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N. Pariyakkal and ors. Vs. the Co-operative Tourist and Transport Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2321 of 1978
Judge
Reported inAIR1980Kant75
ActsCode of Civil Procedure (CPC), 1908 - Sections 38, 39 and 115; Karnataka Rent Control Act, 1961 - Sections 3; Karnataka Rent Control (Amendment) Act, 1961 - Sections 21
AppellantN. Pariyakkal and ors.
RespondentThe Co-operative Tourist and Transport Society Ltd.
Appellant AdvocateN. Ramalingaswamy, Adv.
Respondent AdvocateK. Belliappa and ;H.S. Rama Rao, Advs.
Excerpt:
.....supports prosecution case will have to be accepted. - there is a well-recognized distinction between inherent lack of jurisdiction and irregular assumption of jurisdiction. where a court does not lack inherent jurisdiction, but has irregularly assumed jurisdiction, it is well settled that the proceedings before it are not vitiated......taken by malimath, j., in ex. s. a. no. 43 of 1977 regarding the jurisdiction of the court of the civil judge to execute a decree for eviction transferred to that court by the court of the munsiff which had passed that decree.2. the facts of the case are briefly these: the petitioners herein had filed an application under section 21 of the karnataka rent control act, 1961, (hereinafter referred to as the act) for eviction of respondent-1 herein, the cooperative tourist and transport society ltd., in h. r. c. no. 723 of 1971 on the file of the additional first munsiff, bangalore who granted a decree for eviction. later, the petitioners filed an execution application, ex. case no. 623 of 1975, in the same court. during the pendency of the execution proceeding'. the karnataka rent control.....
Judgment:

Chandrashekhar, C.J.

1. This revision petition has been referred to a Division Bench by Rama Jois, J., as he doubted the correctness of the 'view taken by Malimath, J., in Ex. S. A. No. 43 of 1977 regarding the Jurisdiction of the Court of the Civil Judge to execute a decree for eviction transferred to that Court by the Court of the Munsiff which had passed that decree.

2. The facts of the case are briefly these: The petitioners herein had filed an application under Section 21 of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act) for eviction of respondent-1 herein, the Cooperative Tourist and Transport Society Ltd., in H. R. C. No. 723 of 1971 on the file of the Additional First Munsiff, Bangalore who granted a decree for eviction. Later, the petitioners filed an execution application, Ex. Case No. 623 of 1975, in the same Court. During the pendency of the execution proceeding'. the Karnataka Rent Control (Amendment) Act, 1975 (Karnataka Act No. 31 of 1975) (hereinafter referred to as the Amendment Act) came into force. The Amendment Act amended the definition of the word 'Court' occurring in S. 3 (d) of the Act. The effect of such amendment is that the Court having jurisdiction for the purpose of the Act in the City of Bangalore is the Court of the Civil Judge and not the Court of the Munsiff. The Amendment Act also provided for transfer of proceedings under the Act pending in the Court of the Munsiff to the Court of Civil Judges in the City of Bangalore.

3. The learned Munsiff before whom the execution proceedings were pending, seems to have taken the view that as a result of such amendment he ceased to have jurisdiction to execute the decree for eviction passed by him and that such decree could be executed only by the Court of the Civil Judge. in that view he transferred the execution petition filed by the present petitioners, to the Court of the Civil Judge, Bangalore.

4. Thereafter the learned Civil Judge proceeded to execute the decree and issued a warrant for delivery of the petition premises. Respondent-2 offered obstruction to the execution of that warrant. The learned Civil Judge, against whose order respondent-2 preferred an appeal, Ex. Appeal No. 19 of 1977, to the learned District Judge, overruled his objection. As that appeal was dismissed, respondent-2 came up in revision in C.R.P. No. 127 of 1978. On 23-3- this Court dismissed that revision petition observing:

''Sri Albal, learned counsel for the petitioner, prayed that some reasonable time be granted for the petitioner to vacate the premises. He submitted that his client had automobiles of his customers stationed in the premises for repairs and that immediate eviction would seriously hamper his business and expose him to hardship. Having regard to circumstances stated by Sri. Arbor, I grant time till West of May 1978 to the petitioner to surrender and yield up possession of the premises, which if he fails to do respondents would be at liberty to obtain possession by the process of the executing court. Subject as aforesaid, this petition is rejected at the admission stage.'

