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Gulab Chand Sharma Vs. Saraswati Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular First (OS) Appeal No. 13 of 1974
Judge
Reported inAIR1975Delhi210; ILR1975Delhi345
ActsDelhi High Court Act, 1966 - Sections 5; Code of Civil Procedure (CPC), 1908 - Sections 37
AppellantGulab Chand Sharma
RespondentSaraswati Devi and ors.
Advocates: D.D. Chawla,; C.L. Choudhry,; D.R. Dhamija,;
Cases ReferredEsune Fordham v. Clagett
Excerpt:
(i) delhi high court act (1966) - sections 5, 10 & 16--preliminary decree in mortgage suit passed by division bench of delhi high court on appeal from an order dismissing suit by a sub-judge --jurisdiction of high court to entertain application for execution.; a preliminary decree for redemption of property was passed by a division bench of delhi high court, on an appeal against the order of dismissal of suit made by the sub-ordinate judge, and the respondent decree-holder pursuant to the aforesaid decree of the division bench filed an application in the high court under order 34 rules 7 and 8 and section 151 of the code of civil procedure stating that she had deposited the sum of rs. 70,000/- in the court in terms of the decree; and is consequently entitled to receive back the title..........26th march, 1974, passed by a learned single judge passing final decree for redemption of the suit property in favor of the respondents.(2) relevant facts necessary for disposal of the appeal are as under. one bakshi mohan lal sason, husban of sarswati devi, was the owner of property bearing no. 13, keeling road, new delhi. mohan lal in his life time created a mortgage in respect of this property in favor of the appellant by deed dated may 31, 1966 in lieu of the sum of rs. 70,000 that he borrowed from him. the deceased had earlier created two mortgages against the property in favor of two other persons, namely, smt. lajya wati and malwa dcvi with which mortgages we arc not concerned in this appeal. failing to get the property redeemed because of the stand of the appellant that the.....
Judgment:

Prithvi Raj, J.

(1) This Regular First Appeal under section 10 of the Delhi High Court Act, 1966, (herein to be called 'the Act') has been filed against the judgment dated 26th March, 1974, passed by a learned Single Judge passing final decree for redemption of the suit property in favor of the respondents.

(2) Relevant facts necessary for disposal of the appeal are as under. One Bakshi Mohan Lal Sason, husban of Sarswati Devi, was the owner of property bearing No. 13, Keeling Road, New Delhi. Mohan Lal in his life time created a mortgage in respect of this property in favor of the appellant by deed dated May 31, 1966 in lieu of the sum of Rs. 70,000 that he borrowed from him. The deceased had earlier created two mortgages against the property in favor of two other persons, namely, Smt. Lajya Wati and Malwa Dcvi with which mortgages we arc not concerned in this appeal. Failing to get the property redeemed because of the stand of the appellant that the (Mohan Lal Sason) having not paid the debt within four years from the date of execution of the mortgage deed the transfer made in favor of the appellant had become an absolute sale in his favor, the mortgager filed suit No. 65 of 1961 (Mohan Lal Sason v. Gulab Chand Sharma) for redemption of the suit property alleging that he had approached the appellant to take the mortgage money and get the properly redeemed but the appellant refused to receive the money and released the mortgage. The appellant resisted the suit, among others, on the ground that the mortgage stood converted into a sale on the failure of Mohan Lal Sason to redeem the property within the period of four years from the date of the mortgage deed. The appellant during the pendency of the above suit, filed a suit (No. 154 of 1961 Gulab Chand Sharma v. Mohan Lal Sason) for the grant of permanent injunction restraining Mohan Lal Sason from alienating or in any manner dealing with the property, the subject-matter of the mortgage.

