Hubert Peyoli vs Sainudeen and others

P. Krishnamoorthy, J.—In this application under Sec. 24 of the CPC the decree-holder in O. S. No. 21 of 1973 of the Sub Court, Cochin prays for transfer of E. P. No. 146 of 1986 to the file of the Sub Court, Attingal for further proceedings. As the properties belonging to the 1st respondent are situate within the Paravoor village in Qailon Taluk, the decree-holder applied for, transfer of the decree to the Quilon Sub Court within whose territorial jurisdiction the properties are situate. Decree was transferred to the Sob Court, Quilon and E. P. No. 146 of 1986 was filed before that court by the decree-holder. The execution court proceeded with the matter, and the property was ordered to be sold on 8-1-1990. In this petition the decree-holder says that he has now come to understand that these properties are heavily encumbered and that there will be no bidders for the same. He wants to drop the proceedings as against the properties belonging to the 1st respondent and proceed against the properties belonging to respondents 2 to 5, which are situated within the territorial jurisdiction of the Attingal Sub Court. The decree-holder prays for transfer of the execution petition under Sec. 24 C. P. C. solely on the ground that more than 12 years have passed from the date of the decree and that a fresh execution petition will be barred by limitation.

The grounds for transfer under Sec. 24 C. P. C. and under Sec. 39 or Sec. 42 C. P. C, are entirely different. Here is a case where the decree-holder wants to get the decree transferred to Attingal as the properties belonging to respondents 2 to 5 are situate within the jurisdiction of that court, If that be the position, the remedy of the petitioner-decree holder to move the execution court under Sec. 39 C.P.C. or be could move even the transferee court for a further transfer under Sec. 42 C.P.C. The ground mentioned in this application that the decree is going to be barred is not a ground for a transfer under Sec. 24, for, it is well-settled that it is only on certain other grounds that an application can be entertained by a superior court under Sec. 24. Moreover,, when there is a specific provision in the C.P.C. regarding the transfer of a decree, for being executed by another court, it is not proper for this Court to exercise its general power of transfer under Sec. 24. In that view of the matter, I am not inclined to order transfer of the E.P. as prayed for by the petitioner. Accordingly I dismiss this application without prejudice to the petitioner moving either the court which passed the decree or the transferee court where at present the E. P. is said to be pending, either under Sec. 39 or under Sec. 42 C.P.C. if he is otherwise entitled to.