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Bindraban Kanhaiyalal Agarwal Vs. Kasturilal Nyhalchand Sodi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 237 of 1973
Judge
Reported in(1979)81BOMLR110; 1978MhLJ561
AppellantBindraban Kanhaiyalal Agarwal
RespondentKasturilal Nyhalchand Sodi
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), section 39(1) - bombay city civil court act (bom. xl of 1948), section 3-transfer of money decree for execution-amount to be recovered in execution exceeding pecuniary jurisdiction of transferee court-whether transferee court has jurisdiction to execute the decree.;the standard by which the jurisdiction of the executing court has to be considered is its capacity to try the suit itself.;thus the competence of the court to which the decree has been transferred for execution will have to be determined with reference to the valuation of the suit in which the decree was passed and not with reference to amount for which the decree sought to be executed has been passed. if this is the principle then merely because the jurisdiction of the city civil court in..........recovered in execution exceeds the amount of rs. 25,000 which is the pecuniary jurisdiction of the city civil court.2. in civil suit no. 7b of 1952 decided by the civil judge no. i, yeotmal, the plaintiff decree-holder obtained a decree for payment of rs. 17,118-90 on august 22, 1956. the amount was payable with interest at 12 per cent, per annum from november 4, 1952 till realisation. the figure of the amount due from the defendants ultimately swelled to rs. 35, 763.31 p. and under section 39 of the code of civil procedure the decree was transferred to the city civil court at bombay by the yeotmal court.3. an objection was taken in executing court to the maintainability of the execution on the ground that since the amount due and payable to the decree-holder exceeds the sum of rs......
Judgment:

Chandurkar, J.

1. The only question raised in this appeal is whether the City Civil Court at Bombay has jurisdiction to execute a money decree transferred to it for execution by another Court when the total decretal amount to be recovered in execution exceeds the amount of Rs. 25,000 which is the pecuniary jurisdiction of the City Civil Court.

2. In Civil Suit No. 7B of 1952 decided by the Civil Judge No. I, Yeotmal, the plaintiff decree-holder obtained a decree for payment of Rs. 17,118-90 on August 22, 1956. The amount was payable with interest at 12 per cent, per annum from November 4, 1952 till realisation. The figure of the amount due from the defendants ultimately swelled to Rs. 35, 763.31 P. and under Section 39 of the Code of Civil Procedure the decree was transferred to the City Civil Court at Bombay by the Yeotmal Court.

3. An objection was taken in executing Court to the maintainability of the execution on the ground that since the amount due and payable to the decree-holder exceeds the sum of Rs. 25,000 which is the limit of pecuniary jurisdiction of the City Civil Court, the Court will have no jurisdiction to entertain the execution proceedings. The City Civil Court took the view that having regard to the provisions of Section 3 of the Bombay City Civil Court Act, 1948 (hereinafter referred to as 'the Act') when dealing with the execution proceedings, the City Civil Court was dealing with the proceedings of civil nature and since the jurisdiction of the City Civil Court is restricted to try and dispose of all the proceedings of civil nature not exceeding Rs. 25,000 in value, the City Civil Court did not have the jurisdiction to execute the decree. The appellant decree-holder challenges the view taken by the City Civil Court that it has no jurisdiction to proceed to execute the decree which is transferred to it because the total amount to be recovered under the decree exceeds the limit of its pecuniary jurisdiction,

4. Mr. Tulsian on behalf of the appellant contends; that the learned Judge was bound to follow the decisions of this Court in Shri Sidheshwar Pandit v. Shri Harihar Pandit ILR(1887) Bom. 155 and Rustomjee Sorabji v. Mahadev Chintaman : AIR1940Bom277 and should have held that Section 3 of the Act did not come in the way of entertaining the execution proceedings. The learned Judge of the City Civil Court had also relied on a similar decision given by him in Shamrao Pagaji Kapagate v.Umashankar Ganpatlal Asati (1970) Bhandara Civil Suit No. 15-B of 1958, decided by H. Suresh Judge, City Civil Court, at Bombay, on February 27, 1970 where he preferred to follow the decision of the Allahabad High Court in Kedar Nath v. Chhajju Mal : AIR1962All586 .

