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Patel Jayantilal Sendhidas Vs. Ambalal Maganlal Kothari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 566 of 1982
Judge
Reported inAIR1982Guj315; (1982)2GLR676
ActsCode of Civil Procedure (CPC), 1908 - Sections 39(3), 99-A and 115
AppellantPatel Jayantilal Sendhidas
RespondentAmbalal Maganlal Kothari
Appellant Advocate V.C. Desai, Adv.
Respondent Advocate N.C. Nayak, Adv.
Cases ReferredVasantrao Laxmanrao Sahane v. Sanghvi Amritlal Becharlal
Excerpt:
civil - jurisdiction - sections 39 (3), 99-a and 115 and order 21 rule 5 of code of civil procedure, 1908 - technical argument advanced pertaining to jurisdiction of executing court by way of petition under section 115 - reference to precedents - high court to exercise jurisdiction under section 115 only when lower court acted illegally - revisional powers not to be exercised to give effect to mere technicality which would not further ends of justice - no point in revision petition so as to prompt court to interfere by exercising jurisdiction under section 115. - - 39 of the code it is necessary that at the time of making an application for transfer of that decree to that court (kadi court), that court (kadi court) should have jurisdiction and, therefore, as on 26-11-1979 the kadi..........as to request this court to exercise the power under that section.*against order of r. g. pandya, civil judge (jr. divn.), at kadi, d/- 25-1-1982. 2. the facts of the case are that the plaintiff, who is opponent herein, filed a suit in the court of the civil judge, senior division, mehsana, for recovery of some amount which was more than rs. 15,704/-. after, the bifurcation of the mehsana district and gandhinagar district, jurisdiction of village randheja went to the narol court (ahmedabad rural) and, therefore, that suit was transferred to that court and was numbered as special civil suit no. 34 of 1978. this suit was decreed by the narol court. at the request of the decree-holder, the naroi court transferred the decree to the court of civil judge, junior division, kadi, district.....
Judgment:
ORDER

1. A very strictly technical argument is advanced in this petition allegedly pertaining to the jurisdiction of an Executing Court and thus bringing the petition under the scope of S. 115 of the Civil P. C., 1908 (hereinafter referred to as 'the Code') so as to request this Court to exercise the power under that section.

*Against order of R. G. Pandya, Civil Judge (Jr. Divn.), at Kadi, D/- 25-1-1982.

2. The facts of the case are that the plaintiff, who is opponent herein, filed a suit in the Court of the Civil Judge, Senior Division, Mehsana, for recovery of some amount which was more than Rs. 15,704/-. After, the bifurcation of the Mehsana District and Gandhinagar District, jurisdiction of village Randheja went to the Narol Court (Ahmedabad Rural) and, therefore, that suit was transferred to that Court and was numbered as Special Civil Suit No. 34 of 1978. This suit was decreed by the Narol Court. At the request of the decree-holder, the NaroI Court transferred the decree to the Court of Civil Judge, Junior Division, Kadi, District Mehsana, as the defendant resided at Kundal, Taluka Kadi, and thereafter the Kadi Court issued a notice for attachment. When this notice was received, by an application Exhibit 18, the petitioner contested the notice and challenged the jurisdiction of that Curt to execute the decree. The learned Civil Judge dismissed the said application holding that the objection on the ground of the Gujarat Judicial Court Laws (Amendment) Act, 1979 (hereinafter referred to as 'the Act') was not tenable. I am referring to only this ground because various grounds were raised in the objection application, and ,the learned Civil Judge, Kadi, by his order dated 1-4-1982 overruled those objeztlons and ordered the execution to proceed according to law. I am considering the observations of the learned Civil Judge, Kadi, so far as the main dispute before me is soncerned.

3. It is the submission of Mr. Viresh C. Desai, learned Advocate for the petitioner, that the learned Civil Judge, Junior Division, Kadi, has committed an error in merely brushing aside the objections without considering the provisions of the Act. According to Mr. Desai, the Act came into force on 1-1-1980. By this Act, the pecuniary jurisdiction of Civil Judge, Junior Division, was raised from Rs. 10,000/- to Rs. 20,000/-. There is no dispute on behalf of the opponent so far as these two positions are con, cerned, viz., that the Act came into force on 1-1-1980 and the pecuniary jurisdiction was raised from that day.

4. Now, according to sub-section (3) of S. 11 of the Act, all applications for the execution or enforcement of a decree of order of a specified Court passed immediately before the day into force and all out of such decree to and disposed of Act had not been passed. the submission of Mr. this decree which was passed before Court passed immediate on which the Act comes other applications arising or order shall be made by the Court as if this It is, therefore, Desai that because passed on 6-8-1979, the day on which the Act came into force. Therefore, according to Mr. Desai, this application for execution or enforcement of a decree has to be disposed of by that Court as if the Act had not been passed. But there is a provision under the Code which provides that a Court which has passed a decree can transfer the decree to any other Court for execution. This provision is under S. 39 of the Code. It reads :

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

(a) if the person against whom the decree Is passed actually and voluntarily 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 sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

(3) For the purpose of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.'

