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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • R.C Mitter
  • Mohamad Akram, JJ.
Acts
  • provisions of cl. (b) of Section 39 of the CPC.
  • provisions of cl. (d) of Section 39 of the CPC.
  • O. 21, R. 16 and Section 47 of the CPC.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • R.C Mitter
  • Mohamad Akram, JJ.
Acts
  • provisions of cl. (b) of Section 39 of the CPC.
  • provisions of cl. (d) of Section 39 of the CPC.
  • O. 21, R. 16 and Section 47 of the CPC.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal was preferred by three judgment-debtors — Manmatha Pal Choudhury, Amiya Pal Choudhury and Ranjit Pal Choudhury — against an order of the Subordinate Judge of Nadia dated 5 July 1938. The underlying events leading to the litigation are as follows:

  • In 1924 one Jagannath Khan and others (referred to as "the Khans") took a loan of Rs. 1,80,000 from the Faridpur Loan Office and executed a mortgage bond hypothecating certain properties including specified touzies of the Nadia Collectorate.
  • In 1931 the Loan Office sued on the mortgage in the Original Side of this Court, obtaining a preliminary decree on 9 July 1931 and a final decree on 9 January 1933.
  • Execution of that decree followed. The judgment-debtors sought time to pay; by agreement time was given on condition that they provided as further security three rent decrees already obtained against their tenants and the growing rents. The court gave effect to this agreement by order dated 5 December 1934 and postponed sale of the mortgaged properties.
  • The judgment-debtors did not pay within the extended time, and a sale took place on 27 February 1937, at which respondent Sarada Prosad Nath purchased the properties (including the two touzis mentioned).
  • The Khans had earlier obtained a rent decree (15 April 1936) against ten tenants (including the three appellants) for Rs. 26,884. Sarada asserted that his auction purchase (27 February 1937) vested in him the Khans' rights to that rent decree; the Additional Subordinate Judge substituted Sarada in place of the Khans as decree-holder. A review application against that substitution was dismissed and, as conceded, the substitution is now finally concluded between the parties to this appeal.
  • On 10 March 1938 Sarada applied (in tabular form, Rent Execution Case No. 5 of 1938) for execution of the rent decree and sought transfer of a certificate of non-satisfaction to the Subordinate Judge's Court at Alipur (District 24-Perganas) for realization. The application was registered on 10 March and, without notice to the judgment-debtors, an order transferring the decree to the Subordinate Judge, Alipur, for execution was made on 12 March 1938 (these were ex parte proceedings).
  • On 5 April 1938 the three appellants filed an application in the Rent Execution Case (headed as under Order 21, Rule 16 and Section 47 of the CPC) asking inter alia that the transfer order of 12 March 1938 be recalled; they alleged the decree-holder obtained transfer and certificate fraudulently and without notice, and alternatively that there was property of the judgment-debtors within the Nadia Court's jurisdiction sufficient to satisfy the decree.
  • The Additional Subordinate Judge registered that application as a miscellaneous case and issued notice to the respondent. Subsequently the Additional Court was abolished and the permanent Subordinate Judge dealt with the application by order dated 5 July 1938: he (1) held substitution could not be re-opened, (2) held that the Section 47 application was not entertainable by him because the decree had already been transferred to Alipur, and (3) ruled that even if the application were deemed a review, he could not entertain it as no notice under Order 47, Rule 4 had been issued by the judge who passed the original order. The permanent Subordinate Judge therefore rejected the application.
  • The present appeal is confined to the part of the 5 July 1938 order refusing to reconsider/recall the transfer order of 12 March 1938. A preliminary objection was raised that no appeal lies because the Subordinate Judge had effectively refused a review application.

Legal Issues Presented

  1. Whether an appeal lies to this Court against the Subordinate Judge's order of 5 July 1938 refusing to recall an order of transfer made on 12 March 1938 (i.e., whether the appeal is competent).
  2. Whether an application to transfer a decree for execution, made to the Court which passed the decree, falls within the scope of Section 47 of the Code of Civil Procedure (i.e., is an application "relating to execution of the decree").
  3. Whether the Subordinate Judge erred in refusing to entertain the appellants' objections to transfer (including the contention that there were properties within Nadia sufficient to satisfy the decree) — in particular whether the Court which made the transfer applied its judicial discretion under Section 39 of the CPC.
  4. Whether the Subordinate Judge could treat the appellants' pleading as a review application and refuse it because no notice under Order 47, Rule 4 of the CPC had been issued.

