Ramier vs Muthukrishna Aiyar and Others

Ramesam, J.—The facts out of which this C.M.S.A. arises are these. The respondents before us obtained a final mortgage decree on 20th

January, 1916, in the District Munsif''s Court of Melur in respect of properties part of which were situated within the jurisdiction of the District

Munsif''s Court of Melur and part within the jurisdiction of the District Munsif''s Court of Madura Town. Subsequent to the passing of the decree

(in February, 1920) there was a notification by the High Court re-arranging the jurisdiction of the District Munsif''s Courts in the District the result

of which was that the suit properties came within the jurisdiction of a third District Munsif''s Court, namely, the District Munsif''s Court of Madura

Taluk. The present application for execution was filed on 27th July, 1927, in the Court of the District Munsif of Madura Taluk without applying for

the transfer of the decree from the Melur Court. The Melur Court has always continued to exist. The District Munsif of the Madura Taluk Court,

following the decision of myself and Devadoss, J. in Subramania Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885 held that until the decree was

transmitted by the Melur Court the Taluk Court cannot execute the decree.

He therefore dismissed the application. On appeal the District '' Judge of Madura refused to follow our decision on the ground that the decision

of the Full Bench in Seeni Nadan v. Mitlhu-sami Pillai (1919) ILR 42 M. 821 : 37 M.L.J. 284 (F.B.) contained an expression of opinion to the

contrary which he preferred and, reversing the decision of the District Munsif, remanded the application to the Lower Court for disposal according

to law. The judgment-debtor files this second appeal.

When this second appeal came on for hearing before our brother Jackson, J., he found not: only that there was some conflict of opinion

between the decision in Subramania Aiyar v. Szvaminatha Chettiar (1928) 28 L.W. 885 and the Full Bench judgment in Seeni Nadan v.

Muthusami Pillai (1919) ILR 42 M. 821 : 37 M.L.J. 284 (F.B.) but also that there was some other conflict of opinion between our decision in

Subramania Aiyar v. Swaminathai Chettiar (1928) 28 L.W. 885 and another decision in Sivas-kanda Raju v. Raja of Jeypore (1927) ILR SO M.

882 : 52 M.L.J. 605 on a matter intimately connected with the main question. He therefore thought it desirable to refer the case for disposal to a

Full Bench.

On the facts stated above and on the view taken by the District Judge, strictly the only question that should arise before the Full Bench is which

is the correct rule to be followed, the decision of myself and Devadoss, J., in Subramania Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885 or

the opinion expressed by the Full Bench on the effect of Section 150, if any, when jurisdictions are changed by notification. But before I deal with

this question, I would like to dispose of a connected question because this point has been strenuously urged before us by the learned advocate for

the respondents and it is implied in the reference by Jackson, J., to the conflict between the decision in Sivaskanda Raju v. Raja of Jeypore (1927)

ILR SO M. 882 : 52 M.L.J. 605 and that in Subramania Aiyar v. Swaminatha Chettiar. (1928) 28 L.W. 885. The contention of the learned

advocate is that even after the Full Bench decision in Seeni Nadan v. Muthusami Pillai (1919) ILR 42 M. 821 : 37 M.L.J. 284 (F.B.) the Court

which passed the decree has no jurisdiction within the meaning of Section 37(b) of the CPC after the notification. He therefore contends that

strictly the second Court is the only Court which has jurisdiction to execute the decree. One would have thought that such an argument is

impossible to maintain on its face after the decision of the Full Bench in Seeni Nadan v. Muthusami Pillai (1919) ILR 42 M. 821 : 37 M.L.J. 284

