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Hamir Singh Vs. Bhawani Shankar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberEx. First Appeal No. 5 of 1970
Judge
Reported inAIR1980Raj134
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 37, 38 and 39; Rajasthan Court of Wards Act, 1951 - Sections 17, 18 and 19
AppellantHamir Singh
RespondentBhawani Shankar
Appellant Advocate Dalip Singh, Adv.
Respondent Advocate P.N. Datt, Adv.
DispositionAppeal dismissed
Cases ReferredIn Mehar Singh v. Kasturi Ram
Excerpt:
.....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 (1881) ilr 6 cal 51'3, (1908) ilr 85 cal 974 and air 1931 cal 312. i am in respectful agreement with this punjab and calcutta view,'it is settled law that the court which passed the decree does not lose its jurisdiction to execute it, by reason of tha subject-matter thereof being transferred subsequently to the jurisdiction of another court. however, having regard to the object and..........a certificate of transfer, the execution application was filed in the court of the district judge, jaipur district, jaipur and since the decree was not passed by that court, it could not have been executed by the said court.2. that the certificate required under the court of wards act was not filed arid therefore the decree could not have been executed.2. it would be necessary to mention facts in order to appreciate the above points.3. bhawani shankar filed an execution application against the collector, jaipur as manager of court of wards and nahar singh, ganga singh and hamir singh for the recovery of rupees 25,813/8/6 under a decree dated june 9, 1939 granted by the district judge, jaipur (mahakma appeal). this execution application was filed on april 17, 1961. earlier to it.....
Judgment:

1. In this appeal, the principal questions raised by Mr. Dalip Singh, appearing for the appellant judgment-debtor are twofold as under:--

1. that without obtaining a certificate of transfer, the execution application was filed in the court of the District Judge, Jaipur District, Jaipur and since the decree was not passed by that court, it could not have been executed by the said court.

2. that the certificate required under the Court of Wards Act was not filed arid therefore the decree could not have been executed.

2. It would be necessary to mention facts in order to appreciate the above points.

3. Bhawani Shankar filed an execution application against the Collector, Jaipur as manager of Court of Wards and Nahar Singh, Ganga Singh and Hamir Singh for the recovery of Rupees 25,813/8/6 under a decree dated June 9, 1939 granted by the District Judge, Jaipur (Mahakma Appeal). This execution application was filed on April 17, 1961. Earlier to it the execution was dismissed on 25th February, 1956. Many objections were raised in this execution application by the judgment-debtors, out of which the objection contained in issues Nos. 2, 5 and 6 were pressed. Issues Nos. 2, 5 and 6 read as under;--

2. Whether the execution petition is barred by limitation?

5. Whether execution applications previously filed by the decree-holder were presented in courts having no jurisdiction and what will be its effect?

8. Whether the execution petition is not maintainable without obtaining the certificate of the Court of Wards, regarding the amount of the decree?

4. In relation to issues Nos. 2 and 5, which are connected and correlated, it will have to be considered whether on account of the absence of obtaining transfer certificate, the District Judge, Jaipur District, Jaipur is incompetent to execute this decree.

5. It may be noted that District Judge, Jaipur was the District Judge for the whole State of Jaipur earlier to 1947. By notification dated llth February, 1947 the jurisdiction of the District Judge of Jaipur was redistributed into three districts, namely, District Judge, Jaipur City one for District of Sawai Jaipur and Gangapur and the third for district Jhunjhunu. Now the court of District Judge, Jaipur District, Jaipur is for District of Jaipur excluding the city of Jaipur. It would be thus seen that the District Judge, Jaipur District is now having the same jurisdiction which was earlier with District Judge, District of Sawai Jaipur and Gangapur and which was first with District Court of Jaipur alone. Thus the District Judge, Jaipur District, has acquired the same jurisdiction which was with the court granting the decree in the present case on account of transfer of jurisdiction from time to time as mentioned above.

6. In the instant case, it cannot be said that there is absence of jurisdiction and the District Judge, Jaipur District is some other Court than the District Judge, Jaipur, who gave the decree in the present case. On a historical survey of the development of the courts and their territorial distribution, it is obvious that the same court which granted the decree is executing the decree although at that time it was called as District Court, Jaipur only and now it is called as District Court, Jaipur District, That being so, the entire controversy appears to be not of any substance.