(3) The two suits were tried together and by a common judgment dated 30th January, 1962, Shri B. K. Agnihotri, Sub-Judge 1st Class, Delhi, dismissed the suit (No. 65 of 1961) filed by Mohan Lal Sason and decreed the suit (No. 154 of 1961) filed by the appellant, passing a decree for permanent injunction against Mohan Lal Sason restraining him from alienating the suit property or in any manner dealing with it. Feeling dis-satisfied with the aforesaid judgment and decree, Mohan Lal filed appeals (No. 116-D of 1962 and 157-D of 1963) in the erstwhile Punjab High Court. During the pendency of those appeals Mohan Lal Sason died and he was represented by Smt. Saraswati Devi, his widow. The appeal was heard by a Bench of this Court. The Bench by its judgment and decree dated 4th August, 1972, allowed appeal No. 116-D of 1962 and passed a preliminary decree for redemption of the suit property on payment of Rs. 70.000. The amount was to be deposited within six months. In the result, the other appeal No. 157-D of 1963 arising out of the suit filed by the appellant was also allowed and his suit for injunction was dismissed.

(4) The respondent Saraswati Devi in January, 1973 pursuant to the aforesaid decree of the Division Bench filed an application (I.A. No. 469 of 1973) under Order 34 Rules 7 and 8 and section 151 of the Code of Civil Procedure (herein called 'the Code') stating that She had deposited the sum of Rs. 70,000 in the Court in terms of the decree: that she consequently is entitled to receive back the title deeds of the mortgaged property and the possession from the appellant and that she could seek the said relief from this Court in pursuance of the provisions of section 5(2) and section 16 of the Act. The appellant resisted the application on a host of grounds which need not be recapitulated as they are not relevant for the purpose of the disposal of this appeal. An objection, however, was raised regarding the jurisdiction of this Court to entertain the application on the ground that on the day the Act came into operation, viz., 31st October, 1966, the suit filed by Mohan Lal Sason was pending in the trial Court, the same having not been transferred to this Court, the proper forum to seek the relief was the trial Court. The appellant by a separate application (I.A. No. 1070 of 1974) prayed that he had filed a civil suit in this Court in March 1974 against Shrimati Saraswati Devi seeking declaration that he had become full owner of the property in question

(5) The learned Single Judge repelling the contention regarding jurisdiction of this Court to entertain the application under Order 34 Rules 7 and 8 (I.A. No. 469 of 1973) held that there was no detence to the said application, allowed the same and by judgment and decree dated 26th March, 1974, passed a final decree in favor of Smt. Saraswati Devi. In the result, I.A. No. 1070 of 1974 filed by the appellant was dismissed.

(6) The appellant feeling aggrieved by the aforesaid judgment has tiled the present appeal.

(7) Before us on behalf of the appellant only two contentions were raised, firstly, that this Court had no jurisdiction to entertain the application (I.A. 469 of 1973) filed by Saraswati Devi and secondly, that in view of the pendency of the civil suit (No. 145 of 1974) filed by the appellant seeking declaration that he had become full owner of the property in question, the said application was liable to be stayed.

(8) In support of the first contention it was submitted that the decree passed by the Division Bench must be taken to be the decree which the Court of first instance should have passed if it had decided the case correctly. The application (I.A. No. 469 of 1973) was required to be moved in the trial Court regardless of the fact that at the time the said application was made a change had occurred in its pecuniary jurisdiction because a Court docs not cease to exist, by the pecuniary limits of its jurisdiction being altered. Strenuously contending that when a decree for redemption is passed by an appellant Court, execution application is required to be made not to that Court but to the court of first instance and urging that the more reasonable view would be that the proceedings in the appellate Court stood terminated with its decree and any further order which the parties required in order to give effect to their rights as settled by the decree, should he obtained from the Court of first instance on which would devolve the duty of making such an order if a correct decree had been passed in the first instance. Strong reliance was placed on Sheonaram v. Chuni Lal and others, I.L.R. 23 All 88, VenhaUl Krishna Avyar v. Thiagaraya Chitti and others, I.L.R. 23 Mad 521 and Ram Dhani Sahn v. LaUfSmgh and other I. L.R. 31 328. It. was contended that the Court of first instance taking note of the change in its pecuniary jurisdiction would have forwarded the application to tins Court for execution in compliance with the provisions of section 39 of the Code. The said procedure having not been adopted, the proceedings taken in this Court, goes the argument, stood vitiated and the final decree passed was of no consequence to base a follow-up action on it.

