Authored By : Pramatha Nath Mitra, Das Gupta

Pramatha Nath Mitra, J.

1. This appeal is on behalf of the judgment-(sic) No. 1 andit arises out of an application made by him (sic) Section 47, Code of CivilProcedure, which was dismissed by learned Subordinate Judge, First Court,24-Parganas, by his r dated February 22, 1947.

2. The Appellants father Nagendra Kumar Basu deceased held(sic) taluk under the decree-holder Rajkumari Ushaprobha (sic) died on January11, 1938, leaving behind a will by such he appointed his three sons, includingthe Appellant (sic), as executors. Sometime in February, 1938, (sic) forprobate was made by the three executors and probate was granted to all of themin the month of April of that (sic). On May 1, 1939, the patni taluk was soldunder the Patni regulation for arrears of rent which had accrued due during the(sic) half of the year 1345 B.S. and was purchased by the (sic) for Rs. 600. Asonly a small portion of the arrears, such amounted to Rs. 7,656 and odd, wasrealised by this patni (sic), the Respondent, on November 5, 1940, instituted asuit in s Court of the Subordinate Judge of Jessore against the three is ofNagendra, described as executors to his estate, for (sic) of the balance of thedemand. The suit was dismissed the trial court, but on appeal by the Respondentthis Court on February 9, 1945, passed a decree in her favour for Rs. 7,056 dodd. An application was thereafter made by the Respondent the Court of theSubordinate Judge, Jessore, which, under the provisions of Section 37, Clause(a), Code of Civil Procedure, was to be considered the court which passed thedecree, for transfer of e decree to the Court of the Subordinate Judge, FirstCourt, 24-Pargands and thereupon the former court sent copies of the judgment anddecree of this Court with a certificate of non-satisfaction direct to thelatter court instead of sending them to e Court of the District Judge,24-Pargands, as it ought to have me under the provisions of Order XXI, Rule 5of the Code. After the papers had been received in the Court of the SubordinateJudge, First Court, 24-Pargands, the Respondent filed her publication forexecution in that court on September 28, 1945 (sic) this application theRespondent prayed for execution of the decree against the judgment-debtor No.1, Sachindra Kumar Basu, by attachment and sale of premises, No. 12/2, IsmailStreet, appertaining to holding No. 199, Sub-Division B, division 4, of DihiPanchannagram. She stated that under the will of his father, Sachindra obtainedthis property in sixteen annas share and was in absolute possession thereof asowner. On the same day, the learned Subordinate Judge ordered attachment toissue and the attachment was actually effected on September 30, 1945.Thereupon, on November 20, 1945, the judgment-debtor No. 1 came and filed anapplication under Section 47, Code of Civil Procedure, objecting to theexecution, principally on the grounds that the execution proceedings wereillegal and ultra vires, in view of a provisions of Order XXI, Rule 5, Code ofCivil Procedure, that the decree, having be passed jointly against the threeexecutors, it could not executed against the judgment-debtor No. 1 alone andthat t decree being one for arrears of rent it could not be executed again anyproperty of the judgment-debtors other than the default tenure. In view of thefirst ground of objection, the decree holder applied to the learned SubordinateJudge on March 1 1948, for sending the decree and the certificate ofnon-satisfaction back to the Jessore court with a request that the same mightretransmitted to the court of the District Judge, 24-Pargands. This was doneand thereafter the Jessore court sent the deer and the certificate ofnon-satisfaction to the District Judge 24-Pargands, who received them on April18, 1946, at transferred the decree to the Court of the Subordinate Judge FirstCourt, for execution. A further objection was then file by the judgment-debtorNo. 1 on June 17, 1946, objecting the although the transfer of the decree bythe District Judge might be said to have vested the court with jurisdiction,the order previous thereto, more particularly the order of attachment wereillegal and without jurisdiction. The Appellants objection then came on to beheard by the learned Subordinate Judge as were overruled by him as statedabove.

3. Mr. Chandra Sekhar Sen, appearing for the Appellant, hetaken three points before us. His first point is that this was decree passedagainst Sachindra and his brothers in the representative capacity as executorsto their fathers estate an-the execution is not maintainable against one ofthe executor alone. He says that, under Order XXXI, Rule 2, of the Code, thesuit has to be brought against all the executors who have proved the will andthe decree that is passed against them is really passed against one legalentity or unit, viz., the estate of the testator and the principle of OrderXXXI, Rule 2, of the Code, must be extended to execution proceedings as well.Mr. Sen has not cited an authority in support of his contention.

