M.P. Mehrotra, J.
1. This second appeal arises out of execution proceedings. The decree-holder is the appellant and the judgment-debtor is the respondent. A cross-objection also has been filed by the respondent-judgment-debtor.
2 The relevant facts, in brief, are as follows:
A suit for declaration, demolition oi construction and in the alternative for possession was filed by the plaintiff against the defendant. It was filed in the court of District Judge, Bhadohi in 1948 and the same was decided on May 13, 1949. An execution application was filed in the court of Civil and Sessions Judge, Gyanpur in August, 1950. This execution case was subsequently transferred to the court of Munsif, Gyanpur and in the execution proceedings before the Munsif, the judgment-debtor-respondent filed objections under Section 47, Civil Procedure Code. The objections were dismissed by the execution court but on appeal the lower appellate court allowed the same. The lower appellate court, while allowing the appeal, directed that 'the delivery of possession made in execution of the decree was not properly made and it is ordered that the appellant is entitled to get back possession of the property. The parties shall bear their own costs of this appeal'. The decree-holder felt aggrieved and has come up in the instant second appeal and in support thereof, Sri Kameshwar Nath Tripathi, the learned counsel for the appellant, has made his submission. In opposition. Sri G. P. Bhargava, the learned counsel for the 3 judgment-debtor-respondent, has made his submissions. The cross-objection is to the effect that the lower appellate court erred in holding that the execution court had the jurisdiction to execute the decree and it was prayed that the execution application should have been dismissed on the ground of absence of jurisdiction.
3. The points which arose on the basis of the respective contentions raised on behalf of the rival parties are as follows:
1. Was the execution application liable, to be rejected on the ground that it was initially moved in the court of the Civil & Sessions Judge, Gyanpur and not in the court of Munsif, Gyanpur ?
2. Whether the execution court erred in directing the execution of the decree on the ground that there was no decree for possession ?
4. On the first point, learned counsel for the judgment-debtor respondent contended that the Civil and Sessions Judge had no jurisdiction to entertain the execution application and the same was bound to be moved before the Munsif. In other words, it is contended that the Civil and Sessions Judge, was neither the court which passed the decree nor the transferee court and a reference has been made to Sections 37, 38 and 39, Civil Procedure Code in this connection. These Sections may be usefully reproduced below:--
'37. Definition of Court which passed a decree.-- The expression 'Court which passed a decree', or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,--
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try the suit.
38. Court by which decree may be executed.-- A decree may be executed either by the Court which passed it, or by the court to which it is sent for execution.
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,--
(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 directs 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.'
5. Counsel's point is that the transfer of an execution application can be made only by the Courts which passed the decree as laid down in the opening part of Section 39(1) and, therefore, the Civil and Sessions Judge which was not the court which passed the decree could not transfer the same to the Munsif's court. Reliance has been placed on Rama-krishna Rao v. Venkataratnam : AIR1964AP69 , Ramier v. Muthu Krishna Ayyar (AIR 1932 Mad 418) (FB) and Gopala Krishna v. Gavisandraya Laxman, (AIR 1964 Mys 34).
6. It may be mentioned that AIR 1932 Mad 418 (FB) (supra) is the leading case on which reliance had been placed in the other two cases. In all the three cases, the execution application was moved in Courts which had obtained jurisdiction to try suits in relation to properties which came to be situated within their territorial jurisdiction due to notifications which were issued subsequent to the passing of the decrees in question. It was not disputed that the Courts in which execution applications were made were neither the Courts which passed the decree nor were they courts to which decrees had been transferred for execution. In other words, they were not the transferee courts under Section 39, Civil Procedure Code. In this situation, it was held that the execution applications were not maintainable in the courts in which they were moved. In the instant case, however, learned counsel for both the parties are agreed that the Munsif, Gyanpur did have the jurisdiction to execute the decree on the ground that the said court was the court which came into existence in the replacement of the District Judge's Court in consequence of the integration of the former Benaras State in the State of Uttar Pradesh. Therefore, unlike the cases relied on by the learned counsel, the execution application has been heard and decided by a competent court in the sense that it was the court which has been held to be the court passing the decree under Section 37(b), Civil Procedure Code, The only question, therefore, remains is whether the execution application can be held to be not maintainable on the ground that there was no proper presentation --whereas strictly the application should have been moved directly before the Munsif, Gyanpur, it reached him by transfer made by the Civil and Sessions Judge, Gyanpur before whom the execution application was initially filed.
7. Learned counsel for the decree-holder contended that the transfer was made by a competent court on the ground that even though under Section 15, Civil Procedure Code the Munsif s Court would be the court where, looking to the valuation of the suit, the suit would have to be filed, still, the higher court, namely, the Civil and Sessions Judge, would also have jurisdiction to try the suit in case the same were filed before him and not before the Munsif. He has placed reliance on Nidhi Lal v. Mazhar Hussain, (1885) ILR 7 All 230) (FB) where it has been laid down as under:--
'Section 15 of the Code of Civil Procedure is a rule of procedure, not of jurisdiction, and whilst it lays down that a suit shall be instituted in the court of the lowest grade, it does not oust the jurisdiction of the Courts of higher grades.'
