Balwant Singh and others vs Karnail Singh

Mehar Singh, C.J.—A decree was obtained on November 26, 1955 from the Court of Mr. Mohan Lal, Subordinate Judge II Class at Faridkot by Kartar Singh father of Balwant Singh applicant and other appellants. The parties belong to Village Chet Singh Wala. At the time Mr. Mohan Lal, under administrative orders of the District Judge of Bhatinda, was attending to the civil work of the area within which village Chet-Singh-Wala is situate. In the Faridkot Tehsil in those very days, there was also the Court of Mr. Mohinder Singh, Subordinate Judge II Class. There was the office order No. 19 of September 21, 1955, whereby the area within which this particular village is situate was in the matter of distribution of work made over to Mr. Mohan Lal for the institution of "all fresh regular suits". So the decree was obtained by the appellant''s father from the court of Mr. Mohan Lal. The first execution application was made on September 5, 1958, in the Court of Mr. Mohinder Singh, Subordinate Judge II Class at Faridkot. At that time the administrative order No. 19 of September 21, 1955, was operative. A second execution application was made on December 16, 1959, also in the Court of Mr. Mohinder Singh, Subordinate Judge II Class Faridkot. But before that the District Judge of Bhatinda made administrative order No. 47 of October 6. 1958, whereby all civil cases of the area within which is village Chet Singh Wala were to be instituted in the Court of Mr. Mohinder Singh, who had become Subordinate Judge of the 1st Class by that time. There was a third execution application made on November 2, 1960, and this was made in the Court of the successor of Mr. Mohan Lal. Subordinate Judge II Class.

The executing court said that the third execution application is within time, but on appeal the first appellate Court has come to the conclusion that the first two execution applications not having been filed in a court of proper jurisdiction, the third execution application is barred by time having been filed after more than three years from the date of the decree.

This second appeal is by the legal representatives of the original decree holder. Section 38 of the CPC provides that "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution" The Learned Counsel for the appellants refers to Clause (b) of section 37 of the Code which says "where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit". But here the Court of Mr. Mohan Lal has never ceased to exist or ceased to have jurisdiction to execute the decree. So Clause (b) of Section 37 will not advance the argument on the side of the appellants. The Learned Counsel for the appellants refers to administrative order No. 19 of September 21, 1955 and contends that this is only confined to suits and does not cover execution applications, but execution applications follow the decrees in suits and they are entertained by the Court passing the decree according to Section 38 of the Code. The second execution application having been made after the date of administrative order No. 47 of October 6, 1968, and the order saying that "all civil cases" were to be instituted in the Court of Mr. Mohinder Singh, Subordinate Judge I Class, Faridkot, it is a legitimate argument on the side of the appellants that the expression "all civil cases" would also cover execution cases, and according to this administrative order the second execution application may at least be taken to have been transferred to the Court of Mr. Mohinder Singh Sabordinte Judge I Class. To this extent I think there is substance in this argument. However, the appellants cannot succeed unless they can show that the first execution application was to a proper Court because the second execution application cannot be within time unless the first execution application is taken into consideration. The Learned Counsel for the appellants refers to two cases first of which is Rameshwar Lal Bhagat v. Jagadeshwar Dyal Singh AIR 1919 Pat 367, for the proposition that where there are in fact two independent Courts within the same territorial limits having concurrent jurisdiction, then it is open to either of such Courts to execute the decree of the other, and in this respect the Learned Counsel refers to Sub-section (ii) of Section 27 of The Punjab Courts Act, 1918 (Punjab Act VI of 1918) that a Subordinate Judge in the absence of any direction to the contrary, has jurisdiction within the local limits of the District where he is posted. This is correct and in this case also there being no direction to the contrary, it has to be taken that both Mr. Mohan Lal and Mr. Mohinder Singh were Subordinate Judges having jurisdiction within the whole of the District of Bhatinda, thus having jurisdiction over the whole of the Faridkot Tehsil, and consequently having civil jurisdiction over the village of the parties. But while both had jurisdiction and both could have entertained the suit of the decree-holder, the suit, because of the administrative distribution of work, was entertained by the Court of Mr. Mohan Lal, Subordinate Judge. It was his Court which passed the decree, which decree according to Section 38 of the Code, unless transferred from that Court, could only be executed by that Court. Now there is no material here in this case from which transfer of the first execution application can be spelt from the Court of Mr. Mohan Lal, Subordinate Judge to the Court of Mr. Mohinder Singh, Subordinate Judge. Rameshwar Lal Bhagat''s case was really decided by the learned Judges under Clause (b) of section 37 of the Code and where they have made observation, that has been cited above, that is with reference to the peculiar history of the Courts in the particular district with which they were dealing. The situation in Bhatinda district so Jar as Faridkot Tehsil is concerned is not parallel to the situation with which the learned Judges were dealing. This case, therefore, is of no assistance to the appellants. The Learned Counsel for the appellants then refers to Kasturi Rao and Another Vs. Mehar Singh and Another, but in that case also the learned Judges proceeds under clause (b) of section 37. A case for transfer may be made out in the peculiar circumstances of a particular litigation but in the present case there are no such circumstances and unless it can be said that the decree was transferred or sent to the Court of Mr. Mohinder Singh for execution, according to section 38 of the Code, it had to be executed by the Court which passed it, that is to say the court of Mr. Mohan Lal Subordinate Judge. There is the case of Mela Ramanna v. Nallaparaju AIR 1956 S.C. 97, in which their Lordships held that it is settled law that the Court which actually passed the decree does not loss its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another court, but here the Court which passed the decree was not approached and there was no question of subsequent transfer of subject-matter to the jurisdiction of Mr. Mohinder Singh, Subordinate Judge, because here the subject-matter of the dispute between the parties was a money claim. There Lordships also observed that the Court in whose jurisdiction the subject-matter is transferred acquires jurisdiction over the same by reason of such transfer, but, as has already been shown, the present is not a case in which there has been transfer of the decree to the Court of Mr. Mohinder Singh, Subordinate Judge, nor was the decree sent to his Court for execution. There were two separate Courts having concurrent jurisdiction in the whole of the Tehsil of Faridkot, one of Mr. Mohan Lal and the other of Mr. Mohinder Singh. The administrative order of the District Judge of Bhatinda show that from time to time in the matter of distribution of work and its proper disposal, institutions in those Courts were regulated. But the Court which passed the decree in the present case was the Court of Mr. Mohan Lal, Subordinate, Judge, and it was that Court which was to execute the decree according to section 38 of the code. The first execution application having been made not to his court but to another Court that of Mr. Mohinder Singh Subordinate Judge, the consequence was that it was an application made to a court not according to section 36 of the Code, and, therefore, it did not save limitation for the execution of the decree for the second execution application. Once the first execution application is left out of consideration, it is not denied that the third execution application is barred by time. This is the conclusion which the first appellate Court reached.

In consequence this appeal fails and is dismissed, but there is no order in regard to costs.