T.C. Raghavan, J.
1. Respondents 5, 7, 10 and 16 to 19 in an execution petition are the appellants and the decree-holder the respondent. The decree sought to be executed was passed by the Subordinate Judge's Court of Kasaragod against three defendants, the second defendant being the karanavan of their tarwad. After the decree the tarwad was partitioned; and the 22 respondents in the execution petition were all the members of the entire tarwad. At the time of the partition, all the major members of the tarwad executed an unregistered agreement, Ex. B-3, wherein all the binding debts were included with directions as to who should discharge which of them. The decree sought to be recovered in this proceeding was also included in Ext. B-3; and it was directed to be repaid by the lavazhi of the appellants. The respondent obtained the decree transferred from the Subordinate Judge's Court, Kasaragod to the Court of the Munsif-Magistrate at Hosdrug. There was another execution petition pending then in that Court against the tarwad of the appellants; and the respondent filed an application for rate able distribution. An amount of Rs. 379.25 p. was also paid towards this decree. Thereafter, the respondent applied for attachment of some items of properties, when the appellants and others objected. The execution Court overruled the objections and directed attachment, against which an appeal was preferred by the appellants to the Court of the Subordinate Judge, Kasaragod, which was also dismissed. Hence the second appeal.
2. Two or three objections were raised before the lower Courts; and the same have been reiterated before me. One of them is that the decree was not passed against the tarwad, but was only against the three named defendants; and therefore, the impleading of the other members by the transferee Court was illegal. I do not find much substance in this contention, because it appears that the second defendant was impleaded in the suit as karanavan of the tarwad. The recitals in Ex. B-3 also add strength to this conclusion, because the debt was accepted by all the major members of the tarwad as a binding debt of the tarwad and it was also directed that the appellants' tavazhi should repay it. If so, the debt was binding on the entire tarwad; and impleading the other members of the tarwad in execution was not really impleading new parties, but was only impleading the tarwad itself so as to obviate further trouble in view of the subsequent partition.
3. Another objection is that the decree was once sent back by the Munsif's Court to the Subordinate Judge's Court and later on it was obtained back from there by the Munsif's court. Though the counsel of the appellants has raised this also, no serious argument has been advanced on this.
4. The only serious contention, which requires consideration by this Court, is whether the transfer of the decree by the Subordinate Judge's Court, which passed the decree, to the Munsif's Court is right. The properties sought to be attached are within the original jurisdiction of the Subordinate Judge's Court, Kasaragod as well as the jurisdiction of the Munsif's Court, Hosdrug. The amount involved in the decree is beyond the pecuniary jurisdiction of the Munsif; and the decree itself, as already stated, was passed by the Subordinate Judge's Court. In view of these circumstances, it is urged that the Munsif had no jurisdiction to execute the decree. The lower Courts have followed an old decision of the Madras High Court in Shanmuga Pillai v. Ramanathan Chetti (1894) ILR 17 Mad 309. Some decisions of some other High Courts taking a contra view appear to have been cited before the lower Courts; but the lower Courts have preferred to follow the decision of the Madras High Court. The only question for me to consider is whether this is correct.
5. Arguments have proceeded on the basisthat the transfer of the decree was under Section 39(1)(d) of the Code of Civil Procedure.In such a case three views are possible: (1)the decree can be transferred only to a Courtwhich has pecuniary jurisdiction to try the suitwhich resulted in the decree; (2) the decreecan be transferred to a Court which haspecuniary jurisdiction to try the suit of thevalue of the decree sought to be executed; and(3) the decree can be transferred to any Courtdisregarding its pecuniary jurisdiction, e.g., evena decree beyond the pecuniary jurisdiction ofa Munsif can be transferred to him for execution.
