JUDGMENT
Narayan Chandra Sil, J.
1. Both these civil revisions are taken up together for analogous consideration as both the civil revisions are directed against the same order being No. 56 dated 23.04.2004 passed by Sri N.K. Biswas, the learned Judge, Second Bench, City Civil Court at Calcutta rejecting the Miscellaneous Case No. 1700 of 2002 and 1701 of 2002 under Section 47 of the Code of Civil Procedure (hereinafter referred to as “Code” only). It may be mentioned that common order was passed by the learned Judge in connection with Execution Case No. 39 and 40 both of 2001. Those two Execution Cases arose out of Money Suit Nos. 576 both of 1997 respectively.
2. Instead of going into the details of the facts of the cases I like to confine myself to the facts which have come up before me at the time of arguments made by the learned Advocates for both the parties. It appears from the submissions that the petitioner did not appear before the learned Trial Court despite several opportunities given for which the ex parte decrees were passed in both the suits on 5.5.2000. Thereafter both the decrees were put into execution on 17.7.2001. On 17.8.2001 the decree-holder failed a petition for transfer of the decrees to Chinsurah Court, Hooghly. The said petition was allowed by the Executing Court. In such circumstances the petitioner/ defendant/judgment-debtor filed two petitions both under Section 47 of the Code, one before the Chinsurah Court where the decrees were transferred and the other before the City Civil Court, Calcutta. The petition under Section 47 of the Code was rejected by the City Civil Court whereas the other petition filed by the petitioner/Judgment-debtor under Section 47 of the Code is still pending before the Chinsurah Court. It is also gathered from Mr. Jiban Ratan Chatterjee, the learned counsel apppearing for the petitioners that petitions under Order 9 Rule 13 of the Code for setting aside the ex parte decree were filed by the petitioner before the Trial Court and those are still pending. That being the position the present revisional applications under Article 227 of the Constitution of India have been filed before this Court.
3. Mr. Jiban Ratan Chatterjee, the learned counsel appearing for the petitioner submits before me that the applications under Section 47 of the Code which were rejected on merits by the City Civil Court but it is clear in the observation of the learned Judge that he used the words “prima facie” for his satisfaction. Mr. Chatterjee has pointed out that in view of the fact that another application under Section 47 of the Code is still pending before the Chinsurah Court after the transfer of decrees, the learned Judge of City Civil Court should not have entertained the petition under Section 47 of the Code which was filed wrongfully before the City Civil Court and instead of taking of the same for disposal the learned Judge should have transferred that application to Chinsurah Court to be merged with the other application under Section 47 of the Code pending there. On my query as regards the fate of the petitions under Order 9 Rule 13 of the Code in the case of disposal of the petition under Section 47 of the Code it is submitted by Mr. Chatterjee that the proceedings are different and the disposal of Section 47 will have no impact upon the petitions under Order 9 Rule 13 of the Code pending before the learned Judge of Trial Court.
4. Mr. Bidyut Banerjee, the learned senior counsel appearing for the decree-holder/opposite party/plaintiff submits that in view of the petition under Section 47 filed before the City Civil Court the Judgment debtor prayed before Chinsurah Court for adjournment of the hearing of application under Section 47 of the Code and as such the said application before Chinsurah Court is still pending. Mr. Banerjee contends that even after transfer of decree the principal Court is not denuded of its power to determine the questions under Section 47 of the Code of Civil Procedure and in this connection he has referred to the ratio decided in the case of Amarendra Nath Mallick v. Balai Chand Ghatak . It was decided in that case that even after transfer of a decree for execution to another Court, the transferring Court retains its jurisdiction over the execution, though for certain specific purposes only. A similar decision was made in the Judgment of the Full Bench of Patna High Court in the case of Radheshyam and Ors. v. Devendra, . It was decided in that case that where a decree is transferred for execution to another Court the transferee Court gets jurisdiction to execute the decree to the limits of its jurisdiction to execute its own decrees. It retains the jurisdiction until it sent a certificate under Section 41 of the CP Code. The transferor Court is not, however, deprived of all its jurisdiction to execute the decree. The transferor Court still retains jurisdiction to execute the decree except to the extent that jurisdiction to execute the decree which has been given to the transferee Court. It was observed by the Full Bench of Patna High Court in that case that the Court which passed the decree has, therefore, jurisdiction to execute the decree in certain circumstances inspite of absence of any certificates under Section 41 of the Code from the transferee Court.
5. Mr. Banerjee has also referred to the AIR Commentaries on the Code of Procedure by V.R. Manohar, Advocate and W.W. Chitaley Vol.1. There at page 569 it is observed by the learned authors that when the execution of the decree has been transfered to another Court, it does not deprive the transferor Court of all control over the execution proceedings and as such the transferror Court can determine objections as to the executability of the decree. In making that observation the learned author relied on the ratio decided in the case Radheshyam (supra) by the Hon’ble Full Bench of Patna High Court and also the decision made by the Division Bench of our High Court in the case of Amarendra Nath (supra).
