TaxTMI 
TaxTMI 
1950 (2) TMI 11
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court of the Subordinate Judge at Asansol through the District Judge of Burdwan. A certificate of non-satisfaction under Section 41 Civil P. C., was sent by this Court which was transmitted to the Asansol Court. The decree-holder Nagarmull Rajgharia commenced Money Execution Case No. 296 of 1931 in the Court of the Subordinate Judge at Asansol, but that case was eventually dismissed for default on 27th February 1932. The Court at Asansol sent what purported to be a certificate of non-satisfaction under Section 41, Civil P. C., to this Court and it is to be observed that the decree was never again transferred to the Court at Asansol for execution. Later, however, the decree-holder made another application for execution at Asansol and Money Execution case No. 224 of 1932 was commenced. In the course of that execution the decree-holder purchased the Sripur Colliery on 9th June 1933, but the sale was set aside on 29th January 1934 on an application by one of the judgment-debtors, the appellant in this appeal, under Order 21, Rule 90, Civil P. C. A certificate purporting to be a certificate under Section 41, Civil P. C., was sent by the Asansol Court to the High Court. The decree-holde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion to order or conduct a sale, an application was made to the Court at Asansol under Sections 47 and 151, Civil P. C., praying that the sale be set aside as it was a sale without jurisdiction. 8. The decree-holder objected and contended that the Court at Asansol had jurisdiction to entertain the proceedings and in the alternative, if it had no jurisdiction, the appellant having failed to press the point in the proceedings was now barred by the doctrine of res judicata from contending that the Court had no jurisdiction. 9. The matter eventually came before the learned Subordinate Judge who held in the first place that the Court at Asansol had jurisdiction to entertain the second application for execution. In the view of the learned Subordinate Judge, the document purporting to be a certificate of non-satisfaction sent under Section 41, Civil P. C. to the High Court when the first application was dismissed for default was not in fact or in law a certificate of non-satisfaction which deprived the Court at Asansol of jurisdiction further to entertain execution of the decree. In the view of the learned Subordinate Judge, this notice was merely an intimation to the High Court that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of Immovable property situate Outside the local limits of the jurisdiction of the Court, which passed it, or (d) if the Court which passed the decree considers for any other reason, which it shall record in writing that the decree should be executed by such other Court. (2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction." 12. It is common ground that the decree in question could be and was transferred by this Court to the Court at Asansol for execution. 13. Section 41 of the Code provides: "The Court to which a decree is sent....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... non-satisfaction. But there is no covering letter on the record of this Court and it would appeal that no such letter was sent with this certificate. The respondent contends that as Rule 264 was not complied with, it is clear that the document was never intended to be a certificate of non-satisfaction under Section 41 of the Code. 18. The learned Subordinate Judge attached no importance to the failure to send the covering letter with the certificate and I think rightly. Rule 264 of the Civil Rules and Orders referred to above is in these terms: "Decree sent to the High Court for execution under Section 39 and certificates communicating the result of execution proceedings to the High Court under Section 41 of the Code, shall be accompanied by covering letters." 19. It is difficult to appreciate what was in the mind of this Court when this rule was drafted. A covering letter as a rule contains nothing more then a statement that accompanying the letter is a certain document and I cannot see that the absence or otherwise of a covering letter can affect the nature of the document sent. If it was a notice of non-satisfaction under Section 41 of the Code....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ster. Let the certificate of non-satisfaction received be annexed to the record. Issue notices under Order 21, Rule 22, Civil P. C. upon the judgment-debtors returnable on 23rd December 1932." 25. From the terms of this order it is clear that the Asansol Court was of opinion that what gave it jurisdiction to entertain the second execution case was the fact that a fresh certificate of non-satisfaction had been received from this Court, though in fact no such certificate had ever been received. This order, I think, makes it clear that the Asansol Court was of opinion that a fresh certificate of non-satisfaction from this Court was necessary to give it jurisdiction and it could only have held that view if it was of opinion that the Court at Asansol had lost jurisdiction to execute the decree by reason of something which it had done in connection with the earlier execution case. The only, thing that it had done in connection with the earlier case which could deprive it of jurisdiction was to send to this Court what purported to be a certificate of non-satisfaction under Section 41, Civil P. C. 26. For these reasons I am satisfied that the Asansol Court not only sent what purporte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s follows: "The Court to which a decree is sent for execution retains its jurisdiction to execute the decree until the execution has been withdrawn from it, or until it has fully executed the decree and has certified that fact to the Court which sent the decree, or has executed it so far as that Court has been able to execute it within its-jurisdiction and has certified that fact to the Court which sent the decree, or until it has failed to execute the decree and has certified that fact to the Court which forwarded the decree. The mere striking off of an application for execution on the ground of informality in the application does not terminate the jurisdiction of the Court to execute the decree, nor render it necessary for the Court to send any certificate to the Court which forwarded the decree for execution." 