Tom Smith vs Tata Iron and Steel Co. Ltd.

Mohammad Noor, J.—This appeal is directed against an order of the Subordinate Judge of Purnea disallowing the objection of the appellant judgment-debtor to the execution of a decree. The decree under execution was passed on 15th January 1924, by the original side of the Calcutta High Court against Mr. J.C. Smith since dead and now represented by the appellant for a sum of Rs. 1,56,603 with costs amounting to Rs. 3,293-15-9. The decree-holder got it transferred for execution to the Court of Subordinate Judge of Ranchi while the execution was pending in that Court the judgment-debtor Mr. J.C. Smith obtained stay of execution till the disposal of this appeal against the decree preferred by him to the appellate side of the Calcutta High Court. He obtained this stay on furnishing security hypothecating landed property situated in the district of Purnea. The execution in the Ranchi Court thus terminated. The judgment-debtor''s appeal against the decree was however dismissed and the decree-holder got the decree transferred for execution this time to Purnea and proceeded against the property which was given in security for the satisfaction of the decree. The judgment-debtor contested the competency of that execution on the ground that the hypothecated properties could not be proceeded against in execution and contended that a separate suit to enforce the charge was necessary. This objection prevailed before the Subordinate Judge and the execution case was dismissed.

The decree-holder preferred an appeal to this Court which on 22nd February 1929 set aside the order of the Subordinate Judge and directed him to proceed with the execution. In the interval, namely, between the date of the order of the learned Subordinate Judge of Purnea refusing to execute the decree and the date of the order of this Court setting aside that order, the learned Subordinate Judge sent a certificate of non-satisfaction of the decree to the original side of the Calcutta High Court and thereupon the decree-holder got the decree transferred to Dhanbad where something was done towards its execution but nothing was realized. After the disposal of the appeal of the decree-holder by this Court on 22nd February 1929, the execution case at Purnea was restored and was proceeded with. Fresh objection was taken by the appellant judgment-debtor on the ground that the Purnea Court had no jurisdiction to proceed with the execution without a fresh order of transfer from the Calcutta High Court which had passed the decree.

His contention was that the decree had come to Purnea on transfer from Calcutta and as the certificate of non-satisfaction was already sent to Calcutta the Purnea Court ceased to have jurisdiction to execute the decree especially as the decree in the meantime was transferred to Dhanbad. The judgment-debtor further alleged a satisfaction of some amount over and above the amount credited by the decree-holders.

According to the judgment-debtor a sum of Rs. 34,475-0-6 was realized, while according to the credit given in the execution petition only a sum of Rs. 27,802-14-6 is shewn as having been realised. Both these objections have been overruled by the learned Subordinate Judge. The judgment-debtor has appealed.

I shall first take up the objection about the competency of the Purnea Court to execute the decree. The question is very simple. It is a well settled principle of law that when an order of a Court is vacated in appeal all the proceedings taken in consequence of the vacated order fall to the ground. The order of the learned Subordinate Judge dismissing the execution was set aside by this Court and therefore the certificate of non-satisfaction sent by him to the Calcutta High Court is of no effect. The fresh transfer to Dhanbad and steps taken there are on the samel footing as if they did not exist as the execution will be taken to have been all along pending in the Purnea Court and is being continued under the orders of this Court. This contention has no merits. (After considering the other argument and rejecting it, the judgment concluded).

There is no merit in either of the two grounds raised by the appellant. The appeal is dismissed with costs. Let the record be sent down at once. The learned Subordinate Judge will proceed with the execution with all possible expedition.

Courtney-Terrel, C.J.

I agree.