Skip to content


Arjan Singh Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberOriginal Miscellaneous Petition No. 1312 of 1967 and Original Miscellaneous Appeal No. 434 of 1967
Judge
Reported inILR1973Delhi933
ActsDelhi High Court Act, 1966 - Sections 5; Code of Civil Procedure (CPC), 1908 - Sections 39
AppellantArjan Singh
RespondentUnion of India
Advocates: Shyam Kishore and; B.Kirpal, Advs
Cases ReferredIn Vandse Gopalakrishna Shanabhogue v. Trasi Gavi Sandraya Laxman Air
Excerpt:
the case focused on the application filed under order 9 rule 13 of the civil procedure code, 1908, for setting aside ex parte decree passed by the subordinate court - the said order was passed prior to the enactment of delhi high court act, 1966 - it was ruled that only the high court had the jurisdiction to entertain all those application in suits which were decreed by the subordinate courts prior to 31st october, 1966 and the valuation of which were more than twenty five thousand rupees - thereforee, in the instant case, it was ruled that the delhi high court had the jurisdiction to execute the decree but jurisdiction of the subordinate court would depend upon directions rendered by the high court under section 39(2) of the civil procedure code, 1908 - - kirpal who appeared for union.....prakash narain, j. (1) an exparte decree in favor of union of india and against arjan singh for recovery of rs. 47,521/7.00 was passed on 14-4-1960 by the court of shri v. b. bansal, sub judge 1st class, delhi. the delhi high court act, 1966 came into effect from october 31, 1966. on 17-4-1967, the union of india moved an execution application (o.m. 434/67) in this court to execute the decree passed by the court of shri v. b. bansal, sub judge 1st class, delhi. notice of this execution application was issued to the judgment debtor, arjan singh- after notice had been served on arjan singh he moved an application under order 9, rule 13(1) read with section 151 of the code of civil procedure in the court of shri v. b. bansal, sub judge 1st class, delhi, to set aside the exparte decree passed.....
Judgment:

Prakash Narain, J.

(1) An exparte decree in favor of Union of India and against Arjan Singh for recovery of Rs. 47,521/7.00 was passed on 14-4-1960 by the Court of Shri V. B. Bansal, Sub Judge 1st Class, Delhi. The Delhi High Court Act, 1966 came into effect from October 31, 1966. On 17-4-1967, the Union of India moved an execution application (O.M. 434/67) in this Court to execute the decree passed by the Court of Shri V. B. Bansal, Sub Judge 1st Class, Delhi. Notice of this execution application was issued to the judgment debtor, Arjan Singh- After notice had been served on Arjan Singh he moved an application under Order 9, Rule 13(1) read with Section 151 of the Code of Civil Procedure in the court of Shri V. B. Bansal, Sub Judge 1st Class, Delhi, to set aside the exparte decree passed against him. On 21-7-1967 Arjan Singh filed objections to the execution application filed in this Court. The learned Sub Judge sent the application under Order 9 Rule 13 Civil Procedure Code moved by Arjan Singh to the High Court on the ground that he had no jurisdiction to take further proceedings in the application after the provisions of the Delhi High Court Act had come into operation. On September 19, 1967 the Deputy Registrar of this Court registered the application of Arjan Singh and ordered notice to the Union of India for 20-10-1967.

(2) The Union of India filed a reply to the application and, interalia, raised the plea of limitation, Om Parkash, J. on 19-12-1967 framed an issue on the application of Arjan Singh as to whether the same was within time. The Union of India also filed a reply to the objections filed by Arjan Singh against the execution application moved by Union of India. S. N. Andley, J. framed an issue in the execution proceedings as to whether the objections of Arjan Singh were competent and also clarifying the issue framed on the application of Arjan Singh under Order 9 Rule 13 of the Code of Civil Procedure as to whether the application for setting aside the exparte decree was within time. Both these matters came up before me, when two points arose for consideration, namely,

(A) If a decree was passed by the Court of a Subordinate Judge in Delhi before 31-10-1966, whether after 31-10-1966 the application for setting aside the exparte decree lay to the court of the Subordinate Judge or whether it was to be filed in the High Court.

