Thiagaraja Thevar vs Sambasiva Thevar

Pakenham Walsh, J.—A final mortgage decree was passed in O.S. No. 55 of 1920 on 3rd August, 1922, by the Sub-Court of Negapatam

which had then jurisdiction over the hypotheca. On the 1st October, 1923, territorial jurisdiction was vested in the Sub-Court of Tiruvarur. The

original decree-holder filed in the latter Court an execution petition on 28th April, 1924, which was dismissed for non-payment of batta. He filed

another execution petition on 11th September, 1924, before the same Court which was dismissed for a similar reason. The assignee decree-holder

filed an execution petition before the same Court on 17th August, 1926, asking for recognition of the transfer and an order for execution. It was

numbered as E. P. No. 31 of 1927. On this application the assignment was recognised and execution was ordered; but as no steps were taken the

petition was dismissed. On 18th October, 1929, the assignee decree-holder put in another execution petition which was dismissed for non-

payment of batta. Finally the present execution petition was put in on 15th July, 1931, also before the Sub-Court, Tiruvarur. Various objections

were taken to its execution, but they were overruled and execution was ordered. Against this order the 2nd defendant has appealed. The view as

to which is the proper executing Court, when territorial jurisdiction over the hypotheca has been transferred to another Court, has varied so far as

this High Court is concerned. The original view taken in Subbiah Naicker Vs. Ramanathan Chettiar, was that it was the Court having territorial

jurisdiction and not the Court which passed the decree, which had the power of execution. The next stage was the view taken in the Full Bench

case, Seeni Nadan v. Muthusami Pillai ILR (1919) Mad. 821 : (1919) 37 M.L.J. 284 (F.B.), that both the Courts had concurrent jurisdiction.

That is the view which prevailed until the Bench case reported in Subramanya Aiyar v. Swaminatha Chettar (1928) 28 L.W. 885 , dated 17th

February, 1928, in which Ramesam and Devadoss, JJ. held that when the Court having territorial jurisdiction was situated in a different district

from the Court which passed the decree it had no jurisdiction unless the decree was transmitted to it. This was followed by the Full Bench case in

Rainier v. Muthukrishna Aiyar ILR (1932) Mad. 801 : (1932) 62 M.L.J. 687 dated 18th January, 1932. In that case both the Courts were in the

same district but, for reasons to be noted presently, it is not clear ""whether the Full Bench held that the Court in whose territory the hypotheca lay

was entirely devoid of jurisdiction or merely exercised it irregularly as the decree had not been transferred to it by the Court which passed it. It will

be noticed that in the present case the first three execution petitions were put in at a time when the view was that such an application could be

made directly to the Court in whose territory the hypotheca lay.

Various contentions, as noted above, were raised against the execution of the present petition such as that the decree had been satisfied; that the

minor was not properly represented in the suit, etc. But the only points taken in appeal are legal ones. It is contended that all the execution petitions

including E. P. No. 31 of 1927 were made to a Court entirely devoid of jurisdiction. Therefore they were incompetent. The present execution

petition even if competent would be barred by limitation. Even assuming that E. P. No. 31 of 1927 was merely entertained irregularly it was

contended that service by affixture was not certified by the Court, and the order passed on it was not therefore res judicata and further even if it

were res judicata the irregular exercise of jurisdiction and the passing of orders on it would not enure to the benefit of the assignee decree-holder in

subsequent execution petitions. With regard to the question whether the Tiruvarur Sub-Court was totally devoid of jurisdiction to entertain the

petition, E. P. No. 31 of 1927, in which case it is not disputed that no order passed on it would bind the appellant, the Lower Court relied on the

remarks of Ramesam, J. in Subramanya Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885 that

if both the Courts are situated in the same district, seeing that the transfer might be made directly from the first Court to the second Court without

the intervention of any superior Court, it may be said that the objection by reason of the language of 3. 38 or in other words by reason of the

irregularity that the decree has not been formally sent to the second Court which has territorial jurisdiction, is not fatal to the competency of the

second Court to pass the order.

Ramesam, J.

delivered the Full Bench judgment in Ramier v. Muthnkrishna Aiyar ILR (1932) Mad. 801 : (1932) 62 M.L.J. 687 (F.B.) and he several times

alludes to his judgment in Subramanya Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885. As stated above, this Full Bench case, Rainier v.

