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Kammela Somasekhara Rao Vs. Kammela Seshagiri Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 603 and 604 of 1954
Judge
Reported inAIR1960AP321
ActsCode of Civil Procedure (CPC) , 1908 - Sections 39 and 42
AppellantKammela Somasekhara Rao
RespondentKammela Seshagiri Rao
Appellant AdvocateSankara Sastry and ;T. Veerabhadrayya, Advs.
Respondent AdvocateD. Narasa Raju, Adv.-General and ;K.B. Krishnamurthy, Adv.
DispositionAppeals dismissed
Excerpt:
.....transferor court - sections 39 and 42 of code of civil procedure, 1908 - certain objection as to execution decree raised before transferor court before transfer of execution decree to another court - whether transferor court can hear objection - section 39 contains provisions as to hearing by transferor court - provisions under section 39 not mandatory - held, transferor court not bound to hear. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act..........the only point for consideration in those cases was whether an application for transmission of a decree passed by a high court to other courts would serve as a revival of the decree within the meaning of that article. what was decided there was that the transmission of a decree of the high court was a ministerial act for the reason that it was done by the registrar and was not the judicial act of a judge, but, under section 39, before a court could exercise its discretion in sending the decree to another court for execution, it has to be determined whether any of the conditions enumerated in section 39 is satisfied. thus, in doing so, the court acts judicially and consequently it is difficult to postulate that it is a ministerial act.19. however, that need not detain us as the.....
Judgment:

P. Chandra Reddy, C.J.

1. The question referred to the Full Bench is whether the transferor Court is bound to hear objections as to the exceutability of a decree raised by the judgment-debtor before an order for transmission is made.

2. The respondent obtained a decree in O. S. No. 203 of 1948 against the appellant for a sum of Rs. 12,000/- with interest thereon at 6 per cent per annum from 1-9-1948 till realisation. Having unsuccessfully levied execution till the year 1954, the respondent applied for transmission of the decree to the District Court, Eluru, within whose jurisdiction the properties of the appellant are situated. The appellant opposed the application attacking the validity of the decree. The trial Court transmitted the decree to the District Court, Eluru, with the remark that the appellant would renew his application for the relief sought by him if he was so advised. That order is impeached by the aggrieved judgment-debtor in this appeal.

3. It is urged by Sri Sankara Sastry on behalf of the appellant that before the Court which passed the decree could send the decree for execution to another Court, it was obligatory on its part to hear and decide all objections bearing on the executabi-lity of the decree, and the transferor Court would not leave that matter to the transferee Court. This argument is founded on some rulings of the Madras High Court, Rajitagiripathi v. K. B. Sankaran, 1924 Mad WN 527: (AIR 1924 Mad 673), Muthuveera-swami v. Annamalai Chettiar, 192G Mad WN 120-(AIR 1926 Mad 411), Arnnachalam Pillai v. Shan-mugham Pillai, 1928 Mad WN 152, Subramanian Chutriar v. Ramanathan Chcttiar, 1929 Mad WN 30: (AIR 1929 Mad 199) and Kondala Rao v Saravayya, 1954-1 Mad LJ 394.

4. The counsel for the appellant also cited to us a few of the Calcutta rulings, which will be adverted to presently. So far as the Madras cases go, they do favour the view advanced on behalf of the appellant.

5. In the first of the cases, the view taken is that in an application for transfer of a decree, when notice of it is issued to the judgment-debtor, the latter should plead limitation and if he omits to do so, it would not be permissible for him to urge it in the transferee Court since Section 11, Explanation IV, C. P. C. would apply to such a case. Dealing with this doctrine of constructive res judicata, Odgers J.. who delivered the opinion of the Court said :

'If the decree is barred by limitation, the transfer of it to another Court is a mere infructuous proceeding which ought not to be taken and therefore if a valid plea of limitation is available, it should be urged in order to prevent multiplicity of proceedings.'

The principle was adopted by other Benches of the same Court in 1928 Mad WN 120: (AIR 1926 Mad 411) and in 1928 Mad WN 152 and 1929 Mad WN 36: (AIR 1929 Mad 199).

(B) In 1954-1 Mad LJ 394, while accepting the doctrine of those decisions, I drew a distinction between the objections which affect execution and those which merely relate to particulars of property to be proceeded against and of a like nature. I said [hat the rule of res judicata could apply to the former category of cases which involved a decision on the executability of the decree and not to the latter.

