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Chittoori Suryarao Vs. Chittoori Ramachandra Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1078 of 1974
Judge
Reported inAIR1975AP257
ActsCode of Civil Procedure (CPC) , 1908 - Sections 37 to 39 and 150 - Order 9, Rule 13
AppellantChittoori Suryarao
RespondentChittoori Ramachandra Rao
Appellant AdvocateT. Veerabhadrayya, Adv.
Respondent AdvocateC.V.N. Sastry, Adv.
DispositionPetition dismissed
Excerpt:
.....of -the new court can have jurisdiction only in regard to new business, but not in regard to old business. even otherwise he has argued that this principle has not been applied to cases of new and independent applications like applications to set aside ex parte decree etc. which contain specific expressions like 'court which passed the decree'.i would now consider the validity of the respective contentions. have always been distinguished from the casesarising under independent and new applications like order 9, rule 13, c. this principle is now well established. 14. in the above view, i am satisfied that the view held by the lower court is correct and that this revision isdevoid of merits......respondent herein filed i. a. no. 619 of 1969 on 8-8-1969 for setting aside the ex parte decree passed in o. p. no. 69 of 1966 as against him. the petitioner herein who was the contesting respondent in that application filed j. a. 370/74 under order 14, rule 2 and section 151, c.p.c. praying to hear about the maintainability of the above petition on the question ofjurisdictional issue in the first instance in the affidavit filed in support of that application it was staed that the respondent herein has no manner of right to file i. a. no. 619 of 1969 in the sub-court, tanuku and it is not maintainable according to law in that court. the said application was contested by the respondent by filing a counter wherein he stated that that court has jurisdiction which was established.....
Judgment:
ORDER

Venkatrama Sastry, J.

1. This is an application to revise the order of the learned Subordinate Judge, Tanuku disposing of a preliminary objection regarding Jurisdiction raised by the petitioner herein to the entertainment of an application under Order 9, Rule 13, C.P.C. by the lower court arising in the following circumstances :

2. An extent of one acre of land was acquired by the Government and in O. P. 69 of 1966 on the file of the Sub-Court, Eluru a sum of Rs. 6340.52 was deposited by the Government towards compensation. The first claimant in the said O. P. was one Chittoori Ramachandra Rao. He was set ex parte. The amount was paid 'o other claimants by the order in the O. P. dated 17-2-1967.

3. On 10-12-1968 by G. O. Rt. No. 4550 a new Sub-Court at Tanuku was constituted. It came into existence on and from 10-1-1969. By virtue of Notification No. 3 in the said G. O. given under Section 10 of the Andhra Pradesh (Andhra Area) Civil Courts Act, 1873. the local limits of the jurisdiction of the District Court and the Subordinate Judge Courts in West Godavari were refixed as per the table mentioned therein. Against the entry No. 2 Sub-Court Eluru, the following has been mentioned in Col. 3 as its territorial jurisdiction.

'Original Jurisdiction: Area covered by the territorial jurisdiction of the District Munsifs of Eluru, Chintelapudi and Tadepalligudem.

Appellate Jurisdiction: Such of the appeals as are transferred by the District Court. West Godavari over to the Munsifs of Eluru, Chintalapudi and Tadepalli-gudem.'

Against entry No. 4 relating to Sub-Court. Tanuku (Temporary) the following has been mentioned to be its territorial jurisdiction.

'Original and Appellate Jurisdiction : Over the areas covered by the territorial jurisdiction of the Munsifs of Tanuku and Kovvur.'

