Sri Krithika Finance vs R. Elangovan and 3 others

S. Palanivelu, J.—The petitioner is decree holder. He filed the suit in O.S.No.386 of 1991 on the file of the Sub-Court, Sankari against the

defendants for recovery of money on 5.3.1991. The said Court passed decree in favour of this petitioner. Afterwards Sankari Sub-Court was

bifurcated and a part of territorial jurisdiction was vested with Sub-Court, Namakkal. In the said Court, this petitioner filed R.E.P.No.241 of 2004

for sale of the properties belonging to the respondents. Subsequently, the territorial jurisdiction came under the Sub-Court, Tiruchengode, where

the said Execution Petition was transmitted and is pending in the said Court in R.E.P.No.21 of 2008. Before the Executing Court viz., the Sub-

Court, Tiruchengode, the respondents took a plea that without the decree being transferred or transmitted by the original Court viz., the Sub-

Court, Sankari, which passed the decree, no execution proceedings could be taken in Tiruchengode Sub-Court. After hearing both sides, learned

Sub-Judge, Tiruchengode, has dismissed the execution petition accepting the contentions of these respondents. Hence this petition.

Learned counsel for the petitioner Mr. P. Valliappan would submit that even though the earlier position was that without the decree being

transmitted to the Executing Court, it cannot execute the decree in spite of the territorial jurisdiction vested with the original Court got bifurcated

and presently by introduction of Explanation to section 37 of C.P.C, there is no necessity to get the decree transferred from the original Court to

the latter court and even without such transfer the decree could be executed.

Conversely, Mrs. P.T. Asha, the learned counsel for the respondents would contend that as per the provisions in Section 37 and 39 of C.P.C,

the decree should have been transferred from Sankari Sub-Court to Tiruchengode Sub-Court for execution and in the absence of such transfer the

execution petition could not be maintained and that the impugned Order need not be interfered with.

In this context it is advantageous to extract Section 37 of C.P.C. with explanation:

Definition of Court which passed a decree.

The expression ""Court which passed a decree"", or words to that effect, shall, in relation to the execution of decrees, unless there is anything

repugnant in the subject or context, be deemed to include,-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was

passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Explanation:-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the

suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of mat Court to the

jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making

the application for execution of the decree it would have jurisdiction to try the said suit.

The learned counsel for the petitioner in support of his contention placed reliance upon a decision of the Karnataka High Court in AIR 1988

KARNATAKA 44 [Smt. Laxmi Nagappa hegde v. The Karnataka Bank Ltd.] in which it is held as under:

In view of the Explanation to S. 37 there would be two Courts which would come within the meaning of the words ""the Court which passed the

decree"" in S. 37. One would be the Court that actually passed the decree and the second would be the Court which has been established newly

having jurisdiction over a part of the territory over which also the Court which actually passed decree had originally the jurisdiction. The new Court

thus established having jurisdiction over a portion of the territory will have to be also deemed as a Court that passed the decree. Therefore, such a

Court also would have jurisdiction to execute the decree without the decree being transferred to it by the Court which originally and actually

passed the decree. Section 38 cannot be read in isolation. It only says that the decree may be executed either by the court which passed it or by

the Court to which it is sent for execution. The phrase ""by the Court to which it is sent for execution"" would mean the Court situate beyond the

territorial jurisdiction of the Court which passed the decree. But if it is read along with S. 37, Explanation the newly established Court for part of

the territory will have to be deemed as a Court that passed the decree. S. 39(3) makes it clear that the transferee Court must be also a competent

Court. It does not in any way come in conflict with S. 37.Explanation.

An identical view has been taken by the Rajasthan High Court also in AIR 1980 Rajasthan 134 [Hamir Singh v. Bhawani Shankar] which goes

thus:

If after a Court has passed a decree the local area, in which the property is situated, is transferred to a different court, it is open to the decree-

holder to apply for execution of the decree in the latter court, to which the local area has been transferred and the court can directly entertain an

application for execution without an order of transfer by the Court which had in fact passed the decree. The transfer of a local area from where the

decree originated in territorial jurisdiction of any other Court would automatically give jurisdiction to the Court to which that area has been

transferred without any necessity of obtaining an order of transfer of the decree.

