AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal arises out of an execution case and is directed against an order dated 26th April, 1954 passed by the Ex-officio Subordinate Judge, Shillong.
The Respondent decree-holder obtained a decree for recovery of a certain sum of money against the Defendant judgment-debtor Durga Kumar Datta, the husband of the present Appellant before us. The decree was for a sum of Rs. 14,495,14/- in addition to costs and was passed by the Assistant to the Deputy Commissioner, Shillong in Suit No. 78 (s) of 1948 on 4th January, 1951. In due course it was put into execution in the Court in question ; but eventually the parties filed an application for an adjustment of the decree before that Court on 24th February, 1951.
On the terms of that application-the decree-holder agreed to accept a sum of Rs. 9,100/- in full satisfaction of the decree. Out of this a sum of Rs. 500/- was paid on the date of the adjustment and the balance was payable in quarterly installments of not less than Rs. 500/- each. H was further stipulated that the Appellant who stood surety, for the payment of the decretal amount so adjusted, was to remain liable to the decree-holder for the stipulated sum of Rs. 9,000/- and her property described in the schedule to the application was to remain under attachment until the amount in. question had been paid oil.
It was also provided that in case of default the decree-holder would have the right to execute the decree by putting up to sale the said property ; but in any case the decree holder was not entitled to realise more than a sum of Rs. 9,000/- out of the sale proceeds in satisfaction of his decree. This compromise was duly recorded by the Court and the terms incorporated in its order. Subsequently it appears that there was default in payment of the decretal dues and the Court where the execution case was pending the granted a certificate of non-satisfaction on 7th September 1952 and also made an order at the instance of the decree-holder for transfer of the decree for execution to the Ex-officio Subordinate Judge, Shillong.
The Ex-officio Subordinate Judge who also happens to be the Deputy Commissioner of Shillong, then proceeded to execute the decree. The Appellant who was a party to the execution case raised various objections to the execution but her objections were rejected by the order under appeal. It is against this order that the Appellant has come up to this Court.
Mr. Lahiri in support of the appeal has raised various points. One of his important contentions is that the Assistant to the Deputy Commissioner had no power to transfer the decree to the present executing Court, namely the Court of Ex-officio Subordinate Judge, nor had the Ex-officio Subordinate Judge any power to entertain the execution case, and to proceed with the execution. He submits that in the Rules for the Administration of Justice in the Khasi and Jaintia Hills there is no provision for transfer of the decree for execution to any other Court.
It is not disputed that the decree passed in the case was passed by a competent Court and. the Assistant to the Deputy Commissioner had jurisdiction to pass the decree because the parties although non tribals, were residents of the area which is called the Adminstered Area, in other words the area which formed part of the original Khasi States though falling within the municipality of Shillong. Rule 25 of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills provides that the administration of civil justice in the Khasi and Jaintia Hills is entrusted to the Deputy Commissioner his Assistants, Sardars and dolor is and other chief village authorities".
It was in accordance with this rule that the decree in question was passed by the Assistant to the Deputy Commissioner who in the first instance also proceeded to execute the decree and recorded the adjustment on an application filed by the parties. It is true that on the face of this rule there is no provision for transfer of the decree, but the Courts in this area are to He guided by the spirit of the Code of Civil Procedure, although'' order 21 Rule 5 of the CPC may not in terms apply to the case.
It was open to the Deputy Commissioner who under the rules was entrusted with the administration of civil justice in the area to take up the execution case for execution in his capacity as Ex-officio Subordinate Jude, because, the property against which the execution was sought to be levied was situated in .what was known as the ''British Area of Shillong He had as much seizin of the case under the rule as his Assistant and could pass any order that lie thought fit to moot the ends of justice.
Mr. Lahiri has pointed out that the Shillong (Execution of Decrees) Act, 1943 (Assam Act 12,-of 1943) had application to the case because the Act in question applied only to the British portion Of the Khasi and Jaintia Hills District. He submits that although the Act purported to provide the Civil Courts having jurisdiction over the British portion of Shillong with the power to send decrees for execution to the Civil Courts having jurisdiction in the Khasi States, and also power to execute decrees sent to them for execution by the Civil Courts having jurisdiction in the Khasi States, the Act cannot be given effect to; in so far as the Khasi States area is concerned,'' because according to the contention of the learned Counsel the Assam Legislature could not legislate in regard to that particular area.
Section 4 of this Act is relevant and it is provided by this section that if any Civil Court having jurisdiction in Shillong receives for execution a decree from any Civil Court established or continued by the authority of the Central Government or the Crown Representative in the Khasi States, it shall proceed to execute such decree. It is unnecessary for us at present to deal with this contention of Mr. Lahiri. We find here that the Deputy Commissioner fulfilled both these functions.
He was the person entrusted with the civil administration of the area in which, the decree wad passed and he was also the Ex-officio Subordinate Judge in the British Area of Shillong and although untrue rules there was no specific provision for transfer of the execution case, yet acting under the spirit of the Code of Civil Procedure, the Deputy Commissioner could as Ex-officio Subordinate Judge, proceed to execute the decree. We are therefore not satisfied that the contention of the learned Counsel is well founded.
His next contention is that there was no personal obligation on the part of the Appellant to pay the decretal amount or the stipulated sum of Rs. 9000/- as provided by the adjustment between the parties. This contention is repelled by the plain language of the compromise petition which was filed in the case. Paragraph 7 of the petition clearly recites that the surety shall remain liable to the decree-holder for the stipulated sum of Rs. 9000/- and her property described in the schedule there under would be subject to attachment until the said amount had been duly paid to the decree-holder. Obviously therefore it created a personal liability against the surety to the extent of the amount mentioned and the decree-holder was therefore entitled to execute the decree as against the Appellant and proceed to attach and sell, the property in question.
Mr. Lahiri has further contended that the document required registration inasmuch as the property was net the subject matter of dispute and u/s 17 of the Registration Act the dissonant had to be registered before any charge could-fee created in respect of the property. The answer to this contention is two-fold. In the first place the Registration Act did not apply to the area where the decree in question was passed or the adjustment recorded.
Even if the document required registration for the purpose of creating a charge over the property, the point would not help the contention of the Appellant for the simple reason that on the terms of the document there was a personal liability against the Appellant for the payment of the stipulated amount due. That being so, the decree-holder could still proceed to execute his decree against the Appellant and in execution attach and sell hoc property.
It may be finally observed that even if it is .conceded that there was some Irregularity a the Deputy Commissioner starting execution as Ex-officio Subordinate Judge and conferring jurisdiction on himself as such, we do not think that there was any inherent lack of jurisdiction and it is open to us to rectify that irregularity if any, under Rule 36 of the Rules and pass any order that we may think fit in the ends of justice. In the circumstances We And that there is no substance in any of the points urged by the learned Counsel for the Appellant. The appeal is accordingly dismissed with costs.