The respondent herein filed I. A. No. 619 of 1969 on 8-8-1969 for setting aside the ex parte decree passed in O. P. No. 69 of 1966 as against him. The petitioner herein who was the contesting respondent in that application filed J. A. 370/74 under Order 14, Rule 2 and Section 151, C.P.C. praying to hear about the maintainability of the above petition on the question ofjurisdictional issue in the first instance in the affidavit filed in support of that application it was staed that the respondent herein has no manner of right to file I. A. No. 619 of 1969 in the Sub-Court, Tanuku and it is not maintainable according to law in that court. The said application was contested by the respondent by filing a counter wherein he stated that that court has jurisdiction which was established on 10-1-1969 and all the business of Eluru Sub-Court so far as jurisdiction of Tanuku Taluk is concerned was transferred to that court (Sub-Court, Tanuku) from 10-1-1969 onwards. Therefore, the Sub-Court Tanuku to which the business is so transferred has the same power and was performing the same duties as those of Eluru Sub-Court previously. It was. therefore, stat-ed that the petitioner has no right to question the jurisdiction of that Court.

4. The lower court took up the point about the jurisdiction as follows:

'Whether this court has jurisdiction to entertain the petition I. A. 618/69 in O. P. No. 69 of 1966.'

The lower court held that the Sub-Court Tanuku had jurisdiction to entertain the said petition. In that view the said application was dismissed.

5. In this revision preferred against the order Mr. T. Veerabhadriah, learned counsel for the petitioner, made the following submissions. Section 150, C.P.C. speaks of a transfer of business of any court to another court. Where the notification in question does not transfer the business pending as well as disposed of -- the new court can have jurisdiction only in regard to new business, but not in regard to old business. When once a court has jurisdiction to entertain a suit at a time when it had territorial jurisdiction, rt continues to have that jurisdiction to pass a final decree in that proceeding irrespective of the fact of transfer of jurisdiction in 'he meanwhile in the present case, the notification does not in so many terms transfer the pending or closed matters and therefore there can be no application for setting aside an ex parte decree in regard to a matter which is disposed of. The learned counsel also argued that the Sub-Court Eluru still continues to have jurisdiction to try and dispose of the O. P. even if the application under Order ft, Rule 13, C.P.C. is allowed and the case is set down for hearing. He has relied upon a few decisions which will be presently referred to.

6. On the other hand, Mr. C. V. N. Sastry, learned counsel for the respondent, contended that where the new court is constituted with a new territorial jurisdiction, it amounts to transferring the business of the court which previously handled such business and therefore there need not be a specific mention in the notification of the pending and old matters. Section 150, C.P.C. is, therefore, applicable to this case. Even otherwise he has argued that this principle has not been applied to cases of new and independent applications like applications to set aside ex parte decree etc. in various Bench decisions of the Madras High Court and this Court. The said principle if at all is applicable only to cases for execution of the decrees passed by the Court because they depend upon the wording of Sections 37 - 39 of the C.P.C. which contain specific expressions like 'Court which passed the decree'. I would now consider the validity of the respective contentions.

7. Mr. Veerabhadriah, learned counsel for the petitioner, very strongly relied upon the decision of their Lordships Gopal Rao Ekbote and Alladi Kup-puswami, JJ. in S. N. Prasanna Kumar v. Zabirabee, (1969) 2 APLJ 342. That was a case where a decree was passed by the District Court at Bangalore. A fresh court was constituted at Tanuku. There the execution petition which was pending before the District Court was transferred to the Civil Judge, Tumkur. The District Court, Bangalore did not cease to exist. In those circumstances, their Lordships held that the creation of a new jurisdiction does not by itself affect previously existing jurisdiction in the absence of express provision and that where a decree was passed in respect of certain property and subsequent thereto the area within which such property is situate is transferred to the jurisdiction of another court, the Court which actually passed a decree nevertheless does not cease to have jurisdiction to execute it and can therefore entertain an application for execution thereof. It was held that the Tumkur Court to whose jurisdiction the subject-matter of the decree was transferred did not become the Court which passed the decree for the purpose of execution.