(B) Whether in a suit decreed before 31-10-1966, in view of the provisions of the Delhi High Court, an execution application or any other application was to be moved in the High Court or in the Court which passed the decree if such application was moved after 31-10-1966

(3) The contention on behalf of Union of India was that the execution application could be filed only in the High Court, even though the decree was passed by the Subordinate Judge, once the provisions of the Delhi High Court Act had come into operation. On the point of the Court competent to entertain and decide the application under Order 9 Rule 13 of the Code of Civil Procedure the contention on behalf of Union of India was that it was only the court which passed the decree which could set aside the same. The contention on behalf of Arjan Singh was that once the Subordinate Judge's Court ceased to have pecuniary jurisdiction in suits of the valuation of more than Rs. 25,000.00 and that jurisdiction was conferred on the High Court, this Court could entertain and decide the application under Order 9 Rule 13 of the Code of Civil Procedure, but the Court which originally passed the decree never ceased to have jurisdiction and could also entertain and decide that application. With regard to execution the contention was that the Court which originally passed the decree alone could entertain an execution application. A number of decisions were cited on behalf of both the parties which I considered in my order making a reference to the Full Bench. It is not necessary to recapitulate the entire discussion in that order. As there was a conflict of opinion in the various judicial pronouncements, on a reference being made by me, my Lord Chief Justice constituted a Full Bench to consider the following two questions :-

(A) in which Court all future application whether seeking execution or any other relief should be moved where a decree for more than Rs. 25,000.00 has been passed by a Subordinate Judge prior to 31-10-1966; and

(B) Whether Section 16 read with Section 5 of Delhi High Court Act contemplates execution proceedings pending on 31-10-1966 as falling within the ambit of proceedings which stand transferred to the High Court by virtue of Section 16 of the Delhi High Court Act, if the same were pending before a Subordinate Judge on 31-10-1966-

(4) As the matter was of some importance we requested Mr. Shyam Kishore, Advocate to assist the Court and he agreed to appear amicescurie. We must express our great appreciation for the assistance that he has rendered us and compliment both him and Mr. B. N. Kirpal who appeared for Union of India on their industry as well as fairness with which they have argued the matter.

(5) Before I proceed to discuss the various cases cited before us it will be necessary to read a few provisions of the Delhi High Court Act, 1966 and the Code of Civil Procedure. The only three provisions of the Delhi High Court Act, which are relevant for our purpose are Sections 5, 16 and 19. These read as under:-

S. 5(1) The High Court of Delhi shall have, in respect of the territories for the time being included in the Union territory of Delhi, all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab.

(2)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.

S. 16. 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.

S. 19. The laws specified in the Schedule shall be amended in the manner and with effect from the date specified therein.

(6) The relevant part of the schedule of the Delhi High Court Act, 1966 which may be read, is as under:-

'1. As from the appointed day, in the Punjab Courts Act, 1918, as in force in the Union territory of Delhi:-

(I) in section 25, for the words 'in original civil suits without limit as regards the value', the words 'in every original civil suit the value of which does not exceed twenty-five thousand rupees' shall be substituted ;

(II) in section 26, for the words 'the jurisdiction', the words and figures 'subject to the limit specified in section 25, the jurisdiction' shall be substituted.

(7) The provisions of the Code of Civil Procedure which are relevant for our purposes are Sections 37, 38, 141, 150 and Order 9 Rule 13. Serialtum these read as under :-

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 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 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 141. 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.

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.

Ordered Rule 13 : In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.'

(8) It will also be necessary to read section 25 of the Punjab Courts Act which has been amended by Schedule I to the Delhi High Court Act. The unamended section 25 of the Punjab Court's Act reads as under :-

'25. Except as otherwise provided by any enactment for the time being in force, the Court of the District Judge shall have jurisdiction in original civil suits without limit as regards the value.'

