Yamarti Venkatachallam vs Yamarti Sithayamma

Sadasiva Aiyar, J.—The decree-holder is the appellant. He brought Original Suit No. 4 of 1910 on the file of the District Court of Kistna at

Masulipatam. The District Court transferred it to the Temporary Subordinate Judge''s Court established in that place for d sposal. The suit was for

partition of Immovable properties, for recovery of a half share therein and for mesne profits. The Temporary Subordinate Judge''s Court was

establi hed in 1910 at Masulipatam, but no local limits were fixed for its jurisdiction, the notification leaving it to the District Judge to fix such local

jurisdiction as he thought fit to do u/s 10, of the Madras Civil Courts Act, III of 1873. When the suit was transferred by the District Court, the

District Judge had not fixed any such local limits for the Temporary Subordinate Judge''s jurisdiction. The Subordinate Judge decreed the suit

including the relief of mesne profits on the 16th August 1912, and that decree was confirmed on appeal by the High Court.

The plaintiff put in an execution petition for the attachment of certain Immovable properties of the defendant for recovery of the mesne profits so

decreed. This application was made on the 5th October 1914. The places where the Immovable properties sought to be attached are situated

have not been assigned to the local-limits of the Subordinate Judge''s jurisdiction even now. The question is whether the Subordinate Judge had

jurisdiction to entertain such an application, and to effect attachment of the Immovable properties mentioned in that application.

The Subordinate Judge held that he had no jurisdiction to so attach and on the judgment-debtor''s application, set aside the attachment, which

had been effected on an order issued ex parte at the instance of the decree-holder. Hence this appeal.

The learned Vakil who argued the appellant''s case relied upon Section 150 of the new Civil Procedure Code, for his contention that the transfer

of the suit by the District Court for disposal to the Temporary Subordinate Judge''s Court, gave the latter Court jurisdiction to execute the decree

just as if it had been given jurisdiction over the whole territory within the District Court''s jurisdiction for the purpose of executing the decree

passed in the suit. Section 150 was newly enacted in the present Civil Procedure Code. It is as follows:-""Save as otherwise provided, where the

business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall

perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so

transferred."" The learned Vakil''s argument was that when a particular suit is transferred from the District Court to a Sub-Court u/s 24, Civil

Procedure Code, the business of the District Court is thereby transferred to the Sub-Court and the Sub-Court gets all the powers of the District

Court in respect of such business. We are clear that this argument is fallacious. As said in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas.

899 : (1914) M.W.N. 205 : 1 L.W. 251 Section 150 relates to the business generally of a Court arising over the whole area or in defined

particular areas within its jurisdiction being transferred to another Court owing to the change of venue effected by legally competent notifications of

the Local Governments, while Section 24 contemplates the transfer of a particular case or cases pending at a particular time by a special order of a

superior Court. Reading Sections 37, 38, 39 and 46 of the Code and Order XXI, Rule 10, together, and having regard to the observations in

Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : (1914) M.W.N. 205 : 1 L.W. 251 we think that the learned Subordinate Judge came

to the right conclusion that he had no jurisdiction to execute the decree and that the proper course for the decree-holder was to have applied u/s

39 to have the decree transferred for execution to the Court having jurisdiction over the properties sought to be attached. As far as we know, the

practice, in cases where temporary Courts are established without the assignment of any definite local jurisdiction, has been that execution against

Immovable properties in respect of the decrees passed by such Courts is effected in the Courts to which have been assigned local jurisdictions

over the suits of such property, the decrees being transferred to those Courts for the said purpose. Such transfers may become unnecessary when

the temporary Courts cease to exist and their business is again taken up by the permanent Courts. (See Section 37, Clause 6.) No doubt every

Court has local Jurisdiction within the area of its house and the compounds attached to it and can arrest persons found within those limits in

execution, of its own decrees. [See also Order XXI, Rule 11 (1).] But a temporary Court without assigned local limits outside its Court house has,

in our opinion, no further power in execution even of its own decrees.

The appeal is, therefore, dismissed with costs.

Moore, J.

I agree. It is clear, I think, that the Temporary Subordinate Court, Masulipatam, had no power to order the attachment and sale of the

properties as it has no territorial jurisdiction over the areas in which the properties are situate. Territorial jurisdiction is a condition precedent to the

execution of a decree See Prem Chand Dey v. Mokhoda Debi 17 C.P 699. It appears that the local jurisdiction assigned to the Temporary

Subordinate Court, u/s 10, of the Madras Civil Courts Act, III of 1873, by the District Judge is confined to one village in the Nandigama Taluq.

The learned Vakil for the appellant relies on Section 150 of the Civil Procedure Code, but that section merely provides for the whole business of

one Court being transferred to another Court, as for instance where owing to a change of venue being made by a Local Government it loses

jurisdiction over a certain area, and has no applicability to a case like the present one. See Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas.

899 : (1914) M.W.N. 205 : 1 L.W. 251

The Temporary Subordinate Court has, it appears to me, the power u/s 39, Clause (6), of the CPC on the application of the decree-holder to

send the decree for execution to the Court which has territorial jurisdiction over the place in which the properties sought to be attached are

situated.

The Subordinate Judge instead of dismissing the petition ought, I think, to have directed the decree-holder to apply to have the decree sent for

execution to the proper Court.