7. In Merla Ramanna v. Nallaparaju AIR 1956 SC 87, the Hon'ble Supreme Court has held 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 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 ft 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. In Shah Shivlal Bhogilal v. Shah Vadilal Dipchand, AIR 1969 Guj 141, the question whether on account of a transfer of territorial jurisdiction from Court A to Court B the decree passed by court A can be executed by court B, was considered. It was held as under:--

'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 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.'

8. 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. 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, the section empowers 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 t and in the later case, it is not necessary to comply with the provisions of Section 39 of the Code. The Court to whose Jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of transfer and, if it entertains the application with reference thereto, it would be the proper exercise of its jurisdiction. In Mehar Singh v. Kasturi Ram, AIR 1962 Punj 394, the Full Bench of Punjab High Court had an occasion to consider this question. The opinion of the Full Bench as expressed, to be found at p, 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 ol 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 Judge 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 (1881) ILR 6 Cal 51'3, (1908) ILR 85 Cal 974 and AIR 1931 Cal 312. I am in respectful agreement with this Punjab and Calcutta view,'

'It is settled law that the court which passed the decree does not lose its jurisdiction to execute it, by reason of tha subject-matter thereof being transferred subsequently to the jurisdiction 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.' Thus the Punjab High Court was of the view that 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, 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,'

9. In my view, the above authorities clearly support the case of the decree-holder and the view taken by the lower court is perfectly justified and in consonance with law laid down by the Hon'ble Supreme Court and the various High Courts, The transfer of a local area from where the decree originated in territorial jurisdiction of any other court would automatically give jurisdiction to the court to which that area has been transferred without any necessity of obtaining an order of transfer of the decree.

10. In the instant case, there is no dispute that the local area which was earlier in the jurisdiction of the District Court, Jaipur and which was the only court for the whole State of Jaipur before 1947 and at the time of the passing of the decree stood transferred to District Judge of Sawai Jaipur and Gangapur by notification dated 11-2-47 and later on it is now with the District Court, Jaipur district, in whose court the decree is being executed. I am, therefore, in agreement with the reasons given by the lower court in relation to issues Nos, 2 and 5 mentioned above. Since the decree is being executed in a proper court throughout, the question that the execution is time barred, do not arise.

It may also be mentioned that the argument relied upon by the lower court that the execution applications have been filed in the past and remained pending from time to time and no such objection was raised at that time, is also not without force. Even if it cannot be termed as res judicata as argued by Mr. Dalip Singh it would certainly amount to waiver as held by the Hon'ble Supreme Court in the above case Merla Ramanna. The objection which was covered by issue No. 6 in the lower court relates to the non-compliance of the provisions of Rajasthan Court of Wards Act. It is not in dispute that since 1952 after the death of Narain Singh, the estate of Narain Singh, the original judgment-debtor is under Court of Wards. It is submitted that the claim was not notified to the Court of Wards Department under the relevant Sections 17, 18 and 19 of the Rajasthan Court of Wards Act and therefore the decree cannot be executed,

11. The lower court has taken the view that the Collector was Incharge of the Court of Wards and though execution application was filed earlier, no such objection was taken, the Judgment-debtor is barred by the principles of constructive res judicata to raise this objection. Mr. Dalip Singh, learned counsel for the appellant on the contrary argued that the judgment-debtors were minors at that time and as they have now become major, they cannot be prevented from raising this objection,

12. Mr. Datt, appearing for the decree-holder supports the judgment of the lower court on this issue No. 6 and submits that even if it is held that the Collector acted in the capacity of the guardian, then also the act of the guardian can be challenged on the ground of fraud or severe charges only.

13. In my opinion submission of Mr. Datt must succeed. The filing of the certificate under the various provisions of the Court of Wards Act is a notice to the Collector. In the present case the Collector had filed objections in the execution proceedings after attachment and has not raised the bar of Sections 17 to 21 of the Court of Wards Act. Since he raised objections against the attachment, he was well aware of the decree and its incidence. There is no dispute that absence of notifying the claim to the Collector can always be waived as it is analogous to a notice under Section 80, C.P.C. Moreover, I have been unable to appreciate that any prejudice has been caused to the judgment-debtor by the so-called technical non-compliance about the provisions of the Court of Wards Act, After all, the Collector as well as the other judgment-debtors are well alive to the decree and it has not been shown to me that situation would have been changed if such compliance would have been made. Mr. Datt has brought to my notice that during the execution proceedings, before the above objections have been raised by the present judgment-debtors, an amount of Rs. 3,642 has also been realised and that also shows that the judgment-debtors including the Collector, who was incharge of the Court of Wards was well aware of the decree and its incidence and implications,

