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Maganahalli Basappa Vs. Doddamani Basavarajappa - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 463 of 1982
Judge
Reported inILR1985KAR2420
ActsCode of Civil Procedure (CPC) , 1908 - Sections 39 and 42
AppellantMaganahalli Basappa
RespondentDoddamani Basavarajappa
Appellant AdvocateV.T. Rayaraddy, Adv.
Respondent AdvocateBala Srinivas, Adv. for ;Jayavittal Kolar, Adv.
DispositionRevision allowed
Excerpt:
.....no. 5 of 1908) - section 42 -- powers of transferee court wider than that of transferor court -- decree transferred to be treated as one passed by itself -- transferee munsiff's court can execute small cause court decree even by attachment and sale of immoveable property.;decree of court of civil judge which was transferred to munsiff for execution, was ordered to be re-transmitted on the ground court of munsiff is not vested with same small cause powers and is not a court of competent jurisdiction within the meaning of section 39 c.p.c.;the words 'as if it had been passed by itself' used in section 42 c.p.c. clearly show that the transferee court will have to proceed with the execution as if a decree transferred to it is one passed by itself. therefore the powers of the transferee..........would be wider than those of the transferor court because section 42 c.p.c. lays down that the decreetransferred to it will have to be treated as one passed by itself.6. the learned author shri mulla in his c.p.c. 14th edition, vol. i, page 299 has stated as :-'transfer of decree by small cause court :-section 31(b) of the presidency small cause courts act contains a special provision for transfer of decrees passed by the presidency small causes courts. a transfer of a decree by small cause court, calcutta, direct to the court of the district munsiff is valid under this section. (vide fagu ram- v. -. pannalal - a.i.r. 1962 a. p. 272)'7. where a small cause court decree is transferred to a regular court having power to execute decrees against immoveable property, it can execute decree.....
Judgment:
ORDER

Kulkarni, J.

1. This is a decree holder's revision against the order dated 10-12-1981 passed by the Munsiff, Harapanahalli, in Execution Case No. 108 of 1981 ordering the re-transmission of the execution of the decree to the court of the Civil Judge at Davanagere, which had transferred the decree to it for execution.

2. The decree holder had obtained a decree in S.C. No. 176/78 against the judgment debtor in the court of the Civil Judge, Davanagere. The said decree was transferred by the court of the Civil Judge, Davanagere, to the court of the Munsiff, Harapanahalli. The Munsiff, Harapanahalli, held that the Munsiff at Harapanahalli had not got the same small cause powers as those of the Civil Judge at Davanagere. Therefore, the transferee Court was not a Court competent to entertain and hear and try the small cause suit filed in the Court of the Civil Judge, Davanagere, and decreed by it. Therefore taking this narrow view of the matter, he ordered the re-transmission of the decree to the court of the Civil Judge, Davanagere.

3. As can be seen from the order passed by the Court of the Munsiff, Harapanahalli, it becomes clear that the decree holder had filed a suit in S.C. No. 176/78 against thejudgment debtor to recover Rs. 1,212/-. It further shows that the said suit was decreed by the Additional Civil Judge at Davanagere.

4. It is undisputed that the Civil Judge who had decreed the small cause suit, transferred the decree to the Court of the Munsiff at Harapanahalli under Section 39 C.P.C.

5. Section 38 C.P.C. makes it clear that the decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 39 C.P.C. reads as :-

'39. Transfer of decree : (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction.....'

The Munsiff, Harapanahalli, relying on the words 'competent jurisdiction' used in Section 39 C.P.C. held that the Small Cause Suit which had been decreed by the Court of the Civil Judge, Davanagere, on the small cause side, could not have been entertained and heard and tried by it andaccordingly it held that the Court of the Munsiff was not a court of competent jurisdiction within the meaning of Section 39 C.P.C. It is unfortunate that Section. 42 C.P.C. was not brought to the notice of the Munsiff, Harapanahalli. Section 42 C.P.C. reads as :-

'42. Powers of Court in executing transferred decree :- (1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.'

The words 'as if it had been passed by itself' used in Section 42 C.P.C. clearly show that the transferee Court will have to proceed with the execution as if a decree transferred to it is one passed by itself. Therefore the powers of the transferee Court would be wider than those of the transferor Court because Section 42 C.P.C. lays down that the decreetransferred to it will have to be treated as one passed by itself.

6. The learned Author Shri Mulla in his C.P.C. 14th Edition, Vol. I, page 299 has stated as :-

'Transfer of Decree by Small Cause Court :-

Section 31(b) of the Presidency Small Cause Courts Act contains a special provision for transfer of decrees passed by the Presidency Small Causes Courts. A transfer of a decree by Small Cause Court, Calcutta, direct to the Court of the District Munsiff is valid under this Section. (vide FAGU RAM- v. -. PANNALAL - A.I.R. 1962 A. P. 272)'

7. Where a Small Cause Court decree is transferred to a regular court having power to execute decrees against immoveable property, it can execute decree againstimmoveable property (Abinash - v. - Bibuthi 44 CWN 587 ; Sarjoo Pd. - v. - 2nd Additional District Judge : AIR1975All13 vide Commentary on the Law of Civil Procedure by Sarkar 1979, Edn. 6, page 125).

