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Mehar Singh and anr. Vs. Kasturi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 14 of 1958
Judge
Reported inAIR1962P& H394
ActsCode of Civil Procedure (CPC), 1908 - Sections 17, 37, 38, 39 to 42 and 150 - Order 21, Rules 5 to 8 and 48
AppellantMehar Singh and anr.
RespondentKasturi Ram and ors.
Cases ReferredPackianathan Nadar Maryarul Nadar v. Mathevan Pillai Nanu Pillai
Excerpt:
.....described in many cases as cumbersome, ilr 35 cal 974, but undoubtedly it is effective to get the decree executed and satisfied. (9) the case of the decree-holder, however is that although the remedies under sections 39 to 42 are available to him but it is also open to him to get the relief required by him by taking advantage of section 37(b) and according to him the cumbersome procedure of sections 39 to 42 can be effectively avoided by applying direct to the court that alone can give the necessary relief. for there reasons i am of the opinion that sections 37 and 38 of the code when construed according to the language used therein empower the decree-holder to file an execution application either to the court that actually passed the decree or to the court that can effectively execute..........courts and feel within the territorial jurisdiction of sunam courts. after these changes the decree-holder filed two separate applications for execution of these decrees in the sunam court. the judgment-debtors pleaded that the sunam court had no jurisdiction to execute these decrees and that the proper court for the purpose was the sangrur court. this plea prevailed in the executing court of sunam and the decree-holder's appeals were dismissed by the district judge. the learned single judge of this court, however, accepted the decree-holder's second appeals and held that the sunam court had jurisdiction to execute these decrees. with his leave the judgment-debtors filed two letters patent appeals (letters patent appeals nos. 14 and 17 of 1958) under clause 10 of the letters.....
Judgment:

Bishan Narain, J.

(1) One Kasturi Lal instituted two separate suits for possession of two separate pieces of lands situated in villages Mehlan and Mauran respectively against Bishan Singh and Bishan Singh's sons respectively. In both suits a claim for recovery of certain amounts as mesne profits was included. These suits were filed in the Court of Sub-Judge, 2nd Class, Sangrur. Both the suits were decreed on 10-5-1948. Both these villages at the time or the suits and of the decrees fell within the territorial jurisdiction of the Sub-Judge, 2nd Class, Sangrur. On formation of the Patiala and East Punjab States Union in 1948 there was a readjustment of the boundaries of the various tehsils of the Sangrur district and these villages were attached to Sunam tehsil under Government notification with the consequence that these villages ceased to be within the territorial jurisdiction of Sangrur Courts and feel within the territorial jurisdiction of Sunam Courts. After these changes the decree-holder filed two separate applications for execution of these decrees in the Sunam Court. The judgment-debtors pleaded that the Sunam Court had no jurisdiction to execute these decrees and that the proper Court for the purpose was the Sangrur Court. This plea prevailed in the Executing Court of Sunam and the decree-holder's appeals were dismissed by the District Judge. The learned Single Judge of this Court, however, accepted the decree-holder's second appeals and held that the Sunam Court had jurisdiction to execute these decrees. With his leave the judgment-debtors filed two Letters Patent appeals (Letters Patent Appeals Nos. 14 and 17 of 1958) under Clause 10 of the Letters Patent. When these Letters Patent appeals came up before the Division Bench of which I was a member we decided to refer the same to a larger Bench in view of conflicting decisions in the various High Courts. These appeals have now been placed before us for decision and it will be convenient to decide both of them by this judgment.

(2) The learned counsel for the judgment-debtors first contended that in spite of redistribution of boundaries the Sangrur Courts continued to have territorial jurisdiction over these villages. We did not permit him to raise this new case at the stage of Letters Patent appeals as it is directly opposed to their case as placed before all the Courts till now and as it involved enquiries into the various relevant notifications which I may say could not be brought to our notice because they were not available. In spite of adjournment the learned counsel for both the parties were unable to produce the Government notification by which these villages were removed from the Sangrur tehsil and were included in the Sunam tehsil. These appeals, therefore, must be decided on the basis of the fact that these villages fell outside the territorial jurisdiction of Sangrur Courts.

