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Kahatu Bai and anr. Vs. Khatija Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Against Order No. 50 of 1970
Judge
Reported inAIR1973AP35
ActsCode of Civil Procedure (CPC), 1908 - Sections 39 and 47 - Order 21, Rule 11
AppellantKahatu Bai and anr.
RespondentKhatija Bai and ors.
Appellant AdvocateB.V. Subbarayudu, Adv.
Respondent AdvocateHabeeb Ansari, Adv.
Excerpt:
.....- execution of decree - sections 39 and 47 and order 21 rule 11 of code of civil procedure, 1908 - preliminary decree obtained by respondent was confirmed as final decree was passed in favour of respondent by district court - subordinate judge issued notice to appellant on application for execution of decree filed by respondent - execution of decree challenged by appellant through appeal - contentions raised were that preliminary decree not executable and names of all decree holder to be impleaded in execution application - decree can be partly preliminary and partly final such decree to be treated as final decree which was executable - decree was joint and severed and any of decree holder can execute it on behalf of all - held, application for execution of decree was maintainable. - ..........judge had no power to transfer the decree for execution to the district munsif's court. the learned judge referred to sections 25 and 223 of the old c. p. c. which deal respectively with transfers of suits and transfers of decrees for execution, and on a consideration of the difference in the language employed in the two sections, the learned judge observed that the words of limitation occurring in section 25 were not put on section 223, which related to transfer of applications for execution of decrees. the learned judge, referred to the conditions mentioned in section 223 and observed as follows:'looking at the nature of the several conditions they suggest the inference that the legislature contemplated a special convenience, or a special facility or some special reason for a.....
Judgment:

1. The Judgment Debtors in O. S. 1 of 1961 on the file of District Court, Nalgonda are the appellants here.

2. The facts giving rise to this appeal may briefly be stated: The respondents 1 to 3 herein obtained a preliminary decree in O. S. 1 of 1961 on the file of the district Court, Nalgonda for partition of certain immovable properties. An appeal was preferred to the High court against the said decree in A. S. 72 of 1962 and the appeal was dismissed, and the preliminary decree, confirmed. The respondents then filed an application in the district Court, Nalgonda, for execution of the decree to the extent of costs awarded by the High court in appeal. It appears that the costs awarded by the trial court were already deposited by the judgment debtors and withdrawn by the decree-holders respondents.

3. The District Court, Nalgonda transferred the execution petition to the district Court, Mahaboobnagar, which in its turn transferred the same to the Court of Subordinate Judge, Mahaboobnagar. When notices were issued to the judgment-debtors-appellants, they raised several objections to the maintainability of the execution petition in that court. The first objection was that all the judgment-debtors should have been impleaded as party-respondents to the execution petition and the petition was not maintainable if they were not impleaded. This objection was overruled by the lower court on the ground that the decree was joint and several and that impleading of all the judgment-debtors was not necessary as the certified copy of the decree was filed along with the execution petition and that under the proviso to O. 21, R. 11 (2), C.P.C. when a certified copy of the decree is filed, the names of the parties, the date of the decree and the amount of costs need not be given in the application. It also found that the other judgment-debtors being minors, the decree-holders were justified in proceeding against judgment-debtors the appellants herein. In this view the lower court overruled the first objection.

4. The Second objection raised was that notices should have been issued to all the judgment debtors by the district Judge, Nellore and not by the subordinate Judge's court, Mahaboobnagar. But this contention also was negatived on the ground that the executing court was the court of Subordinate Judge, Mahaboobnagar and it was that court that should issue notices to the respondents and there was sufficient compliance of the provisions under O. 21, R. 22, Civil P.C.

5. The third objection raised was that the Subordinate Judge's court, Mahaboobnagar had no pecuniary jurisdiction to entertain or proceed with the execution petition, as the subject-matter of the suit was valued at over several lakhs of rupees and that the subordinate Judge's court , Mahaboobnagar, which had jurisdiction only upto Rs. 50,000/- could not execute the decree passed in the suit, even though the amount for which the decree is sought to be executed is admittedly below Rs. 50,000/-. But this objection was overruled by the lower court, following the decision in Kedarnath v. Chajju Mal : AIR1962All586 of the Allahabad High court, which had referred and following the rulings of Madras High court. The lower court did not follow the view taken by the Bombay High court in AIR 1940 Bom 276.

