Gouri Sankar Prosad vs Kashi Prosad Khaitan and Another

P.N. Mookerjee, J.—This Rule is directed against an order passed by the learned Subordinate Judge, Second Court, Alipore, u/s 63 of the Code of Civil Procedure.

The petitioner and the opposite party No. 1 are both creditors of opposite party No. 2 against whom they have obtained separate decrees for money. The petitioner applied for execution of his decree in Money Execution Case No. 65 of 1056 of the Second Court of the Munsif at Monghyr. The opposite party put his decree into execution in Money Execution Case No. 47 of 1956 of the Second Court of the Subordinate Judge at Alipore. The judgment-debtor is an employee of the Eastern Railway, having its headquarter at Howrah. Both the decree-holders wanted, to attach his salary and attachment orders were issued by both the Second Court of the Munsif at Monghyr and the Second Court of the Subordinate Judge at Alipore. Thereafter the petitioner applied before the learner Subordinate Judge, Alipore, for recalling his order of attachment. The learned Subordinate Judge held that u/s 63 of the CPC his Court being the Court of the higher grade, the rateable distribution or the distribution of the Judgment-debtor''s money should be made by his Court. Aggrieved by this order, the petitioner came up to this Court and obtained the present Rule.

In our opinion, the learned Subordinate Judge has taken the correct view of the law. There can be no question that the Court of the Subordinate Judge would be a Court of a grade higher than that of the Munsif''s Court for purposes of Section 63 of the Code of Civil Procedure, end, that being so, the learned Subordinate Judge was fully justified in directing that rateable distribution should be made by his Court and in taking steps for implementing that order.

In holding as above, we have proceeded Upon the words of the statute, keeping in view the time of approach, recommended in decided cases. The section speaks of the Court of the highest grade and whatever tests are applied, pecuniary or other limitation of jurisdiction or the nomenclature test of gradation, the Subordinate Judge will be a Court of superior or higher grade than the Munsif. The section does not require that one Court should be subordinate to another in the sense that ''the latter would have appellate or revisional jurisdiction over the former. It speaks only of higher gradation. We hold, therefore, that the Court below came to the right decision in the present case.

We accordingly, discharge this Rule, but, in the circumstances of this case, we would direct the parties to bear their own costs in this Court.

Sarkar, J.

I agree.