He also placed reliance upon a decision of this Court in Faiz Mohideen Vs. M.S. Sreeramulu Chetty and Co., wherein it is held that the

transferee Court is deemed to be the Court which passed the decree and fresh execution petition can be filed by the decree holder before the

transferee court. This case is with regard to enhancement of pecuniary jurisdiction to the District Munsif Court and there was contention of the

judgment debtors that even before the certificate was issued by the transferee court, execution petition was filed and at the time when the decree

holder filed the execution petition, the decree was not filed before the executing court and hence the execution petition was not maintainable. This

Court did not accept the plea.

He also cites an earlier Division Bench decision of this Court reported in 1923 (2) MLJ 210 = (1922) 18 L.W. 17 [Muthukaruppa Chetty v.

Paiya Kavundan] in which it is held that on the transfer of the area in which the judgement-debtor lives from the jurisdiction of the Court which

passed the decree to that of another Court, the latter Court has without a transfer of the decree jurisdiction to execute the decree, though it is only

a money decree.

Learned counsel for the respondents would garner support from a Division Bench decision of this Court in Gowrammal Vs. Lingappa Gowder,

] in which it is held that in order to avoid simultaneous executions before both the courts which passed the decree and the court in which the

jurisdiction was vested subsequently, the decree has to be transferred form original court. For this proposition a Full Bench decision of this Court

in Ramier Vs. Muthukrishna Aiyar and Others, was relied upon, wherein it is held that the first court which passed the mortgage decree, until the

decree was transmitted, never lost its jurisdiction to execute the decree by reason of the later notification by which the mortgaged properties were

taken off from its jurisdiction; and hence the latter court could not entertain it.

Indisputably, Sub-Court, Sankari is competent to try the suit, had it been filed originally. After bifurcation of Sankari Sub-Court jurisdiction,

the petitioner filed R.E.P.No.241 of 2004 before Namakkal Sub-Court. It is worthwhile to note that, the respondents had not raised any objection

with regard to the competency of Sub-Court, Namakkal before the said Court. After constitution of Sub-Court, Tiruchengode, the execution

petition has been transferred to the said court. Hence, the objection as to the jurisdiction of the present executing Court is not sustainable.

In view of the above said situation, the respondents shall be deemed to have waived their right to raise objection at the earliest point of time

before the Sub-Court, Namakkal. Both the aspects viz., the transfer of decree for execution as well as the point of waiver came up before Full

Bench of the Supreme Court in 1956 (1) M.L.J. 71 (SC) = 1956 SCJ 101 [Merla Ramanna v. Nallaparaju and others]. The Apex Court has

referred to the above said Full Bench decision of this Court in Ramaier''s case and another Division Bench decision of this Court in Venkamamidi

Balakrishnayya v. nannapaneni Linga Rao reported in Venkamamidi Balakrishnayya Vs. Nannapaneni Linga Rao, and agreed the principles laid

down therein. The relevant portions of the decision of the Supreme Court are as follows:

There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subject-matter of a decree is transferred to

another Court, that court is also competent to entertain an application for execution of the decree vide Latchman v. Madan Mohan (1880) ILR 6

Cal. 513, Fahar v. Kamini Devi (1990) ILR 28 Cal. 238 and Udit Narayanan v. Mathura Prasad (1908) ILR 35 Cal. 974. But in Ramier Vs.

Muthukrishna Aiyar and Others, a Full Bench of the Madras High Court has taken a different view, and held that in the absence of an order of

transfer by the Court which passed the decree, that Court alone can entertain an application for execution and not the Court to whose jurisdiction

the subject matter has been referred. This view is supported by the decision in Masrab Khan v. Debnath Mali ILR ( 1942) 1 Cal. 289. It is not

necessary in this Case to decide which of these two views is correct because even assuming that the opinion expressed in Ramier Vs.