8. Their Lordships repelled the argument of the learned counsel for the respondent based upon Section 150, C.P.C. The argument was that where a particular area is transferred from the jurisdiction of one Court to another Court it would also amount to transfer of the business of that court to the other within the meaning of Section 150. Dealing with this argument their Lordships say that the answer would depend upon what is exactly meant by the 'transfer of business'. Their Lordships held that a business cannot be said to have been removed Or transferred from one Court to another if the original Court continues to havethe power to deal with that business. They relied upon the principle laid down in Chokkalinga v. Velayudha, AIR 1925 Mad 117 and Lalithamba v. Mangamma, AIR 1958 Andh Pra 763 for the proposition that where a Court has jurisdiction to entertain the suit at the time of its institution, such jurisdiction is not lost by a subsequent transfer of an area or territory with reference to which the suit was instituted. In that connection their Lordships observed that if the notification merely transferred the area without anything more, then what must follow is that only new business which may thereafter arise, would be deemed to have been transferred to the new jurisdiction. But if the notification in clear terms also transferred the pending and old cases, then the new court can also exercise that jurisdiction. It was, therefore, held by their Lordships that in the absence of specific notification to that effect it cannot be held on the facts of that case that the Tumkur Court had any jurisdiction to entertain the execution application.

9. This is no doubt an authority for the proposition that in applying Section 150 C.P.C., we have to see if there was a transfer of business within the meaning of Section 150, C.P.C. If the transferor court does not cease to exist and is still capable of functioning, it cannot be held that the business has been transferred unless the notification in specific and clear terms transfers the business of that court as a whole. It may no doubt be necessary to look into the notification for that purpose. The true principle of that decision appears to me to be that where the District Court has still got power to execute the decree and it has not ceased to exist, the creation of a new court at Tumkur within the jurisdiction of that District Court would not take away the jurisdiction of the District Court at Bangalore to execute the decree passed by it, in spite of the transfer of territorial jurisdiction to the new court.

10. In my opinion, the above decision has no application to the facts of the present case. Here by virtue of the notification, the territorial jurisdiction has been transferred from Sub-Court. Eluru to the Sub-Court, Tanuku. The entire business of the Sub-Court, Eluru relating to that territorial jurisdiction has been transferred to the Sub-Court, Tanuku. Hence it is only the Sub-Court Tanuku that can entertain any matter relating to that territorial jurisdiction after that notification. Even if I am not correct in my interpretation about the effect of notification, the cases relating to execution under Section 150, C.P.C. have always been distinguished from the casesarising under independent and new applications like Order 9, Rule 13, 'C.P.C. in a number of other decisions. Before I advert to those decisions, I may alsomention that in various decisions of the Madras High Court it was held that where the territorial jurisdiction was transferred after the decree has been passed, the Court to which jurisdiction had been transferred had no power to execute the decree under Section 150 as that section is limited to cases where specific business is transferred, it was so decided in Subramanya v. Swaminatha, AIR 1928 Mad 746. This case was approved by a Full Bench of the Madras High Court in Rainier v. Muthu; ILR 55 Mad 801 = (AIR 1932 Mad 418) (FB) which also was a case relating to execution. This principle was also applied by our High Court in Hanumayya v. Ven-katasubbiah, : AIR1964AP68 by their Lordships Chandra Reddy, C. J. and Gopala-krishnan Nair, J. It was held in that decision that the decree-holder could not file an execution petition in the court having territorial jurisdiction 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 of the C.P.C. It must, therefore, be taken to be established that in the case of execution of decree the transfer of territorial jurisdiction may not affect the jurisdiction of a court to entertain an application for execution.