(9) I will first take up the question vis-a-vis the application under Order 9 Rule 13 of the Code of Civil Procedure and comment upon the proposition as to whether in the circumstances like the present case, it lay to the Court which originally passed the ex parte decree or to the High Court. When such an application is moved in a Civil Court, there can be no doubt that the Court would, be exercising original civil jurisdiction in respect of the suit the ex parte decree passed in which is sought to be set aside. If a Court in which such an application is moved either does not have or ceases to have civil jurisdiction in respect of the suit the value of which exceeds rupees twenty five thousand, such a Court would not be able to entertain or decide the application under Order 9 Rule 13 of the Code of Civil Procedure. The difficulty that arises is because of the phraseology of Order 9 Rule 13 of the Code of Civil Procedure which provides that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside. The point in issue, thereforee, is, which would be the Court which passed the decree in a case like the present one The Delhi High Court Act does not in terms provide for a contingency where no proceedings in the suit were pending on October 31, 1966 in the Subordinate Courts. We have, thereforee, to read the provisions of the Code of Civil Procedure to find out which court would be regarded as the Court that passed the decree in such a situation. In my view Section 150 of the Code of Civil Procedure read with Section 5(2) of the Delhi High Court Act makes the position absolutely clear. Under Section 150, of the Code of Civil Procedure 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 the Code upon the court from which the business was so transferred. On a reading of sub-section (2) of Section 5 of the Delhi High Court Act, the legislative intent is absolutely clear that what was transferred to the High Court was the business of the subordinate Courts in suits of the valuation of more than twenty five thousand rupees. Obviously, when a Court ceases to have pecuniary jurisdiction to entertain or try a suit and cannot pass any decree therein, it cannot also entertain or adjudicate upon an application to set aside the decree it passed when it did have jurisdiction to try a suit the valuation of which was more than rupees twenty five thousand.

(10) Words similar to those found in Order 9 Rule 13 also occur in Order 47 Rule I where an application for review of judgment is provided to the Court which passed the decree or made the order. It cannot be said by any stretch of imagination that a court which has ceased to have pecuniary jurisdiction to try a suit could by review of its previous judgment pass a decree in a suit of the valuation of more than twenty five thousand rupees which it had previously dismissed. Such a review application can lie only to the court which is competent to pass the decree. It follows, thereforee, that although Section 16 of the Delhi High Court Act provides for transfer of only pending proceedings, sub-section (2) of Section 5 of the Delhi High Court Act read with Section 150 of the Code of Civil Procedure makes it clear that all future applications in a decided 'suit, except for execution applications with which we will deal hereafter, have to be moved in the Court which would be competent to entertain and try the suit if the suit was filed after 31st October, 1966. We, thereforee, hold that the only court which was competent to entertain Arjan Singh's application under Order 9 Rule 13 read with Section 151 Code of Civil Procedure was the High Court.

(11) I now come to the question of the Court in which execution applications have to be filed, if in between the passing of a decree and the filing of the execution application, the Court which originally passed the decree ceased to have pecuniary jurisdiction to entertain or try a suit in the circumstances set out in the Delhi High Court Act.

(12) We have already read the relevant provisions of the Code of Civil Procedure. Section 38 of the Code has to be read first. It lays down that the decree may be executed by the Court which passed it or by the Court to which it is sent for execution. We are not concerned here with the expression 'the Court to which it is sent for execution' because that obviously refers to transmission and transfer of decrees and no such question arises in the present case. What we are concerned with is the expression 'the Court which passed it'. This expression is defined by Section 37 of the Code and what we are concerned with is to interpret clause (b) of Section 37.

(13) As far as the jurisdiction of the Subordinate Judge to entertain the execution application in a case like the present one is concerned, the law, in our view, has been settled by the Supreme Court in Merala Ramanna v. Nallaparaja and others, : [1955]2SCR938 . In that case a decree was passed by the Subordinate Judge of Kakinada which was challenged by a suit filed in the District Court, East Godavari to which Court the Court of the Subordinate Judge Kakinada was Subordinate. The question that arose for consideration was whether the suit was filed in a court which had jurisdiction to execute the decree passed by the Subordinate Judge of Kakinada. When the suit, in which the decree was passed, was instituted, the District Court East Godavari had jurisdiction over the properties which were the subject matter of the second suit. In this view of the matter the Supreme Court held as under :-

'THE next question for. consideration is whether the present suit was filed in a Court which had jurisdiction to execute the decree in O.S. No. 25 of 1927. That was a decree passed by the Subordinate Judge of Kakinada, whereas the present suit was filed in the District Court, East Godavari to which the Court of the Subordinate Judge of Kakinada is subordinate. ' Section 38, Civil Procedure Code provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution.

