Faiz Mohideen vs M.S. Sreeramulu Chetty and Co.

S.S. Subramani, J.—The second judgment debtor in O.S.No. 1650 of 1980, on the file of the Subordinate Judge, Krishnagiri, is the revision

petitioner. Since caveat has been entered by the decree holder, with the consent of the parties, the civil revision petition has been heard.

The decree holder/respondent obtained a decree on 8.12.1981 for recovery of a sum of Rs. 23,000 against the firm 1st defendant and as per

the decree, the entire decree amount has to be discharged in 23 instalments at the rate of Rs. 1000. It is not disputed that the agreement was

violated and the amount was not paid in time. The decree holder filed execution petition for the recovery of the same.

In the counter statement filed by the revision petitioner, he contended that the execution petition is not maintainable, and since the decree is

against the firm, it could not be proceeded against the petitioner in his individual capacity. He further said that the decree was passed by the Sub

Court, Krishnagiri as per the valuation of Rs. 30,000. But in 1984, the decree was transferred from Sub Court, Krishnagiri, to the District Munsif

Court, Krishnagiri, which is not the competent Court. In other words, the decree ought to have been transferred to the Court of competent

jurisdiction and consequently, the transfer of the decree to the district Munsif Court, itself is void. It is said that since the transfer is invalid,

execution itself is not maintainable. It is further said that even before the Certificate was issued by the transferor court, execution petition has been

filed and at the time when the decree holder filed the execution petition, the decree was not before the executing Court. Therefore, it is contended

that the very filing of the application is not maintainable and the execution petition was also transferred without jurisdiction. It is also said that since

the transfer is invalid, the present execution application filed was to be treated as a new execution application filed beyond 12 years after the

decree and therefore, on the ground also, the decree holder is not entitled to recover any amount.

All these contentions were found against by the executing court and the execution petition was proceeded with and the decree holder was

permitted to recover the entire amount from the revision petitioner as well as other defendants. It is against that decree, the 2nd judgment debtor

alone has preferred this revision.

The only point that is canvassed at the time of arguments in this revision is that the execution petition filed before the District Munsif Court,

Krishnagiri, even before the certificate issued by the Subordinate Judge, is not maintainable and therefore, there was no decree enabling the

execution. The contention is that the execution application has to be treated as a new application after the lapse of 12 years from time date of

decree.

I cannot agree with the above submissions advanced by learned counsel for the petitioner. It is not as if the decree was transferred for execution

at the request of the decree holder. When the pecuniary jurisdiction of the Courts was changed and the value was increased in so far as the Munsif

Courts are concerned, the execution application filed before the Subordinate Judge, had to be transferred to the District Munsif Court. The entire

file including the decree and the execution petition filed by the decree holder before the Subordinate Judge were transferred to the District Munsif

Court. Therefore, the contention that without a certificate, the execution petition could not be filed in the District Munsif Court, cannot stand.

Further, this contention also cannot legally be sustained. As per the amendment of the CPC u/s 99-A, an order u/s 47 of the CPC is not to be

revised or modified unless the decision of the case is prejudicially affected. Even if there is an irregularity, in entertaining die execution petition

before the certificate was obtained, unless the prejudice is shown, the order is not liable to be set aside. Learned counsel for the petitioner was not

in a position to show the prejudice caused to him. The contention that the execution petition has to be treated as a new execution petition is also

without any basis. The earlier execution petition was kept pending and a fresh application is filed, the new application then be treated only as

reminder of the earlier application. It is not disputed that the earlier application is still pending consideration by that Court. In fact, even without

filing a fresh application the, decree could be executed and all the reliefs sought for are retained in that execution petition.

The provisions u/s 37, CPC enables the decree holder to file execution application before the transferee-court. The definition ''court which

passed a decree'' u/s 37, enables the decree holder to file the execution petition before the transferee court. For the above reasons, all the

contentions raised by learned counsel for the petitioner are rejected. The civil revision petition is dismissed with costs. CMP No. 1170 of 1997 is

dismissed.