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Sadashiv Basappa Madabavi Vs. Annappa Shidlingappa Poojari - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 578 of 1956
Judge
Reported inAIR1960Kant273; AIR1960Mys273; ILR1960KAR478
ActsCode of Civil Procedure (CPC), 1908 - Sections 144; Code of Criminal Procedure (CrPC) , 1973 - Sections 150
AppellantSadashiv Basappa Madabavi
RespondentAnnappa Shidlingappa Poojari
Excerpt:
.....were included in the belgaum district of bombay province and that village came within the jurisdiction of the court of the civil judge. they took over not merely future 'business' but all 'business' past as well as future......the civil judge. jr. division athani; consequently c. s. no. 288/41 on the file of the subordinate judge jamkhandi, stood transfered to the court of that civil judge junior division, athani.at this stage it may also be mentioned that when the jamkhandi state merged in the bombay province, the civil courts existing in that state stood abolished and new courts were established by the province of bombay. to come buck to c.s. no. 288/41, it was ultimately dismissed; the matter was taken up in appeal; the appeal was also dismissed on 28-11-1953. on 13-8-1954 the respondent filed an application under s. 144 c.p.c. from which this second appeal arises, seeking restitution of the property taken delivery of by the appellant in execution of the ex parte decree in c. s. no. 288/41. he also claimed.....
Judgment:

(1) It is necessary to state a few facts before proceeding to consider the question of law urged in this case.

(2) The appellant as plaintiff filed Civil Suit No. 288 of 1941 in the Court of the Subordinate Judge at Jamkhandi, which was a Native State at that time; in that suit he obtained an ex parte decree; from the material on record it is not possible to find out the date on which the ex parte decree was passed; nut it is seen that some time in the year 1945, the defendant filed Miscellaneous Application No. 1 of 1945 to set aside the ex parte decree passed against him; when that application was pending the plaintiff levied execution of his decree in C. S. 288/41: therein he obtained possession of the suit property on 5-1-1946; possession of the suit house was obtained on 1-3-1946; meanwhile Misc. Application No. 1/45 was allowed on 14-7-1947 and the suit C. S. No. 288/41 was posted for trial, on 12-3-1948 Jamkhandi State merged in the Province of Bombay; Hulabali Village in which the suit property as well as the house are situate were included in the Belgaum District of Bombay Province and that village came within the jurisdiction of the Court of the Civil Judge. Jr. Division Athani; consequently C. S. No. 288/41 on the file of the Subordinate Judge Jamkhandi, stood transfered to the Court of that Civil Judge Junior Division, Athani.

At this stage it may also be mentioned that when the Jamkhandi State merged in the Bombay Province, the Civil Courts existing in that State stood abolished and new Courts were established by the Province of Bombay. To come buck to C.S. No. 288/41, it was ultimately dismissed; the matter was taken up in appeal; the appeal was also dismissed on 28-11-1953. On 13-8-1954 the respondent filed an application under S. 144 C.P.C. from which this Second Appeal arises, seeking restitution of the property taken delivery of by the appellant in execution of the ex parte decree in C. S. No. 288/41. He also claimed mean profits. The Courts below have granted the prayers of the respondent. The appellant contends that the Court of the Civil Judge, Junior Division at Athani had no jurisdiction to entertain the application in question as it is not the 'Court of first instance', whose decree was varied, nor is it a transferee Court within the meaning of S. 150 Cr. C.P.C.

(3) Answers to these questions depend on the interpretation to be placed on Ss. 144 and 150 C.P.C. Section 144(1) C.P.C. reads as follows :

'Where and in so far as a decree or an order is varied or reversed 'the Court of first instance shall,' on the application of any party of first instance shall', on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order as such part thereof as has been varied or reversed; and, for this purpose, the Court may make any order including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.' (Underlining (here into ' ') is mine). Admittedly the Civil Court at Athani is not 'the Court of first instance' as contemplated by S. 144 C.P.C. The suit was instituted in the Court of the Subordinate Judge as Jamkhandi. Hence that was 'the Court of first instance' Consequently S. 144 C.P.C. by itself does not help the respondent.