5. Now before we go to the provisions in Section 3 of the Act, it is necessary to refer to the law relating to transfer of a decree for execution. Section 39 deals with a transfer of decree for execution. Section 39(7) empowers the Court which passed a decree to send it for execution to another Court on the application of the decree-holder in cases which are enumerated in Clauses (a) to (d), of that section. The decree would be transferred to a Court within whose local limits or jurisdiction the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain or if such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of the other Court, then the decree can be transferred for execution to such other Court. The decree can also be transferred if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or if the Court which passed the decree considers for any other reason,, which it shall record in writing, that the decree should be executed by such other Court. Neither Section 38 which provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution nor Section 39 which provides for the power to send a decree for execution to another Court give any indication as to the pecuniary jurisdiction of the Court to which the decree can be transferred for execution. We are not concerned in this case with Sub-section (2) of Section 39 which enables a Court to send a decree for execution to a Court subordinate to the Court which passed the decree and which must be a Court of competent jurisdiction. Pecuniary jurisdiction of the Court to which the decree can be transferred has to be determined according to the view prevalent in this Court by the amount or the value not of the decree but of the claim as was originally made in the suit. We will only refer to the earlier decision of this Court in Shri Sidheshwar Pandit's case where a decree for over Rs. 5,000 was sent for execution to the Court of the subordinate Judge of the second class by the sub-ordinate Judge of the first class as the subordinate Judge of the second class had been appointed to assist the first class subordinate Judge in the disposal of the suits on his file and, therefore, was directed by him to dispose of that suit in question. Dealing with the objection of the plaintiff himself with regard to the jurisdiction of the second class subordinate Judge, the division Bench observed (p. 157): .The execution of the decree by section 223 of the Civil Procedure Code belongs to the Court which has pronounced it, and as the Second Class Subordinate Judge could not have entertained the suit, so neither could he deal with it in execution.

Thus the principle laid down in the decision was that the executing Court must be such that it must have had jurisdiction to entertain the such in which the decree has been passed.

6. In the other decision of Rustomjee Sorabji's case, Kania J. as he then was, following the decision in Shri Sidheshwar Pandit's case and after reproducing passage extracted by me earlier, observed as follows (p. 279):

That passage shows that the standard by which the jurisdiction of the executing Court has to be considered is its capacity to try the suit itself.

In that case, a suit involving the stake of Rs. 5,000 was dismissed with costs and a decree for costs in favour of the defendant was made, the costs being fixed at Rs. 3,500. The decree for costs was sent to the second class subordinate Judge for execution. The decree was passed by the Bombay High Court on its Original Side and was transmitted to Poona and from there transferred to the second class subordinate Judge at Vadgaon. The property of the defendant was advertised for sale and the sale was knocked down. The sale was sought to be set aside on the ground that the subordinate Judge at Vadgaon had no jurisdiction to sell the property. This application was dismissed and an appeal was dismissed by the district Judge. It was held that since the second class subordinate Judge at Vadgaon had no jurisdiction to execute a decree in a suit filed in the High Court, it will have, according to the observations made in the case of Vishnu Sakharam Nagarkar v. Krishnarao Malhar ILR(1886) Bom. 153 no jurisdiction to execute the decree. This, authority also clearly, in my opinion, lays down that the competence of the Court to which the decree has been transferred for execution must be determined with reference to the competence of the transferee Court to entertain the suit in which the decree was passed.

7. These decisions were considered at considerable length, in Shamrao Pagaji Kapagate v. Umashankar Ganpatlal Asati (1973) First Appeal No. 412 of 1970, decided by Vaidya J., on September 17, 1973 (Unrep.) That was an appeal against the order of the same learned Judge of the City Civil Court to which he made a reference in concluding portion of his judgment in Bhandara Civil Suit No. 15/B of 1958. The facts in the civil suit were also similar. The original decree in the Bhandara Court was for the sum of Rs. 21,000. When it came to be transferred to the City Civil Court for execution, it was not possible to be ascertained as to what the exact amount of the decree was. It appears that since the learned Judge declined to proceed with the execution on the authority of the decision of the Allahabad High Court referred to earlier, as in his view the decretal amount exceeded the pecuniary limits of the jurisdiction of the City Civil Court. The question posed in the appeal was whether the pecuniary jurisdiction of the City Civil Court to which the decree was transferred for execution must be determined having regard to the nature of the suit in which the decree was passed and not the amount due under the decree. The learned Judge took the view:. When the decree is transferred for execution to a Court, the executing Court is to see whether it has the capacity to try the suit.