In Shankat Hussain @ Ali Akram and others - v. - Smt. Bhuneshwari Devi (DEAD) by L.Rs. and others, : [1973]1SCR1022 it is laid down as:-

'Where a money decree passed by a Small Cause Court is transferred to regular Civil Court for execution by sale ofimmovable property of J.D. and pending the execution the J.D. also files a suit in the transferee Court for setting aside the decree under execution, the transferee Court has no power under the terms of Order 21 Rule 29 to stay the execution of the decree pending in its own Court because the decree is not passed by that Court.'

Thus, the said facts would go to show that a decree passed by the Small Cause Court can be transferred to a regularCivil Court for execution even by sale of immoveable property of the J.D.

8. In Mahadeo Prasad Singh and Another -v.- Ram Lochan and Others, : [1981]1SCR732 it is laid down as :-

'Section 42 of the Code which indicates the powers of the transferee Court for executing a transferred decree, prior to its amendment, read as 'theCourt executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself,' For the words 'as if it had been passed by itself' occurring in the first sentence of sub-section (1) of Section 42, U.P. Act 24 of 1954 substituted the words 'as the Court which passed it.' The effect of such substitution was that the powers of the transferee Court in executing the transferred decree becamecoterminous with the powers of the Court which had passed it- The result was that if the power of the transferor Court to execute its own decree were in any respect restricted, the same restriction would attach to the powers of the transferee Court in executing the transferred decree; notwithstanding the position that the powers of the transferee Court in executing its own decree were not so restricted.

Thus where the decree of the Court of Small Causes was transferred to the Court of Munsiff and was put into execution after the U.P. (Amendment) Act (24 of 1954) had come into force the Court of Munsiff had no jurisdiction to execute the decree by attachment and sale of the immoveable property. The Amendment Act 24 of 1954 had taken away the power of the transferee Court to execute the transferred decree by attachment and sale of the immoveable property by making itcoterminous with that of the transferor Court which, in the instant case, was the Small Cause Court and in view of the Prohibition contained in Order 21, Rule 82, C.P.C., had no power to execute its decree by sale of immoveable property. That being the position, the Court of the Munsiff to whom the decree had been transferred for execution, had also no jurisdiction to order sale of immoveable property of the judgment debtor.'

The said Mahadeo Prasad's case has interpreted Section 42 to the effect that the transferee court will have to execute a transferred decree as if it were one passed by itself. Therefore it becomes clear that even if the decree passed by the Small Cause Court is transferred to the regular Civil Court, the powers of the transferee Court would be wider than those of the Small Cause Court, and the transferee Court will have to execute the decree as if it were a decree passed by itself on the original side. The U.P. Amendment Act by taking out the words 'as if' and substituting the words 'as the Court which passed it' has restricted the operation of Section 42 so far as U.P. State is concerned. Therefore Section 42 which is applicable to this State, makes it absolutely clear that if the Small Cause Court decree is transferred to the regular Munsiff Court, the powers of the transferee executing Court would be wider than those of the transferor Small Cause Court and it can execute the decree even by attaching and selling of the immoveable property of the judgment debtor.

9. A combined reading of Section 39 and Section 42 C.P.C. clearly shows that the transferee Court has got powers to execute the decree as if it had been passed by itself. The learned Author Shri Sarkar in Law of Civil Procedure Edn.6, 1979 has stated on pages 123 and 124 as :-

'Section 42 expressly gives the Court executing a decree sent to it, the same 'powers in executing such decree' as if it had been passed by itself(JAINARAIN - v. -. KEDAR : [1956]1SCR62 ); SANWAL - v.- COLLR. 46A 560; S1TAL - v.- CLEMENT & Co., 43 A 394 NANDRAM - v.- GOPALDAS A.I.R. 1956 MB 255) and not all the powers for the execution of a decree. The expression 'powers for the execution of a decree' connotes powers for the general object of the execution of the decree, while the expression 'powers in executing such decree' means powers exercised in actually enforcing the decree(NANDRAM - v.- GOPALDAS A.I.R 1956 MB 255). The expression means that the Court to which the decree has been sent for execution isempowered to execute it in any of the ways prescribed by Section 51 that is applicable to that particular kind of decree(PIRTHIRAJ - v.- BALMA-KUND A.I.R. 1940 P 557). 'Powers in executing the decree' must mean powers in carrying out the purpose of executing the decree. Such powers only pass to the transferee Court which acts under delegated authority from the transferor Court(SARALABALA - v.- SHYAMPRASAD A.I.R. 1953 C 765: SURENDRNATH - v.- HAR1HAR A.I.R. 1971 or 77). The words 'as if it had been passed by itself' are confined to the manner of execution and do not suggest that they have any implication relating to limitation for execution (SHEIK ALI- v.- SHEIK Md. A.I.R. 1967 M. 45, 50 FB). The transferee Court does not become the Court which passed the decree(SHAUKATI - v.- BHUNESWARI : [1973]1SCR1022 .'

10. Therefore, under these circumstances, the view of the Munsiff Court that as the pecuniary small cause jurisdiction of the Munsiff, Harapanahalli, was lesser than that of the Civil Judge, Davanagere, the Munsiff, Harapanahalli, cannot be considered to be a Court of competent jurisdiction within the meaning of Section 39 C.P.C. is unsustainable and it is set aside. The revision is allowed. The Munsiff,Harapanhalli, which is a transferee Court has jurisdiction to execute the decree in question as if it were a decree passed by itself on the original side.


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