(3) It was conceded by the learned counsel for the judgment-debtors that the decree for mesne profits could be executed only by the Court that had territorial jurisdiction to execute the decree for delivery of the lands in suit to the decree-holder probably on the basis of Se. 16, Civil Procedure Code. It is, therefore, not necessary to discuss this aspect of the matter and we take it that the entire subject-matter of both the decrees fell wholly outside the jurisdiction of Sangrur Courts and fell within the territorial jurisdiction of Sunam Courts.

(4) The question that requires determination therefore, in these appeals is whether or not the Court to which the local area has been transferred after the passing of the decree can directly entertain an application for execution without an order of transfer by the Court which had in fact passed the decrees. The decision of this question rests on the construction of certain statutory provisions contained in the Code of Civil Procedure. The relevant provisions are Secs. 37, 38, 39 and 150 of the Code of Civil Procedure. I reproduce them below:

'Section 37. 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 on 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 instant 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 such suit.

Section 38. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

Section 39. (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 work 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.

Section 150, Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.

Sections 37 to 39 relate to execution or decrees and orders and occur in Part II of the Code while section 150 is found in Part IX which contains miscellaneous provisions. Sections 37 to 39 have a direct bearing on the point requiring decision in this case and I proceed to discuss these provisions first.

(5) Now obviously the object and purpose of these provisions along with other provisions occurring in Part II is to facilitate execution of decrees. It is well-known that the real difficulties of a claimant arise after he has obtained a decree from the Courts of law and often he fails in execution proceedings to recover what the Courts have held to be due to him. It appears to me that besides the fact that a decree-holder should be able to recover what has been held to be due to him by Courts it is the duty of the Courts of law to see that their orders and decrees are enforced and that these orders do not become ineffective on some technical ground if at all possible. The procedure laid down in the Civil Procedure Code for executing decrees is obviously intended to facilitate and not to obstruct their execution provided that the judgment-debtor is not put to undue and unnecessary harassment. Therefore, these provisions should not be so construed as to impede execution of decree or as to raise obstructions in the way of their execution and if it is possible these provisions should be construed to make it convenient to the decree-holders to execute their decrees, (vide Udit Narain Chaudhuri v. Mathura Prasad, ILR 35 Cal 974).

(6) Now Section 38 lays down that a decree is to be executed by the Court that passed it or by the Court to which it has been transferred. There is no provision in the Code, which takes away this jurisdiction of such a Court. Section 37 which purports to explain the term 'the Court which passed the decree' does not exclude the decreeing Court but only empowers certain other Courts to execute them in certain specified circumstances. It is not necessary to discuss this matter at length as all the High Courts have consistently held that the decreeing Court does not lose jurisdiction to execute the decree because of the provisions in Section 37, Civil Procedure Code (vide Latchman Pundeh v. Maddan Mohun Shye, ILR 6 Cal 513, Jahar v. Kamini Debt, ILR 28 Cal 238, Masrab Khan v. Debnath Mali alias Abhu Mali, AIR 1942 Cal 321, Seeni Nandan v. Muthusamy Pillai, ILR 42 Mad 821: (AIR 1920 Mad 427), and Jagannath Nathu v. Ichharam Naroba, AIR 1925 Bom 414). This conclusion has now been approved by the Supreme Court in Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87.