8. Learned counsel next contended that the cases relied on behalf of the judgment-debtor respondent should no more be considered to be laying down good law in view of the pronouncement of the Supreme Court in Merla Ramanna v. Nelapparaju, (AIR 1956 SC 87) where it has been laid down as under:--
'There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subject-matter of a decree is transferred to another Court, that Court is also competent to entertain an application for execution of the decree. Vide 'Latchman v. Maddan Mohun' (1881) ILR 6 Cal 513, Jahar v. Kamini Debi (1901) ILR 28 Cal 238 and Udit Narain v. Mathura Prasad, (1908) ILR 35 Cal 974; But in Ramier v. Muthukrishna Ayyar, AIR 1932 Mad 418 (FB), a Full Bench of the Madras High Court has taken a different view, and held that in the absence of an order of transfer by the Court which passed the decree, that Court alone can entertain an application for execution and not the Court to whose jurisdiction the subject-matter has been transferred.
This view is supported by the decision in : AIR1942Cal321 . It is not necessary in this case to decide which of these two views is correct, because even assuming that the opinion ' expresed in -- Ramier v. Muthukrishna Ayyar AIR 1932 Mad 418 (FB) is correct, the present case is governed by the principle laid down in-Balakrishnayya v. Linga Rao, AIR 1943 Mad 449.
It was held therein that the Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings.'
9. Counsel, in this connection, brought to my notice the fact that whereas the execution application was moved in 1951, the objection to the Court's jurisdiction was taken some time in 1963 and his contention is that in this situation, it should be deemed to be a case of waiver. Learned counsel also placed reliance on Raghunandan Singh v. Narain Das Bal Kishun Das : AIR1960All730 where it was held that even though no proper transfer of the decree was obtained under Section 39, Civil Procedure Code, still, the same would be a mare irregularity in case the execution application reached a competent court which had jurisdiction to execute the decree. Reliance was placed on Balakrishnayya v. Linga Rao, (AIR 1943 Mad 449) which has been approved in : 2SCR938 (supra). In my opinion, in view of the Supreme Court pronouncement reported in : 2SCR938 and : 2SCR747 , a distinction has to be made between a court which has inherent jurisdiction and a Court which has no such jurisdiction. In the instant case, as I emphasised earlier, it is not disputed that the execution has been done by a court which had jurisdiction in the sense that it was the court which should be deemed to be the court passing the decree under Section 37(b). It undoubtedly got the execution application by transfer in an irregular manner but, in my opinion, such infirmity is in the nature of an irregularity and cannot be equated with the absence of jurisdiction. The principle of Section 99, Civil Procedure Code should be held to be applicable in the instant case. Both the courts below have negatived the contention that the execution court had no jurisdiction to execute the execution application and as I have held the aforesaid infirmity to be a mere irregularity, I think the principle of the said provision should be applicable and as the second appellate court, I should not interfere with the said finding recorded by the courts below. Learned counsel for the judgment-debtor emphasised that the defect in transfering the decree assumed added importance in the instant case because the question of limitation would get involved in case the transfer of the execution application initially made by the Civil and Sessions Judge, Gyanpur is held to be illegal. The decree itself would now be inexecutable on the ground of limitation. His contention is that on this ground it should be held that the transfer was void. In my opinion, his contention is not tenable because as I said, the mere fact that there was no proper presentation at the initial stage would amount to a mere irregularity and the competent court's jurisdiction would not be affected by the mere fact that the execution application reached the said court in an irregular manner and not in accordance with the strictly correct procedure. It is not disputed that the execution application in the instant case was moved within limitation. I, therefore, decide the first point in favour of the decree-holder,
10. On the second point, learned counsel for the respondent supported the lower appellate court's judgment and also placed reliance on Shorab Merwarji Modi v. Mansata Film Distributors : AIR1957Cal727 and Commr. of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. : 42ITR589(SC) . His point is that in the plaint, the plaintiff-decree-holder had specifically claimed possession and since it was not granted by the trial court on the finding that the plaintiffs were already in possession, it should be held that a relief specifically prayed for and not granted should be deemed to have been rejected. In this situation, the lower appellate Court was right in holding that 'since the relief for possession was not granted by the judgment, the executing court could not grant delivery of possession.''
11. So far as the correctness of the contention raised by the learned counsel for the respondent-judgment-debtor is concerned, there can be no two opinions It is well settled that if a relief is claimed in the plaint and the game is not decreed, the obvious inference is that the court has rejected such a claim. But, in the instant case, what has really been done is that by the judgment passed in the trial court, it was directed that the defendant would remove the five new 'Gondas' and the trees planted by them therein within a month of the date of the judgment. In default, the direction was that the same would be removed by the Court Amin in execution of the decree. The lower appellate court itself has observed that the decree-holder did not seek possession in his execution application. What he prayed for was the removal of the five new 'Gondas' and the trees planted therein by the execution of the decree inasmuch as the judgment-debtor had failed to remove the same in accordance with the trial court's decree. The Dakhalnama which was executed by the decree-holder makes this position clear. It clearly shows that the five new 'Gondas' were removed by the Amin in accordance with the decree. The lower appellate court erred in thinking that the Amin had delivered possession of the entire plot in question to the decree-holder. The plot was already held to be in possession of the decree- holder but the encroachments in the shape of the five new 'Gondas' which the defendants had set up were removed and the land beneath was restored to the decree-holder. In this situation, the lower appellate court was wrong in thinking, that the Amin had effected delivery of possession of the plot without there being any decree for possession. What had been done was strictly in accordance with the direction given in the decree though undoubtedly the Amin submitted a report which was somewhat misleading inasmuch as it talked of having given delivery of possession of the plot as such. But there is no difficulty in reaching the correct conclusion on the basis of the records and particularly taking into consideration the prayer made in the execution application and the Dakhalnama which was executed by the decree-holder.
12. In the result, the appeal is allowed and the cross-objection is dismissed. In the circumstances, the parties shall bear their own costs.