4. With the consent of the parties, we have looked into thepaper book of the High Court Appeal (F.A. No. 216 of 1941) in which the plaintin the suit was printed. It appears that in the plaint Sachindra and msbrothers have been described as executors to the estate of their deceasedfather, but in the decree of this Court the Respondents are simply SachindraKumar Basu, Hemanta Kumar Basu and Anil Kumar Basu without any descriptionbeing given of them as executors. Disregarding this circumstance and taking thedecree to have been passed against the Defendants against whom the suit hadbeen brought, it has to be seen what the real nature of the claim in the suitand the decree passed therein is. The arrears of rent for which the it was broughtaccrued due after the executors had proved the ill and entered upon the demisedpremises. In such circumstances, the lessor has an election to sue theexecutors in their preventative capacity, or to sue them personally asassignees of le term : Williams on Executors, 12th Ed., p. 1150. In para. 2 theplaint it is stated that--

After his (Nagendras) death the Defendants as executors tohis estate and as s sons and heirs, became the owners in possession of the saidpatni mahal and (sic) to exercise ownership and possession in the said patnimahal by realising (sic) from the tenants and by holding the same in khash liketheir father and were id became liable to pay the said patni rents to thePlaintiff.

5. This appears to us to be a claim to enforce the personalliability of the executors for rent accrued due after their entry upon thedemised premises. And turning to the decree of this Court, one does not findany direction therein for payment of the decretal money out of the property ofthe deceased. We are of opinion, therefore, that the decree was passed againstthe executors personally in a suit to enforce their personal liability and Mr.Sens point does not really arise at all. But, as the joint has been argued, wemay briefly record our opinion upon it.

6. Section 52, Sub-section (1), of the Code provides that--

Where a decree has been passed against a party as the legalrepresentative of a deceased person and the decree is for the payment of moneyout of the property of the deceased, it may be executed by the attachment andsale of any such property.

"Any such property" means any such property in thepossession of the judgment-debtor, as Sub-section (2) provides that, where nosuch property remains in the possession of the judgment-debtor, the decree maybe executed against him personally in the circumstances and to the extentmentioned in that sub-section. When an executor is in possession of any portionof the estate of the testator either in his capacity as executor or claiming tohold it as a legatee, we do not see why a decree passed against him and hisco-executors in their representative capacity cannot be executed against him tothe extent of the assets in his hands as a "party" against whom adecree has been passed as the legal representative of a deceased person. Thatthis could be done was taken for granted in Susil K. Mitter v. Samanendra NathMitter (1937) 42 C.W.N. 65 and Nemathanpatti M.M. Pl. Annandhana Chatram v.P.K.P.R.M. Raman Chettiar I.L.R. (1946) Mad. 707. And in U. Nyo v. U. Po HidingA.I.R. (1934) (Ran.) 101, Dunkley J. said:

It is plain that a decree passed against persons as legalrepresentatives is a joint and several decree. Execution can be taken outagainst any one, or any number, or all of them and any one of them can be madeto satisfy the whole amount of the decree to the decree-holder and he willthen, on so satisfying the decree, have right of contribution against the otherlegal representatives in proportion as the each obtained the property of thedeceased.

7. No doubt the learned Judge was contemplating that theparticular legal representative, upon whom execution was going to be levied,had assets in his hands sufficient to satisfy the whole decree.

8. Whatever authority there is, therefore, is against Mr.Sens, contention and we would have overruled it if we had though that itreally arose.

9. Mr. Sens second point related to a question underSection 168A of the Bengal Tenancy Act. He wanted to raise a contention that,as the patni had been created long before the Transfer of Property Act cameinto force, merger of the patni in the zamindari interest of the decree-holderafter her purchase at the patni sale could not be assumed as a matter of law soas to attract the proviso to Section 168A(1). On Mr. Sens attention beingdrawn to a statement in the judgment of the court below that "That the"original tenure has ceased to exist in the present case is"admitted," Mr. Sen did not pursue the point any further and nothingmore need be said about it.