(7) We, therefore, start with the proposition that by virtue of Section 38, Civil Procedure Code, the Court which originally passed the decree does not cases to be the decreeing Court even when the subject-matter of the decree has been subsequently transferred to the jurisdiction of another Court. Now the general principle of law is that no Court can execute a decree when its subject-matter is situated outside its local jurisdiction. As a general rule territorial jurisdiction is a condition precedent to a Court executing a decree and no Court can execute it in respect of property which lies outside its territorial jurisdiction (vide Prem, Chand Dey v. Mokhoda Bebi, ILR 17 Cal 699 (FB), Begg. Dunlop and Co. v. Jagannath Marwari, ILR 39 Cal 104, Sreenath Chakravarti v. Priyanath Bandopadhya, AIR 1931 Cal 312, Ambika Ranjan v. Manikganj Loan Officer, Ltd., ILR 57 Cal 67: (AIR 1929 Cal 818) observation of Seshagiri Ayyar, J. in ILR 42 Mad 821: (AIR 1920 Mad 427) (FB), and Satrucherla Sivakanda Raju v. Rajah of Jeypore, AIR 1927 Mad 627). This principle, however, is subject to certain exceptions. When a suit is filed in a Court by virtue of Section 17, Civil Procedure Code, then the decreeing Court can execute the decree although a portion of the immovable property is situated outside its jurisdiction. The provisions contained in Order 21, Rule 3 and O. 21, R. 48, Civil Procedure Code, are other exceptions to this general0. It is, however, not necessary to deal exhaustively with these exceptions as in the present case we are not concerned with them.

(8) In the present case admittedly the entire subject-matter of the decree is situated outside the local jurisdiction of the decreeing Court. Under these decrees the immovable properties since after the passing of the decrees are situated outside the local limits of decreeing Court. Therefore, in the present case the decreeing Court cannot deliver possession to the decree-holder but all the same it remains the Court that passed the decree and can transfer the decrees to the Court to which these lands have been transferred under Section 39(1)(c) of the Code. There can be no doubt that if a decree-holder placed in these circumstances applies to the decreeing Court for execution of his decree by transfer to the Court within whose jurisdiction the property at the time of the application is situated then he can get the relief required by him in a satisfactory manner by following the procedure laid down in sections 39 to 42 and Order 21, rule 5 to Order 21, rule 8, Civil Procedure Code. It is true that this procedure laid down in these previsions is rather an indirect one and it has been described in many cases as cumbersome, ILR 35 Cal 974, but undoubtedly it is effective to get the decree executed and satisfied.

(9) The case of the decree-holder, however is that although the remedies under sections 39 to 42 are available to him but it is also open to him to get the relief required by him by taking advantage of section 37(b) and according to him the cumbersome procedure of sections 39 to 42 can be effectively avoided by applying direct to the Court that alone can give the necessary relief. On the other hand the contention of the judgment-debtors is that this procedure is not open to him as proceedings under section 37 cannot be taken as long as the decree-holder can proceed under section 38 of the Code. It is on this point that there is considerable conflict in the judicial decisions. The Calcutta view is that it is open to the decree-holder to take proceedings either under section 38 or under section 37, Civil Procedure Code, although the decisions of that Court are not unanimous and opposite view has been taken in AIR 1942 Cal 321. The Madras High Courts has laid down that it is not open to the decree-holder to apply direct to any Court other than the decreeing Court without getting the decree transferred under section 39, Civil Procedure Code. Even there the view taken in ILR 6 Cal 513, was followed in Zamindar of Vallur and Gudur v. Adinarayudu, ILR 19 Mad 445. This judicial conflict is due to the different construction put on section 37, Civil Procedure Code. Broadly speaking the Calcutta view is that section 37 is in addition to section 38 while the Madras view is that section 37 substitutes the Court mentioned in section 38.

