Koduru Lalithamba and others vs Borra Mangamma and others

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 alleged that they propose to take out an application un(sic) S. 19 of the said Act to scale down the dec(sic) debt. Having obtained stay, the judgment-debt did nothing further with the result that the s(sic) of execution of the decree was vacated, Unfortunately, the decree-holder was quite diligent in pursuing his remedy for the sa(sic) faction of his decrees. He filed an execution petition No. 34 of 1945 only on 4-4-1945 request the Court to issue a notice to the judgment-del(sic) and to bring the properties attached in pursua(sic) of E. P. 38 of 1940 to sale. He also filed ano(sic) execution petition No. 89 of 1945 on 24-10-1945 issue notice to the judgment-debtor and to at(sic) his movables.

While, these petitions were pending dispo(sic) a notification was issued by the Government Madras transferring jurisdiction, in which the properties attached as aforementioned were situa(sic) from the Sub-Court, Masulipatam, to the District Court. Consequent upon this, the Subordinate Judge, who thought that it was not competent him after the issue of this notification to enter these execution petitions returned them on 4(sic) 1948 to the decree-holder to present the petitioner in the proper Court, i.e., the District Court.

Accordingly, the appellant presented t(sic) petitions the same day in the District Court w(sic) were numbered as E. Ps. 45 and 46 of 1949 respectively. These petitions were returned with objection that the E. Ps. could not be filed di(sic)ly in the District Court without transmission of decree for execution by the Sub-Court. The decree-holder represented them on 17-1-1949 the endorsement that he was filing a petitioner the Sub-Court for that purpose and that the e(sic)tion petitions might be numbered after the re(sic) of the decrees.

Awaiting the transmission, the E. P. was (sic)ed from time to time till 6-7-1949. Ultimately records were sent for from the Sub-Court (sic)action was taken on the E. Ps. which were registered as E. Ps. 45 and 46 of 1949 as al(sic) mentioned above. There were other proceed connected with these execution petitions, but not necessary to refer to them as they do not much bearing on the present enquiry.

Objections were filed by the judgment debtors that the Court had no jurisdiction t(sic) tertain the executions and that it was also (sic) by limitation etc. The objections prevailed the lower Court with the result that the pe(sic) were dismissed. It is these orders that are br(sic) into question before us in these appeals.

The contention based on S. 150, C. (sic) which recites that "Save as otherwise pro(sic) where the business of any Court is transferred any other Court, the Court to which the b(sic) is so transferred shall have the same power shall perform the same duties as those respect conferred and imposed by or under this Code the Court from which the business was so conferred" raised in the trial Court was not p(sic) before us and lightly in our opinion.

The mere fact that the jurisdiction over (sic) properties was transferred from one Court t(sic) there would not divest the former Court jurisdiction to take action under S. 39, C.P.C.

The substantial point urged before that the omission to pass orders transmitter decree to the Court which has acquired jurisdiction by reason of the notification does not, (sic) way, take away the jurisdiction of the C(sic) which the execution petition was filed to (sic) 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 (sic)ced on a judgment of the Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, where it was laid down (sic) failure to transmit a decree or a certificate required under O. 21, R. 6, C. P. C, by the (sic)t which passed the decree does not prevent decree-holder from applying for execution to Court to which the decree has been sent since ''as not a material irregularity. We fail to see that could be of any help to us in deciding point before us.

Under S. 38 of the Code of Civil Procedure, two Courts could execute a decree, i.e., the (sic)t which passed it or the Court to which it is for execution. So far as the latter Court is (sic)erned it gets seisin of the matter only when decree is sent by the Court which passed it, execution. The circumstances under which a (sic)e can be sent to a transferee Court are laid (sic) in S. 39 of the Code.

In the absence of any transmission by the (sic)t which passed the decree, it is not competent (sic)y Court which possesses jurisdiction over the (sic)ty sought to be proceeded against, to enter(sic) a petition to execute the decree. The posi(sic) this case is the same as though for the first an E. P. is filed in the District Court for (sic)tion of the decree on the ground that the pro(sic)s are situated within its jurisdiction. For these reasons, we hold that the trial Court right in refusing the request of the appellants (sic)ecute the decree. It follows that the orders (sic) appeal do not call for interference and the (sic)s are dismissed. This is a fit case in which parties should be directed to bear their own throughout.