6. For all the three positions there are decisions. The Calcutta and the Patna High Courts are of the first view :vide Durgo Charan Mojumdar v. Umatara, supra, (1889) ILR 16 Cal 465; Mt. Anchahi v. Firm Birjmohan Lall, Madan Lall, AIR 1936 Pat 177; and Firm Ganeshdas Badrinarain v. Amulluk Chand, AIR 1940 Cal 161. Some of the decisions of the Allahabad High Court also take this view: for example, vide Sita Ram Raj v. Madho Prasad, ILR 1939 All 97: (AIR 1939 All 57). The second view is expressad again by the Allahabad High Court in later decisions like Shanti Lal v. Mt. Jamni Kuer, ILR, 1940 All 318: (AIR 1940 All 331); and Kedar Nath Jai Prakash v. Chhajju Mal Sumerchand, AIR 1962 All 586. The third view mentioned above is expressed by the Madras High Court in a few old cases like Narasayya v. Venkatakrishnayya, (1884) ILR 7 Mad 397: (1894) ILR 17 Mad 309; Vlazorath Kibula v. Ghulam Ghore, (1910) 5 Ind Cas 155 (Mad) and Abdulla Sahib v. Ahmed Hussain Sahib, AIR 1914 Mad 206 (1).
7. In view of this divergence of judicial opinion, I shall consider the question of the wording of Section 39 and some other provisions of the Code of Civil Procedure. Section 39(1) deals with transfers of decrees on the application of the decree-holder; and Subsection (2) of the section deals with suo motu transfers of decrees by Courts which passed them to subordinate Courts, Section 39(1) docs not appear to restrict the transfer to any particular Court, whereas Sub-section (2) says that the Court which passed the decree may send it for execution to any 'subordinate Court of competent jurisdiction.' The reasoning of the Madras High Court on the basis of this difference in wording is that in the case of transfer of a decree on the application of a decree-holder, the Court which passed the decree may transfer it to any other Court irrespective of its pecuniary jurisdiction. In other words, a Subordinate Judge's Court may transfer a decree passed by it to a Munsif's Court. The Calcutta and the Patna High Court interpret the expression 'another Court' in Section 39(1) to mean a Court of equal jurisdiction as the Court which passed the decree. In this connection, Section 6 of the Code may furnish some light. Section 6, dealing with pecuniary jurisdiction of Courts, provides that nothing contained therein shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits of its ordinary jurisdiction. The Calcutta and the Patna High Court interpret the word 'suits' in this section to include execution proceedings as well. In my opinion this interpretation need not be resorted to. Section 24 of the Code, dealing with the general power of transfer or withdrawal, indicates that wherever the legislature intended to include other proceedings as well, clear words were used. When a High Court or a District Court transfers of withdraws, it is specifically provided that it may transfer or withdraw any suit, appeal or other proceeding. I am of opinion that the word 'suits' in Section 6 of the Code need not be interpreted in such a way as to include execution cases. In view of this also I am inclined to think that the intention of the legislature might not have been to continue execution of decrees within the pecuniary limits of particular Courts. Therefore a decree passed by the Subordinate Judge may be transferred for execution on the application of the decree-holder to a Munsif.
8. I shall now consider the other view expressed by the later Allahabad rulings: that though a decree passed by a Subordinate Judge may be transferred to a Munsif, it may be done only if the decree remaining to be executed falls within the pecuniary limits of the latter. This is a via media. But, I do not think there is any legal basis for adopting this course. I reiterate that the view of the Madras High Court is more in conformity with the provisions of the Code of Civil Procedure; and that the legislature probably intended it deliberately.
9. Another argument has been attempted by the counsel of the appellant on the basis of the subordination of Courts under Section 3 of the Code. As I understand it, the argument is that under Section 3 the District Court is subordinate to the High Court and every Civil Court of an inferior grade to that of a District Court and every Court of small causes is subordinate to the High Court and the District Court. From this the counsel argues that the subordinate Court of competent jurisdiction mentioned in Section 39(2) can only be such a subordinate Court as contemplated by Section 3. The effect will be that a suo motu transfer of a decree can arise only in the case of a decree passed either by the High Court or by the District Court in cases probably falling under Section 24 of the Code. In such a case if the decree is transferred to any subordinate Court, the transferee Court must be a Court of competent jurisdiction. It may then follow that the Subordinate Judge has no power to transfer a decree suo motu, because the Munsif is not subordinate to him under Section 3; and that when the Subordinate Judge transfers a decree to a Munsif on the application of the decree-holder, it is not because the Munsif is subordinate to the Subordinate Judge, but because the Munsif's Court is 'another Court.' In other words, suo motu transfer of decrees can arise only if the High Court on the District Court passes decrees. At any rate, this question does not directly arise in this case, as the transfer herein was on the application of the decree-holder.
10. From the foregoing discussion I amsatisfied that the decision of the lower Courtsis correct. The second appeal is dismissed withcosts.