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Gultupalli Hanumayya and ors. Vs. Ravella Venkata Subbayya - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 95 of 1961
Judge
Reported inAIR1964AP68
ActsCode of Civil Procedure (CPC), 1908 - Sections 24, 38, 39 and 150
AppellantGultupalli Hanumayya and ors.
RespondentRavella Venkata Subbayya
Appellant AdvocateA.V. Krishna Rao, Adv. for ;B.V. Ramanarsu, Adv.
Respondent AdvocateG.S.R. Anjaneyulu, Adv. for ;K. Krishnamurthy, Adv.
DispositionAppeal allowed
Excerpt:
.....holder applied for execution of decree in newly established court - held, as long as court which passed decree exists execution petition cannot be filed in new court unless business is transferred. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the..........jurisdiction over the mortgaged properties could entertain a petition for execution of a decree passed by another court which ceased to have territorial jurisdiction but which still exists, in the absence of a notification transferring the business or an order under section 24 or section 39, c. p. c.2. a decree was passed by the subordinate judge's court, guntur, against the appellants in o. s. no. 33 of 1961. subsequently, execution of this decree levied. sometime later, a subordinate judge's court was established at narsaraopet and its jurisdiction included the villages in which the properties sought to be proceeded against are situate. having regard to this fact and notwithstanding the continued existence of the subordinate judge's court at guntur, the decree-holder filed.....
Judgment:

Chandra Reddy, C.J.

1. The question that calls for decision in this case is whether the Court having territorial jurisdiction Over the mortgaged properties could entertain a petition for execution of a decree passed by another Court which ceased to have territorial jurisdiction but which still exists, in the absence of a notification transferring the business or an order under Section 24 or Section 39, C. P. C.

2. A decree was passed by the Subordinate Judge's Court, Guntur, against the appellants in O. S. No. 33 of 1961. Subsequently, execution of this decree levied. Sometime later, a Subordinate Judge's Court was established at Narsaraopet and its jurisdiction included the villages in which the properties sought to be proceeded against are situate. Having regard to this fact and notwithstanding the continued existence of the Subordinate Judge's Court at Guntur, the decree-holder filed execution petitions giving rise to this appeal, the judgment-debtors formulated an objection that the Court at Narasaraopet had no jurisdiction to entertain the execution petition, as the Subordinate Judge's Court, Guntur, continued to exist and no notification was issued transferring the business concerning the suit or an order passed under Section 24 or Section 39, C. P. C.

3. This plea found favour with the Subordinate Judge's Court, Narsaraopet, with the result that the execution petition was dismissed.

4. On appeal by the decree-holder, Sanjeeva Row Nayudu, J., reversed this decision in the view that a Court which has territorial jurisdiction could always take cognizance of the execution petition notwithstanding the continued existence of the Court which passed the decree.

5. It is this conclusion that is challenged in this Letters Patent Appeal filed under Clause 15 of the Letters Patent.

6. As the records did not disclose whether the appellants had an opportunity to raise this objection in the earlier execution petitions, we called for a finding from the Subordinate Judge whether any notice had been taken to the judgment-debtors in the earlier execution petitions and as they had an opportunity to raise this objection. The finding is that no notice was taken out to the appellants. It means that the appellants were not presented with an opportunity to oppose the earlier execution petitions on the ground of want of jurisdiction in the Subordinate Judge's Court, Narasaraopet, to entertain the execution petition. If that were so, they are not precluded from raising the objection in the present execution petition.

7. The question then is whether it was competent for the Subordinate Judge's Court. Narsaraopet, to entertain the execution petition in the circumstances indicated above. The question iscapable of only one answer and that is that the decree-holder could not file an execution petition in that Court so long as the Court which passed the decree exists and so long as there is no transfer of business by the District Court to that Court or an order passed under Section 24 or Section 39, C. P. C.

8. We are re-informed in this opinion of ours by a judgment of Full Bench of the Madras High Court in Ramier v. Muthukrishna Ayar, ILR 55 Mad 801 : (AIR 1932 Mad 418) (FB). It follows that the view of our learned brother that the Court having territorial jurisdiction could always take cognizance of an execution petition though it is not the Court which passed the decree and though the Court which passed the decree continues to exist is erroneous.

9. In the result, the appeal is allowed, the judgment under appeal set aside and that of the trial Court restored. The parties will bear theirown costs throughout.


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