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Matrumal Vs. Madanlal Gourishankar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 112 of 1955
Judge
Reported inAIR1957Ori177; 23(1957)CLT387
ActsCode of Civil Procedure (CPC) , 1908 - Sections 6, 38, 39 and 39(2) - Order 21, Rule 8
AppellantMatrumal
RespondentMadanlal Gourishankar
Appellant AdvocateH. Mohapatra, ;R.N. Misra and ;J.M. Mitra, Advs.
Respondent AdvocateN. Mukherjee, Adv.
Cases Referred(A) and Sital Prasad Shukul v. Babu Lal Shukul
Excerpt:
.....state at this stage. 13. thus, after a careful consideration of the various provisions of the civil procedure code, i ana clearly of opinion that the pecuniary jurisdiction to entertain the suit would be the criterion for determining the jurisdiction for executing the decree passed thereon. accordingly, the contention as raised by the plaintiff-petitioner having failed, this application is bound to be dismissed......it was held that:'it is to be noticed that, in empowering the high court or district court to transfer suits, the competency of courts in respect of jurisdiction is kept in view, and the exercise of the power of transfer is limited, so that a suit, if removed from the ordinary forum, can be transferred only to a court competent to try the same in respect of its nature or amount -- civil procedure code, section 25'.this case, therefore, does not help the contentions raised on behalf of the petitioner. mr misra did not rely upon this decision either. the next case is a derision reported in ilr 17 mad 309 (h). the question that arose for determination in that appeal was whether the district munsif had jurisdiction to execute the decree in original suit no. 19/1888. and their lordships.....
Judgment:
ORDER

Das, J.

1. This is a judgment-debtor's petition in revision against the appellate order of the learned Additional District Judge of Cuttack holding that the transferee Court had the jurisdiction to entertain the application in execution.

2. The sole question for consideration in this case is whether the transferee Court has the jurisdiction to execute the decree in case the amount of the decree exceeds the limits of the pecuniary jurisdiction

3. The facts are rather simple. The decree-holder obtained an ex parte decree in the original side of the Calcutta High Court on 23-7-51 arising out of a suit for recovery of a sum of Rs. 3966-0-3. On 11-2-53 the decree-holder filed an application for transfer of the said decree to the District Court at, Cuttack for execution, and accordingly, the Calcutta High Court transferred the decree for execution to the said Court. The learned District Judge by his order dated 3-3-53 sent it for execution to the Court of the second Munsif which was a. Court subordinate to him. The decretal amount for which the execution was levied stood at Rs. 4360-3-9. The decree-holder in due course filed an application on 8-3-53 for execution of the said decree. An objection was taken by the judgment-debtor-petitioner to the jurisdiction of the second munsif to execute the decree, on the ground that it exceeds the pecuniary limit of the said Court which admittedly is Rs. 4,000/-.

4. The learned munsif overruled the objection and held that the valuation of the suit being within the pecuniary limits of his Court, he had jurisdiction to entertain the application. The judg-ment-debtor Matru Mall filed an appeal against this order, and the learned Additional District Judge by his order dated 23-12-54 following the decisions of the Patna High Court reported in Am-rit Lal v. Murlidhar ILR 1 Pat 651: (ATR 1922 Pat 188) (A), and Mt. Anchahi v. Firm Brijmohan Lall Mad.an Lall AIR 1936 Pat 177 (B) in preference to a decision of the Allahabad High Court reported in Shanti Lal v. Jamni Kuer AIR 1940 All 331 (C) confirmed the order of the learned Munsif and dismissed the appeal. It is against this order that the present application is directed.

5. The self-same objection was raised here in this Court and it was contended that the decretal amount for which the execution was levied being in excess of the pecuniary limits of the executing Court i.e., the Court of the second Munsif at Cuttack, the executing court has no jurisdiction. It was further contended that under Order 21, Rule 8 read with Section 39, C. P. C., it is the District Court which alone would be competent to execute the decree.