6. Another objection raised was that until the final decree is passed in the suit, the decree for costs passed by the appellate court in the appeal against the preliminary decree should be treated as preliminary one and that was not executable one. This objection also was overruled by the lower court on the ground that the decree for costs awarded by the High court in the appeal is a final decree and is executable and that it could not be treated as preliminary decree. He rejected the argument advanced on behalf of the judgment-debtors that the costs awarded in the preliminary decree stage, should be adjusted at the time of passing of the final decree for mesne profits.

7. Another objection raised in the lower court was that the property sought to be proceeded against by the decree-holder in execution is an item in the suit property and that until partition is effected and final decree passed, the said item cannot be attached. But the lower court pointed out that this objection by itself would not render the execution petition not maintainable and that that property attached may be allotted to the judgment-debtors, or the judgment-debtors may offer another property or other modes of execution. In this view the objections raised by the judgment-debtors were overruled and the execution petition was directed to be proceeded with. The judgment-debtors have now come up in appeal., aggrieved by the order of the lower court.

8. In this appeal Sri B. V. Subbarayudu, confined his objections to three points. (1) That the District Court alone can entertain the execution petition and not the subordinate Judge's court on the ground that it is beyond its pecuniary jurisdiction. (2) that the decree for costs is itself a preliminary one and cannot be executed. (3) and the non-impleading of all judgment-debtors is fatal to the maintainability of the execution petition.

9. So far as the first point is concerned Sri Subbarayudu relied upon the decisions of Calcutta, Bombay and Patna High courts and submits that there is a sharp difference in the views expressed in the Judgments of the said High courts and the Judgments of the Madras High court, which were referred to and approved by the Allahabad High court. So far as this High court is concerned, the rulings of the Madras High court rendered prior to 5th July, 1954 have binding effect on this High court. On this point the long catena of cases decided by the Madras High court had clearly taken a view that for the purpose of determining the jurisdiction of the executing court, it is only the amount involved in the execution that has to be considered and not the value of the subject-matter of the suit. In Narasayya v. Venkatakrishnayya (1884) ILR 7 Mad 397 it was held by Turner, C. J. And Muttusami ayyar, J., as follows.

'although the Madras Civil courts act,. 1873, the ordinary jurisdiction of Munsif's is limited in suits and applications of a civil nature of those in which the subject matter does not exceed in value of Rs. 2,500/- . Section 223 of the old code of Civil Procedures give jurisdiction to a Munsif's court to execute a decree in a suit beyond its jurisdiction which has been transferred to it for execution by a District Court.'

10. It may be mentioned that Section 39 of the present code of Civil Procedure corresponds to Section 223 of the old C.P.C. which was considered in the aforesaid decision. In Shanmuga Pillai v. Ramanathan Chetti (1894) ILR 17 Mad 309, Muttuswami Ayyar, J., on an elaborate consideration of the decisions of the Calcutta and Bombay High courts, followed the view taken by the division Bench in (1884) ILR 7 Mad 397. In that case the decree passed upon a hypothecation of a bond for more than Rupees 5,000/- was transferred for execution to the District Munsif's court, whose pecuniary jurisdiction was limited to Rupees 5,000/-. It was contended that the district judge had no power to transfer the decree for execution to the district Munsif's court. The learned Judge referred to Sections 25 and 223 of the Old C. P. C. Which deal respectively with transfers of suits and transfers of decrees for execution, and on a consideration of the difference in the language employed in the two sections, the learned Judge observed that the words of limitation occurring in Section 25 were not put on Section 223, which related to transfer of applications for execution of decrees. The learned judge, referred to the conditions mentioned in Section 223 and observed as follows:

'Looking at the nature of the several conditions they suggest the inference that the legislature contemplated a special convenience, or a special facility or some special reason for a special relation as Subordinate and Appellate courts, as grounds for the transfer. There is thus reason to conclude that the condition as to jurisdiction inserted in Section 25 was omitted from Section 223 for the special reasons mentioned therein. It follows that if the condition as to jurisdiction mentioned in Section 25 and intentionally omitted from Section 223 were imported into it, the special facility or convenience which it was the intention of the legislature to secure to judgment creditors in certain cases might be taken away from them and the object which the legislature had in view, might be defeated.'