(9) With a view to appreciating the contention of the appellant, it would be appropriate to note the provisions of sections 37, 38 and 39 of the Code.

(10) Section 37 defines the ''Court which passed a decree'. It envisages that the said expression 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 pasted 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 jurisdictin to try such suit.

(11) Section 38 provides that a decree may be executed by the court which passed it. or by the Court to which it is sent turn execution.

(12) Section 39 provides for transfer of decree and is as follows : -

'39(1).The Court which passed a decree may, on the application of the decree holder, sent it for execution to another Court

(A)if the person against whom the decree is passed actually and voluntary 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 to satisfy such decree and has property within the local limits of the jurisdiction of such other property. or

(C)if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdietion 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.

(13) A reading of clause (a) of section 37 of the Code admits of no diffculty. The question, however, arises what is meant by the expression 'where the court of first instance has ceased to exist contemplated by clause (b) of the said section. The said expression, without, doubt, envisages the 'abolition or total extinguishmenl' of the court which passed the decree. In other words, what is require. to attract the first part of clause (b) of section 37 is the complete abolition of the court and not the mere alteration in its pecunlary or territorial jurisdiction. The expression 'where the Court of first instance has ceased to have jurisdiction to execute the decree 'envisaged by the second part of clause (b) of section 37, obviously refers to such a decree where the Court loses jurisdiction to execute the decree according to its tenor, In other words where the court has lost jurisdiction to execute the decree in the manner prayed for, such as if the decree is sought to be executed against a person who actually and voluntarily resides or carries on business or personally works for gain within the local limits of the jurisdiction of another court, or the person against whom the decree is sought to be exerted has not property within the local limits of the jurisdiction of the Court which passed the decree to satisfy such decree but has property within the local limits of the jurisdiction of another court or in a case where the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed the decree. In such cases provision is made in section 39 of the Code empowering the court which passed the decree to send it for execution to another court. A combined reading of sections 37 and 38 of the Code makes it clear that a decree may be executed by the court which passed it or by the court to which it is sent for execution. That being the position in law, the court which actually passes the decree does not lose its jurisdiction to entertain execution petition by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another court in which event normally resort has to be made to the procedure contemplated by section 39 of the Code. However, with a view to safeguarding the rights acquired under the decree passed by a court which ceases to have jurisdiction to execute it according to its tenor provision has been made in clause (b) of section 37 of the Code enabling the decree-holder to make an application for execution either to that court or to the court which, if the suit wherein the decree was passed was instituted at the time of making application to execute it, would have jurisdiction to try the suit.

(14) There are authorities in support of the proposition that the court which actually passed the decree does not lose its jurisdiction to encertain the execution petition notwithstanding the fact that its pecuniary jurisdiction had been altered. The court does not cease to exist merely because of the change in its pecuniary jurisdiction (See Ahdus Sattur v. Mohim Mohan Doss and others, : AIR1933Cal684 (5); Surysnwayan Aggarwal v. Maheshwar Keot, A.I.R. 1950 Gua 115; Chandhri Raghunandan Singh v, Narain Daas Balkishan Dass and another. : AIR1960All730 (6); and Masrab Khan v, Debnath Mali Abdar Mali and others, : AIR1942Cal321 (7).

Further, consensus of the judicial opinion is that where a decree is passed in respect of a certain property and subsequent thereto, the area within which the property is situate is transferred to the jurisdiction of another court, the court which actually passed the decree nevertheless does not cease to have furisdiction to entertain an application for execution of the decree. (See Koduru Lalitbamba and others v, Borra Mangamma and others, A.I.R. 1958 A.P. 763GitlntaUi Hamifflayya and others v. Ravella Venkata Subhavya, : AIR1964AP68 ; Vendsa Gopalakrishnu Shamibhogue v. Trasi Gavi Sandaraya Laxman Shunahhogue, A.I.R. 1964 Mys 34; and Shah Shiv Lal Bhogi Lal v. Shah Vandi Lal Dip Chand, : AIR1969Guj141 (11).