6. The point raised is undoubtedly a very interesting one. on which there has been sharp divergence of opinion between the different Courts in India. While the Calcutta, Bombay and Patna High Courts have taken one view, the Madras and Allahabad High Courts took the opposite view. Before dealing with the contentions as raised by the petitioner, I would like to state at this stage. that Section 39(1) of the Code of Civil Procedure empowers the Court which passed the decree to transfer the same for execution to another Court on the application of the decree-holder. Sub-section (2) empowers the Court to send it, of its own motion, for execution to any subordinate Court of competent jurisdiction. It is now the settled view that Section 39 is controlled by Section 6, After providing for the transfer of the decree in Section 39, provision has been made under Section 42 regarding powers of the Court in executing the transferred decree. Thus, the Court executing the decree has the same powers as if it had been passed by itself. Thereafter, Section 141 lays down that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. The entire scheme of the Civil Procedure Code, broadly speaking, is based upon the principle that an execution proceeding is a continuation of the suit and the pecuni-ary jurisdiction of the Court is determined by the valuation in the suit. That is the reason why Section 141 which corresponds to Section 647 of the 1882 Code has undergone various legislative changes. It must be stated at the outset that Section 141 does not apply to proceedings in execution, because art execution proceeding is a mere continuation of the suit Section 647 of the old Code stood as follows:

'The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any court of civil Jurisdiction other than suits and appeals.'

The question then arose whether the words 'proceedings other than suits and appeals' included proceedings in execution. The High Courts of Allahabad and Bombay held that that section applied to applications for execution of decrees, so that the procedure relating to suits was applicable to applications for execution; on the other hand, the High Court o[ Calcutta held that that section did not apply to proceedings in execution. That being the state of authorities, the Legislature added an explanation to Section 647 by the Amending Act VI of 1892. The explanation was as follows:

'Explanation: This section does not apply to applications for execution of the decrees which are proceedings in suits.'

Thus, the effect of the above explanation was to supersede the Allahabad and Bombay views and to give legislative sanction to the Calcutta view. The matter did not rest there. Against an Allahabad case, the point was carried to the Privy Council and the Privy Council in Thakur Parshad v. Pakir-Ullah 22 Ind App 44 (PC) (D) held that independently of the Explanation, Section 647 did not apply to applications for execution, but only to original matters in the nature of suits, such as proceedings in probates, guardianships, and so forth and thus overruled the Allahabad and Bombay cases. This decision of the Judicial Committee rendered the Explanation to Section 647 unnecessary, and accordingly, it was omitted in the present Code of 1908, vide Hari Charan v. Manmatha Nath, ILR 41 Cal l: (AIR 1914 Cal 126) (E) and Balasubramania Chetti v Swarnammal ILR 3S Mad 199: (AIR 1915 Mad 8111 (P).

7. If the matter is examined with this background, it would appear that the Legislature while providing the procedure under Section 141 had excluded its operation to applications for execution of decrees which are proceedings in suits, Thus, Section 39 is the proper section which empowers the transferor Court to transfer the decree for execution to the transferee court. Section 39 deals with two contingencies: (1) transfer on an application by the decree-holder: and (2) transfer of its own motion.

