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Prakash Chandra Sarkar v. Pande Ramnarain

Prakash Chandra Sarkar v. Pande Ramnarain

(High Court Of Judicature At Patna)

Miscellaneous Appeal No. 30 of 1917 | 15-08-1917

Authored By : Edward Maynerd Des Champs Chamier, Saiyid Sharfuddin

Edward Maynerd Des Champs Chamier, C.J.

1. This appeal arises out of proceedings taken to execute a decree passed under section 90 of the Transfer of Property Act on August 3rd, 1609, by the District Judge of Gaya. After a small sura had been realised in the Gaya district, the appellant who was one of the three decree-holders applied to the District Judge to transfer to Palamau what really amounted to one-third of the decree. He stated in his application that the other decree-holders were unable or unwilling to join in the application, and he shewed what amount he was entitled to out of the sum decreed and asked that the decree should be transferred as regards one-third of what remained due on it. On that the Court ordered notice to go to the other decree holders to state whether they had any objection to the course proposed. One of them offered no objection, the other objected that one of the judgment-debtors was dead and proceedings should be taken against his representatives This defect having been cured the decree was transferred to Palamau.

2. The certificate of non-satisfaction follows the language of the application for transfer and shews that one-third of the decree was transferred, that is, the amount due to the present appellant. The papers ultimately reached the Palaman Court. On execution being taken out the judgment-debtors objected that the procedure adopted was irregular, and the Subordinate Judge made an order that no sum realised in execution should be paid over to the appellant without the consent of the other decree-holders. It is against this order that the present appeal is directed. There call be no doubt that the transfer of one-third of the decree was irregular and the order of transfer cannot be held to be binding upon the respondents, for no notice of the application seems to have been issued to them. They were, therefore, entitled to challenge the proceedings taken subsequent to the order of transfer. In my opinion the Subordinate Judge was right, on the objection of the judgment-debtors, in treating the transfer as if it were a transfer of the whole decree and in not allowing the present appellant to proceed as if he was the sole decree-holder. It is not only a question of protecting the interests of the other decree-holders, for the judgment-debtors are interested in preventing this kind of piecemeal execution. But in the circumstances I think that the Court below has gone too far. There can be no doubt that in fact the present appellant is entitled to one-third of the amount due under the decree and there can be very little doubt that the other decree-holders have abandoned all hope of recovering anything under this decree. They appear to have taken no steps for many years. In these circumstances I think that the objection of the judgment-debtors will be sufficiently met, if we direct that no sum shall be paid out of Court to the appellant except on his giving security to the satisfaction of the Court below for the refund of that sum, if required. I would, therefore, vary the order of the Court below accordingly. This order applies also to Miscellaneous Appeal No. 28 of 1917. I would make no order as to costs in these appeals.

Saiyid Sharfuddin, J.

I agree.

Advocate List

  • For Appellant/Petitioner/Plaintiff: Naresh Chandra Sinha

  • For Respondents/Defendant: Mritjunjay Lal

  •  

Bench
  • Hon'ble Justice Sir Edward Maynerd Des Champs ChamieR
  • Hon'ble Justice&nbsp
  • Kt. C.J
  • Hon'ble Justice&nbsp
  • Saiyid Sharfuddin
Eq Citations
  • 43 IND. CAS. 186
  • LQ/PatHC/1917/352
Head Note

A. Civil Procedure Code, 1908 — S. 47 — Transfer of one-third of decree — Irregularity — Piecemeal execution — Held, transfer of one-third of decree was irregular and order of transfer cannot be held to be binding upon respondents, for no notice of application seems to have been issued to them — Judgment-debtors entitled to challenge proceedings taken subsequent to order of transfer — Subordinate Judge was right, on objection of judgment-debtors, in treating transfer as if it were transfer of whole decree and in not allowing appellant to proceed as if he was sole decree-holder — It is not only a question of protecting interests of other decree-holders, for judgment-debtors are interested in preventing this kind of piecemeal execution — But in the circumstances Court below has gone too far — There can be no doubt that in fact appellant is entitled to one-third of amount due under decree and there can be very little doubt that other decree-holders have abandoned all hope of recovering anything under this decree — They appear to have taken no steps for many years — In these circumstances objection of judgment-debtors will be sufficiently met, if we direct that no sum shall be paid out of Court to appellant except on his giving security to satisfaction of Court below for refund of that sum, if required — Transfer of Property Act 1882, S. 90 (Para 1)