Judgement
P. CHANDRA REDDY, Offg. C.J. : -
These two appeals are filed by the decree-holder in O. S. No. 34 of 1933 on the file of the Subordinate Judge of Musulipatam against the order of the District Judge, dismissing two execution petitions filed by the appellants. The appellants filed a suit against the respondents, O. S. No. 34 of 1933, for recovery of about Rs. 6,000/- and a judgment was entered in his favour on 25-10-1933.
Execution was levied by him for the satisfaction of the decree on several occasions, but it is not necessary to trace the history of all these petitions. It is sufficient to refer to E. P. No. 38 of 1940 which was for attachment of immovable properties belonging to the judgment-debtors then lying within the jurisdiction of the Subordinate Judge, Masulipatam.
Pending this, the judgment-debtors filed a petition under S. 20 of the Madras Agriculturists Relief Act for stay of execution of the decree alleging that they propose to take out an application under S. 19 of the said Act to scale down the decree debt. Having obtained stay, the judgment-debtors did nothing further with the result that the stay of execution of the decree was vacated.
Unfortunately, the decree-holder was not quite diligent in pursuing his remedy for the satisfaction of his decrees. He filed an execution petition No. 34 of 1945 only on 4-4-1945 requesting the Court to issue a notice to the judgment-debtor and to bring the properties attached in pursuance of E. P. 38 of 1940 to sale. He also filed another execution petition No. 89 of 1945 on 24-10-1945 to issue notice to the judgment-debtor and to attach his movables.
While these petitions were pending disposal, a notification was issued by the Government of Madras transferring jurisdiction, in which the properties attached as aforementioned were situated, from the Sub-Court, Masulipatam, to the District Court. Consequent upon this, the Subordinate Judge, who thought that it was not competent for him after the issue of this notification to entertain these execution petitions returned them on 4-10-1948 to the decree-holder to present the petitions in the proper Court, i. e., the District Court.
Accordingly, the appellant presented these petitions the same day in the District Court which were numbered as E. Ps. 45 and 46 of 1949 respectively. These petitions were returned with the objection that the E. Ps. could not be filed directly in the District Court without transmission of the decree for execution by the Sub-Court. The decree-holder represented them on 17-1-1949 with the endorsement that he was filing a petition in the Sub-Court for that purpose and that the execution petitions might be numbered after the receipt of the decrees.
Awaiting the transmission, the E. P. was called from time to time till 6-7-1949. Ultimately the records were sent for from the Sub-Court and action was taken on the E. Ps. which were then registered as E. Ps. 45 and 46 of 1949 as already mentioned above. There were other proceedings connected with these execution petitions, but it is not necessary to refer to them as they do not have much bearing on the present enquiry.
2. Objections were filed by the judgment-debtors that the Court had no jurisdiction to entertain the executions and that it was also barred by limitation etc. The objections prevailed with the lower Court with the result that the petitions were dismissed. It is these orders that are brought into question before us in these appeals.
3. The contention based on S. 150, C. P. C., which recites that
"Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from, which the business was so transferred"
raised in the trial Court was not pressed before us and rightly in our opinion.
The mere fact that the jurisdiction over certain properties was transferred from one Court to another would not divest the former Court of its jurisdiction to take action under S. 39, C. P. C.
4. The substantial point urged before us is that the omission to pass orders transmitting the decree to the Court which has acquired jurisdiction by reason of the notification does not, in any way, take away the jurisdiction of the Court in which the execution petition was filed to execute the decree, in view of the fact that later on the District Court sent for the decree from the Sub-Court, Masulipatam.
As substantiating this proposition, reliance is placed on a judgment of the Supreme Court in Mohanlal Goenka v. Benoy Kishna, 1953 SCT 130 : (AIR 1953 SC 65) (A), where it was laid down that failure to transmit a decree or a certificate as required under O. 21, R. 6, C. P. C., by the Court which passed the decree does not prevent the decree-holder from applying for execution to the Court to which the decree has been sent since it was not a material irregularity. We fail to see how that could be of any help to us in deciding the point before us.
Under S. 38 of the Code of Civil Procedure, only two Courts could execute a decree, i. e., the Court which passed it or the Court to which it is sent for execution. So far as the latter Court is concerned it gets seisin of the matter only when the decree is sent by the Court which passed it, for execution. The circumstances under which a decree can be sent to a transferee Court are laid down in S. 39 of the Code.
In the absence of any transmission by the Court which passed the decree, it is not competent to any Court which possesses jurisdiction over the property sought to be proceeded against, to entertain a petition to execute the decree. The position in this case is the same as though for the first time an E. P. is filed in the District Court for execution of the decree on the ground that the properties are situated within its jurisdiction.
For these reasons, we hold that the trial Court was right in refusing the request of the appellants to execute the decree. It follows that the orders under appeal do not call for interference and the appeals are dismissed. This is a fit case in which the parties should be directed to bear their own costs throughout.
Appeals dismissed.