Muthukrishna Aiyar and Others, is correct, the present case is governed by the principle laid down in Venkamamidi Balakrishnayya Vs.

Nannapaneni Linga Rao, . It was held therein that the Court to whose jurisdiction the subject matter of the decree is transferred acquires inherent

jurisdiction over the same by reason of such transfer and that if it entertains an execution application with reference thereto, it would at the worst be

an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed

to have been waived, and cannot be raised at any later stage of the proceedings.

We agree with the decision in Venkamamidi Balakrishnayya Vs. Nannapaneni Linga Rao, and hold that the objection to the District Court

entertaining an application to execute the decree in O.S.No.25 of 1927 is one that could be waived and not having been taken in the written

statement is not now available to the appellant.

In Gowrammal''s Case (supra) the aforenoted Supreme Court''s decision has been referred and followed. The following is the operative

portion of the Division Bench decision of this Court in Venkamamidi Balakrishnayya''s Case (Supra):-

We consider that the true effect of Section 39 is to recognise the transferee Court as having inherent jurisdiction, to sell or deliver properties

situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. From this it follows that

the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Tenali Sub-Court when proceedings were

commenced in it, but that objection not having been taken in the first instance, the judgment-debtor (the appellant) must be held to have waived it.

In the line of decisions of this Court inclusive of the Full Bench decision abovementioned, it has been the consistent view of this Court that

without transfer of decree from the Court in which the suit was originally filed, to the Court to which subsequently the territorial jurisdiction was

transferred, the execution could not be proceeded with in the latter court and that the transmission of decree to the latter court is sine-qua-non for

execution of the same. But if in case, the judgment debtors have waived to raise objection as to the jurisdiction of the executing court to execute

the decree at the earliest point of time, thereafter they cannot project such contention on a later point of time, which would disentitle them to get the

benefits which accrued to them by virtue of absence of transfer of decree. Identical situation of waiver was discussed by the Supreme Court and it

has been decided that had the right to object as to the jurisdiction of the executing court been waived, then the judgment debtors could not assail

the jurisdiction of the executing court thereafter. As per the facts available in the present case, if the judgment debtors have waived their right in

taking the plea before Namakkal Sub-Court as to the executability of the decree, before the Sub-Court, Tiruchengode, they could have no say at

all.

As for the contention of the learned counsel for the petitioner that in % view of the explanation introduced to Section 37 of C.P.C by the

amendment in 1976, there is no need for transmission of the decree from the original court to transferee court, the Court has to see the law as

regards effect of explanation annexed to main provision. In this context the Supreme Court in a decision reported in Hardev Motor Transport Vs.

State of M.P. and Others, has held that by reason of an explanation, even otherwise, the scope and effect of a provision cannot be enlarged. In this

judgment an earlier decision of the Apex Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, has been referred, wherein the

following dicta have been formulated:-

Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is -

(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which

it seems to subserve,

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the

purpose of the explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true

purport and intendment of the enactment...

As per the above said ratio, the explanation has to be treated to have explained the terms and language contained in the substantial provision which

does not introduce a new procedure to be adopted in deviation to the one contemplated in the said provision. A careful reading of the language of

the explanation would not show that there was no need to transfer the decree from the original Court to executing Court for execution.

In view of the above said observations arrived, following the decisions of the Apex Court, Full Bench and Division Bench of this Court, it is

held that the judgment debtors cannot object the propriety of the executing court and the decree has to be executed as per the directions of the

execution court, had they waived their rights. In fine, the Civil Revision Petition is allowed. Since the question of waiver was not put forth before

the executing court by the parties, the said question not having been discussed by the said Court and there is no ground in the revision petition, this

Court deems fit to remit back the matter to the executing court for fresh decision as to the question of waiver of objections to jurisdiction, in the

light of the directions passed in Gowrammal''s case. No costs.