(F.B.) in which it was held that the first Court had still jurisdiction to execute its own decree. The learned advocate contended that the word

jurisdiction"" in Section 37 has two meanings: (1) the general territorial jurisdiction over the properties, and (2) jurisdiction to execute the decree,

and that after the notification the first Court had certainly lost its territorial jurisdiction over the properties and therefore the first Court ceased to

have jurisdiction and the second Court is the only Court that can be regarded as falling within the definition of the words ""Court which, passed a

decree"" in Section 37. But assuming"" for a moment that this distinction in the two meanings of the word ""jurisdiction"" can be supported, the

distinction does not avail the learned advocate because the words used in Section 37(b) are not merely ""where the Court of first instance has

ceased to have jurisdiction"" in which case some countenance may be given to his argument but they are ""Where the Court of first instance has

ceased to have jurisdiction to execute it,"" that is, only when the first Court had, lost jurisdiction to execute the decree that the second Court will

take the place of the Court which passed the decree by reason of the section. This is the particular point which was dealt with by the Full Bench

and the Full Bench held that the first Court never lost its jurisdiction to execute the decree. Apart from the binding nature of the decision of the Full

Bench, we entirely agree with the actual decision in that case, namely, that the first Court which passed the mortgage decree never lost its

jurisdiction to execute the decree by reason of the later notification by which the mortgaged properties are taken off from its jurisdiction. If so, the

first Court continues to be ''the Court which passed a decree within the meaning of Section 37 and the second Court cannot take its place.

Apparently the learned advocate was emboldened to urge this argument striking at the jurisdiction of the first because of the decision in

Sivask''anda. Raju v. Raja of Jeypore (1919) ILR 42 M. 821 : 37 M.L.J. 284 (F.B.). It was held in Sivaskarida Raju v. Raja of Jeyporez that the

Sub-Court of Vizagapatam which passed a mortgage decree could not execute its decree because the properties to1 be sold were taken away

from the jurisdiction of that Court. Now it seems to me in the ''first place that this decision is directly opposed to the Full Bench decision in Seeni

Nadan v. Muthusami Filial (1919) ILR 42 M. 821 : 37 M.L.J. 284 (F.B.) which overruled the earlier decision in Subbiah Naickcr v. Ramanathan

Chettiar in which it was held that the first Court had no jurisdiction and the second Court only had jurisdiction. Towards the end of Sivaskanda

Raju v. Raja of Jeypore (1927) ILR SO M. 882 : 52 M.L.J. 605 the following observation occurs:

I am of opinion that Subbiah Naicker v. Ramanathan Chettiar (1914) ILR 37 M. 462 : 26 M.L.J. 189 so far as it lays down the opposite of this

proposition, has not been overruled by the Full Bench case in Seeni Nadan v. Muthusami Pillai (1919) ILR 42 M. 821 : 37 M.L.J. 284 (F.B.).

The proposition referred to there is that the Court which originally passed the decree retains jurisdiction to execute and sell in execution. Now,

with great respect, to the learned Judge who made this observation I am unable to agree with the statement that the decision in Subbiah Naicker v.

Ramanathan Chettiar so far as it lays down that the first Court lost its jurisdiction has not been overruled by the Full Bench case in Se-eni Nadan v.

Muthusami Pillai. (1919) ILR 42 M. 821 : 37 M.L.J. 284 (F.B.). On the other hand, in so far as the powers of the first Court are concerned,

every part of Subbiah Naicker vRamanathan Chettiar has been completely overruled by the Full Bench in Seeni Nadan v. Muthusami Pillai. (1919)

ILR 42 M. 821 : 37 M.L.J. 284 (F.B.). The portion in Subbiah Naicker v. Ramanathan Chettiar (1914) ILR 37 M. 462 : 26 M.L.J. 189 which

has not been overruled by the Full Bench case in Seeni Nadan v. Muthusami Pillai is the portion which relates to the powers of the second Court.