(4) Now we shall proceed to examine S. 150 C.P.C. to see whether that provision gives any assistance to the respondent. Section 150 C.P.C. reads 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,'

(Underlining (here into ' ') is mine).

It is not disputed that the 'transfer' contemplated by this section includes transfer of business as a result of change of territorial jurisdiction. What is urged is that the transferee Court gets jurisdiction only in respect of proceedings taken after the transfer and in the matter transferred; but under no circumstance it can become 'the Court of first instance'. In other words it is the contention of the appellant that S. 144 C.P.C. is not controlled by S. 150 C.P.C. Alternatively it is contended that so long as 'the Court of first instance' exists 'the transfer of business' relates to proceedings actually transferred and matters incidental thereto and not to separate original proceedings.

(5) The Court below relying on the decision in J. V. Ranganatha Rao v. Hanumantha Rao, ILR 46 Mad 1: (AIR 1922 Mad 10), came to the conclusion that the Court of the Civil Judge, Junior Division at Athani had jurisdiction to entertain the application in question. In that case after passing of an ex parte decree by Court 'P' in a suit to recover certain immoveable properties, part of its territorial jurisdiction including the locality in which the properties were situate was transferred to Court 'A'. Thereafter the defendant applied to Court 'A' to set aside the ex parte decree. That application was resisted by the plaintiff on grounds similar to the one taken by the appellant in the instant case. But his objections were overruled and the High Court held that under S. 150 C.P.C. Court 'A' had jurisdiction to entertain the application, and there was nothing in Order IX, Rule 13 of the Code providing the contrary. This case strongly supports the respondent's case.

(6) But Sri Datar, the learned counsel appearing for the appellant contends that the decision in question did not lay down the law correctly. He cited a number of decisions which according to him support his contention. But we shall presently see that they have no bearing on the points in controversy. It is necessary to mention at the very outset that the Court of the Subordinate Judge at Jamkhandi which passed the ex parte decree in C.S. No. 288/41 is no more in existence. That Court had been abolished.

There are no subordinate Judge's Courts in Jamkhandi now. Hulabali Village which was within the territory of Jamkhandi State and within the jurisdiction of the Court of the subordinate Judge, was included within the District of Belgaum (while bulk of the territory of the quondam Jamkhandi State was included in the Bijapur District) for administrative purpose and within the jurisdiction of the Civil Judge at Athani for administration of civil justice, within certain pecuniary limits. It was not a mere transfer to future 'business' from particular areas, the old Court still continuing to exist. Here, along with the Jamkhandi State, the subordinate Judge's Court came to an end. The new Courts stepped into its shoes. They took over not merely future 'business' but all 'business' past as well as future.

The Notification abolishing the subordinate Judge's Court at Jamkhandi and transferring territories within its jurisdiction to other Courts is not before me. But both the learned Advocate are agreed that the subordinate Judge's Court at Jamkhandi was abolished and the areas within its jurisdiction were distributed amongst against several Courts. Hence there is no need to construe the scope of the Notification transferring 'business' to the Court at Athani. Moreover it is for the appellant to show that only future 'business' was transferred. The language of S. 150 C.P.C. is very wide. It says (save as otherwise provided) that where the business of any Court is transferred to any other Court, the transferee Court shall have the same powers and shall perform the same duties which the transferor Court would have had or performed as the case may be but for the transfer. The language of S. 150 C.P.C. is plain and unambiguous and there is no need to cut down its amplitude.

(7) Let me now proceed to examine the decisions cited by Sri Datar in support of his contention. The first case cited before me is the decision n Swami Rao v. Valentine, 22 Bom LR 403: (AIR 1922 Bom 12). In that case the plaintiff obtained on 27-11-1915 an ex parte decree in the Poona Court, which the defendant applied to have set aside on 25-3-1916. On 17-4-1916, the plaintiff recovered possession of the property in execution of the decree. The ex parte decree was set aside on 1-7-1916 and the suit transferred to the Haveli Court for trial. The defendant applied to the Poona Court for restoration of the property; but the Court dismissed the application on the ground that the application should have been made to the Haveli Court, as the Poona Court had no jurisdiction to entertain it.