The District Court of East Godavari is neither the Court which passed the decree in O.S. No. 25 of 1927 nor the Court to which it had been sent for execution. But it is common ground that when the present suit was instituted in the District Court, East Godavari, it had jurisdiction over the properties, which are the subject-matter of this suit. It is true that by itself this is not sufficient to make the District Court of East Godavari the Court which passed the decree for purpose of Section 38, because under S. 37, it is only when the Court which passed the decree has ceased to have jurisdiction to execute it that the Court which has jurisdiction over the subject-matter when the execution application is presented can be considered as the Court which passed the decree.

And it is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court. Vide- Seeni Nadan v. Muthuswamy Piallai Air 1920 Mad 427 , Masrab Khan v. Debnath Mali : AIR1942Cal321 and 'Jaganath v. Ichharam' Air 1925 Bom 414. But does it follow from this that the District Court, East Godavari has no jurisdiction to entertain the execution application in respect of the decree in O.S. No. 25 of 1927 passed by the Court of the Subordinate Judge, Kakinda

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, 6 Calcutta 513, Jahar v. Kamini Devi, 28 Calcutta 283 and Udit Narain v. Mathura Prashad, 35 Calcutta 974. But in-Ramiar v. Muthukrishna Ayyar Air 1932 Mad 418, 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 expressed in-Ramiar v. Muthu Krishna Ayyar Air 1932 Mad 418 is correct, the present case is governed by the principle laid down in- Balakrishna v. Linga Rao Air 1943 Mad 499

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.

That precisely is the position here. We have held that the allegations in the plaint do raise the question of excessive execution, and it was, thereforee, open to the appellant to have raised the plea that the suit was barred by Section 47, and then, there could have been no question of waiver. We have, it is true, permitted the appellant to raise the contention that the present suit is barred by Section 47, and one of the reasons, thereforee, is that the allegations in the plaint are so vague that the appellant might have missed their true import. But that is not a sufficient ground for relieving him from the consequence which must follow on his failure to raise the objection in his written statement.

We agree with the decision in Air 1943 Mad 449, and hold that the objection to the District Court entertaining an application to execute the decree in O.S. No. 25 of 1927 is one that could be waived and not having been taken in the written statement is not now available to the appellant. There is thus no legal bar to our treating the plaint presented by the respondents on 7th August, 1939 as an execution application under Section 47, and in the interests of justice, we direct it to be so treated. But this should be on. terms.

We cannot ignore the fact that it is the gross negligence of the respondents at all stages that has been responsible for all the troubles. They did not appear in the suit, and put forward their rights under Exhibit A. They intervened at the stage of execution, but their complaint was mainly that the 'exparte' decree had been obtained by fraud, a plea which has now been negatived.

Even in this suit, they did not press the plea on which they have succeeded until they came to the High Court. Under the circumstances, we think it just that they should be deprived of all claims for mesne profits down to this date.'

This was a case in which the subject-matter of the decree came to fall within the jurisdiction of a Court, other than the Court which had originally passed the decree. On the ratio of this judgment the Court which passed the decree would continue to have jurisdiction whether or not the other Court has jurisdiction. Their Lordships left it undecided as to whether the other Court would have jurisdiction to entertain an execution application.

(14) As noticed in the reference order, a Full Bench of the Punjab High Court in 'Mehar Singh and another v. Kasturi Ram & others' dealt with the question as to whether the Court which passed the decree alone has jurisdiction to entertain an execution application or whether another Court which also acquires jurisdiction or has jurisdiction conferred upon it, can also be the proper Court in which the execution application can be filed. That was also a case of redistribution of territorial jurisdiction. The Full Bench held that where after a decree for possession of property and mesne profits has been passed, the local area, in which the property is situated, is transferred to a different Court so as to fall within the jurisdiction of a different Court, it is open to the decree-holder to apply for execution of the decree in the latter court, to which the local area has been transferred, and the Court can directly entertain an application for execution without an order of transfer by the Court which had in fact passed the decree. It was further observed by their Lordships that the object and the purpose of Sections 37 to 39 along with other provisions occurring part Ii is to facilitate execution of decrees. Besides the fact that a decree holder should be able to recover what has been held to be due to him by Court, 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 P.C. for executing decrees is intended to facilitate and not to obstruct their execution provided that the judgment-debtor is not put to undue and unnecessary harassment. thereforee, these provisions should not be so construed as to impede execution of decrees 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. It was further observed that Section 37 and 38 when construed according to the language used therein empower the decree holder to file an execution application either in the Court that actually passed the decree or in the Court that can effectively execute it and in the later case it is not necessary to comply with the provisions of Section 39 of the Code.