10. The third point taken by Mr. Sen raises the question ofthe validity of the attachment that was effected on September 30, 1945. Mr.Sens contention is that, although the subsequent transfer of the decree to itby the District Judge, 24-Pargands, vested the Court of the Subordinate Judge,First Court, with jurisdiction to proceed with the application for executionwhich had already been filed, the order for attachment passed on September 28,1945, and the attachment effected thereunder previous to the said transfer werenull and void, as at that time the Subordinate Judge, First Court, had nojurisdiction to execute the decree which had been transferred to him indisregard of the provisions of Order XXI, Rule 5 of the Code for theproposition that, where in contravention of the provisions of Order XXI, Rule5, which corresponds to the 6th para, of Section 223 of the Code of 1882, adecree is transferred direct to a Subordinate Court in another district and notto the District Judge of that district, the transferee court has nojurisdiction to execute the decree. Mr. Sen has relied upon the case of DebiDial Sahu v. Moharaj Singh I.L.R. (1895) Cal. 764. That was a case under theCode of 1882. In that case, a decree for money was passed by the Munsif ofDaltonganj. On application by the decree-holder to have it sent for executionto the court of the Munsif of Aurangabad, within whose jurisdiction thejudgment-debtor had immovable properties, the Munsif of Daltonganj, indisregard of the last para, of Section 223, sent it direct to the Munsif ofAurangabad instead of sending it to the District Judge of Gaya. Prinsep andGhose JJ. held that was not a mere irregularity and that the Munsif ofAurangabad (sic) no jurisdiction without an express order of the District,Judge of Gaya passed under Section 226, which corresponds to XXI, Rule 8 of thepresent Code. The learned Judges added it the scheme of the Code was to vestthe District Judge with Supreme authority in the matter of execution of adecree passed a court situate in another district and that it was only underorder of the District Judge sending the decree to it for execution that asubordinate court could acquire jurisdiction in the matter. Until such an orderwas made no subordinate court (sic) jurisdiction to execute such a decree.

11. The only other case in this Court bearing on the pointwhich as cited at the bar is the case of Prakash Chandra Sarhar v. pandeyBaldeo Ram A.I.R. (1914) (Cal.) 786 [LQ/CalHC/1914/158] . There an application was made to thedistrict Judge of Gaya for execution of a decree which had been (sic) by himand thereafter, on being moved by the decree-holder, he sent the applicationand the copy of the decree with the certificate of non-satisfaction direct tothe Subordinate Judge of Palamau instead of transmitting them to the JudicialCommissioner of Chhota Kagpur as he ought to have done. The subordinate Judgeof Palamau refused to proceed in the matter and passed an order dismissing theapplication for execution. (sic) and Mallik JJ. held that the Subordinate Judgeacted (sic), for if he had no jurisdiction to proceed in the matter, he shouldhave returned the papers to the District Judge of Graya in order that he mightadopt the correct procedure and he learned Judges set aside the order ofdismissal and directed the Subordinate Judge to do that which he ought to havedone.

12. The rule enunciated in Debt Dials case (supra) wasaffirmed by the Patina High Court in the case of Kunja Behari Singh v. TarapadaMitra (1918) 4 Pat. L.J. 49 and was followed in the Lahore High Court in thecase of Pearey Lal Ddbi Sahai v. Nanne Mal-Panna Lal : A.I.R.(1933) (Lah.) 839 by Dalip Singh J., who felt himself bound by the weight ofauthority in the matter. Coldstream J. of that Court, however, struck a distinctnote of dissent in the case of Chetan Lal v. Jagat Prasad :A.I.R. (1937) (Lah.) 174 and held that non-compliance with the provisions ofOrder XXI, Rule 5, was a mere irregularity in procedure, which could be waived.The question next came up before the Lahore High Court in the case of BarkatRam v. Bhagwan Singh : A.I.R. (1940) (Lah.) 394. There adecree for the recovery of Rs. 68,000 and odd was passed by the SeniorSub-Judge, Ambala, in favour of Rai Bahadur Banarsi Das against five persons.Benarsi Das assigned the decree to Bhagwan Singh and on the application, ofBhagwan Singh, the senior Sub-Judge, Ambala, sent the decree to the SeniorSub-Judge, Delhi, for execution and not to the District Judge of Delhi, as heshould have done. Thereafter, Bhagwan Singh applied to the Senior Sub-Judge,Delhi, f execution of the decree against one of the judgment-debtor Barkat Earnby attachment and sale of his interest in partnership between him and SardarBahadur Dharam Sing Various objections were thereupon taken by Barkat Ram (sic)gave rise to long-drawn, proceedings and two appeals to the High Court and itwas after the case had been remanded to the low court for the second time thatBarkat Ram for the first tin took the objection that all the proceedings werenull and (sic) for contravention of the provisions of Order XXI, Rule 5. This(sic) overruled by the Senior Sub-Judge, Delhi and the appeal from his orderwas heard by Din Mohammad J. sitting singly. That learned Judge approved of thedecision in Debi Dials case an said that he preferred to follow Dalip Singh J.rather that Coldstream J. He held that, as the Senior Sub-Judge, Delhi had,independently of an order of transfer by the District Judge no jurisdiction toexecute the decree of the Ambala Court, all the proceedings taken by him so farwere null and void the decision was reversed on Letters Patent Appeal by aDivision Bench composed of Tek Chand and Beckett JJ. : Bhagwan Singh v. LalaBarkat Ram : A.I.R. (1943) (Lah.) 129. Tek Chand J., by whomthe judgment of the Court was delivered, took the view that the case was notone of inherent lack of jurisdiction, territorial or pecuniary, over thesubject-matter, but was merely one of irregular assumption of it, theirregularity consisting in non-compliance with the procedure prescribed for thetransmission of the decree and the certificate and this irregularity could bewaived and must, in the circumstances of the case, be taken to have been waivedby the judgment-debtor.