We are concerned with sub-sections (1) and (3) of Section 39 of the Code. Now, in subsection (1) the last words 'of competent Jurisdiction' are added by Amending Act of 1976, meaning thereby, this amendment was present when the application for transfer was given to Narol Court. It should be noted that the application to Narol Court for transferring the decree was submitted somewhere prior to 26-11-1979 and the order to transfer the Execution Application 41/80 was passed by the learned Civil Judge, Senior Division, Narol on 26-11-1979. Therefore, it is the submission of Mr. Desai that on that day the provisions of amended sub-section (1) of S. 39 of the Code were in force and, therefore, transfer should have been made to a Court having competent jurisdiction, meaning thereby, the Court of Civil Judge, Senior Division, Mehsana, and not the Court of Civil Judge, Junior Division, Kadi. He also argued that under subsection (3) of S. 39 of the Code, which is also an amendment by Amending Act of 1976, it is provided that a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.

5. It is the further submission of Mr. Desai that so far as the provisions of the Act are concerned, after 1-1-1980 the Civil Judge, Junior Division would have jurisdiction to try such a suit and, therefore, in view of sub-section (3) of S. 39 of the Code after that day, the Civil Court, Junior Division, would have jurisdiction to execute the decree. But it is his submission that under sub-section (3) of S. 39 of the Code it is necessary that at the time of making an application for transfer of that decree to that Court (Kadi Court), that Court (Kadi Court) should have jurisdiction and, therefore, as on 26-11-1979 the Kadi Court bad no jurisdiction the order of transfer was not proper.

6. Now, it is a fact that the decree was transferred to Kadi Court for execution and it was lying there. It is also a fact that the decree-bolder again filed an application for execution to Kadi Court, and The order for notice for attachment is passed on that subsequently submitted execution application. But the fact remains that the Kadi Court would have no jurisdiction to proceed with the execution application unless the decree is transferred to it from Narol Court which has pasised the decree. This is a strictly technical point. But the fact cannot be ignored that the Kadi Court is seized with the jurisdiction when the execution application is filed and decree was already transferred to it. The only question that arises is as to what would be the effect of the order of transfer of decree passed by the learned Civil Judge, Senior Division, Narol on 26-11-1979 when the Act was not made operative and the provisions of sub-section (1) of Section 39 of the Code would not permit trans, for to the Junior Division Court at Kadi.

7. Now, as things stand, according to Rule 5 of Order 21 of the Code, if a decree is transferred for execution to another Court, then the Court to which the decree is sent for execution, if it has no jurisdiction to execute the decree, shall send it to the Court having such jurisdiction. So, in order to obviate the so-called technical flaw, the matter would come to an end the moment the Kadi Court would transfer that decree to the Court of Civil Judge, Senior Division, Mehsana, because at the time when the transfer order was made by Narol Court, only the Court of Civil Judge, Senior Division, Mehsana had jurisdiction. Would it, therefore, be in the interest of justice to ask the litigant to undergo such an exercise if to-day the Civil Court at Kadi has jurisdiction to execute the decree?

8. Under S. 99-A of the Code there is a clear provision to the following effect:

'99-A. Without prejudice to the generality of the provisions of S. 99, no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.'

It is not in dispute that this order was under Section 47 of the Code. By no stretch of imagination it can be said that by exercising jurisdiction to issue notice only, the Kadi Court has committed any error which has prejudicially affected the decision of the case, meaning thereby, any prejudice is caused to the petitioner. The decree against him could have been either executed by Mehsana Court or the Kadi Court. There is no prejudice caused to him so far as the decision of that case is concerned.

9. This Court in Vasantrao Laxmanrao Sahane v. Sanghvi Amritlal Becharlal, (1966) 7 Guj LR 840, had an occasion to observe as to when the High Court would exercise its jurisdiction under S. 115 of the Code, as under:

'The High Court is not bound to interfere in revision under S. 115, Civil P. C. in an cases in which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of jurisdiction. The High Court will exercise its revisional powers only in aid of justice and not merely to give effecte a technicality which would not further the ends of justice. Where the High Court finds that substantial justice has been done between the parties by the order of the subordinate Court, the High Court will not interfere with such order merely because the case comes within any of the three clause, of Section 115'.

In the instant case it is not in dispute that the Kadi Court has jurisdiction to execute the decree now. When the order was passed by Narol Court, it had no jurisdiction to transfer it to the Kadi Court. Can it be said that this illegality or an action without jurisdiction is such as would frustrate ends of justice Certainly not. On the contrary, there is no necessity to interfere with the order either of Narol Court or of Kadi Court in aid of justice. In order to further the ends of justice, on the contrary it would be proper that this Court should not interfere into this order.

10. In view of this, I think that there is no point in this revision petition so as to prompt this Court to interfere by exercising the revisional jurisdiction under S. 115 of the Code. I make a note of appreciation for the assistance given by Shri S. M. Shah and Miss V. P. Shah, in deciding this matter, as they were present in the Court when the arguments were advanced by Advocates of both the parties.

11. In the result, the revision petition is dismissed. Rule is discharged. Stay granted, is vacated. There shall be no order as to costs in this petition.

12. Petition dismissed.


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