When a transfer i,s made under Sub-section (1) on the application of the decree-holder, it is sent for execution to mother court, whereas under Sub-section (2) when a transfer is made of its own motion, it is sent for execution to any subordinate court of competent jurisdiction. Now, the general trend of decisions is to the effect that the provisions of this section are controlled by Section 6 and that a decree cannot be transferred under Sub-section (1) for execution to any court if the amount exceeds its pecuniary jurisdiction. The High Courts of Patna and Calcutta have further taken the view that the value of the suit in which the decree was passed must be within the pecuniary limitations of the jurisdiction of the Court to which the decree is proposed to be sent. (See AIR 1936 Pat 177 (B), ILR 1 Pat 651: (AIR 1922 Pat 188) (A) and Gokul Kristo v. Ankhil Chunder, ILR 16 Cal 457 (G). The Madras High Court, however, in consideration of Section 12 of the Madras Civil Courts Act (Act III or 1373) and Section 223 of the old Civil Procedure Code, has held that Sub-section (1) creates a special jurisdiction and permits the transfer of a decree for execution to any court irrespective of its pecuniary jurisdiction; (Vide Shanmuga Pilial v. Ramanathan Chetty. ILR, 17 Mad 309 (H); Valrorath Kibular v. Sunni Lal 5 Ind Cas 155 (Mad) (I) and Abdulla Sahib v. Ahmed Hussain AIR 1914 Mad 206(1) (J). The Allahabad High Court has gone a step further, and differing from the Calcutta and Patna views, has held that it is enough if the amount of the decree is within such limits (AIR 1940 All 331) (C). The question naturally arises if under Section 141. C. P. C., a proceeding in execution is excluded and refers only to suits, then, has the Court power to pass a decree in excess of its pecuniary jurisdiction. The High Courts of Allahabad. Bombay. Calcutta, Madras, Patna and Rangoon have held that it has such power. (Vide Madho Das v. Ramji Patak ILR 16 All 286 (K). Sudarshan Das v. Ram Pershad ILR 33 All 97 (L); Ambadas Hari-rao v. Vishnu Govind ILR 50 Bom 839: (AIR 1927 Bom 83) (M); Hukum Singh v. Surajpal Singh AIR 1529 All 337 (N); Ganesh Lal v. Snehalata Dassi, AIR 1947 Cal 68 (O); Kannayya Chetti v. Venkata Narasayya AIR 1918 Mad 998 (2): ILR 40 Mad 1 (FB) (P); Urehan Kuer v. Mt. Kabutri ILR 13 Pat 344: (AIR 1934 Pat 204) (FB) (Q); Mt. Dinanath Sahai v Mt Mayawati Kuer AIR 1921 Pat 118 (R) and U Po Mya v. Father Rioufreyt AIR 1939 Rang 115 (S). The reason being that in every case when the Court has seized jurisdiction, it cannot and does not lose it by any change in the value of the subject-matter of the suit after the institution of the suit or by the ascertainment of its value in cases which do not attempt at such ascertainment at the time of the institution except when the plaint is allowed to be amended; otherwise, there would be no fixity, as to the Jurisdiction of the Court in which the suit has been brought or as to the Court in which the appeal should ordinarily be filed.

Similarly, there would be no certainty as to the Court in which the application for execution should be filed if the decretal amount on the date of the application is taken into consideration, and at the same time, it would be doing violence to the provisions in the Civil Procedure Code.

8. Now in support of the petitioner's contention reliance was placed on ILR 17 Mad 309 (H); AIR 1940 All 331 (C) and Radha Kishan Rup Lal Firm V. Bombay Co. Ltd. Amritsar AIR 1939 Lah 258- (T). The opposite view, as I have indicated above, was taken by Calcutta, Bombay and Patna High Courts, as reported in ILR 16 Cal 457 (G) and Durga Charan V. Umatara Gupta, ILR 16 Cal 465 (U). Ganeshdas Badrinarain Firm v. Amuluk Chand AIR 1940 Cal 161 (V); Sidheswar v. Harihar ILR 12 Bom 155 (W), ILR I Pat 651 : (AIR 1922 Pat 188) (A) and AIR 1936 Pat 177 (B). I will first deal with the Madras view. The earliest case in point was the case reported in Narasayya v. Venkata Krishnayya ILR 7 Mad 397 (X). The question posed for decision in that case was whether in empowering it to transfer a decree for execution to anv court subordinate thereto, the Legislature intended that the term 'any Court'' should bear its ordinary significance, and include a Court which ordinarily would not be competent to entertain the application, because the subject-matter would be in excess of its pecuniary jurisdiction. It was held that:

'It is to be noticed that, in empowering the High Court or District Court to transfer suits, the competency of Courts in respect of jurisdiction is kept In view, and the exercise of the power of transfer is limited, so that a suit, if removed from the ordinary forum, can be transferred only to a Court competent to try the same in respect of its nature or amount -- Civil Procedure Code, Section 25'.

This case, therefore, does not help the contentions raised on behalf of the petitioner. Mr Misra did not rely upon this decision either. The next case is a derision reported in ILR 17 Mad 309 (H). The question that arose for determination in that appeal was whether the District Munsif had jurisdiction to execute the decree in original suit No. 19/1888. and their Lordships differing from the Calcutta view and relying on the earlier view of their Court held that 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 of the old Code, special reasons exist for departing from that rule and creating a special or extraordinary jurisdiction the object whereof is to secure to the judgment-creditors in certain cases a special facility or convenience. The condition as to the jurisdiction of the subordinate Court to which a suit can bR transferred under Section 25, C. P. C., is not laid down in Section 223 of the Code, which relates to transfers of applications for execution of decrees and was omitted therefrom for the special reasons mentioned therein. The next case strongly relied upon is a case reported in AIR 1940 All 331 (C)