It is this point that arises now directly for decision but it did not arise for decision before the Full Bench and will be dealt with lower down. All that

I now wish to say is that the decision in Subbiah Naicker v. Ramanathan Chettiaf1 is completely overruled by the Full Bench so far as the powers

of the first Court are concerned. But apart from this observation, the decision in Sivaskanda Raju v. Raja of Jeypore (1927) ILR 50 M. 882 : 52

M.L.J. 605 is not only opposed to the Full Bench decision itself but to a long series of rulings relating to the powers of a Court which fossed a

mortgage decree to execute its own decree. Ever since the CPC of 1859 was passed, it was held that the first Court which passed a mortgage

decree can execute its own decree whatever changes in jurisdiction may happen after the passing of the decree. It is enough simply to mention a list

of decisions which have so held. Masteyk v. Steel and Co. Kartick Nalh Pandey v. Tilukdhari Lall (1888) ILR 15 C. 667 Gopi Mohan Roy v.

Doybaki N''undun Sen (1891) ILR 19 C. 13. Tincouri Deoya v. Shib Chandra Pal Chozvdhury,s Latahman Pundeh v. Maddan Mo haft Shye

(1880) ILR 6 C. 513 Jahar v. Kamini Debi (1900) ILR 28 C. 238 and the opinion of Mookerjee, J., in Begg, Dunlop and Co. v. Jagannaih

Marwari (1911) ILR 39 C. 104 at 109 Rajagopala Pandarathar v. Tirupathia Pillai (1925) 50 M.L.J. 161 and Abdul Hadi v. Kabultun-nissa

(1924) 80 I.C. 901 In my judgment in Subramania Aiyar v. Swaminatha Chetiiar both myself and Devadoss, J., expressed the view that we could

not agree with the decision in Sivaskmda Raju v. Raja of Jeypore (1894) ILR 21 C. 639 and incidentally mentioned some of these cases. It is

these decisions that Wallis, C.J., obviously had in his mind when he stated in Seeni Nadan v. Muthusami Pillai (1919) ILR 42 M. 821 at 835 : 37

M.L.J. 284 (F.B.):

Further the decision is opposed to a long line of authorities which I think the legislature accepted in 1908. Both on principle and on the balance of

authority and convenience my answer is that the Court which passed the decree is a proper Court.

It is clear from the judgment of Wallis, C.J., that not only with reference to the language of Section 37 but also with reference to the long line of

authorities from 1859 he held that the first Court had jurisdiction to execute the mortgage decree. In my opinion, the decision in Sivaskanda Raju v.

Raja of Jeypore (1927) ILR 50 M. 882 : 52 M.L.J. 605 is directly opposed to the actual Full Bench decision in Seeni Nadan v. Muihusami Pillai

(1919) ILR 42 M. 821 at 835 : 37 M.L.J. 284 (F.B.) and cannot be regarded as good law. As myself and Devadoss, J., were not sitting in Full

Bench but merely as a Division Bench we then merely expressed our dissent.

I now come to the real point that has to be decided in this case with reference to the decision of the District Judge and this point is whether the

second Court which acquired the territorial jurisdiction by means of notification can execute the-decree without transmission of the decree from the

first Court which passed the decree. It is in the consideration of this question that the observations in Seeni Nadan v. Muthusami Pillai (1919) ILR

42 M. 821 at 835 : 37 M.L.J. 284 (F.B.) have to be remembered. I am very anxious to observe at the outset that, both when I and Devadoss, J.,

decided the case in Subramania Aiyar v. Szvamina, the Chettiar (1928) 28 L.W. 885 and now. I am fully conscious of the fact that I ought to give

the utmost weight possible to the observations in the Full Bench decision even though they do not touch the actual decision in the caseI make this

observation apart from the great respect I always had for the three learned: Judges who were sitting in the Full Bench. But ''giving every

consideration to this aspect, myself and Devadoss, J., felt bound to differ from the opinion as to the power of the second Court with reference to

Section 150 of the Code of Civil Procedure. I still adhere to that opinion. But in doing so I �do not wish to repeat the arguments I already

mentioned in the former judgment but to supplement them by other arguments''for most of which I am indebted to the observations of my Lord, the

Chief Justice, in the course of the argument. But before I do so I think it necessary first to set forth the notification changing the jurisdiction of the