7. A contrary opinion was expressed by the Calcutta High Court in Sreepati Charan v. Shamaldhone Dutt, 15 Cal LJ 123. The learned Judges went to the extent of saying that the judgment-debtor could not, at the stage of the transfer of the decree, contend that the decree was barred by limitation. They opined that the question, whether the decree in so far as it was unexecutable could be executed under law, was a question, for determination by the Court to which the decree was transferred when a proper application for execution was presented to the Court. They further held that, even though notice might be issued to the judgment-debtor upon an application for transfer of the decree, it was not competent for him to appear and contend at that stage that the decree ought not to be transferred because an application for execution thereof was likely to prove infructuous.

8. If the rule stated in the rulings of the Madras High Court is correct, the proper Court to deal with the objections as regards the limitation is the transferor Court. But the question is whether this view is warranted by the statutory provisions of the Civil Procedure Code.

9. The two sections of the Civil Procedure Code, which bear on the functions and duties of the Court, which passed the decree and the Court to which the decree is sent for execution are Sections 39 and 42 and it is convenient to read those two sections here.

10. Section 39 is in these words : '1. The Court which passed A decree may, on the application of the decree-holder, send it for execution to another Court ;

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directed the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

2. The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction,'

11. It is manifest that this section does not lay any obligation on the transferor Court to consider any objection regarding the executability of the decree. It only defines the circumstances under which the decree could be transmitted for execution. It is also significant that it does not contemplate the issue of any notice to the judgment-debtor before it passes an order for transmission of the decree to another Court, which would not have been the case if such a thing was within the intention of the legislature. In this connection, we cannot overlook Sub-section 2, which authorises the Court, which passed the decree, to send it suo motu for execution to any subordinate Court of competent jurisdiction.

If the intendment of Section 39 was that the transferor Court was Under, a duty to deal with objections of the judgment-debtor and could not decline to do so, a provision of that nature could not have been inserted. Surely, if sub-s. 1 involves the requirement mentioned above, Sub-section 2 would be inconsistent with it since a Court of its own motion could transmit a decree for execution and thus avoid the obligation to go into any of the objections that could be raised on behalf of the judgment-debtor. It is one thing to say that the transferor Court has authority to decide the objections formulated by the judgment-debtor but quite a different thing to posit that that Court has no alternative but to deal with them.

12. Here, it may be relevant to notice Section 38, which permits a decree to be executed either by the Court, which passed it or by the Court to which it is sent for execution. This section indicates that either of the two forums could be chosen for the execution of the decree.

13. A scrutiny of the relevant sections can lead to only one conclusion, namely, that it is within the province of the transferee Court to consider whether a decree is capable of execution under the law,

14. We may now proceed to examine the terms of Section 42. That section enacts :

'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.'

Clearly, this section confers on the executing Court all the powers of the Court, which passed the decree. There is no restriction on the authority of the executing Court in that behalf. In other words, they are coeval with those possessed by the Court that passed the decree. The language of this section does not warrant reading any limitation into the powers of the Court executing transferred decrees. In our considered judgment, the jurisdiction of the transferee Court extends to all matters relating to the execution of the decree and no distinction can be drawn in that regard between one set of objections and another set.

These aspects of the matter were not considered in the Madras decisions. In fact, no reference has been made to Section 42, C. P. C. It looks to us that the principle enunciated in those rulings is not a sound one as they run counter to the concepts embodied in both Sections 39 and 42. We do not think that the intention of the legislature was that the objections should be decided piece-meal, some by the transferor Court and some by the transferee Court.

15. We derive some help in this context from the following remarks of the Supreme Court in Jai Narain Ram Lundia v. Kedar Nath, : [1956]1SCR62 .

'And as for the first Court's conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, Section 42 of the Code 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.'

16. Our conclusion gains support also from a judgment of a Division Bench of the Allahabad High Court in Sital Prasad v. Messrs Clement Robson and Co.. ILR 43 All 394: (AIR 1921 All 199 (2)). It was decided there that an award under the Arbitration Act could be transferred for execution to another Court and the Court to which the award was transferred had all the powers as the Court which passed the decree to determine any of the matters arising in execution proceedings. Dealing with the ambit of Section 42 of the Civil Procedure Code, the Bench observed that for the purpose of execution, the transferee Court must be deemed to be the Court which passed the decree, that there was no limitation in that section which was intended to be of general application and which should have been intended as a matter of genera] convenience to remove all questions arising out of the decree such as those dealt with by Section 47 of the Code and the like from the cognisance of the Court which made the transfer and which passed the decree. Our attention was not drawn to any ruling of that Court which dissented from the above.

