Jinu Rani Begum vs Safar Ali

S.L. Saraf, J.—This revision application is against the order dated 29.1.1991 passed by the learned Addl. District Judge Nagaon in Misc. (Succession) Case No. 23 of 1989."

It appears that in a Succession Certificate Case, the learned Addl. District Judge has sent the petitioner who is daughter-in-law of the opposite party to the civil prison and has directed the petitioner to pay Rs. 31,308/-alongwith interest(r) 12% to the father-in-law of the opposite party.

From the record, it appears that on the death of the husband of the petitioner certain properties of the husband was to be divided amongst heirs and legal representatives according to Muslim law. The succession certified issued whereby certain directions were for distribution of the deceased''s property. The petitioner was directed by the Court to make certain payments to the father-in-law of the petitioner. On failure of the petitioner to pay the said amount the Court below admittedly by way of coercive measure directed the petitioner to be held in civil prism holding that though the Succession Ad is silent as to how the money would be realised as per directions of the Court giving the succession certificate, the Court is not important. Under the inherent power of the Court and for ends of justice u/s 151 CPC, the Court can direct the petitioner to be kept in civil prison.

In my opinion the said order of the Addl. District Judge was in gross abuse of process of the Court. The Court below has patently exercised powers not vested on it by way of coercive measure and with a mala fade interest influenced by extraneous consideration. The Addl. District Judge ignored the fact that it was not a decree to be executed under Order XXI. Even Order XXI, Rule 30 is only one of the several modes of execution. Normally Order XXI, Rule 30 is not resorted to for realization of money decree. In any event, Order XXI, Rule 30 is not applicable if a judgment-debtor is a woman. The Addl. District Judge ought to have been aware of Section 56 of the CPC which specifically lays down as follows .

Prohibition of arrest of detention of a Woman in execution of a decree for money;

Notwithstanding anything in this part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

It has been held in Raja Soap Factory and Others Vs. S.P. Shantharaj and Others, that no Court has any inherent power to invest itself with a jurisdiction not conferred on it by law. The Supreme Court in Nain Singh Vs. Koonwarjee and Others, have held that in so far as the matter in question in any particular case or topic falls within the ambit of the expressed provision of the Statute, the inherent power of the Court must, to that extent, be regarded as abrogated by Legislature. The Court cannot have recourse in such cases to the inherent power.

In the instant case the Addl. District Judge had no inherent power to be exercised u/s 151 CPC inasmuch as there is specific provisions under Order XXI Rule 30, read with Section 56 of the CPC when a person could be detained in a Civil Prison. Further the succession Court granting Succession Certificate was not an Executing Court and it had no authority to apply the provisions of Order XXI, Rule 30, for realisation of certain dues as per the Succession Certificate as if the same is a money decree being executed under Order XXI, Rule 30. There are other options and Forum whereby the respondent could have realised the claim under the Succession Certificate attempt of the Addl. District Judge to send petitioner to civil prison was an Act of judicial terrorism and the same must be deprecated. The judiciary is the last vanguard of equity and justice and the same should not be allowed to be crumbled by whims and capricious and ipsi dixit of judicial authority.

In the premises, I set side the order dated 29.1.1991 passed by the learned Addl. District Judge, Nagaon in Misc. (Succession) Case No. 23 of 1989 is quashed and set aside.

The rule issued is made absolute.

The petition is disposed of. No. costs.