(10) Now the heading of section 37 states that it defines the expression 'Court which passed a decree'. It describes a 'Court which passed the decree' under three different circumstances. The word 'included' in my opinion in the present context has not been used in an extending or limiting sense but indicates the Courts which must be considered as the 'Courts which passed the decree', without excluding the decreeing Court. The Legislature takes into consideration three contingencies that may arise when the decree-holder seeks to execute his decree and indicates the Courts which may be treated as the decreeing Courts. It lays down that (1) when a decree is passed by an appellate Courts then the trail Court is to be considered the decreeing Court for purposes of initiating execution proceedings; (2) when the trial Court has ceased to exist then the decreeing Court shall be the Court which would have entertained the suit for the relief granted in the decree; (3) but when the trail Court has ceased to have jurisdiction to execute the decree then the decreeing Court will be the one which could have entertained the suit for the relief granted in the decree. I see no reason why these provisions in Section 37 should be considered to be in substitution of the Courts mentioned in section 38, Civil Procedure Code. I say so with great respect to the eminent Judges who have taken a different view. The provisions of section 37 are intended to given an additional remedy to the decree-holder. It is to be noticed that when an appellate Court passes a decree then it can also transfer the decree of its own motion for execution to the subordinate Court under section 39(2) of the Code. Obviously this can also be done on the application of a decree-holder. Therefore, in such cases it is open to the decree-holder to avail of either of the two remedies. As a matter of practice these applications are filed in the trial Court.

(11) The first portion of section 37(b) deals with a case where the decreeing Court has been abolished since after the decree. In such a case as observed in AIR 1942 Cal 321, there can be no application under section 38, Civil Procedure Code and the decree-holder has no course open to him but to apply to a Court indicated under section 37(b). The second part of section 37(b) empowers the decree-holder to file an execution application to a Court where a suit for the same relief could have been filed. This is an additional rights and it has been given with a view to avoid cumbersome procedure of approaching the decreeing Court under section 38 of the Code and then asking it to transfer the decree under section 39 of the Code. It is this last category on which the judicial unanimity is lacking.

(12) A question has been raised in many cases as to what is the meaning of the expression 'ceased to have jurisdiction to execute it' and the examples given in various judgment relate to loss of jurisdiction other than territorial jurisdiction. The word 'jurisdiction' in this expression should be given its literal meaning, that is, of any kind whatsoever. A Court may cease to have territorial or pecuniary jurisdiction or may cease to have jurisdiction over the subject-matter of the litigation. The section deals with the loss of this jurisdiction after the passing of the decree. In my opinion in all cases of loss of jurisdiction whether territorial, pecuniary or on the subject-matter after a decree has been passed empowers the decree-holder to file an application direct to the Court that can execute it and he is not limited to seek his relief from the decreeing Court only.

(13) When one is considering whether or not the decreeing Court has ceased to have jurisdiction to execute its decree, one has to look to the decree according to its tenor and as it stands. If the decree as such can be partly executed by the decreeing Court or if it is possible for it to execute is partly or wholly the it has not lost its jurisdiction to execute it and section 37 does not come into the picture. If the decree-holder wishes to execute a decree for money by attachment of the properties lying outside the jurisdiction of the decreeing Court then it cannot be said that the decreeing Court has ceased to have jurisdiction to execute the decree although it cannot attach such properties. All that can be said is that the decreeing Court had ceased to have jurisdiction to execute the decree although it cannot attach such properties. All that can be said is that the decreeing Court cannot enforce the decree by the mode of execution sought by the decree-holder. In such cases procedure under sections 38 and 39 must be adopted. A Court under a decree only when it is unable to give the relief according to the tenor of the decree and not otherwise. It follows from this view that when the decreeing Court has entirely lost jurisdiction to execute the decree according to its tenor them it remains only a 'notional' Court that passed the decree for the purposes of its execution and all that it can do is to transfer a copy of the decree to the Court that has jurisdiction to execute it and then to receive a certificate of satisfaction or otherwise from it. For there reasons I am of the opinion that sections 37 and 38 of the Code when construed according to the language used therein empower the decree-holder to file an execution application either to the Court that actually passed the decree or to the Court that can effectively execute it and in the latter case it is not necessary to comply with the provisions of S. 39 of the Code. I am expressing this opinion with due respect to the learned Judges who have taken an opposite view.