Courts. The notification runs as follows:

His Excellency the Governor in Council having sanctioned in G.O. No. 1056, Home (Judicial), dated the 10th May, 1919, the establishment of

two Additional District Munsifs'' Courts for the Madura District, the High Court hereby directs under Sections 5 and 11 of the Madras Civil

Courts Act, 1873, as amended by the Madras Civil Courts Act, 1885i that the said Courts shall continue to hold their sittings at Madura and

Dindigul until further orders, and shall be styled ''The Court of the District Munsif of Madura Taluk at Madura'' and ''The Court of the District

Munsif of Palni''. The Court of the District Munsif of Madura (Principal) and the Court of the Second Additional District Munsif of Madura shall be

styled The Court oif the Principal District Munsif of Madura Town'' and ''The Court of the Additional District Munsif of Madura Town''.

The High Court further directs, in supersession of all previous notifications on the subject, that the following District Munsifs'' Courts in the

Madura District shall be located and have local jurisdiction as follows:

Number and name Place of Present Proposed

of Court. sitting. jurisdiction. jurisdiction.

The Principal Madura Madura Munici- Madura Municipality.

District Munsif''s Court pality.

of Madura to be styled

The Court of the Prin-

cipal District Munsif of

Madura Town.

The first Addi- Do. Madura Munsif Madura cusba (ex-

tional District Munsif''s (but trying trans- cepting Madura Munici-

Court of Madura to be ferred suits). pality) and Tirupparan-

styled ""The Court of kundrank firkas of

the District Munsif of Madura Taluk and

Madura Taluk at Alanganallur firka of

Madura."" Nilakkottai Taluk.

The District Mun- Do. Melur Taluk and Melur taluk and

sif''s Court of Melur. Madura Taluk except Samayanallur, Tiru-

Madura Municipality mukur, Chatrapatti,

and Alanganallur Kunnathur and Kelen-

firka of Nilakkottai dri firkas of Madura

Taluk. Taluk.

I think it necessary to set forth the notification clearly because in my opinion much of the conflicts of opinion and such'' decisions as in my

opinion are erroneous are due to the non-reference to the actual wording of the notification''. I observe that in none of the former decisions is the

notification actually set forth or its language specifically referred to. It is possible that in some of these decisions that notification actually amounted

to a transfer of a certain amount of business either by specifying the cases themselves or the classes of cases from one Court to another. If so,

those decisions would be right and I need not expressly dissent from them. It is now unnecessary for me to trace the actual notification in each of

the earlier cases which have been cited before us. It is enough for me to look at the notification in the particular case before me. Only if the

notification is not such that an inference can be made that business has been transferred from one Court to another these decisions can be regarded

as erroneous and my dissent from them applies. Now looking at the language of this notification, in the first place I observe that it talks of the

future; it does not apply to the past; it gives guidance to the people as to what they shall do in future; it tells them what Court has jurisdiction over

certain regions. Following this information suitors who have got to file suits relating to properties have got to file their suits in the Court which has

jurisdiction over those properties after the notification. But all this has nothing to do with the past. The notification does not in terms transfer any

business pending or closed from one Court to a new CourtMyself and Devadoss, J., have already pointed out some practical disadvantages apart

from the inappropriateness of construing a notification which makes no reference to transfer as effecting a transfer of1 business. It is unnecessary to

repeat these disadvantages in this judgment. But as I have already said I will mention some more for which I am indebted to my Lord, the Chief

Justice. Let us suppose that some suits or applications relating to one property were pending in one Court. A notification is then issued taking away

the properties from the jurisdiction of that Court and it comes to the knowledge of the presiding officer of that Court. Can it be said that ipso facto

without anything further, without an order of the District Court or the High Court u/s 24, Civil Procedure Code, transferring certain work from that

