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Shah Shivlal Bhogilal Vs. Shah Vadilal Dipchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 480 of 1963
Judge
Reported inAIR1969Guj141
ActsCode of Civil Procedure (CPC), 1908 - Sections 37, 38, 39, 47 and 150; Limitation Act - Sections 14; Code of Civil Procedure (CPC), 1882 - Sections 649
AppellantShah Shivlal Bhogilal
RespondentShah Vadilal Dipchand
Appellant Advocate Mangaldas N. Shah, Adv.
Respondent Advocate N.V. Karlekar, Adv.
DispositionAppeal allowed
Cases ReferredJagannath Nathu v. Ichha
Excerpt:
.....of limitation act and sections 649 of civil procedure code, 1882 - second appeal against order of civil judge dismissing execution application on ground of lack of jurisdiction - court which actually passed decree does not lose its jurisdiction to execute it by reason of subject matter thereof being transferred subsequently to jurisdiction of another court - sections 37 and 38 empowers decree-holder to file execution application either to court that actually passed decree or to court that can effectively execute it - court to whose jurisdiction subject matter of decree transferred acquires inherent jurisdiction over the same by reason of transfer - both court would have jurisdiction to entertain application for execution - order passed by civil judge liable to be set aside. - - the..........civil appeal no. iii of 1962 of his court, thereby upholding the decision of the court of the civil judge (junior division), harij, mehsana district, given in civil execution application no. 10 of 1961 of his court by the said order, the learned civil judge at harij had dismissed the execution application on the ground that it was only the court passing the decree, viz., the court of the civil judge (junior division), chanasma, which had the jurisdiction to entertain and try the execution application and that the harij court had no such jurisdiction.2. the appellant-decree-holder had obtained a money decree against the present respondent (judgment-debtor) in civil suit no. 40 of 1952, which was modified by the learned district judge,mehsana, in civil appeal no. 47 of 1954 by a.....
Judgment:

M.U. Shah, J.

1. This appeal Is filed by the original decree-holder against the decision of the Court of the District Judge, Mehsana, given in Regular Civil Appeal No. III of 1962 of his Court, thereby upholding the decision of the Court of the Civil Judge (Junior Division), Harij, Mehsana District, given in Civil Execution Application No. 10 of 1961 of his Court By the said order, the learned Civil Judge at Harij had dismissed the execution application on the ground that it was only the Court passing the decree, viz., the Court of the Civil Judge (Junior Division), Chanasma, which had the Jurisdiction to entertain and try the execution application and that the Harij Court had no such Jurisdiction.

2. The appellant-decree-holder had obtained a money decree against the present respondent (judgment-debtor) in Civil Suit No. 40 of 1952, which was modified by the learned District Judge,Mehsana, in Civil Appeal No. 47 of 1954 by a decree passed on July 15, 1958. The decree passed in favour of the present appellant was for recovering a sum of Rs. 6,124-6-0 with costs and Interest from the present respondent During the pendency of the appeal before the District Court, a new Civil Court, viz., the Court of the Civil Judge (Junior Division) at Harij was constituted and this was by a notification Ex. 22 of the State Government, bearing No. CRC 2154/39/154/III published in the Government Gazette. Part IV-A, on April 2, 1957. By the said notification, it was provided that there shall be a Civil Court subordinate to the District Court, Mehsana, at Harij, and that the said Court shall be presided over by a Civil Judge (Junior Division) who shall hold his Court at Harij. It was provided that the local limits of the ordinary Jurisdiction of the Civil Judge (Junior Division), Harij, shall comprise the areas within the limits of Sami and Harij Mahals. It was further provided that the whole of the Harij Mahal heretofore included within the local limits of the ordinary jurisdiction of the Civil Judge (Junior Division), Chanasma, shall be excluded therefrom. By Office Order No. 56 of 1957, produced at Ex. 23, dated March 18, 1957, the learned District Judge had ordered that all civil suits, darkhasts, miscellaneous applications, B.A.D.R. applications and other proceedings of civil nature pending for hearing on March 31, 1957, after office hours in the Court of the Civil Judge (Junior Division), Chanasma, arising from area within the limits of Harij Mahal stand transferred to the Court of Civil Judge (Junior Division), Harij, with effect from the 1st April 1957. This latter order was made for transfer of business. It is not in dispute that the parties to the suit resided within the limits of Harij and that the cause of action had also arisen within the said limits. It was after the territorial Jurisdiction in respect of the Harij area was transferred to the newly constituted Civil Court of the learned Civil Judge at Harij that the appellant (decree-holder) had filed Civil Execution Application No. 10 of 1981 in the Harij Court. At the date of the decree passed in Civil Appeal No. 47 of 1954 by the Court of the District Judge at Mehsana, thereby modifying the original decree passed by the Chanasma Court, in Civil Suit No. 40 of 1952. the Jurisdiction in respect of the area situate within the limits of Harij Mahal was vested in the newly constituted Court at Harij. The execution application was filed on July 14, 1961, and it was indisputably filed within the prescribed period of limitation. However, In the Harij Court, an objection was raised on behalf of the respondent (judgment-debtor) that it was theChanasma Court, the Court passing the decree, that had jurisdiction in the matter and that the Harij Court had no jurisdiction. The learned Civil Judge at Harij upheld the objection and dismissed the execution application by his order dated June 18, 1962, and the order was upheld by the learned District Judge in Appeal No. III of 1962, against which order, this second appeal is filed.

3. I may here say that on the very day on which the Harij Court had dismissed the execution application, the decree-holder had, by way of abundant caution, rushed to the Court of the Civil Judge at Chanasma, the original Court passing the decree, and filed the execution application No. 38 of 1962 wherein the appellant had prayed that the time taken in Rood-faith in prosecuting the execution application in the Harij Court be excluded for the purpose of computing the period of limitation. The learned Civil Judge at Chanasma had accepted the appellant's case and found that the earlier execution application was prosecuted with reasonable diligence and in good faith and, therefore, the appellant was entitled to the exclusion of such tune as provided under Section 14 of the Limitation Act. The order was upheld by the Court of the learned District Judge at Mehsana and the second appeal filed against that order in this Court has been dismissed by me this day by a judgment delivered separately.

4. The only question which falls for my determination in this appeal and which is a question of some importance is as to whether the Court of the Civil Judge at Harij to which the territorial jurisdiction had been transferred by the aforesaid appropriate notification of the State of Gujarat had the jurisdiction to entertain the execution application to pursuance of a decree passed by the Court of the Civil Judge at Chanasma, which earlier had the Jurisdiction in the matter and had passed a decree in the suit The relevant law to be considered for the purpose is to be found in Sections 38 and 37 of the Code of Civil Procedure. 1908 (Act V of 1908), which I will hereafter refer to as the Code. Section 38 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. Section 37 of the Code gives definition of the Court which passed a decree and reads;

'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 to the subject or context, be deemed to include,

(a) where the decree to be executed has been passed to 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'

Thus, Initially, it was the Court which' passed the decree, namely, the Chanasma Court, that had the jurisdiction. But, by the notification issued by the Government of Gujarat referred to earlier, a new Civil Court subordinate to the District Court, Mehsana, was constituted at Harij and the local limits of the ordinary jurisdiction of the said newly constituted Harij Court comprised the areas of Sami and Harij Mahals and further the whole of the Harij Mahal which was upto the time included in the ordinary jurisdiction of the Civil Judge (Junior Division) at Chanasma was excluded therefrom. The notification, it may be remembered, was published in the Government Gazette on April 2, 1957. It is not to dispute as aforesaid that the parties to the suit resided within the local limits of Harij Mahal and that the cause of action had arisen within the jurisdiction of the local limits of Harij Mahal. Thus, after the date of the passing of the original decree by the Court of the first instance and before the application for execution thereof was made by the appellant decree-holder within the prescribed period of limitation, the territorial jurisdiction of the Chanasma Court had ceased and the jurisdiction was vested to the Harij Court.

5. The question, therefore, is whether it is the Chanasma Court or the Harij Court that has jurisdiction to entertain the execution application or whether both the Courts have jurisdiction to the matter. On this question, there is a conflict of judicial opinion. As considered by their Lordships of the Supreme Court to Merla Ramanna v. Nallaparaju : [1955]2SCR938 :

'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. Madan Mohan, (1881) 6 Cal 513, Jahar v. Kamini Devi, (1901) 28 Cal 238 and Udit Narain v. Mathura Prasad, (1908) 35 Cal 974.'

Their Lordships have further observed:

'But in Ramier v. Muthukrishna Ayyar, AIR 1932 Mad 418 (FB), 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 applicationfor execution and not the Court to whose jurisdiction the subject-matter has been transferred,'

As observed therein by the Supreme Court :

'This view is supported by the decision in : AIR1942Cal321 . It is not necessary to this case to decide which of these two views is correct, because even assuming that the opinion expressed in AIR 1932 Mad 418 (FB), is correct, the present case is governed by the principle laid down in Balkrishnayya v. Linga Rao, AIR 1943 Mad 449.'

It was further observed;

'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.'

Thus, it appears that their Lordships of the Supreme Court have in the case taken the view that it was settled law that the Court which actually passed a decree did not lose its jurisdiction to execute it by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court. And as regards the competence of the Court to whose jurisdiction the subject-matter has been transferred to entertain an application for execution, their Lordships referred to the conflict of authorities on the subject and held without deciding the point that if the latter Court entertained an application, it would at the worst, be an irregular assumption of jurisdiction and not a total absence of it and that if objection is not taken at the earliest opportunity, it must be held to have been waived and cannot be raised at later stages of the proceedings. Thus, although the Supreme Court has not expressed its final opinion in the matter, the observations in AIR 1943 Mad 449, 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 which are referred to with approval, give an incline of its mind.

6. In a recent decision in Mehar Singh v. Kasturi Ram , a Full Bench of the Punjab High Court had an occasion to consider the question. On a consideration of the scheme of the Code and its relevant provisions, viz. Sections 37, 38, 39 and 150 and also of the relevant case-law on the point, the Full Bench has taken the view that where, after a decree for possession ofproperly and mesne profits has been passed, the local area, in which the property is situated, is transferred to 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. The Full Bench has considered that the object and purpose of Sections 37 to 39 along with other provisions occurring in Part II of the Code is to facilitate the 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 opinion of the Full Bench as expressed, to be found at page 397 of the report, is:

'Sections 37 and 38 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 Section 39 of the Code.'

I would here refer to the decision of a Division Bench of the Calcutta High Court in (1901) ILR 28 Cal 238, wherein the learned Judges had an occasion to consider the provisions of Section 649 of the Civil Procedure Code (Act XIV of 1882), which corresponds to Section 37 of the Code of Civil Procedure, 1908, which governs the present case. The Calcutta decision has taken the view that the provisions of Section 649 of the Civil Procedure Code are permissive and that if, after a Court has passed a decree, the local jurisdiction in respect of the subject-matter of the suit is transferred by an order of the Local Government to some other Court, the application for execution of the decree may be made either to the Court which passed the decree or to the Court to which the local jurisdiction has been transferred. The view taken by the Full Bench of the Punjab High Court is in consonance with the view expressed in this Calcutta case, as well as with the views expressed in : AIR1931Cal312 . I am in respectful agreement with this Punjab and Calcutta view.

7. Now, 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 thejurisdiction of another Court. However, having regard to the object and purpose of sections 37 to 39. and construing Sections 37 and 38 according to the language used therein, in my opinion, the sections 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 Section 39 of the Act. The Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of transfer and, in my opinion, if it entertains the application with reference thereto, it would be the proper exercise of its jurisdiction. In my opinion, both the Courts would have jurisdiction to entertain the application for execution.

8. My view receives some support from the observations of the Division Bench of the High Court of Bombay consisting of Macleod, C.J. and Coyajee, J., made in Jagannath Nathu v. Ichha-ram Naroba Vani AIR 1925 Bom 414. In that case, a decree was being executed in year 1921 in the Court of the Senior Judge at Dhulia against both the defendants, both of whom had at the time the properties within the jurisdiction of the Court However, during the proceedings, the property of defendant No. 2 passed within the jurisdiction of the Jalgaon Court. The decree-holder then presented a Darkhast in Jalgaon Court on August 14, 1923, as the Dhulia Court had held that as far as the second defendant was concerned, it had no jurisdiction as the properties of defendant No. 2 were not in that Court's jurisdiction, as subsequent to the passing of the consent decree by the Dhulia Court, the Jalgaon Court was made a First Class Court, and as the second defendant's property was within the jurisdiction of that Court, The question arose with regard to the further execution of the decree against defendant No. 2 in the Jalgaon Court. The darkhast of 1923 was contested by the second defendant on the ground that the darkhast of 1921 was not a proper step-in-aid of execution not being made to the proper Court. The First Class Subordinate Judge held that the application to the Dhulia Court which passed the decree originally, even after the territorial jurisdiction was transferred to the Jalgaon Court, would be a proper step-in-aid and held that Darkhast filed in his Court was in time. While considering the question of limitation for the execution application, the Division Bench took the view that the - original application which was made to the Dhulia Court was a step-in-aid of execution. It was observed that 'the Dhulia Court was the Court which passed the decree and after certain territories within its jurisdiction had been transferred to the Court at Jalgaon, then under the provisions of Section 37, the Jalgaon Court would be deemed to be the Court which passed the decree'. I am bound by this decision of the Bombay High Court. In this view of the matter, the Harij Court would be deemed to be the Court which passed the decree and had the jurisdiction to execute the decree.

9. In any event, therefore, in my opinion, both the Courts, viz., the Court of the Civil Judge (Junior Division) at Chanasma and the Court of the Civil Judge (Junior Division) at Harij had the jurisdiction in the matter. The decree and order under appeal holding that the decree-holder was not entitled to execute the money-decree passed by the Chanasma Court through the Harij Court after the constitution of the Harij Court must, therefore, be reversed I hold that the Court of the Civil Judge (Junior Division) at Harij had the jurisdiction to entertain civil execution application No. 10 of 1981 and that it has been wrongly dismissed. The decree and order under appeal are accordingly set aside and so are the decree and order of the trial Court passed in the execution application. Appeal allowed with no order as to costs in the circumstances of the case.


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