11. But in the case of applications under Order 9, Rule 13, C.P.C. the deci-cisions have taken a contrary view. In Srinivasa v. Hanumantha, AIR 1922 Mad 10 the petitioner was the plaintiff in C. S. 1230/1919 on the file of the District Munsif's Court, Penukonda. He obtained an ex parte decree against the respondent and others. Subsequently there was a readjustment of territorial jurisdiction between that court and the District Munsifs court of Arantapur as a result of which all the properties included in the decree were transferred to the jurisdiction of the Anantapur Court. The respondent in that petition applied to the Anantapur court to set aside the ex parte decree passed against him. The said application was granted. A revision petition was preferred against that order. The argument was that it was the Penukonda Court as the court which passed the decree that had jurisdiction to entertain an application under Order 9, Rule 13, C P.C and the Anantapur court had no jurisdiction to do so. Their Lordships Spencer and Krishnan, JJ., held that the decree was valid1 one. Spencer, J., based his decision on the reasoning that a liberal construction on the wording of Section 150 and Order 9, Rule 13, C.P.C. should be placed because under O; 9, Rule 13, C.P.C. a Court after setting aside the ex parte decree should appoint a day for proceeding with the trial of the suit and those words would be meaningless if such application alone were to be disposed of by the Court which had ceased to have a jurisdiction over the suit itself. Krishnan, J. considered the applicability of Section 150, C.P.C. also. It was held that there is as much reason to apply the section to cases of transfer of defined local areas as to cases, of transfer of the whole jurisdiction and the observations of Ayling, J., in Seeni Nadan v. Muthu-swami Pillai, ILR 42 Mad 821 = (AIR 1920 Mad 427) (FB) were followed in that connection. The learned Judge also has laid great stress upon the words 'Save as otherwise provided' in Section 150 as preventing its applicability to the present case as it was argued that Order 9, Rule 13, C.P.C. requires that an application should be made to the court which passed the decree, and to no other court. The rule was held to be an enabling one which prescribes what is to be done in the ordinary course to get an ex parte decree set aside, but does not say that the court that passed the decree is the only court that can set it aside. Nor is there anything restrictive in the wording. The observations of Srinivasa Ayengar. J. in Suppi v. Kunhi Koya, ILR 39 Mad 907 = (AIR 1917 Mad 448) to the following effect 'where the business of one court is transferred to another, the court to which the business is so transferred may. I think under Section 150. entertain an original application for attachment or arrest under Clause (3) of Rule 2 of Order 39' were followed and it was held that original application can therefore lie in the transferee court. This decision is, therefore, an authority for the proposition that where there is a transfer of territorial jurisdiction an application under Order 9, Rule 13, C.P.C. lies in the new court. This decision was followed in M. Guruswamy Naicker v. Sheikh Muhammadhu Rowther, AIR 1923 Mad 92. The question that arose in that decision was about, the right of the transferee court to give punishment for the breach of an injunction granted by the original court. It was held by their Lordships Krishnan and Venkatasubba Rao, JJ., that it could 'be done. The two decisions in (AIR 1922 Mad 10) and (AIR 1917 Mad 448) were followed. In Narasunharaju v. Brundavanasahu, AIR 1943 Mad 617 their Lordships Abdur Rahaman, and Somayya JJ., were dealing with an application under Section 19 of the Act 4 of 1938 in the transferee court. There, the originalCourt was Berhampore Court and thenew Court was Chicacole Court, it was held that whatever might have been said in regard to the execution applications to which Section 37, C.P.C. in terms applied the question as to fresh and independent applications, as the application under Section 19 of the Act 4 of 1938, was a very different one. Their Lordships then referred to the two decisions in (AIR 1922 Mad 10) and (AIR 1923 Mad 92) and followed them. Same view was also expressed in Muthukumara Pillai v. Thyrunara-yana Pillai, 61 Mad LJ 307 = (AIR 1932 Mad 240) which is also approved in this case. Their Lordships distinguished the two decisions in (AIR 1928 Mad 746) and (AIR 1932 Mad 418) (FB) referred to supra and held that they cannot be held to be in conflict with what was decided in the other cases viz. (AIR 1922 Mad 10) and (AIR 1923 Mad 92). The Full Bench case was explained as a case relating to execution of a decree and it was so distinguished by Mulla in his Commentary under Section 150, C.P.C. Applying the principle, therefore, of the other two decisions, their Lordships held that the Chicacole Court must be, for the purpose of new and independent applications and which are not those of execution, deemed to be a proper Court.