Muthukrishna Aiyar ILR (1932) Mad. 801 : (1932) 62 M.L.J. 687 (F.B.), related to Courts in the same district. It arose out of an objection which

had been taken at the time to the jurisdiction of the Court to entertain the petition, and the decision would therefore have been justifiable even had

this exercise of jurisdiction been a mere irregularity, unless indeed Section 99 of the CPC had been held to apply. But the point whether Section 99

applied or not does not appear to have been raised and consequently we find no clear expression of opinion in the judgment that it was a case of

total want of jurisdiction. Such an opinion would have run counter to that expressed by Ramesam, J. himself in Subramanya Aiyar v. Swaminatha

Chettiar (1928) 28 L.W. 885. Subsequent to the Bench case there has been a decision of the Privy Council in Jang Bahadur v. Bank of Upper

India, Ltd., in Liquidation (1928) L.R. 55 IndAp 227 : ILR 3 Luck. 314 : 55 M.L.J. 545 (P.C.) with regard to Order 21, Rule 16. In that case a

decree had been transferred by the Court which passed it. It was held that the original Court which passed the order was still the executing Court

for the purpose of recognising the transfer under Order 21, Rule 16, but that the transferee Court doing so was a mere irregularity in procedure

and not a matter of want of jurisdiction. For reasons to be given presently we find it is unnecessary in the circumstances of the present case to

decide either the question whether the order on E. P. No. 31 of 1927 was invalid for want of jurisdiction or was a mere irregularity, and whether in

the latter case the order passed on it was res judicata only for the purpose of that execution petition, or would also be res judicata in subsequent

execution petitions in the sense that the Sub-Court, Tiruvarur, had jurisdiction to execute this decree. The reasons which render it unnecessary to

determine these somewhat difficult questions are (1) that the Sub-Court, Negapatam, was abolished in June, 1932. so that the final order now

appealed against, dated 24th February, 1933, was passed by the Tiruvarur Sub-Court when it had full jurisdiction to entertain an execution

petition; (2) it becomes unnecessary to determine the question of limitation because the judgment-debtor put in a petition to amend the decree and

this was ordered on the 18th August, 1932. Subsequently limitation under the 4th clause of Article 182, Limitation Act, will begin to run from the

date of amendment. The Privy Council decision in Nagendra Nath Dey v. Suresh Chandra Dey (1932) L.R. 59 LA. 283 : 63 M.L.J. 329 (P.C.)

shows that the words in that column against Article 182 of the Limitation Act must be read in their exact sense. That was a stronger case for it was

one of an appeal which had been dismissed as insufficiently stamped. Their Lordships held that it was nevertheless an appeal. They say that the

question must be decided upon the plain words of the Article "" where there has been an appeal "" and that time is to run from the date of the decree

of the appellate Court. There is in their Lordships'' opinion no warrant for reading into the words quoted any qualification either as to the character

of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent

arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations they say are out of place and the strict

grammatical meaning of the word is, their Lordships think, the only safe guide. This ruling-was followed in the case of review by Jackson and

Mockett, JJ. in Ramayya v. Kotayya (1932) 64 M.L.J. 75.

It is therefore clear that if the assignee decree-holder had put in the present petition subsequent to the abolition of the Negapatam Sub-Court

there would have been no question as to the jurisdiction of the Tiruvarur Sub-Court to entertain it, and as the order was passed after the amended

decree it is the amended decree which the decree-holder must execute and limitation to apply for execution would begin from the date of the

amendment, 18th August, 1932. There remains therefore only the question whether, assuming that the Court was totally without jurisdiction or

could only exercise its jurisdiction irregularly at the time when the present execution petition was filed, if it afterwards obtained jurisdiction before

passing the order, it is bound to dismiss the petition merely on the ground that the Court had not jurisdiction at the time when the petition was filed.

It has been argued that, because in the converse case, a party who has instituted a suit before a Court has lost jurisdiction is still entitled to have the

suit determined by that Court, the same principle must be applied to the case when the Court is vested with jurisdiction subsequent to the filing of

the application, and the Court is bound to dismiss the petition in spite of having jurisdiction to decide it. In our opinion the two cases are quite

distinct. In the former case the party is not owing to subsequent changes to be deprived of the rights which he had when he began proceedings. But

we have been shown no case which holds that the Court is obliged to dismiss a petition which it has jurisdiction to decide at the time when the

matter came up for decision merely because it had no jurisdiction at the time the petition was wrongly entertained. This would not of course mean

that limitation could be extended so as to start from the day on which the Court obtained the jurisdiction, but, apart from the question of limitation,

we do not see why a Court which has jurisdiction to pass orders on a petition is bound to dismiss it on the ground that at the time of the

presentation it had not jurisdiction. As regards limitation we have said above that limitation against the amended decree, which is the only decree

which can be executed, begins to run from the date of the amendment so that from that point of view execution is well within time.

The Lower Court has recognised the transfer on the merits even apart from its finding that the former order rendered it res judicata.

The order of the Lower Court is therefore confirmed and the appeal is dismissed with costs.