6. Mr. Banerjee further submits before me that the decision made by the principal Court on other points are also binding on the parties and in this connection Mr. Banerjee has referred to some case laws which I shall refer if necessary.
7. Thus, on perusal of the materials on record and having considered the submissions of the learned Advocates for both the parties it is perspicuous that the repeated mistake of the petitioner had put the Court into motion. It is absolutely paradoxical to conceive that once the petitioner had filed a petition under Section 47 of the Code before the principal Court (i.e. the City Civil Court, Calcutta) and then they submit before me as to what should have been done by the principal Court without disposing of that application. From the ratios of the Full Bench of Patna High Court and that of our Division Bench it is clear that there was absolutely no bar for the principal Court to dispose of the petition under Section 47 of the Code.
8. It appears from the impugned order that the learned Judge in his order dated 23.04.2004 had entered into merits of the petition and at the same time it was brought to the notice of the learned Judge that a similar petition under Section 47 of the Code was filed before Chinsurah Court, Hooghly. The observation of the learned Judge in this regard is very relevant particularly as to what was submitted by the learned Advocate for the decree-holder before him. Therefore, I quote the relevant portion which reads as under :
“Curiously the said Jdr-Ptr. also filed two applications under Section 47 CPC before Chinsurah Court and the same was numbered as miscellaneous case No. 8/02 and 15/02. Both the miscellaneous cases before the Chinsurah Court are still pending and under process wherein initially property in their territorial jurisdiction was ordered to be attached. Now hearing of the present proceedings anyhow concluded before the present forum though fact remains that other miscellaneous cases under the similar sections on the similar ground on same Judgment/decree are pending before the transferee Court at Chinsurah. Over this aspect dhr. advanced his argument that the present miscellaneous cases (heard analogously) under Section 47 CPC is not tenable in the eye of law since the case has already attached the property of the jdr. and the similar application (miscellaneous case under Section 47 CPC) are pending before the said learned Court at Chinsurah. According to dhr. both the two proceedings cannot run simultaneously in view of the order of this Court dated 17.8.2001 for transferring the execution case (39 and 40 of 2001) before the learned Court at Chinsurah. As per dhr. the present proceeding is hit by R 20 CRO.”
On close scrutiny of the order impugned passed by the learned Judge it appears that as the learned Advocate for the Judgment debtor was absolutely silent as to the merits of that applications and about the fate of order of attachment passed by Chinsurah Court even after disposal of the applications under Section 47 by the learned Judge of City Civil Court it was held by the learned Judge in the impugned order that the petitions were not tenable (or maintainable?). But still then the learned Judge directed himself to take up the matter independently and came to the conclusion as follows:
“I have mentioned earlier that the present Court being an execution Court {even for sake of argument) is to see prima facie that the decree suffers with irregularities and illegalities and it is hit by Section 13(1) of the Money Lenders Act.
*** *** *** *** *** *** In this particular case from the face of the plaint we find no such whisper as of interest as against the said loan. Save and except the present claim by the jdr. before this forum nothing prima facie speaks about the said loan with interest as defined under the Bengal Money Lenders Act/Accordingly, Section 13(1) has no application in the present case prima facie." (underlined for emphasis)
9. In order to determine the provisions of Section 13(1) of the Bengal Money Lenders Act vis-a-vis Section 8 of that Act it is always pertinent as to whether the petitioner has got the proper licence under that Act, of course, if it is determined that the petitioner is a money lender. But that aspect appears to have been avoided by the learned Judge and he came to a prima facie finding as quoted above. From that point of view the order passed by the learned Judge is not not at all tenable and the same is liable to be set aside. Thus as the impugned order is going to be set aside the question as to whether the other points decided by the learned Judge will be binding upon the Judgment-debtor does not arise and this has precluded me from going into the decisions in those cases referred to by Mr. Banerjee.
10. In view of all I could have sent the applications under Section 47 of the Code filed before the principal Court i.e. before the City Civil Court to Chinsurah Court for disposal, which the learned Judge of City Civil Court should have done Instead of entering into the merits of that petition I eschewed from doing the same as the order on merits passed by the learned Judge does not appear to be tenable. I like to make it clear that my above observation will give the liberty to the learned Judge of Chinsurah Court to come to an independent finding in deciding the application under Section 47 of the Code pending before him put in doing so the learned Judge of Chinsurah Court is hereby directed to dispose of that application under Section 47 of the Code within a period of one month from the date of communication of the order which is going to be passed in this Judgment.
Accordingly, the revisional applications are allowed. The order impugned passed by the learned Judge is hereby set aside.
Later :
Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates for the parties as expeditiously as possible.