil business cognisable by the Subordinate Judge or Munsif as the case may be as, subject to any general or special orders of the High Court, he thinks fit.

    20. An order under sec. 13 (2) of the Civil Courts Act does not effect a transfer of jurisdiction. It merely distributes, as a matter of convenience and with reference to certain local areas, the civil business amongst two or more Courts, each of which has jurisdiction over the whole area. In such cases neither of the Courts would lose the jurisdiction which it enquired under sec. 13 (1) of the Act.

    21. This was the view taken by Sir Francis Maclean, C.J and Banerjee, J., in Kalipada Mukherji v. Dinanath(4), which was followed by another Division Bench in Jahar v. Kamini Debi (2). The same view was accepted by the Patna High Court in Raja Jagannath Prosad Singh v. Sheonandan Sahay(5).

    22. In the present case it is not disputed that the redistribution of local areas was made by the District Judge of Mymensingh under sec. 13 (2) of the Civil Courts Act. This was only an arrangement for distribution of civil business in that particular sub-division. It cannot and has not disturbed or in any way curtailed the jurisdiction of the First Munsif of Kishoreganj over the entire area as determined by the Local Government under sec. 13 (1) of the Civil Courts Act.

    23. It may be contended that the Court of the Second Munsif, also having jurisdiction over the same local area, could entertain an application for execution of the decree. The answer is given by Banerjee, J., in Kalipada Mukherji v. Dinanath. The competency of the Second Munsif was not affected by the order under sec. 13 (2) of the Civil Courts Act, but it was affected by sec. 38 of the Code of Civil Procedure which lays down that a decree could be executed only by the Court which passed it or the Court to which it was sent for execution.

    24. It is not necessary to say anything further with reference to the case of Jahar v. Kamini Debi which was relied on by Mr. Roy. That case followed the opinion of Garth, C.J, in Lutchman Pandeh v. Madan Mohun but expressly laid down that sec. 649 (now sec. 37) of the Code of Civil Procedure would not apply when there was no transfer of jurisdiction under sec. 13 (1) of the Civil Courts Act, but only a redistribution of business under cl. (2) of sec. 13 of the Act. This decision, therefore, far from supporting the contention of Mr. Roy, is decidedly against him.

    25. Our conclusion, therefore, is that the Munsif, First Court of Kishoreganj, did not cease to have jurisdiction to execute the decree by reason of the order of the District Judge under sec. 13 (2) of the Civil Courts Act, and the Court of the Second Munsif could not consequently be regarded as the Court which passed the decree within the meaning of that section.

    26. The other point that requires consideration is as to whether the decree-holder can invoke the provisions of sec. 150 of the Code of Civil Procedure in his favour. Here also we think that our answer must be in the negative. It was held by Chatterjea and Chotzner, JJ., in Munshi Md. Kasem Ali v. Munshi Niamuddin(6) which was followed later on in Jitendra Nath Pal v. Birendra Kishore Roy(7) that an assignment of business under sec. 13 (2) of the Bengal, Agra and Assam Civil Courts Act is not a transfer of business within the meaning of sec. 150 of the Code of Civil Procedure. In our opinion this view is right. The effect of the order made by the District Judge in this case under sec. 13 (2) of the Civil Courts Act would be nothing else than that all business arising from a particular area subsequent to the order of the District Judge would have to be done by the Second Munsif and not by the First Munsif. There is nothing to show that the decree passed by the First Munsif or the execution thereof was transferred to the Second Munsif. It is not also a case where on the removal of a particular Court all the pending cases were transferred to another Court.

    27. In these circumstances we think that the decree-holder cannot have the advantage of sec. 150 of the Code of Civil Procedure, and it cannot be said that the Court of the Second Munsif was competent to entertain the application for execution which was presented to it in December, 1936.

    28. The result, therefore, is that we affirm the decision of the Lower Appellate Court and dismiss the appeal. There will be no order as to costs in this appeal.

    Biswas, J.:— I agree.

    P.C

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    Comments

    Masrab Khan v. Debnath Mali
    (Aug 11, 1941)