31. In the Allahabad case the first application for execution made in the transferee; Court was struck off on the ground that it did not comply with certain sections of the Code then in force. Later the Subordinate Judge of the transferee Court certified to the Court that passed the decree, that on the objection of the judgment-debtor the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... from the absence of the decree, holder in support of his application. Further in the Allahabad case the certificate which was sent made it clear that the application was only struck off and not that it had been dismissed for any reason. 33. I am somewhat doubtful whether a Court can go into the question whether what purports to be a certificate under Section 41 was or was not such a certificate if on the face of it clearly is such a certificate. In any event I do not think it necessary to consider the matter further because I am satisfied that the Asansol Court intended this certificate to be a certificate under Section 41 even if it is open to this Court to go into the question of what it did intend. There were grounds in the present case to justify the issue of such a certificate and I think it was issued and even if it was wrongly issued it deprived the transferee Court of jurisdiction because it was intended to be and was in fact a certificate under Section 41, Civil P. C. 34. As I have stated earlier a copy of the decree was not returned to this Court with the certificate and the learned Subordinate Judge appears to have thought that to deprive the Asansol Court of juri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 41 of the present Code which required the transferee Court to certify to the Court which passed the decree that the decree had been executed or that there had been a failure to execute the decree. It would appear that as long as a copy of the decree together with a certificate that satisfaction thereof had not been obtained within the jurisdiction of the Court that passed it remained with the transferee Court that Court had jurisdiction. This case therefore is no authority for the proposition that under the present Code the transferee Court retains jurisdiction if it retains a copy of the decree though it has sent a certificate of non- satisfaction under Section 41 of the Code to the Court that passed the decree. 37. The case of Muhammad Ibrahim v. Chhatoo Lal was relied upon by both parties. In that case a Bench held that the jurisdiction of the Court to which a decree has been sent for execution ceases as soon as the Court takes action lender Section 41, Civil P. C, and certifies to the Court which passed the decree the circumstances attending the failure on the part of the transferee Court to execute the decree. 38. The appellant urged that this case clearly decided th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the petition of 13th December 1907, was for execution of the decree by sale of the Immovable property of the respondents which was within the local limits of the jurisdiction of the Munsif's Court, their Lordships having regard particularly to Sections 223, 224, 228 and 230, Civil P. C. 1882, are satisfied that when that petition of 13th December 1907, was presented to the Court of the District Judge that Court was not the proper Court to which the application to execute the decree by sale of the Immovable property which had been attached by the Court of the Munsif should have been made and that the proper Court to which the application should have been made was the Court of the Munsif of Parvatipur as that was the Court whose duty it then was to execute the decree so far as it could be executed by that Court." 41. It is true that in these observations Sir John Edge refers to the fact that the Munsif had neither returned a certificate of non-satisfaction as he was required by Section 223 of the Code of 1882 (now Section 41 of the present Code) nor a copy of the decree to Court which passed the decree. Section 223 did not require the transferee Court to return a copy of the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve jurisdiction and Court A which had passed the decree had, therefore, jurisdiction when the application was made to it. This appears to me to be a case clearly in support of the appellant's present contention and we must follow it and hold that once certificate of non-satisfaction has been sent by the transferee Court to the Court that passed the decree the transferee Court ceases to have jurisdiction, though it might have failed to return the copy of the decree sent to it. 45. From the above it is clear that after the Asansol Court sent the notice of non-satisfaction under Section 41, Civil P. C., it ceased to have jurisdiction over the execution of this decree and that being so, it should not have entertained the second application for execution. It however did so and two sales in the second execution were set aside and eventually a sale for Rs. 2,50,000 was effected which the Court refused to set aside. 46. On behalf of the appellant it has been contended that if the Asansol Court had no jurisdiction to entertain the second application for execution then the whole of its orders were made without jurisdiction and are, therefore, null and void. That being so it is urge....