11. The learned Judge then pointed out several instances in which hardship would be caused to the decree-holders if any other interpretation was put on section 25. The learned judge further made the following pertinent observation at Page 313:

'The grounds on which the decision in (1884) ILR 7 Mad 397 rests may be thus formulated. As in suits so in execution proceedings, the competent forum is ordinarily that indicated by Section 12 of the Civil Courts act, but in the five cases mentioned in Section 223 special reasons exist for departing from that rule and creating a special or extraordinary jurisdiction.'

12. The learned judge then referred to the view taken by the division Bench and finally concluded at Page 314 as follows:

'After careful considering the Bombay and Calcutta decisions. I do not see where the fallacy lies in the reasoning adopted in (1884) ILR 7 Mad 397 and I must, therefore adhere to the principle of that decision therein until the Full Bench Overrules it.'

13. The observations made by the learned judge, would equally apply to the present proceedings. The present Sec. 24 of Civil P.C. and Sec. 39 Civil P.C. are substituted for Sections 25 and 223 of the old Civil P.C. These two cases were referred to and approved by the later decision in Abdulla Sahbi v. Ahmed Hussain sahib. (AIR 1914 Mad 206 (1) ). The learned judges Sadavisa Aiyar and Spencer, JJ,, held that when an application is sent for execution under Section 29(1), Civil P. C. To another court the question of competence and the jurisdictional value of the court to which the decree was sent did not arise. The same view was taken by the recent decision of the Allahabad High court in (AIR 1692 All 586). The learned Judges Desai , C.J., and Rambhadran, J., preferred to follow the view taken by the Madras High court in the cases referred to supra, and not the view taken by the Calcutta and Bombay High Courts.

14. The learned counsel for the appellants relies upon the decisions of Calcutta , Bombay and Orissa High courts in support of his argument. As I have already stated the view taken by the Madras High court in the aforesaid rulings have binding effect on this court. Following the aforesaid decision the first contention of the learned counsel has to be rejected.

15. The next contention of the learned counsel for the appellants is that the decree for costs passed by the High court in appeal A.S. 72/62 is itself a preliminary decree and therefore not executable. It is well settled that a decree can be partly preliminary and partly final. So far as the decree for costs is concerned, it cannot be treated as preliminary decree, but only a final decree and it is also executable. The fact that certain further steps have to be taken with regard to partition of the properties, ascertainment of profits in pursuance of the preliminary decree, could not in any way make the decree for costs a preliminary one and so far as the costs are concerned, the decree is final one and the decree has also become final. I do not, therefore, see any reason why this decree for costs could not be executed. The question of ascertainment of profits in pursuance of preliminary decree has absolutely no relevance to the executability of the decree for costs.

16. The third objection raised by the learned counsel for the appellant is equally devoid of any merit. Admittedly the decree is joint and sever and it is open to the decree holders to execute the decree for costs against any or all of the defendants. In the instant case the judgment debtors 1 and 2 are sought to be proceeded against as the other judgment debtors are minors and children of the judgment debtors 1 and 2. It is, therefore, not necessary to implead all the judgment debtors as respondents to the execution petition. It is argued by the learned counsel for the respondents that the certified copy of the decree passed in the appeal was filed along with the execution petition and therefore under the proviso to order 21, Rule 11, Civil P. C. There is no need to implead all the judgment debtors as parties to the execution petition, as the names are contained in the decree itself. There is considerable force in this contention. As already stated the decree is one joint and several and it is open to the decree-holders to proceed against any of the judgment-debtors and the application for execution as filed is maintainable. All the contentions raised by the appellants fail and the C.M.A. is dismissed with costs.

17. Appeal dismissed.


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