He, subsequently withdrew a petition filed by present respondents for review of the aforesaid order, and the review petition was dismissed as withdrawn.

5. As respondent-2 did not vacate the petition premises, the petitioners moved the learned Civil Judge to issue the necessary process for putting them in possession of the petition premises. At that stage respondent-2 filed I. A. No. 22 wherein he raised, inter alia, an objection that the Court of the Civil Court had no jurisdiction to execute the decree and it was only the Court of the Munsiff, which had jurisdiction to do so. That objection found favour with the learned Civil Judge who held that in view of the ruling of this Court in Ex. S. A. No. 43 of 1977 (B. M. L. N, Raju v. N. T Neela Kantaiah) he had no jurisdiction to execute that decree. He dismissed the execution petition leaving it open to the petitioners to make a fresh application for execution in the Court of the Munsiff.

6. The aforesaid order of the learned Civil Judge is impugned in this petition. Though Sri H. S. Rama Rao, learned counsel for respondent-2, urged several contentions, the only question which, in our opinion, arises for determination in this revision petition, is whether or not the Court of the Civil Judge had jurisdiction to execute the decree which had been transferred to that Court.

7. In Meenakshamma v. Modur Rangamma (1968 (2) Mys LJ 255), this Court held that a decree for eviction made under the provisions of the Act, is executable under the provisions of the Civil P. C. Hence, in order to determine in which Court such a decree passed before the Amendment Act came into force, should be executed after coming into force of the Amendment Act, the provisions of Civil P. C. should be looked into. Section 37 C. P. C. defines the expression 'court which passed the decree. According 'to that definition the Court of first instance which passed the decree is undoubtedly such Court. According to that definition, where such Court of first instance has ceased to exist or to have jurisdiction to execute it. The Court, who, 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, should be regarded as the Court which passed the decree. The Court of the Munsiff in Bangalore City, which passed the decree for eviction, has not ceased to exist. There is nothing in the Amending Act which, expressly or by necessary implication, takes away the jurisdiction of that Court to execute a decree for eviction which it had passed before the Amendment Act came into force. Hence, in the present case the decree for eviction could have been executed -by that court and it did not lose the Jurisdiction to do so even after the Amendment Act came into force.

8. We agree with the view taken by, Malimath, J., in Ex. S. A- No. 43 of 1977 reported in ILR (1978) 2 Kant 1112 that execution proceedings on an application for executing such decree for eviction pending in the Court of the Munsiff immediately before the coming into force of the Amendment Act, did not stand statutorily transferred to the Court of the Civil Judge, and that the learned Munsiff should not have transferred such decrees to the Court of the Civil Judge. But 'the question still is where the Court of the Munsiff, -has, on an erroneous understanding of the legal position, transferred such execution Petition to the Court of the Civil Judge, whether the latter Court has no jurisdiction to execute that decree. In Ex. S. A. No. 43 of 1977: reported in ILR (1978) 2 Kant 1110. Malimath, J., has held that in such a situation the Court of the Civil Judge has no jurisdiction to execute such decree and the execution proceedings should. Go back to the Court of the Munsiff. With great respect to his Lordship, it appears to us that he has not considered the provision in Section 38 C. P. C. that a decree may be executed either by the Court which passed it or by the Court to which it is sent! or exe; Smt. N. Pariyakkal and others, Petitioners v. The Co-operative Tourist and Transport Society Ltd. and another, Respondents caution. If the Munsiff who passed the decree has sent it to the Court of the Civil Judge for execution, Section 38 C. P. C. empowers the latter Court to execute the decree.