Arguments of the Parties

Appellants' Arguments

  • The order transferring the decree to the Alipur Court was obtained fraudulently and without any notice to the judgment-debtors; it was an ex parte order that should be recalled.
  • The transfer order was improper because the judgment-debtors had property within the jurisdiction of the Nadia Court sufficient to satisfy the rent decree; therefore transfer ought not to have been made.
  • The appellants additionally sought reconsideration of the substitution of Sarada as decree-holder, alleging he had not purchased the rent decree (the application was headed also under Order 21, Rule 16).
  • They characterized their application as falling under Section 47 of the CPC (objections relating to execution), and sought recall of the transfer on that basis.

Respondent's Arguments

  • The respondent raised a preliminary objection that no appeal lies because the Subordinate Judge had essentially refused an application for review; as such, the proper remedy was not an appeal to this Court.
  • Implicit in the conduct is the respondent's contention (by seeking transfer and substitution) that he had, by his auction purchase, acquired the rights to the rent decree and was entitled to proceed with execution in the Alipur jurisdiction.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
58 Cal 8321 at p. 816. Supports the proposition that a Court receiving an application for transfer does not act merely as a post office; it has judicial duties and must exercise discretion. The Court relied on this authority to reject the notion that the decree-sending Court merely transmits transfer requests; it reinforced the view that transfer applications are "steps-in-aid" of execution requiring judicial consideration under S. 47 and S. 39.
8 CWN 575.2 Used to support the view that an appeal lies to this Court in circumstances like the present one (i.e., appeal against an order relating to execution/transfer). The Court cited this decision as supporting its conclusion that the appeal is competent; on that basis the Court discharged the rule issued on the question of competency.
8 Cal 51.3 Contains principles by which a judgment-debtor may be debarred from agitating a particular objection (i.e., when an objection has been adjudicated earlier). The Court considered these principles but held they could not be applied here because the transfer order of 12 March 1938 was ex parte and the particular objection (existence of property within Nadia sufficient to satisfy the decree) had not been previously adjudicated.

Court's Reasoning and Analysis

The Court proceeded in stages, addressing first competency and then the merits:

  1. Competency of Appeal and Characterization of the Application:
    • The Court observed that the appellants' application did not purport to be under Order 47, Rule 1 (i.e., a statutory review provision). Rather, it raised substantive objections that related to execution — specifically that the transfer order was ex parte and in breach of cl. (b) of Section 39 of the CPC — and so was rightly headed as an application under Section 47 of the CPC.
    • The Court held that an application for transfer of a decree passed by a muffasal Court is a "step-in-aid" of execution; it is an application relating to execution of the decree. Because the Court which receives an application for transfer must exercise judicial discretion (it does not act merely as a post office), objections by a judgment-debtor opposing transfer fall within S. 47. Consequently the order in question is within the scope of S. 47 and the appeal to this Court was competent.
    • The Court cited authorities (including 58 Cal ... and 8 CWN 575) in support of these propositions and thereby discharged the preliminary rule on competency.
  2. Merits: Duty to Exercise Judicial Discretion under Section 39 and the Failure to Do So:
    • Section 39 (clauses (a), (b) and (d) were discussed as in the opinion) vests discretion in the Court which passed the decree when an application for transfer is made. In particular, if the application is under cl. (b), the Court must be satisfied that the judgment-debtor does not have property within the Court's jurisdiction sufficient to satisfy the decree.
    • The Court emphasized that this discretion must be judicially exercised; where properties within the originating Court's jurisdiction are sufficient to satisfy the decree, ordinarily transfer should not be made, unless special circumstances (for which cl. (d) provides) exist and are recorded.
    • On the facts, the Court found that the originating Court (Nadia) did not apply its mind or record reasons when it made the transfer orders of 10 and 12 March 1938. The tabular application did not state that any judgment-debtors resided within the Alipur jurisdiction, so it did not purport to rely on cl. (a) of Section 39; it apparently proceeded under cl. (b), but without the requisite judicial satisfaction that no sufficient property existed in Nadia.
    • Because the objection that there were properties in Nadia sufficient to satisfy the decree had not been previously adjudicated (and the transfer order was ex parte), the principles that might bar a belated objection (as in 8 Cal 51) were inapplicable. Therefore the Subordinate Judge should have considered this objection on the merits rather than rejecting it on procedural grounds.
  3. Procedural Rulings and Remedial Directions:
    • The Court set aside that portion of the 5 July 1938 order dealing with the question whether the 12 March 1938 transfer order ought to be recalled.
    • The Court remanded the case to the Subordinate Judge at Nadia with directions to allow the parties to lead evidence on whether the judgment-debtors against whom execution was sought have property within the Nadia jurisdiction sufficient to satisfy the decree.
    • If the subordinate Court finds sufficient property in its jurisdiction, it must consider whether special circumstances justify transfer under cl. (d) of Section 39; if no such reasons exist, the Court is to recall its transfer order and instruct the Alipur Court to return the decree.
    • Pending this enquiry, the attachment effected by the Alipur Court remains in force, but further proceedings in the Alipur Court are stayed until the matter is finally determined by the Subordinate Judge, Nadia.
  4. On the question whether the permanent Subordinate Judge could treat the pleading as a review application and decline to entertain it because no notice under Order 47, Rule 4 had been issued, the Court observed that the appellants' application did not purport to be under Order 47, Rule 1, and that the core objection was one under Section 47 (relating to execution), so the Subordinate Judge's refusal on the grounds that it was a review and not entertainable by him was incorrect as regards the transfer-point.

Holding and Implications

Holding: The appeal is allowed in the respects indicated. The Court held (a) that the appellants' objection to transfer is an objection under Section 47 of the CPC and that an appeal lies to this Court against the Subordinate Judge's order; (b) that the Subordinate Judge erred in refusing to reconsider the transfer order of 12 March 1938 without deciding the objection on its merits; and (c) that the matter must be remanded for fresh enquiry.

Consequences and directions pronounced by the Court:

  • The part of the order dated 5 July 1938 dealing with recall of the transfer of 12 March 1938 is set aside.
  • The case is remanded to the Subordinate Judge at Nadia to permit evidence and determination on whether the judgment-debtors against whom the decree-holder seeks to proceed have property within Nadia sufficient to satisfy the decree. If such property exists and no adequate reason under cl. (d) of Section 39 is shown for transfer, the Subordinate Judge must recall the transfer order and recall the decree from the Alipur Court.
  • Pending that enquiry, the attachment effected by the Alipur Court remains operative, but further proceedings in the Alipur Court are stayed until final determination by the Subordinate Judge, Nadia.
  • Costs of the appeal will abide the result; hearing fees fixed at three gold mohurs were ordered.

The opinion does not purport to lay down or declare a novel, binding principle of general application beyond the application and interpretation of Sections 39 and 47 of the CPC to the facts of this case; the immediate practical effect is the remand and directions described above.

D.S/R.K

Disposition: Case remanded.

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    Manmatha Pal Choudhury And Others Judgment-Debtors v. Sarada Prosad Nath, Decree-Holder And Others

    1. This appeal has been preferred by three of the judgment-debtors, namely Manmatha Pal Choudhury, Amiya Pal Choudhury and Ranjit Pal Choudhury, and is directed against an order of the Sub-ordinate Judge of Nadia, dated 5th July 1938. A preliminary objection has been taken that no appeal lies against the order complained of. A rule however in the alternative was issued by this Court. In order to decide not only the question as to whether the appeal is competent or not, but also the appeal on the merits, the following facts are necessary. One Jagannath Khan and others, whom we shall hereafter call the Khans, took a loan of Rs. 1,80,000 from the Faridpur Loan Office in the year 1924. They executed a mortgage bond by which touzies Nos. and of the Nadia Collectorate as also other properties were hypothecated. In 1931 the said Loan Office instituted a suit on their mortgage in the Original Side of this Court. A preliminary decree was passed on 9th July 1931 and the final decree on 9th January 1933. This decree was put into execution, and at the execution stage the judgment-debtors wanted time to pay up the decretal amount. There was an agreement between them and the Loan Office by which time was given to the former to pay up the decretal amount on their giving as further security for the decretal amount three decrees for rent which they had already obtained against their tenants as also the growing rents. This agreement was given effect to by the order of the Court dated 5th December 1934 and the sale of the mortgage proper, ties was postponed. The judgment-debtors however could not pay up the decretal amount within the extended period with the result that the sale was held. At the sale which was held on 27th February 1937 the respondent Sarada Prosad Nath purchased the properties. It is not disputed that he purchased touzis Nos. and of the Nadia Collectorate, but at one stage there was the question as to whether he had purchased the rights of the Khans to the rents which accrued in their favour up to that date from their tenants who held lands in the said two touzis. For the rents which accrued up to the year 1936, the Khans instituted a suit against their tenants who are ten in number, three of them are the Pal Choudhuris, the appellants before us. The rent suit was decreed on 15th April 1936 for a sum of Rs. 26,884. Sarada Prosad Nath claims that by reason of his auction purchase on 27th February 1937 the right to this rent decree has also vested in him. This rent decree was obtained in the Court of the Additional Subordinate Judge of Nadia, in respect of a patni tenure situated in the District of Nadia, which was held by the defendants in the rent suit, under the proprietors of the aforesaid touzis. The respondent Sarada made an application before the Court of the Additional Subordinate Judge of Nadia who had passed the decree for being substituted in place of the decree-holders, the Khans. This application was granted by the learned Subordinate Judge. An application for review was made by the judgment-debtors but that application has been dismissed. The question whether Sarada is entitled to be substituted in place of the original decree-holders, namely the Khans, is now finally concluded between the parties to this appeal. It is accordingly, as has been conceded by Mr. Bose for the appellants, no longer open to the parties to raise the said question.

    2. The question involved in this appeal rests on the following facts. On 10th March 1938 Sarada Prosad Nath made an application for execution of the said rent decree in a tabular form before the Additional Subordinate Judge, Nadia. This was numbered as Rent Execution Case No. 5 of 1938. In column 2 he gave the names of the judgment-debtors, ten in number. In column 7, the amount due to him under the aforesaid rent decree is stated. In column 9 he stated that he wanted to proceed against seven out of the ten judgment-debtors, the last three being the appellants before us. In column 11 he prayed that orders may be passed for transmission of a certificate of non-satisfaction to the Subordinate Judge's Court, Alipur, District 24-Perganas, for realization of the amount due on this decree.

    3. In this tabular statement the place of residence of the three judgment-debtors appellants is stated to be within the District of Nadia. With regard to some of the other judgment-debtors, it is distinctly stated that they reside within the jurisdiction of the Nadia Court, but with regard to some others their places of residence are not given. It is, however, not stated in the application that any of other judgment, debtors resides within the jurisdiction of the Alipur Court. On the same day, 10th March 1938, the Court registered the said application, and directed the matter to be put up on 12th March, “for the preparation of the certificate and for orders.” On 12th an order was passed transferring the decree to the Court of the Subordinate Judge, Alipur, for execution.

    4. These proceedings were ex parte proceedings. No notice was issued to the judgment-debtors when the order for transfer was made, and the judgment-debtors had accordingly no opportunity to come and contest those proceedings for transfer. On 5th April 1938, the judgment-debtors appellants before us, however, filed an application before the Additional Subordinate Judge, in the Rent Execution Case No. 5 of 1938 which was the case in which the order for transfer I was made. This application was headed, as an application under O. 21, R. 16 and Section 47 of the CPC. In this application the facts are stated in some detail, and the Court was asked, amongst other things, in para. 25 of the said application, to recall the order transferring the decree for execution to the Alipur Court. This part of the case was placed upon two grounds which are grounds Nos. 5 and 9 namely that the decree-holder got the order for transfer and the certificate of non-satisfaction from the Court fraudulently and without any notice on the judgment-debtors, and that in any event, the order for transfer ought not to have been made, as there was property of the judgment-debtors within the jurisdiction of the Nadia Court, which was sufficient to satisfy the said rent decree.

    5. The scope of this application was however wider. By the application the judgment-debtors wanted the Court to revise its previous order by which the respondent Sarada was substituted as the decree-holder in the place of the original decree-holders, namely the Khans, and for this reason the application was headed as one under O. 21, R. 16 also. Another ground runs thus: “for that the application for execution is bad in law and is otherwise not maintainable.” Analyzing this application it comes to this: The judgment-debtors said firstly, that the respondent ought not to have been substituted in place of the original decree holders, their ground apparently being that he had not purchased the said rent decree; secondly, that the order of transfer which had been made by the Court on 12th March 1938 was not a good order, ought to be set aside by the Court itself, and the decree recalled from the Alipur Court and thirdly that the execution should not be allowed to be proceeded with as the application for execution was defective and otherwise bad. After this application was filed, the learned Additional Subordinate Judge in whose Court this was filed, registered it as a miscellaneous case and directed notice to be issued on the respondent. Thereafter, the Additional Court of the Subordinate Judge, Nadia, was abolished and the business of that Court was taken over by the permanent Subordinate Judge of that place. The permanent Subordinate Judge dealt with this application finally by his order dated 5th July 1938. He held (1) that the question relating to the substitution of the respondent cannot be re-opened, (2) that as the application filed by the appellants on 5th April 1938 purported to be under Section 47 of the CPC, that application was not entertain able by him, and it could only be entertained by the Alipur Court which was then executing the decree, it having been already transferred to that Court, and (3) that even if that part of the said application which asked for reconsideration of the order of the Additional Subordinate Judge dated 12th March 1938 be considered as an application for review, he could not entertain the same as no notice under the provisions of O. 47, R. 4 of the Code had been issued by the Additional Subordinate Judge who had passed the original order. He accordingly rejected the said application.

    6. This appeal has been confined only to that part of the said order dated 5th July 1938 by which the learned Subordinate Judge refused to reconsider the order of transfer made by the Additional Subordinate Judge on 12th March 1938. A preliminary objection has been raised by the respondent to the effect that no appeal lies to this Court. The objection is founded on the ground that the learned Subordinate Judge refused the application which, in essence. Was an application for review. The argument is that the appellants, in essence, asked for a review of the order dated 12th March 1938. So far as this part of the case is concerned, it was treated by the Subordinate Judge as an application for review and was refused by him on the footing that it was not entertain able by him. We will have to consider whether this contention is correct. In the first place the application in question does not purport to be an application under O. 47, R. 1. The judgment-debtors said in this application that the said order was passed ex parte and it was a wrong order on the ground amongst other that the order for transfer was made not in compliance with the provisions of cl. (b) of Section 39 of the CPC. The question therefore depends upon the question whether an application for transfer of a decree, to the Court which passed the decree, can be regarded as an application relating to the execution of the decree, and secondly whether an objection by a judgment-debtor to such an application is an objection which can come within the purview of S. 47 of the Code. In our judgment, the application comes under S. 47 of the Code and the judgment-debtors rightly headed their application as an application under S. 47. When an application for transfer is made to the Court which passed the decree that Court does not function merely as a sort post office for receiving the application for transfer of the decree and for transmitting them to the Court, within whose jurisdiction immovable property sought to be sold is situate, for execution: 58 Cal 8321 at p. 816.

    7. An application for transfer of a decree passed by a muffasal Court is a step-in-aid of execution. By that application, the decree-holder asks the Court which passed the decree to assist him for the purposes of carrying further proceedings to realize his decree. An application for transfer is accordingly an application relating to execution of a decree. The Court to which the application for transfer is made does not merely function as a post office but it has judicial duties to perform. It is required by statute to exercise judicial discretion. An objection raised by a judgment-debtor opposing the transfer will be an objection relating to execution of the decree. The words “relating to execution of the decree” used in S. 47, are wide enough to cover the case. We accordingly hold that the order which has been passed by the Court is an order coming within the scope of S. 47 of the Code, and the appeal before us is competent. The view which we are taking is supported by the decision in 8 CWN 575.2 In this view of the matter the rule issued by this Court is discharged on the ground that an appeal lies to this Court.

    8. We will now deal with the merits of the appeal. We have already held that part of the objection raised by the appellants which relates to the transfer of the decree is an objection which comes within the purview of S. 47. It is an established principle that a judgment-debtor can prefer objections under S. 47 at any stage of the execution proceedings. Those objections have to be determined on their merits, unless a particular objection had been adjudicated upon by the Court earlier, or unless the judgment-debtor is debarred from agitating the particular objection by reason of the principles laid down in 8 Cal 51.3 The particular objection, namely that the decree ought not to have been transferred to the Alipur Court as the judgment-debtors had properties within the jurisdiction of the Nadia Court, sufficient to satisfy the decree, had not been adjudicated upon at a previous stage of the proceedings, nor can the principles formulated in 8 Cal 51 be applied, for the order of transfer made on 12th March 1938 was made ex parte, and without giving the judgment-debtors an opportunity to contest the decree-holder's prayer for transfer. The learned Subordinate Judge ought to have, accordingly considered the said objection on its merits.

    9. We have already stated that in the tabular statement on the basis of which the order for transfer was made, it was not stated that any of the judgment-debtors resided within the jurisdiction of the Alipur Court. The application for transfer accordingly did not purport to be on the ground mentioned in cl. (a), Section 39 of the CPC. The application for transfer was apparently made under cl (b) of the said Section. But the whole of S. 39 gives a discretion to the Court in the matter of transfer. That discretion must be judicially exercised. If the application for transfer is under cl. (b), the Court must be satisfied that the judgment, debtor has not property within its jurisdiction sufficient to satisfy the decree. If the Court comes to the conclusion that the judgment-debtor has property within its jurisdiction sufficient to satisfy the decree, ordinarily it ought not to transfer the decree for execution by another Court. Even if the Court comes to the conclusion that the properties within its jurisdiction are sufficient to satisfy the decree, in special circumstances notwithstanding that fact, the Court may transfer the decree for execution to another jurisdiction for, cl. (d) of S. 39 is sufficiently comprehensive; but in the last mentioned case the Court should record its reasons for making the order of transfer. In any view of the matter, S. 39 indicates that the Court which passed the decree must apply its mind to the matter when an application has been made by the decree-holder for transfer of the decree to another jurisdiction for execution, and exercise its discretion vested in it by that Section in a judicial manner. From the orders of the Court below as recorded on 10th March 1938 and 12th March 1938, it appears that the Court in this case did not apply its mind to the matter at all and did not consider at all that it had a discretion to exercise. We accordingly set aside that part of the order dated 5th July 1938, which deals with the question as to whether the order dated 12th March 1938 ought to be recalled or not. The order which we propose to pass is this, that the case should go back to the Subordinate Judge at Nadia to allow the parties to lead evidence bearing on the question as to whether the judgment-debtors against whom the decree-holder wants to proceed have or have not properties within the jurisdiction of the Nadia Court sufficient to satisfy the decree. If the Court finds that there are properties within the jurisdiction of the Nadia Court sufficient to satisfy the decree, it will consider whether a case has been made out for transfer in view of the provisions of cl. (d) of Section 39 of the CPC. If it comes to the conclusion that the properties within its jurisdiction, are sufficient to satisfy the decree, or no other reason exists for granting the application for transfer, it will recall its order dated 12th March 1938, and in that event recall the decree from the Court of the Subordinate Judge at Alipur where execution proceedings are pending. Pending this enquiry by the Court of the Subordinate Judge, Nadia, the attachment effected by the Alipur Court will remain in force. But further proceedings in the Alipur Court are stayed pending the final determination of the question for which we remand the matter to the lower Court. The appeal is allowed, the order of the lower Court is set aside and the case remanded to that Court. Costs of this appeal will abide the result, hearing fees three gold mohurs.

    D.S/R.K

    10. Case remanded.

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    Comments

    Manmatha Pal Choudhury And Others Judgment-Debtors v. Sarada Prosad Nath, Decree-Holder And Others
    (Jul 4, 1939)