12. In L. P. A. No. 193/1972 my learned brothers Kondiah and Madhava Rao, JJ., in judgment dated 21-1-1974 (Andh, Pra.) also followed the two decisions in (AIR 1922 Mad 10) and (AIR 1923 Mad 92) and also approved the observations of Ayling, J., in (AIR 1920 Mad 427) (FB). Their Lordships also followed two other decisions in Achuthan v. Karthiyanani Amma, : AIR1962Ker105 and Sheo-brich Singh v. Basgit Singh, : AIR1957Pat73 . In the case before Kondiah and Madhava Rao, JJ. the suit was originally filed in the Sub-Court Visakhapatnam as O. S. No. 29/1960. It was later on withdrawn by the District Court, Visakapat-nam and numbered there as O. S. No, 13/61 on its file and an ex parte decree was passed therein. Subsequently the jurisdiction over the area was transferred to the Sub-Court, Vizianagaram where the suit which was transferred was numbered as O. S. No. 17/1967. In that suit an application under Order 9, Rule 13, C.P.C. has been filed. Their Lordships after discussing the aforesaid decisions and following the principle laid down therein held that the application under Order 9, Rule 13, C.P.C. was maintainable in the Sub-Court, at Vizianagaram.

13. Mr. T. Veerabhadriah, learned counsel for the petitioner sought to distinguish the two cases in (AIR 1922 Mad 10) and (AIR 1923 Mad 92) on the ground that there was no specific order of transfer of business and in the other case thetransfer was presumed. I do not thinkthat they can be distinguished on that ground. The principle laid down in the aforesaid cases which has been followed in the latter decisions is that in the case of original applications under Order 9, Rule 13, C.P.C. which require after the setting aside the ex parte decree a trial of the suit afresh, the Court should have territorial jurisdiction over the subject-matter and so when the territorial jurisdiction has been transferred by virtue of a notification to the other court, the application under Order 9, Rule 13, C.P.C. cannot be entertained by the Court which originally passed the ex parte decree. This seems to be the principle on which the aforesaid decisions proceeded. The cases relating to execution stand altogether on a different footing, because the wording in Sections 37 - 39, C.P.C. contain a specific provision that they can be filed only in the Court which passed the decree. Those cases are, therefore distinguishable and have also been distinguished in various cases mentioned by me supra. So long as the Court which passed the decree is not abolished but is still existing, it has got power to execute the decree in spite of the subsequent transfer of its territorial jurisdiction. This principle is now well established. Learned counsel then places great reliance upon the observations in (AIR 1925 Mad 117) to the effect that the court will have jurisdiction to pass a final decree in the matter in spite of transfer of territorial jurisdiction. But it may be noted that that case related to the passing of a preliminary decree and a transfer of territorial jurisdiction thereafter. In spite of the transfer, the same Court passed the final decree. That decree was sought to be attached in a separate suit. Their Lord-ships in that connection made the observations that once the Court has seized of the case it had jurisdiction to try it to its conclusion unless there is any reason for holding that that jurisdiction has been removed though the subject-matter of the suit may be transferred to another court in the meanwhile. I do not think that that decision can be of any assistance in the circumstances of this case to the petitioner herein. Here we have got a case where a final decree was passed in the O. P. It is now sought to be set aside. After setting aside, the Sub-Court, Eluru cannot, in view of the transfer of jurisdiction to the Sub-Court, Tanuku have jurisdiction over the property, and entertain the O. P. any further. Hence it cannot be said that it can entertain an application under Order 9, Rule 13, C.P.C. on that basis.

14. In the above view, I am satisfied that the view held by the lower Court is correct and that this revision isdevoid of merits. It is therefore, dismiss-ed with costs.


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