(15) The question, however, is what is the correct import of the provisions of clause (b) of section 37 of the Code which enables a Jeerccholdcr to make an application for execution either to the court which actually passed the decree or to the court which, if the suit wherein the decree was passed was instituted at the time of making the application to execute it, would have jurisdiction to try the suit. Section 37 gives a wider meaning to the expression 'the court which passed the decree' for the purpose of executing the decree. The section empowers the court, which could have passed the decree at the time when the execution application is made, to execute the decree in case the court which actually passed the decree ceased to exist or ceased to have jurisdiction to execute it. The view that we have taken finds support from a Division Bench decision of the High Court of Sindh in case, Naraindas Hasrajmal v. Saindad s/o Mohammad Hassain, A.I.R. 1944 Sind 173, wherein it was observed that menifestly, a court other than the court which passed the decree is contemplated by section 37' of the Code. It cannot be debated that the procedure laid down in the Code is intended to facilitate and not to frustrate the execution of decrees. What will be the position if a decree-holder in a decree, on the court which actually passed the decree ceasing to have jurisdiction to execute it, directly files the execution application in the transferee court having power to execute the decree. This question cropped up before a Division Bench of the Madras High Court in case, Vanka'inamidi Balakrishnayya v. Nanna Pain Linga Ruo, A.I.R. 1943 Mad 449. In that case the territorial jurisdiction in respect, of the properties involved in the decree was transferred from the Bapatta Sub-Court to the new Subordinate Judge's Court at Tenali. The decree-holder filed the execution application directly in the court of the Subordinate Judge Tenali. In that connection it was observed, 'the true effect of S. 39 (of the Code) is to recognise the transferee court as having inherent jurisdiction, to sell of deliver properties situate within its territorial limits, but only that jurisdiction is to be invoked by the machinery provided by the section. From this it follows that the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction of the Tenali Sub-Court when proceeding were commenced in it'.

(16) The Supreme Court in case Merla Ramanna v. Nallaparaju and others, : [1955]2SCR938 . (14) approved the view taken by the Madras High Court in Venkamanudi Balakrishanayya's case (supra) Their Lordships observed that it is settled Law that the court which actually passed the decree docs not lose its jurisdiction to execute it, by reason to the subject-matter thereof being transferred subsequently to the jurisdiction of another court. 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.

(17) In Udit Narain Chaudhri v. Ma/hra Parshad, I.L.R. 3.Scale. 974 it was held that the application for execution can be entertained either by the court which passed the decree or the court which at the time of the application had jurisdiction with respect to the subject-matter of the suit.

(18) Reference may also be made here to a decision to the Full Bench of the erstwhile Punjab High Court in Mehar Singh and another v. Kastuti Ram and others, .(16). In that case one 'A' instituted two separate suits for possession and mesne profits of two separate pieces of land against one 'B' and his sons in the court of Sub-Judge IIind Class, Sangrur. The suits were decreed. Both the villages in which the Lands were situated at the time of filing the suits and at the time theh were decreed fell within the territorial jurisdiction of the sub-Judge IInd Class, Sangrur. On the formation of the Patiala and East Punjab States Union in 1948, consequent to the readjustment of the boundaries of the various Tehsils of the Sangrur District. the two villages, in which the land in suits was situated, were attached to Sunam Tehsil under Government notification with the consequence that the said villages ceased lo be within the territorial jurisdiction of Sangrur Courts and fell within the territorial jurisdiction of the Sunam Courts. After the aforesaid changes were made, the decree-holder filed execution applications in the Sunam court where judgment debtors pleaded that the court had no jurisdiction to execute the decrees. The plea was upheld. The decree-holder remained unsuccessful before the District Judge. In appeal, a learned Single Judge of the High Court held that Sunam Court had jurisdiction to execute the decrees. With his leave the judgment-debtors filed Letters Patent Appeals The Division Bench referred the matter to a larger Bench in view of the conflicting decisions of the various High Courts. Before the Full Bench the question canvassed was whether or not the court to which the local area had been transferred after the passing of the decree can directly entertain an application for execution without an order of transfer by the Court which in fact passed the decrees. Taking note of the observations of the Lordships of the Supreme Court in Merla Ramanna's case (supra) and the provisions of sections 37, 38 and 39 of the Code the Full Bench observed, 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 execulc it and he is not limited to seek his relief from the decreeing court only' in which event it is not necessary for the decree-holder to comply with the provisions of section 39 of the Code. We arc in respectful agreement with the view taken by the Full Bench of the Punjab High Court. We, however, want to make it clear that we have considered the above authorities because of the submission made by the appellant on the above lines but we may not be misunderstood in equating the present I.A. (No. 469 of 1973) with an execution application. The present application is entirely by way to independent proceeding for passing a final decree which lie to this Court because of the provisions of the Act to which aspest we will advert to in a subsequent part of this judgment. The first contention advanced on behalf of the appellant has to be negatived in view of the settled law that the Court in whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer and in entertaining an application for follow-up action with reference thereuo it would at the worst be an irregular assumption of jurisdiction and not a total absence of it. No help accordingly can be drawn by the appellant from cases of Sehnarain, Venkata Krishna Ayyai- and Ram Dhuni Sahu ( supra) .(1).