13. Mr. Syama Charan Mitter appearing for the Respondent hasinvited us to follow this decision and a decision of the Patna High Court basedupon it in the case of lnderdeo Prasad Rai v. Deonarayan Mahton I.L.R. (1945)Pat, 50. He has contended that the decision in Debi Dials case (supra) is nolonger good law in view of the fundamental change effected in the Code of 1908by the division of its provisions into the body of the Code proper and therules in the first schedule. The body of the Code, he says, createsjurisdiction and the rules lay down the mode of its exercise and the sixthparagraph of the old s, 225, being now transferred to the first schedule, hasbecome merely procedural. He has further contended that the irregularity thathad been originally committed was cured and the execution proceedings wereregularised from their inception when the District Judge of 24-Pargandstransferred the decree to the First Subordinate Judges Court for execution.

Tek Chand, J., did not expressly base his decision upon anydistinction between the body of the Code and the rules in the first scheduleand indeed Meredith J., by whom the leading judgment in the Patna case wasdelivered, went so far as to say but Order XXI, Rule 5, no matter where itstood, would be merely a rule prescribing a particular mode of procedure. Butthe contention of the learned advocate for the Respondent has to be (sic) with.

14. Section 121 of the Code provides that--

The rules in the First Schedule shall have effect as ifenacted in the body of his Code until annulled or altered in accordance withthe provisions of this part.

15. The question of the relation between the body of theCode and the rules in the first schedule came up for consideration in the caseof Mani Mohan Mandal v. Ramtaran Mandal I.L.R. (1915) Cal. 148, 152. In thatcase, Sir Lawrence Jenkins C.J., who took a prominent part in the framing ofthe Code of 1908, described the relation between the two in these words:

The body of the Code is fundamental and is unalterableexcept by the legislate : the rules are concerned with details and machineryand can be more readily altered. Thus it will be found that the body of theCode creates jurisdiction while the rules indicate the mode in which it is tobe exercised. It follows that the body of the Code is expressed in more generalterms, but it has to be read in conjunction with the more particular provisionsof the rules.

16. The majority of the learned Judges who sat on the FullBench in the case of Ghuznavi v. Allahabad Bank Ld. I.L.R. (1917) Cal. 929referred with approval to these observations. As we understand them, theseobservations mean that, in order to ascertain what the jurisdiction of thecourt in a particular matter is, you have to look not merely to the body of theCode but also to the rules in the first schedule, which may have set limits tothe jurisdiction apparently created in wide and general terms by the body ofthe Code. Simply because the provision which is Order XXI, Rule 5 has been placedin the first schedule, it does not follow that it cannot touch the jurisdictionof the Court.