(15) The Full Bench had approved of an earlier Single Bench decision of the Punjab High Court given by G. D. Khosia J. (as his Lordship then wa.s) in Kasluri Ram and another v. Mehar Singh and mother. and had really based their decision on the observations of the Supreme Court in Meria Rammanna's case. I am in respectful agreement with the view of the Full Bench of the Punjab High Court. The expression 'jurisdiction to execute it' as used in clause (b) of Section 37 of the Code of Civil Procedure does mean and include the competency of a court to entertain an application for execution of the decree. Even, if in the circumstances of a particular case, a Court cannot effectively execute the decree, that would not mean that it does not have jurisdiction to execute it. It remains a Court competent for the purpose of execution though the decree-holder might have to apply for transmission of the decree to another Court for obtaining relief. Sub-section (2) of Section 5 of the Delhi High Court Act confers ordinary original civil jurisdiction in every suit, the value of which exceeds rupees twenty five thousand. Execution of a decree is in the exercise of ordinary original Civil jurisdiction in a suit though the suit stands decreed. Section 38 of the Code of Civil Procedure expressly provides that the Court which passed the decree can execute it. There is no conflict of jurisdiction and the correct position would be that since the passing of the Delhi High Court Act, a Subordinate Court, which passed a decree prior to 31st October, 1966 and the High Court would have concurrent jurisdiction to execute the decree passed in a suit of the valuation of more than twenty five thousand rupees. A question was posed whether same rule would also apply to decrees passed by the Delhi High Court in suits of the valuation of more than twenty five thousand rupees but up to rupees fifty thousand, in view of the later amendment by which now the jurisdiction of the Delhi High Court is to entertain suits of the valuation of more than fifty thousand rupees. It is not necessary for the purposes of this case to dwell at any great length on this aspect for, in such suits, the Delhi High Court would have jurisdiction to execute the decree but the jurisdiction of Subordinate Courts would depend upon the directions that the High Court may give under Sub-section (2) of Section 39 of the Code of Civil Procedure.

(16) I may now notice some of the other cases which were cited at the Bar. In Aminuddin Mullick v. Atormoni Dasi and others A.I.R. 1920 Cal 532 a bench of the Calcutta High Court was dealing with a case where a preliminary mortgage decree for a sum of nearly Rs. 2,000.00 was obtained in the Court of Munsif who had power to try suits up to the value of Rs. 2,000.00. Subsequently the Munsif having been transferred and his successor not having been vested with powers to try suits up to that value, the final decree in the case was made by the Subordinate Judge. The decree-holder, however, applied for execution of the decree before the Munsif who had, in the meantime, been empowered to try suits up to the value of rupees two thousand. It was held that the Munsif had power to execute the decree under Section 150.

(17) In J. V. Srinivasa Rao, minor by father and next friend J. V. Ranganatha Rao v. Hanumantha Rao and others, Air 1922 Mad 10 a bench of the Madras High Court was dealing with the question of jurisdiction of the Court which can entertain an application under Order 9 Rule 13 Code of Civil Procedure and compared it with the phraseology of Section 37 of the Civil Procedure Code. Both the learned Judges held that where the business of a Court is transferred to another Court within the meaning of Section 150 of the Code, the latter Court would have jurisdiction to entertain an application under Order 9 Rule 13 Civil P. C. The obiter dicta of Spencer, J. that the Court which passed the decree originally would also have jurisdiction, cannot really be taken as a decision on the point for what their Lordships were really considering was the construction to be placed on Section 37 of the Code and were unanimous in then- decision that the Court by which the decree was passed cannot be taken to be limited to the original court.