Court to the new Court all the business is transferred? When we put this question to the learned advocate he said that it must be regarded as so

transferred. The next question that arose on this answer was whether the first Court can proceed with the trial of the pending suits. When we put

this question to the learned advocate He'' at once replied that the first Court also can proceed with the trial of those suits though he might also send

them to the second Court. He had to give this answer because of the decision of our brothers Phillips and Venkatasubba Rao, JJ., in Chokkalinga

Pillai v. Velayudha Mudaliar (1928) 28 L.W. 885 in which it was'' held tfiat on''ce a suit is filed in one Court that Court can try the suit even if there

is a change of jurisdiction by notification. Though Venkatasubba Rao, J., bases his decision on the consent of the parties, Phillips, J., does not do

so. And when we remember the decisions of the Privy Council, Ledgard v. Bull (1922) ILR 46 M. 83 : 43 M.L.J. 713 and Minakshi Naidu

vSubraniania Safin,� that consent cannot give jurisdiction where there is none, it is clear that it is not consent that validates the trials and I agree

with the reasons given by Phillips, J., namely, that the jurisdiction to try the suits was never lost. At this stage my Lord, the Chief Justice, pointed

out that if even after the notification the first Court had jurisdiction to try the suit, how can it be said that the business of the Court has been

transferred to another Court? How can the effect of the notification be properly described as transfer if the first Court still can go on with it? The

actual result in practice would be worse if the suit: is one which is partly heard by the District Munsif at the time of the notification. Can it be said

that he should stop further trial of the suit and send it on to the other Court or can it be said that he can continue the trial of the suit though the suit is

transferred from his Court to another? The transfer must be a complete transfer and the suit cannot go on in the place from which the transfer takes

place. When this point was put by my Lord to the learned advocate he had to contend that the further trial of the suit itself by the first Court was

not permissible. Such an answer comes into direct conflict with the decision in Chokkalinga Pillai v. Velayudha Mudaliar. (1928) 28 L.W. 885.

Illustrations of this kind can be multiplied ad infitiit''um to show the anomalies that would result from a construction of the notification merely

effecting future change in jurisdiction as effecting transfer of past business. It seems to me that: unless the language of the notification is''plain,

directions as to future regarding pending business cannot be implied. In my opinion unless the notifications of these cases are different in language

and purport to transfer business specifically �or by general description, such a construction of the notification as was adopted in the decision in

Subbiah Navcher v. Ramanaihan Chettiar (1914) ILR 37 M. 462 : 26 M.L.J. 189 which was reiterated by Sadasiva Aiyar, J., in Venkntachallam

vSithayamma17 and followed by other learned Judges in Ranganatha Rao v. Hanumantha Raols and Gwmszvami Naicke v. Mahomntadlw

Roiwther is not permissjble. In Gamarti Venkatachellam Vs. Gamarti Sithayamma, Sadasiva Aiyar, J.; went a step further and said that the transfer

of business referred to in Section 150 can be only by a notification effecting change of jurisdiction and not transfer of business by specific orders.

In this extreme view he was not supported by the later decisions which hold that Section 150 applies to both kinds of transfer. But whatever that

may be, in my opinion we cannot interpret a notification effecting change of jurisdiction for the future as effecting transfer of past business without

doing violence to the language and because myself and Devadoss, J., were of this-opinion we had to decide the case in Swbramania Aiyar v.

Swaminaihck Cheitiar (1928) 28 L.W. 885 as we did even after giving every weight to the opinion of the Full Bench. Now coming to the opinions

of the Full Bench so far as Wallis, C.J., is concerned, reference to the effect of Section 150 is contained in two sentences, one at page 832 and

another in the middle of page 833. In neither of these sentences is there any reference to the actual language of the notification, nor is there a

discussion, of the phrase ""transfer of business"" or of the practical disadvantages which would result from such a construction of the notification. It

looks to me as if all persons concerned, namely, the Advocates and the Judges, assumed that a notification effects a transfer of business and there

is really no argument to the opposite effect. Under such circumstances whatever respect we may feel for the � eminent Judges that were sitting in