and found that the learned Judge of the City Civil Court had not given any reasons why he preferred the Allahabad decision to the decision of this Court. Justice Vaidya has also referred to the decision in Rameswar Mahton v. Dilu Mahton ILR(1894) Cal. 550. Panchuram Tekadar v. Kinoo Haldar ILR(1912) Cal. 56, Chandravathi v. Payapattillath : AIR1966Ker318 , and Matrumal v. Madanlal : AIR1957Ori177 , which took the same view as was taken by the learned Chief Justice in Rustomjee Sorabji's case.

8. I see no reason to take a view different from the one taken by Vaidya J. The decision in, Rustomjee Sorabji's case which is a division Bench decision is binding on me.

9. Mr. Nain, however, vehemently contended that the earlier decisions of this Court in Shri Sidheshwar Pandit and Rustomjee Sorabji's case did not take into account the wording of Section 3 of the Bombay City Civil Court Act, 1948. According to the learned counsel the jurisdiction of the City Civil Court is restricted by Section 3 of the Act 'to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value and arising within the Greater Bombay' except the kind of suits or proceedings which are enumerated in Clauses (a) to (d). Admittedly, as a result of the exercise of the power under Section 4 of the Act by the State Government, the pecuniary jurisdiction of the Bombay City Civil Court has been extended to suits of the value not exceeding Rs. 25,000. What is therefore contended is that the jurisdiction of the city Civil Court is restricted to suits or other proceedings of a civil nature not exceeding Rs. 25,000 and since the execution proceedings were proceedings of a civil nature, the subject-matter of which was valued at more than Rs. 25,000 by the very terms of the section of the Act, the execution proceedings could not be entertained by the City Civil Court. It is no doubt true that Section 3 of the Act sets out the pecuniary jurisdiction of the. City Civil Court. It is however well established that it is the valuation of the claim in the plaint which determines the pecuniary jurisdiction of the Court and if a suit is properly filed in a Court of competent jurisdiction, there is no bar to prevent the Court from passing in that suit a decree for an amount in excess of its pecuniary jurisdiction,. As pointed out by Patkar J. in Ishwarappa v. Dhanji AIR[1932] Bom. 111 : 34 Bom. L.R. 44 the jurisdiction of the Court is determined by the valuation in the plaint and not by the result of the decree whatever it might turn out to be. In Mt. Urehan Kuer v. Mt. Kabwtri : AIR1934Pat204 a Full Bench of the Patna High Court, accepting the view of this Court in Ambadas v. Vishnu : AIR1927Bom83 has held that the pecuniary jurisdiction of the civil Court is ordinarily governed by the value stated by the plaintiff in his plaint and such jurisdiction is not ousted by the Court ultimately finding that a decree for a sura exceeding the limits of pecuniary jurisdiction of the Court should be given to the plaintiff. Thus the competence of the Court to which the decree has been, transferred for execution will have to be determined with reference to the valuation of the suit in which the decree was passed and not with reference to amount for which the decree sought to be executed has been passed. If this is the principle then merely because the jurisdiction of the City Court in respect of matters instituted before it is restricted to Rs. 25,000 its competency to entertain a proceeding as a transferee Court for the purpose of execution of the decree in excess of Rs. 25,000 will not be affected if the claim in the suit will not exceed Rs. 25,000. It is not disputed that the valuation of the claim in the suit in which the decree which is transferred was passed was less than Rs. 25,000. It must, therefore, be held that the learned Judge was in error in declining to proceed with the execution proceeding. In view of the fact that the earlier decisions of this Court are binding on me, I do not consider it necessary to deal with the Allahabad view on which the learned Judge has founded his decision.

10. In the result, the appeal is allowed, the order of the City Civil Court rejecting the execution, application is set aside and the City Civil Court is directed to decide the execution application in accordance with law. The appellant will get his costs from the respondents.


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