9. Before dealing with this case, it would be necessary to mention the opposite view as represented by the Calcutta, Patna and the Bombay High Courts. The Calcutta cases are those reported in ILR 16 Cal 457 (G) and ILR 16 Cal 465 (U) and Shamsundar Saha v. Anath Bandhu ILR 37 Cal 574 (Y). The Calcutta High Court in all these cases did not deal with the case of limitation, but their Lordships proceeded to consider the validity of, the order of transfer, and held that having regard to the provisions of Section 6, a Civil Court has no jurisdiction to execute a decree sent to it for that purpose under Section 223 of the Code, when the decree has been passed in a suit the value or subject-matter of which is in excess of the pecuniary limit of the ordinary jurisdiction. Similarly in the Patna Cases ILR 1 Pat 651: (AIR 1922 Pat 183) (A) and Sital Prasad Shukul v. Babu Lal Shukul ILR 11 Pat 785: (AIR 1932 Pat 309) (Z), the former case concerned with the question of limitation, and naturally considered the question whether the application for transfer was a step-in-aid within the meaning of Article 182 (5) of the Limitation Act; whereas in the latter case, their Lordships considered about the competency of the Court. In both the cases, their Lordships of the Patna High Court followed the view taken by the Calcutta High Court. Now, coming to the Bombay view, reference may be made to a case reported in ILR 12 Bom 155 (R). That was not a case of transfer on the application of a decree-holder, but a case of transfer by the Court which passed the decree of its own motion, under Section 39(2). Sargent. C. J. held in that case that the Second Class Subordinate Judge had no jurisdiction to entertain and deal with the Plaintiff's application for execution and that the plaintiff's, objection should be allowed, since the subject-matter of the suit exceeded Rs. 5,000/- in the Court of the Subordinate Judge, 1st class. Then there is a previous decision of the Allahabad High Court by a single Judge of that Court reported in Sita Ram v Madho Prasad 1938 All LJ 1128: (AIR 1939 AH 57) (Z1). The learned single Judge in that case followed the Calcutta and Patna views and differed from the Madras view after considering the old Section 223 and the present Section 39. It may be remembered here that the first para of the old Section 223 corresponds to Section 38, whereas the second and the third paraa correspond to Section 39 and the fourth para to Section 41 of the present Code. Therefore, the earlier decisions have to be examined in view of the 2nd and 3rd paras of Section 223. Thus, according to him, the expression 'of competent jurisdiction' in the present Code was added to set at rest the conflict between the Madras and Calcutta High Courts, and he held that the Madras cases can no longer be held to be laying down the correct law.

10. Now turning to the case reported in AIR 1940 All 331 (C) the facts of that case were that one Shanti Lal brought a suit which was dismissed bv the Subordinate Judge of Budaun on 26-2-27 and a decree for costs was passed in favour of defendants 2 and 3. Shanti Lal carried an appeal to the High Court which was ultimately dismissed with, costs on 11-12-30. On 4-12-33, the decree-holder applied to the Subordinate Judge of Budaun to transfer the decree to the Court of the Munsif at Khurja for execution. This was granted. It is this application which is claimed to have saved the limitation. The actual application for execution in the court of the Munsif of Khurja was filed on 8-1-34 and it was struck off on 1-2-34 since it became infructuous. On 8-1-36 one of the decree-holders presented an application for execution to the Subordinate Judge of Budaun. The point raised by the judgment-debtor Shanti Lal was that this application for execution is time-barred because the application for transfer made on 4-12-33 does not save limitation since the said application did not comply with the requirements of Section 39(1), C. p. C. The objection was based mainly on the ground that Section 39(1) requires that the Court to which the decree is to be transferred is a Court which should have pecuniary jurisdiction to try the suit in which the decree is passed and because the suit was one in the Court of the Subordinate Judge, the decree cannot be sent to the Court of the Mun-sif for execution. Their Lordships while dealing with the true interpretation of Section 8, although held that the expression 'suit' includes an execution case which is headed as a miscellaneous case; yet while discussing Section 39(1) came to the conclusion that there is nothing in this sub-section as regards the pecuniary jurisdiction of the Court to which the decree is to be sent for execution, and at one part of the judgment they proceeded upon the footing that Section 6 should also be applied to the valuation of the execution case. Ultimately, their Lordships did not adopt the Calcutta and Patna views, but following the Madras view and differing from the learned single Judge of their Court held:

'There is in our opinion nothing shown from the letter of the law to support the view of the Calcutta and Patna. High Courts. The interpretation which we place on Section 6 is one which applies this section to the valuation of the case actually transferred, that is, the execution case. There does not appear to be any reason whatever why the question should go back to the valuation of the original suit. Where proceedings have terminated in a decree, the question of the execution of one decree is the same as the execution of another of the same amount, and no question of the original valuation of the suit has any real bearing on the question of the execution of a decree. It is the valuation of the decretal amount which determineg the importance of the case for the limits of the pecuniary jurisdiction.'

If the view of the Allahabad High Court would be taken as laying down the correct law, then it would amount to reading something into Section 6 which it does not bear. In that view of the matter, instead of 'suit' one has got to read 'application in execution' in Section 6. As I have indicated above, by virtue of Section 141. we cannot read into Section 6 something other than what is intended by the Legislature. If Section 141 does not apply to execution proceedings. Section 6 in terms, cannot also apply to applications in executions. Thus, I am afraid, the view taken by the Allahabad High Court cannot be said to be quite correct.

11. Accordingly, with utmost respect to the learned Judges of the Madras and Allahabad High Courts I would Prefer the view taken by the Calcutta and the Patna High Courts. Reliance was then placed upon a single judge decision of the Lahore High Court reported in AIR 1939 Lah 258 (T). That was a case under Sub-section (2) of Section 39. In that case, the learned Judge did not consider the cases either of the Madras and Allahabad High Courts or of the Calcutta and the Patna High Courts. Dalip Singh. J. stated in that case that:

'After considering the, matter and with great respect to the opinion of the Division Bench of the Peshawar Judicial Commissioners, I am of opinion that the words 'competent jurisdiction' refer to territorial pecuniary jurisdiction to deal with the decree and did not mean competency to try the original suit.'

In that case, it was an award which was forwarded by the Judicial Commissioner of Sind to the District Judge of Amritsar for execution. Dalip Singh, J. was not sure of his own decision in that case, because he observed at the end:

'As I have found only one ruling and that is contrary to the view I have taken, I would allow a Letters Patent Appeal, if applied for.'

It is not known if any application for leave to appeal was filed, or granted, or a Division Bench of the Lahore High Court took any other view. Since the Lahore High Court did not consider the matter from all perspectives, with great respect to the learned Judge, I cannot persuade myself to accept that view.

12. Lastly, it was contended that reading Section 39 with Order 21, Rule 8, C. P. C., it would appear that it is the District Court to which the case was transferred, only had the Jurisdiction. Order 21, Rule 8 runs thus:

'Where such copies are so filed, the decree or order may. if the court to which it is sent is a District Court, be executed by such Court or bo transferred for execution to any Subordinate Court of competent jurisdiction.'

Thus, it is clear from the plain language of Rule 8, Order 21 that the District Court either can execute the decree, himself or it would transfer for execution to any subordinate court of competent Jurisdiction. In the present case, the District Court transferred the matter to the Court of the second Munsif which admittedly is a court subordinate to the District Court, and was a Court of competent jurisdiction. The same Phraseology, it would be seen has been used in Section 39(2) as in Order 21, Rule 8: viz., 'subordinate court of competent jurisdiction.'' Equating this phraseology with the opening words of the section, it cannot be held that the District Court at Cuttack had no jurisdiction under Order 21. Rule 6 to transfer the case for execution to a subordinate court of competent Jurisdiction, that is, the Court of the second Munsif.

13. Thus, after a careful consideration of the various provisions of the Civil Procedure Code, I ana clearly of opinion that the pecuniary Jurisdiction to entertain the suit would be the criterion for determining the jurisdiction for executing the decree passed thereon. It is conceded by the learned counsel that the second Munsif's Court which had the jurisdiction to entertain the suit could have passed this decree, and he would also have been competent to execute the same. Thus, I fall to see as to how the amount in decree, for Which the execution is laid on transfer, can determine the pecuniary jurisdiction of the executing court. Accordingly, the contention as raised by the plaintiff-petitioner having failed, this application is bound to be dismissed.

14. In the result, the rule is discharged and the application is dismissed with costs.

15. Hearing fee is assessed at two gold mohurs.


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