X X X X Extracts X X X X
X X X X Extracts X X X X
....but it has been held by their Lordships of the Privy Council that the principles of the law relating to res judicata do apply to execution proceedings and Mr. Atul Gupta has urged that the present application is barred by res judicata. Dr. Naresh Sen Gupta on behalf of the appellant concedes that the doctrine of res judicata does apply to execution proceedings, but he has contended that the doctrine has no scope in the present case because the orders of the Subordinate Judge were wholly without jurisdiction as there was lack of inherent jurisdiction in the Court. 50. It appears to me that this is not a case of an irregular assumption of jurisdiction, but rather of a want of inherent jurisdiction. The Court at Asansol, as I have said, had no inherent jurisdiction to execute a decree made on the Original Side of this Court. It could only do so on receipt of a certificate of non-satisfaction from this Court and a copy of the decree. Having received neither, the Asansol Court when it entertained the second application, had no jurisdiction at all. 51. The present case appears to me to be similar to the case of Rajlakshmi Dassee v. Katyayani Dassee 38 Cal. 639 : (12 I. C. 464), whe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsent decree is entirely unavailing for want of jurisdiction, and consequently neither binds nor bars the plaintiff." 53. It seems to me that this case establishes that the orders of the Subordinate Judge off Asansol in the second execution case are wholly null and void and can have no effect either as an estoppel or otherwise. In short, they cannot be pleaded in bar of the present application on the principles of res judicata. The decisions must be treated as if they had never been made and therefore the sale is wholly ineffective and must be set aside. 54. In an earlier case of Gurdeo Singh v. Chandrika Singh 36 Cal. 193 : (1 I. C. 913), the same learned Judge had to deal with a case not of inherent want of jurisdiction, but a case of an irregular assumption of jurisdiction. In that case a suit was Instituted originally in the Court of the Second Subordinate Judge; the District Judge transferred the case to his own Court acting in the exercise of the powers conferred on him by Section 25, Civil P. C. of 1882. Subsequently, the District Judge transferred the case to the First Subordinate Judge as he himself was about to proceed on leave. The case was tried by him and no obje....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities is the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit." 56. In this case their Lordships drew a distinction between lack of inherent jurisdiction and an irregular assumption of jurisdiction. Where there is an inherent lack of jurisdiction parties cannot by their mutual consent convert a proceeding into a proper judicial process. If they cannot do it by mutual consent a fortiori they cannot do it by not taking a point as to want of jurisdiction. If the proceeding cannot in the words of Lord Watson be converted "into a proper judicial process" then it seems to me that the orders of a Court in such a case cannot possibly operate by way of res judicata, 57 The same view has been taken in Lakhmi Chand v. Madho Rao AIR1930All681 , where it was held that in the absence of a certificate from the Collector a civil Court had no jurisdiction to try a suit relating to a pension or grant of money or land revenue made by Government and a judgment of a civil Court in such a suit without a certificate under Section 6, Pensions Act, coul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n appeal was set aside on an application by the respondent under Order 41, Rule 19, Civil P. C., the Court finding that the appellant got the service of the notice of the appeal suppressed and had a false and fraudulent vakalatnama and a petition of compromise filed and that the respondent came to know about the compromise decree only after process in execution of the decree was taken out. The Bench held that Order 41, Rule 19 had no application to the case, but the decree could be set aside on review under Order 47, Rule 1, and the Court had also inherent jurisdiction to set aside the decree. The Bench further observed that it was an inherent power of every Court to correct its own proceedings when it had been misled. 61. In the present case the Court at Asansol was undoubtedly misled because the first order in the second execution case dated 24th November 1932, presupposes the existence of a fresh certificate of non-satisfaction and such is ordered to be annexed on the record. How the Court was misled is not clear, but it was undoubtedly due to the fault of the respondent decree-holder, because at that stage the judgment-debtor appellant was not before the Court. If the decree....