(19) Coming to the provisions of the Act. section 16 thereof prescribes that 'all proceedings pending immediately before the appointed day in any subordinate court in the Union Territory of Delhi in or in relation to any such civil suit as is referred to in sub-section (2) of section 5 shall on that day stand transferred to the High Court of Delhi which shall proceed to try, hear and determine the matter as if it had been pending therein'. Sub-section (2) of section 5 envisages that 'Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit. the value of which exceeds twenty-five thousand rupees'. It may be noted here that by the Amending Act (Act No. 37 of 1969) the said value has been raised to rupees fifty thousand.

(20) In a suit for redemption or foreclosure on the basis of a mortgage the proceedings do not terminate with the passing of the preliminary decree. The suit continues to pend and the lis terminates with the passing of the final decree. In Abdul Karim v. Durga Prasad and others, : AIR1927All305 (17) it was observed that 'from the date fixed for payment by the prelimnary decree, the suit for redemption continues, and during that period the rights of the mortgagor and the mortgagee are governed by the preliminary decree'.

(21) In re: Clligett's Esune Fordham v. Clagett, Vol. Xx Law Reports Chancery Division 45 Vict. (1881-82) page 637,(18), Jassci M.R. observed that the word 'pending matter in any Court' means a cause when any proceedings can be taken in it. The test applied was.if one can take any proceedings in a matter it is 'pending'.

(22) On behalf of the appellant it was contended that the preliminary decree passed by the Division Bench of this Court has to be deemed the deeree of the court of the first instance which in fact was required to be passed by it had it decided the case correctly.That being so. the suit continued to be pending in the Court of first instance as the rights and liabilities of the parties were governed by the preliminary decree. The lis did not come to an end between the parties, the final decree was yet to be passed. Since the suit was pending, in the trial Court on the enforcement of the Act.. the same stood transferred to this Court by virtue of the provisions of section 16 of the Act. Even otherwise sub-section (2) of section 5 of the Act envisages that notwithstanding anything contained in any law for the time being in force the High Court of Delhi shall also have in respect of the Union Territory of Delhi ordinary original eivil jurisdiction in every suit, the value of which exceeds twenty-five thousand rupees (now fifty-thousand rupees). Since this Court also lias ordinary original civil jurisdiction in every suit in respect of the Union Territory of Delhi, the value of which exceeds fifty thousand rupees, the application (1.A. 469 of 1973) was otherwise also entertainable by this Court. Examined from any angle the contention sought to be urged by the appellant, being without any merit, has to be rejected.

(23) We do not find any substance in the other contention that a final decree should not have been passed and that the proceedings should have been stayed because the appellant has chosen to file a suit (No. 145 of 1974) seeking declaration that he had become full owner of the property in question.

(24) In view of our discussion on the various points, noted above, the appeal is dismissed with costs.


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