14. Mr. Dalip Singh relied upon the Judgment of Hon'ble Supreme Court in Mathura Prasad Bajoo Jaiswal v, Dosaibai N. B. Jeejeebhoy, (1970) 1 SCC 6131 (AIR 1971 SC 2355) in support of his submission that principle of constructive res judicata cannot be applied when a pure question of law regarding the jurisdiction is agitated.

15. It is important to note that in Mathura Prasad's case on account of change in interpretation of law by the High Court, it was held that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 did not apply to open land let for constructing buildings. In view of the earlier law a suit for determination of standard rent was dismissed, on the ground that the Act is not applicable to open land let for construction of building and this order was confirmed in revision. When the law was altered by another interpretation of the Bombay High Court in ILR (1956) Bom 827 ; (AIR 1957 Bom 94), the appellant in that case filed a fresh petition of determination of the standard rent. It was objected to on the ground that in the earlier judgment between the parties it was decided that the Act is not applicable to the present premises and since the judgment was between the same parties with regard to the same land, it was argued that the principles of res judicata should apply. Repelling this argument, the Hon'ble Supreme Court held that the previous decision on the matters in issue alone is res judicata and the reasons for decision are not res judicata. It was also held that a pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. The 3rd, 4th and 5th prepositions laid down in that case are very important and they are as under:--

(iii) 'A decision on an issue of law will be a res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the court to try the earlier proceeding, nor when the earlier decision declared valid a transaction which is prohibited by law.

(iv) Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties Tarini Charan Bhattacharjee's case, (1929) ILR 56 Cal 723. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.

A question of jurisdiction of the court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit,

(v) A decision relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court, If by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise,

16. In the fifth preposition the Hon'ble Supreme Court has held that if by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action is the same or otherwise.

17. So far as the question of applying the above principles to the facts of tha present case is concerned, I am of the opinion that so far as notifying the claim to the Court of Wards Department or the Collector or obtaining of certificate in relation thereto is concerned, these are not matters of jurisdiction but they are only certain formalities for giving notice to the Collector and for the purpose of providing proper opportunity of detailed facts etc. about the claim or decree. That being so, the above principles laid down by their Lordships of the Supreme Court cannot be applied in respect to it. On account of the above finding of mine, it is further obvious that the principles of constructive res judicata or waiver can be applied in relation to the objection of the absence of notifying the claim to the Collector, who was incharge of the Court of Wards. Moreover I have already come to the conclusion that no prejudice has been caused to the judgment-debtors on account of the absence of notifying the claim to the Collector, who was very well aware of it and filed objections and contested it.

18. Since no fraud has been alleged or proved, the other judgment-debtors are also bound by the omission or commission of the Collector, who was incharge of the Court of Wards Department under whom the estate of the deceased judgment-debtors was being administered.

19. In relation to the question of territorial jurisdiction, the above judgment of the Hon'ble Supreme Court certainly can have relevancy and some bearing. But as I have taken the view that the local area which was in the territorial jurisdiction of Ditsrict Judge, Jaipur, who alone was the District Court for the whole of the Jaipur State earlier to 1947, has now been transferred to the court of the District Judge, Jaipur District and therefore the District Judge, Jaipur District has got inherent territorial jurisdiction to execute the decrees which were passed by the earlier court, who have jurisdiction over this area.

20. In this view of the matter, since there is no error of jurisdiction and the requirement of obtaining an order of transfer is not necessary the additional ground given by the lower court that the objection was also barred by the principles of res judicata is supplementary only. Here again, the present one is not a case where the present executing court has ceased to have jurisdiction on account of alteration and interpretation of the law as happened in the case before the Hon'ble Supreme Court though in the other way, That being so, it is obvious that the principles of law laid down by the Hon'ble Supreme Court in the above case, cannot be applied to the present case because of the distinction between the facts which are very material,

21. In the result, the appeal fails and is hereby dismissed. However, in the circumstances of the case, the parties will bear their own costs of this Court.


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