Ramankutty vs Kali Nani

Pareed Pillay, J.—G.R.P. 2068/85 is against the Order in E.A. 162/85 and C.R.P. 2071/85 is against the order in E.A. 161/85 in O.S. 69/81 of the Munsiff Court, Kayamkulam. E.A. 162/85 was filed to review the order dated 21st February 1985 in E P. 81/83 in O.S. 69/81 of the Munsiff Court, Haripad. E.A. 161/85 has been filed u/s 5 of the Limitation Act to condone the delay in filing E.A. 162/85. Both the petitions were dismissed by the Munsiff, Kayamkulam.

In E.P. 81/83, Munsiff Court, Haripad held that violation of injunction has been proved by the evidence of P.Ws. 1 and 2 and exhibits marked in the case and the judgment debtor (revision Petitioner) was ordered to be detained in the civil prison for not exceeding 15 days for the purpose of enforcing the decree. As the revision Petitioner is residing within the jurisdiction of Kayamkulam Munsiff Court, the E.P. was transferred to that Court for execution. It is in that Court that the the revision Petitioner filed E.A. 161/85 and E.A. 162/85.

The suit was decreed on 5th July 1983. E.P. 81/83 was filed by the decree holder for taking action against the judgment debtor for violation of injunction. Notice was issued and the judgment debtor entered appearance on 16th February 1984 and applied for time. The case was adjourned to 16th March 1984 and thereafter to 4th April 1984. Again, it was adjourned to 28th May 1984 with no further time order. On 28th May 1984 no objection was filed. There was no representation for the judgment debtor on that date. A commission was issued by the Court below to ascertain the varity of the allegations made by the decree holder. Commissioner filed his report. P.Ws. 1 and 2 were examined on 12th June 1984 and the Court passed the order in E.P. 81/83 to detain the judgment debtor in civil prison. When the matter was pending before the transferee Court (Munsiff Court, Kayamkulam) revision Petitioner filed E.A. 161/85 and E.A. 162/85.

Learned counsel for the decree holder contended that the execution application filed before the transferee Court is not maintainable, and the only course open to the judgment debtor is to have filed the petitions before the transferor Court (Munsiff Court, Haripad). Counsel for the revision Petitioner contended that u/s 42 Code of Civil Procedure, transferee Court has the same powers as the transferor Court as if the decree had been passed by itself.

It has to be considered as to whether the transferee Court can review the order passed by the transferor Court. In the present case, it is the transferor Court (Munsiff Court, Haripad) which passed the order in E.P. 81/83 to detain the judgment debtor in civil prison. For the purpose of executing the order it was sent to the Munsiff Court, Kayamkulam. Contention of the revision Petitioner is that u/s 42 of the CPC the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself and therefore the transferee Court is vested with ample jurisdiction to review the order passed by the transferor Court.

Section 42 of the CPC makes it clear that the transferee Court has all the powers in executing a decree sent to it from Anr. Court. But, that does not mean that the transferee Court can go behind the decree or any direction contained in it. Undoubtedly, the transferee Court has the same powers in executing the decree as if it had been passed by itself. But the power is confined only to the execution of the decree. It is difficult to read into the section that the transferee Court can unsettle things settled by the transferor Court. Though Section 42 CPC states that the Court executing the decree sent to it has the same powers of the transferor Court in executing the decree as if it had been passed by the transferee Court, it is difficult to hold that it would be open to the transferee Court to question the legality of the decree or order passed by the transferor Court. For example, the transferee Court cannot decide the question whether the decree is barred by limitation. Such questions can be dealt with only by the Court which passed the decree. In a case where judgment-debtor wants to establish that the decree is not executable on account of limitation or such other grounds he can at best apply for a stay in the transferee Court as provided under Order 21, Rule 26 of the CPC Order 21, Rule 26 enables the transferee Court upon sufficient cause being shown to stay the execution of the decree for a reasonable time to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby or of application for execution has been made thereto. Under the above provision the transferee Court may order stay of execution to enable judgment-debtor to get the decree amended or to establish that the decfee has been satisfied or get the decree passed ex-parte against him set aside on the ground that it was obtained by fraud or that the decree is barred by limitation. The transferee Court is not vested with any jurisdiction u/s 42 CPC to review the order of the transferor Court or reconsider it on any grounds. If the judgment-debtor wants to review it he should approach the Court which passed the decree. Section 42 of the CPC itself makes it clear that the transferee Court is empowered to execute the decree sent to it by the transferor Court and as Order 21, Rule 26 gives power to the transferee Court to stay the execution of such decree for a reasonable time to enable the judgment- debtor to apply to the Court which passed the decree for an order of stay the position admits of no doubt that the transferee Court is not vested with full powers as if the transferor Court has lost its seisin over the matter.

It has to be noted that when the transferee Court is unable to execute the decree, it has to send back the decree to the transferor Court. Thus, it can be seen that at no point of time the transferor Court has lost its jurisdiction merely because the decree has been sent for execution to the transferee Court. The powers of the transferee Court is not co-terminous with that of the Court which passed the decree and the essential function of the transferee Court is only to execute the decree.

It is for the revision Petitioner to establish that the order has been passed without hearing him. That he can do only before the transferor Court. Under Order 21, Rule 106, it is open to a party against whom an order is passed ex-parte to apply to the Court to set aside the order. As the order in the execution petition has been passed by the transferor Court the only course open to the revision Petitioner is to approach that Court for appropriate reliefs.

Section 39 of the CPC enables a Court which passed a decree to send it for execution before Anr. Court of competent jurisdiction. Section 39 makes it abundantly clear that the decree is sent to Anr. Court only for execution. In AIR 1931 252 (Rangoon) ) it is held as follows:

A Court to which a decree has been transferred must take the decree as it stands and is not entitled to question the validity of the decree upon the ground that the decretal Court had no jurisdiction, territorial, personal or pecuniary to pass it.

In AIR 1937 477 (Rangoon) it is held as follows:

Section 42 and Order 21, Rule 26 CPC should not be read as giving the Court which passed the decree and the Court to which decree.