On appeal, the High Court held that the defendant who applied for restitution, was entitled to have the property restored to him when the decree under which the plaintiff got possession had been set aside. It further held that the Poona Court which originally passed the decree had jurisdiction to entertain the application. In that case S. 150 C.P.C., did not come up for consideration at all. They only point the High Court had to consider was which was 'the Court of first instance'? Without doubt the Poona Court was 'the Court of first instance'. Hence this decision is of no assistance to the appellant.

(8) I shall next proceed to consider the case in R. H. Skinner v. R. R. Skinner, AIR 1937 All 515. In that case a Bench of the Allahabad High Court held that the expression 'Court of first instance' as used in S. 144 C.P.C. is used in contradistinction to the expression 'Court of Appeal' and means the Court which passed the decree or if that Court has ceased to exist, the Court to which the proceedings are transferred in substitution for the Court which passed the decree. Their Lordship further held that where a notification regarding re-distribution of territorial jurisdiction of Courts mentions that it will not apply to pending case but will apply only to 'future business', an application under S. 144 C.P.C. for restitution arising out of suit pending at the time of notification will not be appealed by such notification as such an application cannot be treated as 'future Business'. Hence this decision is also of no assistance to the appellant.

(9) Next we come to the decision of the Special Bench of the Madras High Court in Ramier v. Mothu Krishna Ayyar, AIR 1932 Mad 418. In that case Ramesan J. speaking for the Bench observed that unless the language of a High Court Notification effecting the change of venue is plain, a notification effecting a change of jurisdiction for the future cannot be interpreted as effecting a transfer of past business. In this case the High Court had to consider the interpretation to be placed on the notification issued. Their Lordships came to the conclusion that it merely transferred the 'future business'.

(10) The last case on which reliance was placed by the learned counsel for the appellant is the one in Kishori Mohan v. Brabma Niranjan : AIR1938Cal554 . The facts of that case are as follows: 'A decree was passed in the Court at 'A' and was executed by the sale of the judgment-debtor's property which was purchased by the decree-holder. Subsequently the sale in the Court at 'A' was set aside and hence the decree-holder appealed against the order setting aside the sale and simultaneously got the decree transferred to another Court at 'B' and executed it there and realised the amount on the decree at 'B'. His appeal against the order setting aside the sale in the Court at 'A' was allowed and he got the same confirmed in his name.

The judgment-debtor finding that he had paid the decree-holder twice over, once by sale of his property in the Court at 'A' and again in execution in the transferee Court at 'B' alleging that he was entitled to restitution under Ss. 47, 144 and 151 C.P.C.' The High Court held that the Court at 'B' could not grant restitution because as soon as it executed the decree its purpose was finished and it no longer remained an executing Court; so S. 47 was of no use. Again that Court not being the Court of the first instance, proper remedy if available under S. 144 C.P.C. was to apply to the Court at 'A' and as other remedy was apply to the Court at 'A' and as other remedy was available S. 151 could not be invoked. This decision again has no application to the facts of the present case. Hence none of the decisions cited by Sri Datar support his contentions.

(11) On a plain reading of S. 144 read with S. 150 C.P.C. it is clear that the Court of the Civil Judge at Athani has taken the place of the Court of the Subordinate Judge at Jamkhandi so far as the suit property is concerned. All the business of the Jamkhandi Court, causes of action for which arose in the village of Hulabali stood transferred to the Court of the Civil Judge at Athani. That being so the present case definitely fell within the scope of S. 150 C. P. C and consequently it became 'the Court of first instance' within the meaning of S. 144 C.P.C.

(12) In the result, the appeal fails and the same is dismissed with costs.

(13) Appeal dismissed.


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