(18) A Special Bench of the Madras High Court in Ramier v. Muthu Krishna Ayyar and others, Air 1932 Mad 418 had to deal with the question of the jurisdiction of the Court where territorial jurisdiction had been readjusted during the period intervening between the passing of the decree and the filing of the execution application. It was held that where after the passing of a decree there is a re-arrangement of jurisdiction by reason of the High Court notification, as a result of which the suit properties came within the jurisdiction of another Court, the first Court has jurisdiction to execute its own decree and unless the language of the High Court Notification effecting the change of venue is explained it could not be interpreted as effecting the transfer of a -past business under Section 150 of the Civil Procedure Code. It was urged that the decision in the Full Bench of the Madras High Court was contrary to the Punjab Full Bench inasmuch as the High Court Notification referred to in that case was analogous to Section 16 of the Delhi High Court Act. We cannot agree with this contention. The Special Bench of the Madras High Court was really dealing with the argument aimed at striking down the jurisdiction of the first Court. On a plain reading of Section 38 of the Code and in view of the law settled by the Supreme Court, the first Court would always have jurisdiction to execute its decree and the other Court in the present case gets jurisdiction because of what we have already observed earlier.

(19) In Masrab Khan v. Debnath Mali : AIR1942Cal321 also the bench of the Calcutta High Court held that the Court which passed the decree continues to be the competent Court for purposes of execution, but we cannot agree, and we say it with respect with the view propounded that on redistribution of business the second Court would not have any jurisdiction within the meaning of Section 150 of the Code of Civil Procedure.

(20) In Jugal Charon Mondal v. Smt. Pankajini Dasi, 0043/1961 : AIR1961Cal183 , a bench of the Calcutta High Court held that the Court which competently passed a decree does not lose jurisdiction to execute it, merely by reason of loss of territorial or pecuniary jurisdiction in the meantime, though this 'jurisdiction to execute' may mean to transfer it to the proper Court for execution having territorial and pecuniary jurisdiction in the matter. In some cases the question of transfer may arise under Section 39 of the Code but where the business of a Court or part of a business is transferred to another Court, there will be no question of transferring the decree for execution. In such a case, by virtue of the provisions of Section 38 of the Code of Civil Procedure, the Court which passed the decree originally would have jurisdiction, while the other Court would have jurisdiction in view of the provisions of Section 150 of the Code.

(21) In Vandse Gopalakrishna Shanabhogue v. Trasi Gavi Sandraya Laxman Air 1964 Mysore 34 (15), a view contrary to the one propounded by the Full Bench of the Punjab High Court in has been taken. It was held that the Court which passed the decree would continue to have jurisdiction to execute it but a Court which is established subsequent to the passing of the decree would not get jurisdiction to execute a decree unless the decree was sent to it for execution under Section 39 of the Code. A money decree had been passed by the court of the Subordinate Judge at Mangalore. It was sought to be executed in the Court of the Sub Judge at Udipi. The question that arose was whether the business of the Mangalore Court had been transferred to the Court at Udipi. On a construction of the relevant notification it was held that no pending business of the Court at Mangalore was transferred to the Udipi Court. The controversy arose on account of a Government notification creating a Court at Udipi and readjusting the local limits of the jurisdiction of the Mangalore Court. In these circumstances it could well be said that no business of the Mangalore Court was transferred to the Udipi Court. This is quite unlike the provisions of the Delhi High Court Act whereunder the business of the Subordinate Courts in suits of the valuation of more than twenty five thousand rupees was transferred to the High Court.

(22) The result is that I answer the reference made to us in the following terms :-

(A) All applications under the Code of Civil Procedure other than execution applications in suits which have been decreed by the Subordinate Courts prior to 31st October, 1966, the valuation of which suits was more than twenty five thousand rupees it will be the High Court which will have jurisdiction to entertain and try the same;

(B) execution applications in suits decreed by the Subordinate Courts which had a valuation of more than twenty five thousand rupees prior to 31st October, 1966 can be entertained by the Court which actually passed the decree or the High Court though the jurisdiction to execute the decree may mean any entertaining the application and then transfer of the application to the proper court for execution having territorial or pecuniary jurisdiction in the matter.

(23) We make no orders as to costs of the present proceedings. Both the applications should now come up for further proceedings before the Single Judge on 16th July, 1971. S.N. Andley, J.- I agree. B.C. Misra, J.- I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //