Kunja Behari Singh v. Tarapada Mitra .

Mullick, J.:— The decree-holder Tarapada Mitra obtained a decree against three judgment-debtors in the Court of the Subordinate Judge of Hazaribagh. That decree is now under execution in the Court of the Subordinate Judge of Deoghur in the District of the Santal Pargannas. On 30th January, 1917 the Sub-divisional officer, acting as Subordinate Judge, made an order directing the judgment-debtor Kunja, Bahari Singh to pay to the decree-holder a sum of Rupees 5,660-2-9. Against this order Kunja Behari Singh prefers Appeal No. 148 of 1917, and the decree-holder prefers Appeal No. 43 of 1918. The complaint of the decree-holder is that the Subordinate Judge has given less interest than that to which he is entitled, and that S. 6, Regn. 3 of 1872, known as the Santal Pargannas Settlement Regulation, which applies the rule of damdupat to money debts in the Santal Pargannas, is not applicable to this execution.

Appeal No. 148 of 1917.

2. We will take Appeal No. 148 of 1917 first. In this appeal the first ground urged by the judgment-debtor is that the execution case was struck off on 12th September, 1916, and that as it has been neither restored nor any fresh application for execution filed, the order of 30th January, 1917 was illegal and incompetent. Now the reply to this is that it appears that on 16th October, 1916 the decree-holder made an application to the Court for the restoration of the case giving certain reasons for his non-appearance on the previous date of hearing. Notice was issued upon the judgment-debtors and the judgment-debtors showed cause, and although on 30th January, 1917 the Subordinate Judge did not give any reasons for restoring the case, it would seem from the fact that he went into the merits of the case that he was satisfied that there were good grounds for the decree-holder's non-appearance on 12th September. Therefore although there was an irregularity in procedure on the part of the Subordinate Judge, I do not think that irregularity was sufficient to vitiate the whole order of 30th January, 1917. The next objection however is more serious. It appears that the decree by the Subordinate Judge of Hazaribagh was sent direct to the Subordinate Judge of Deoghur. Now the Code of Civil Procedure requires that the decree should be sent to the Court of the District Judge; who in this case was the Deputy Commissioner of the Santal Pargannas. The Subordinate Judge therefore had no jurisdiction to entertain the execution application until it was transferred to him by the Deputy Commissioner. It is true that the objection as to jurisdiction does not appear to have been taken before the executing Court, but it is open to the parties to raise the question at any stage and we fear; that we must give effect to the objection. The order of 30th January, 1917 will therefore he set aside as having been made without jurisdiction. The appeal is allowed with costs.

Appeal No. 43 of 1918.

3. In this appeal the decree-holder contends that S. 6, Regn. 3 of 1872 is not applicable to a money-decree made by a Court of competent jurisdiction outside the Santal Pargannas. On the other side the contention is that so long as the Court at Hazaribagh was making a money decree against a person resident within the district of the Santal Pasgannas the Court at Hazaribagh was bound by S. 6. Now the learned vakil in support of this contention relies upon the case of Maha Prasad Singh v. Ramani Mohan Singh(1), but that case has no bearing upon this case. In that case a suit upon a mortgage in respect of lands situated within the Bhagalpore and Santal Pargannas districts was instituted in the Court of the Subordinate Judge of Bhagalpore. Their Lordships of the Privy Council held that owing to certain special laws applicable to the Santal Pargannas the suit was cognizable only by certain Courts within the Santal Pargannas District. Their Lordships also held that even if the Court at Bhagalpore had been competent to try the suit it would have been bound to give effect to the provisions of S. 6, Regulation 3 of 1872. The decision of their Lordships was founded upon the consideration that a Court at Bhagalpore in seisin of the mortgage suit would be deemed to have jurisdiction within the Santal Pargannas District because part of the mortgaged property was situated within that district. But that is not the case here. Here the Court at Hazaribagh had full jurisdiction to pass a decree upon the contract. It had no jurisdiction at all in the Santal Pargannas, and the mere fact that one of the defendants resides in the Santal Pargannas did not vest the Court at Hazaribagh with any jurisdiction in the Santal Pargannas within the meaning of S. 6, Regulation 3 of 1872.

4. Therefore in my opinion the Court at Hazaribagh was not bound to regard the rule of damdupat in this case. It is next contended that although the Court at Hazaribagh may not have been bound by S. 6, yet the executing Court at Deoghur was bound by Cl. (b) of that section. Now S. 6 merely directs that no Court having jurisdiction in the Santal Pargannas shall decree interest more than the principal amount. It does not say that no Court having jurisdiction within the Santal Pargannas shall execute such a decree. Nor does Cl. (b) prohibit the executing Court to realize such interest. According to my reading of this clause there was no bar to the executing Courts enforcing in full the decree that it had received from Hazaribagh.

5. Therefore if S. 6 does not operate, the executing Court must follow the ordinary rule which requires that it shall not go behind the decree. The decree-holder will therefore be competent to execute the decree which the Hazaribagh Court may transfer to the proper authority within the Santal Pargannas. The result is that the decree-holder succeeds upon the point of law which he has raised in his appeal and Appeal No. 43 of 1918 is decreed with costs. But as we have already held in the judgment-debtor's appeal that the whole execution proceeding in the Court of the Subordinate Judge was without jurisdiction, the decree-holder will not in effect derive any benefit from his success till he secures a fresh certificate addressed by the Court at Hazaribagh to the proper Court.

6. Imam, J.:— I agree.

V.S/R.K

7. Appeals allowed.