17. The reasoning employed by Tek Chand J. for arriving athis conclusion in Bhagwan Singhs case (supra) may briefly be put in this way.Section 38 provides that a decree may be executed either by the court whichpassed it, or by the court to which it is sent for execution. Section 39empowers the court, which passed a decree, to send it, on the application ofthe decree-holder, to another court for execution if the conditions mentionedin one or other of the clauses of. Sub-section (1) are satisfied. The conditionsmentioned in Clauses (a) and (b) were satisfied, so far as the court of theSenior Sub-Judge, Delhi, was concerned, and therefore, that court hadjurisdiction to execute the decree if it was transferred to it for execution.The proper mode of transfer was for the court of the Senior Sub-Judge, Ambala,to transmit it through the District Court of Delhi, but if that mode was notfollowed, there was only an irregularity in the mode of transmission.

18. With great respect, this line of reasoning, it appearsto us to be based on the assumption that the Senior Sub-Judge, Ambala, couldtransfer the decree to the Senior Sub-Judge, Delhi and the District Court ofDelhi was merely to function as a channel through which the decree was to passin the course of its journey from the starting point to the destination. Thedecree should have taken the prescribed route lying through the office of theDistrict Judge, but if it did not, it only reached its destination in anirregular manner.

19. We are unable to accede to this view of the matter.Section 39, no doubt, provides, in general terms, that, on the application ofthe decree-holder, the court, which passed the decree, may s end it forexecution to another court, when the conditions specified in the section arefulfilled, but then Order XXI, Rule 5 steps in to fix the District Court as thecourt to which the decree shall be sent when it has to be sent to a courtsituate in another district. The words are mandatory and do not leave any roomfor the exercise of any discretion in the matter by the court which passed thedecree. On receipt of the decree the District Judge may choose to execute thedecree himself and may not send it to any subordinate court at all. Until theDistrict Judge has passed an order of transfer under Rule 8, no subordinatecourt has any jurisdiction in the matter. The concept of jurisdiction embracesnot merely territorial and pecuniary jurisdiction but also the fulfillment ofany condition precedent that may have been attached by a statute to the courtspower to take seisin of a cause : See Nusserwomjee Pestonjee v. Meer MynoodeenKhan Wallud Meer Sudrooden Khan (1855) 6 M.I.A. 134.

20. The case of Jang Bahadur v. Bank of Upper India Limitedin Liquidation I.L.R. (1928) Luck. 314 : L.R. 55 IndAp 227 upon which Tek ChandJ. relied proceeded upon the interpretation of the terms of Section 50 of theCode, which provides that the decree-holder may apply to the court, whichpassed the decree, to execute the same against the legal representatives of adeceased judgment-debtor. In that case, the application for substitution hadbeen made not to the court which passed the decree, but to the transferee courtand order for substitution was passed by the latter court. Their Lordships heldthat the court which passed the decree had not exclusive jurisdiction and ifthe court to which the execution has been transferred makes the order, that ismerely an irregularity in procedure which can be waived. In our opinion, thatdecision cannot be invoked as an authority upon the question of interpretationof a different provision of the Code couched in different language.

21. The case of Inderdeo Prasad Rai v. Deo Narayan Mahton(supra) does not require independent consideration, as Meredith J. adopted thereasoning of Tek Chand J. in the Lahore case, with which he said he was incomplete agreement. He got over the difficulty created by the decision of hisown Court in the case of Kunja Behari Singh v. Tarapada Mitra (supra) by sayingthat it must be deemed to have been overruled by the decision of the PrivyCouncil in Jang Bahadurs case (supra).

22. We respectfully agree with the conclusion reached byPrinsiep and Ghose JJ. in Debi Dials case (supra) and we do not consider thatthe authority of that decision has been shaken in any way either by thedivision of the provisions of the Code into the body of the Code proper and therules of the first schedule or by the decision of their Lordships of theJudicial Committee in Jang Bahadurs case (supra). Mr. Sens third contentionmust therefore be upheld.

23. In the view we have taken of the matter, it isunnecessary for us to deal with the contention of the learned advocate for theRespondent that the execution proceedings must be taken to have beenregularised from their inception by the subsequent order, for transfer that wasmade by the District Judge.

24. The result, therefore, is that the appeal succeeds inpart. The order for attachment passed on September 28, 1945 and the attachmenteffected thereunder are declared to be null and void and the execution casemust proceed on the footing that the application for execution was presented onthe day on which the decree was received on transfer by the District Judge.Parties will bear" their own costs of this appeal.

Das Gupta, J.

25. I agree.

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Sachindra Kumar Basuvs. Ushaprabha De (12.04.1949 -CALHC)