17. We do not agree with the counsel for the appellant that Manmatna Pal v. Sarada Prasad, AIR 1939 Cal 651, Saralabala Devi v. Shyam Prosad, : AIR1953Cal765 and Shreenath Chakravarthi v. Priya-riath Bandopadhyay, ILR 58 Cal 832: (AIR 1931 Cal 312), lay down anything opposed to our notion of the functions of the transferee Court. The proposition contained in the first of the cases was that a Court acting under Section 39 performs certain judicial functions and an objection by the judgment-debtor to a transfer under that section will be an objection relating to the execution of the decree within the purview of Section 47, C. P. C. and that if transmission of the decree to another Court is made without notice to the judgment-debtor, that order could be recalled by the transferor Court if the opposition of the judgment-debtors is based on the fact that they had properties within the jurisdiction of that Court. The second case also is to a similar effect.

18. The last of the cases was concerned with the effect of presenting an execution petition to a Court, which was not competent to execute the decree for the reason that the properties were situated outside its jurisdiction. What was ruled there was that the decree-holder could rely upon an application for execution notwithstanding that that Court was not competent to execute the decree against im-moveable properties lying outside its territorial juris-diction and the relevant question in such a situation was not whether the Court had jurisdiction to execute the decree but whether it could entertain an application for execution. In their opinion, such an application would serve as a step-in-aid of execution.

In discussing the competency of the Court to receive an application for execution, Mukherji J.. one of the Judges of the Bench, said that Section 38 of the Code should be read as conferring jurisdiction upon either Court, viz., the transferor and the transferee Courts in accordance with the powers conferred by the enabling Section 39. It is thus seen that these cases do not enunciate any rule which is antagonistic to our opinion. The main purpose of the counsel for the appellant in citing the latter two rulings is to counter the theory propounded for the respondent that the order for transfer of a decree is a ministerial act and not a judicial act and as such the Court could not entertain objections bearing on the executability of the decree, based on Chutterput Singh v. Sait Sumari Mal, ILR 43 Cal 903: (AIR 1916 Cal 488) and Banku Behary v. Naraindas Dat, 1927 Mad WN 336 : (AIR 1927 PC 73), a pronouncement of the Privy Council.

On the issue as to the nature of an order transmitting a decree under Section 39, we are in agreement with the appellant and we cannot subscribe to the proposition that it is merely a ministerial act. The two cases referred to by the counsel for the respondent arose under Article 183 of the Limitation Act and the only point for consideration in those cases was whether an application for transmission of a decree passed by a High Court to other Courts would serve as a revival of the decree within the meaning of that Article. What was decided there was that the transmission of a decree of the High Court was a ministerial act for the reason that it was done by the Registrar and was not the judicial act of a Judge, But, under Section 39, before a Court could exercise its discretion in sending the decree to another Court for execution, it has to be determined whether any of the conditions enumerated in Section 39 is satisfied. Thus, in doing so, the Court acts judicially and consequently it is difficult to postulate that it is a ministerial act.

19. However, that need not detain us as the character of the order does not give any indication as to the powers of the transferee Court. In our considered judgment as a result of the combined operation of Ss. 39 and 42 of the Code of Civil Procedure all objections whatever their nature may be bearing on the executability of the decree, could be urged before the executing Court and there is nothing in Section 39 to compel the transferor Court to decide questions of limitation or of like nature before transferring a decree to another Court for any or the reasons mentioned in Section 39.

20. We are not also impressed with the contention of the counsel for the appellant built upon the form prescribed by the Civil Rules of Practice for filing an application for the transmission of a decree or order. The form framed under R. 138 (1) describes such an application as an execution petition. The argument presented on the basis of this is that, if such an application is an execution petition, the Court which receives it is to decide all questions relating to the executability of the decree. There is no warrant for this submission either on authority or in the content of the form. The mere fact that it is to be described as an execution petition cannot convey the idea that it is an execution petition in itself.

It is to be seen that in that application the decree-holder may set out only the particulars required by Order XXI, Rule 11 (2), paragraphs (a) to (i) and not paragraph (j) which speaks of the mode of execution. Surely, it cannot be premised that it is not necessary to state in an execution petition the mode in which the assistance of the Court is required. Without paragraph (j), the execution petition is incomplete, since any decree to be put into execution must say in what manner the decree is to be executed. The form itself is a pointer to that conclusion. A mere application to have a decree transferred to another Court is not a petition for execution. See ILR 58 Cal 832: (AIR 1931 Cal 312). The same result also flows from a comparison of this form with form No. 53 prescribed under Rule 141 of the Civil Rules of Practice. The form requires the reliefs prayed for to be set out.

21. For all the above reasons, we hold that the transferee Court is as much entitled to determine all objections relating to the execution of the decree and there is no limitation on its power in that behalf. It has all the powers possessed by the transferor Court in that behalf, In our view, the doctrine of the Madras cases adverted to above is not sound, It follows that the orders under appeal are correct and have to be affirmed.

(22) In the result, both the appeals are dismissed with costs.


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