(14) In the course of arguments it was suggested that this view will result in confusion in the decreeing Court and will put the judgment-debtor to undue hardship. I see no such consequence. When an application is made to a Court in accordance with the provisions of section 37 then it will no doubt summon the decree and, if necessary, the entire record from the Court that actually passed the decree. That record is of no use to the decreeing Court and in any case this administrative problem cannot be allowed to deprive a decree-holder of a right which has been given to him under section 37 of the Code. Undue harassment to the judgment-debtor was suggested on the ground that the decree-holder will then be able to move both the Courts simultaneously. That may be so but separate applications in both Courts in a case of present nature can have only one consequences and that is the Court having jurisdiction under section 37 will execute it whether it gets it directly from the decree-holder or the decreeing Court transferred it under section 39, Civil Procedure Code. Then it was suggested that a decree may be executed simultaneously even in more than two Courts. The argument taken is this. When a decree directs delivery of possession of three separate plots of lands and when all there plots of lands are taken out the jurisdiction of the decreeing Court and these lands fall separately within the territorial jurisdiction of three different Courts then it will be open to decree-holder to file simultaneously four applications for execution. This is so but this does not mean that the judgment-debtor is being unduly harassed. The same consequence will follow when an application is made to be decreeing Court because then that Court will have to send a copy of the decree to all the three Courts for execution under section 39(1)(c) of the Code. There is nothing in the Code which prohibits simultaneous execution of the decree in various Courts unless the relief sought in them is precisely the same. It is well established that it is open to the decree-holder to try to execute his decree simultaneously in various Courts provided the relief claimed in these applications is not identical (vide S. Sundara Rao v. B. Appiah Naidu, AIR 1954 Mys 1 (FB)), in which the entire case-law on the point has been discussed. Whether the simultaneous execution takes place in the Court that actually passed a decree and the transferee Court or whether it takes place in the Court which actually passed the decree and the Court indicated under section 37(b) of the Code makes no difference in principle.

(15) As regards the case-law on the point I do not consider it necessary to discuss the reasons given by the various learned Judges for expressing conflicting conclusion because I have given my own reasons for my conclusion. My view is in consonance with the view expressed in ILR 6 Cal 513, ILR 28 Cal 238, ILR 35 Cal 974 and AIR 1931 Cal 312, while it is in conflict with the view taken in Subramanya Ayyar v. Swaminatha Chettiar, AIR 1928 Mad 746, Ramier v. Muthu Krishna Ayyar, AIR 1932 Mad 418, (SB), Packianathan Nadar Maryarul Nadar v. Mathevan Pillai Nanu Pillai, (S) AIR 1957 Tra. Co. 69 (FB), and AIR 1942 Cal 321. I do not consider it necessary to burden this judgment by discussing the facts of these cases and then repeat my reasons for my views.

(16) I, therefore, hold that it was open to the decree-holder in the present case to apply for execution of the decrees obtained by him from the Sangrur Court in the Sunam Courts.

(17) Before concluding this judgment I may discuss section 150, Civil Procedure Code, on which the decree-holder has relied in support of his contention that the decree-holder could make application direct to the Sunam Court for execution of the decrees obtained by him. Section 150 has already been reproduced in the beginning of this judgment. The Government notification under which boundaries have been altered is not before us. It was urged on behalf of the decree-holder that where territories are altered as in the present case it must be assumed that the business of that Court is also transferred to the Court to which the territory has been attached. I am unable to accept this contention. It is impossible to hold that the transfer of territories is proof per se of the transfer of business of the Courts concerned vied inter alia, AIR 1932 Mad 418 (SB). It is a question of fact in each case whether at the time of transfer of territories the business of the Courts has or has not been transferred.

(18) The result is that these Letters Patent appeals fail and I dismiss them with costs.

S.B. Capoor, J.

(19) I agree.

S.S. Dular, J.

(20) I agree.

(21) Appeal dismissed.


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