the Full Bench we thought we were entitled to take a different view. I may add that this expression of opinion on Section 150 following a

notification is not part of the chain of reasoning leading to the main conclusion in the case, namely, that the first Court has not lost jurisdiction. If it is

a link in the chain of reasoning, myself and Devadoss, J., would not have felt at liberty to differ from it because not only the actual decision but

steps in the reasoning of the Full Bench will be binding on us. As to the other learned Judges, Ayling and Sadasiva Aiyar, JJ., it must be

remembered that they were the Judges who decided Subbiah Naicker v. Ramanathan Chettiar which was being overruled by the Full Bench. And

one Judge Ayling, J., made an observation that what after all was necessary for the former decision was not so much the power of the first Court

as the power of the second Court and then proceeded to make observations with reference to Section 150 though the point ch''d not arise before

them. As to Sadasiva Aiyar, J., his actual observations were against the correctness of the Full Bench decision. But he was willing to subscribe to

the opinion of the other Judges for the sake of uniformity. Under such circumstances it is permissible to observe that their observations with

reference to Section 150 have less weight than it would have been otherwise. Here I may now point out that the view of myself and Devadoss, j.,

construing the notification as merely changing the jurisdiction is in accord with the opinion of the Calcutta High Court in Munshi Md. Kazemal v.

Mutisjii Jafiamuddin Ahmed,20 with the reasoning of which I entirely agree if I may say so with respect This is also the view taken by Cur-genven,

J., in Rainamaihan Chetty v. Alagappa Chetiy. (1929) ILR S3 M. 378 at 380 : 59 M.L.J. 102. I may here add one word with reference to the

opposite construction of Section 150 which some time prevailed in this Court. Assuming that on account of the change of territorial jurisdiction the:

second Court is the more convenient Court for execution, all that the decreet-holder has to do is to apply to the first Court for transmission of the

decree u/s 39 of the Code. Such an application may entail a delay of a few days if the Courts are situated in different places, but in a case like the

one, before us in which the Courts are in the same building the delay cannot e\�en amount to a day. Under such circumstances what is tHe need

for enacting another section conferring jurisdiction on the second Court? At this stage I may refer to the draft section which was originally inserted

in the Code b)4 the legislature but afterwards dropped. Is it not a more natural inference from the dropping of the draft section that the legislature

found it unnecessary in view of the complete machinery provided in Section 39 and not because the result was also effected by the language of

Section 150--an inference that can only be made by implying in the section what is not specifically stated there? There is only one remark that falls

to be made by me. One always feels very unwilling to give the: advantage, to a judgment-debtor of escaping liability under a decree validly passed

against him, as the District Judge observes, an observation, with which I agree. But the District Judge then proceeded to observe ""If the present

execution application is dismissed, any further application is time-barred."" Strictly it is so. But having regard to the fact that the present application

was filed by the judgment-creditor in December, 1927, when the decision of myself and Devadoss, J., was not passed, it may be possible for the

Courts to hold that the decree-holder was pursuing bona fide his remedy in another Court though wrongly and it is open to the Court to excuse;

the delay if there is nothing more to be said against him. We can express no final opinion in regard to this matter. If the conduct of the decree-

holder is explainable it is open to the Court to excuse: the delay and the apprehension that the application will be necessarily time-barred is not

justified. I may add that in the case decided by me and Devadoss, J., later on an application for execution was filed, objection as to limitation was

taken and it was excused by both the Lower Courts. The case came up in Civil Miscellaneous Second Appeal to the High Court and our brothers

Reilly and Anantakrishna Aiyar, J J., excused the delay. To lay down a wrong proposition of law in order that the execution of the decree may not

become time-barred is not justified.

The Civil Miscellaneous Second Appeal must be allowed and the order of the District Munsif restored with costs here and in the Lower

Appellate Court without prejudice to the decree-holder applying to the Melur District Munsif''s Court for transmission of the decree and having the

delay excused on proper cause being shown.