9. However, Sri Rama Rao contended that it is only when a decree has been validly transferred under Section 39 C. P. C. the transferee Court will have jurisdiction under Section 38 C. P. C. to execute that decree, that under subsection (1) of that section the learned Munsiff could have transferred the decree to the Court of the Civil Judge only on an application by the decree holder for such transfer and that in the present case there was no such application by the decree-holder. It was also contended by Sri Rama Rao that the learned Munsiff could not have transferred the decree suo motu under subsection (2) of that section because that sub-section empowers the Court which passed the decree, to transfer it to any subordinate Court of competent jurisdiction and that in the hierarchy of Courts the Court of the Civil Judge is not subordinate to the Court of the Munsiff, but is a Court of higher rank.

10. In the present case there is no dispute that the Court of the Civil Judge is a Court of competent jurisdiction for the purpose of Section 39 C. P. C. as it has after the Amendment Act, jurisdiction to try an application for eviction under Section 21 of the Act. But, no application seems to have been made by the petitioners in the Court of the Munsiff for transfer of the decree to the Court of the Civil Judge. Even so, the question is when the Court of the Munsiff transfers suo motu to the Court of the Civil Judge an application for execution of a decree for eviction passed by it (the Court of the Munsiff) on an erroneous understanding of the legal position as to the Court which has jurisdiction to execute such decree, has the Court of the Civil Judge no jurisdiction to execute the decree. There is a well-recognized distinction between inherent lack of jurisdiction and irregular assumption of jurisdiction. Where a Court does not lack inherent jurisdiction, but has irregularly assumed jurisdiction, it is well settled that the proceedings before it are not vitiated. Under sub-section (1) of Section 39 C. P. C. the Court of the Munsiff was competent to transfer the decree to the Court of the Civil Judge if the decree-holder had made an application for. such transfer and on such transfer the Court of the Civil Judge would have jurisdiction under Section 38 C. P. C. to execute the decree. In the present case when the Court of the Munsiff transferred the decree to the Court of the Civil Judge in the absence of an application by the decree-holder, there was, at the highest, irregular assumption of jurisdiction by the Court of the Civil Judge and there was no inherent lack of jurisdiction for, the Court of the Civil Judge to execute the decree. That the exercise of jurisdiction by the Civil Judge in such circumstances, is not vitiate, 4, is clear 'from the decision in Merla Ramanna v. Nallaparaju : [1955]2SCR938 wherein the Supreme Court quoted with approval the following observations of the Madras High Court in Balakrishnayya v. Linga Rao (AIR 1943 Mad 449 at p. 4513):

'We consider that the true effect of Section 39 is to recognize 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 follow 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 must be held to have waived it.'

In the present case also, objection as to the jurisdiction to execute the decree, was raised by respondent-2 before the learned Civil Judge, more than two years after the decree was transferred to his Court from the Court of the Munsiff. However, Sri. Rama Rao submitted that objection as to the jurisdiction can be raised at any time and that since the legal position as to whether the Court of the Civil Judge had jurisdiction to, execute the decree for eviction transferred to it, was settled only by the ruling of Malimath, J., in Ex. S. A. No. 43 of 1977* respondent-2 could not raise such objection regarding jurisdiction at - any earlier point of time. We are unable to accept this explanation. The mere fact that the aforesaid ruling of Malimath, J., came later, was no ground for respondent-2 not raising the objection's to the jurisdiction at the earliest occasion.

11. We hold that the decision of Malimath, J., in Ex. S. A- No. 43 of 1977* does not lay down the law correctly in. so far that decision held that the Court of the Civil Judge to which a decree for eviction was transferred by the Court of the Munsiff which had passed that decree, has no jurisdiction to execute that decree and we overrule that decision to that extent.

12. In the result, we allow this revision petition -and reverse the finding of the learned Civil Judge that he had no jurisdiction to execute the decree. The learned Civil Judge is directed to take back the execution case to his me and to proceed with it in accordance with law.

13. We have not considered it necessary to pronounce upon the other contentions urged by Sri Rama Rao in this revision petition.

14. As the execution proceedings have been pending for a long time, we direct the learned Civil Judge to dispose of tills execution petition very expeditiously

15. In this petition parties will bear their own costs.

16. Revision allowed.


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