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Ram Dayal and ors. Vs. Smt. Kisturi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Ex. Appeal No. 7 of 1965
Judge
Reported inAIR1970Raj246; 1970(3)WLN83
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 and 39; Evidence Act, 1872 - Sections 115
AppellantRam Dayal and ors.
RespondentSmt. Kisturi and ors.
Appellant Advocate P.C. Bhandari, Adv.
Respondent Advocate D.P. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredIn Tarachand v. Misrimal
Excerpt:
.....for the appellant contends that though the munsif court, shahpura, was not the court, which had passed the decree or to which it had been sent for execution, it had inherent jurisdiction to execute it, because the judgment-debtors had their residence as well as their movable aud immovable properties within its jurisdiction and it was the only court which could effectively execute the decree. linga rao, air 1943 mad 449. it is contended that at best the munsif court, shahpura committed an irregularity in exercise of its jurisdiction in entertaining the execution application without an order of transfer from the munsif court, kotputli. but the court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such..........decree was put under execution by the decree-holders on 5-10-53 being 382 of 1953 in the court of munsif shahpura on 5-11-53 (sic) after the jurisdiction over tehsil bairath was transferred to the munsif court, shahpura, and it is in the execution of this decree that the judgment-debtors' property was attached and sold and to which the execution file no. 450 of 1956 was attached for rateable distribution. in this execution petition the judgment-debtors had also raised the objection about the jurisdiction in the munsif court, shahpura, to execute the decree, but this objection was rejected by the executing court although it set aside the sale on the ground that the notice of proclamation of sale was not served upon the judgment-debtors. however, on appeal by the decree-holders the order.....
Judgment:

C.B. Bhargava, J.

1. This civil execution appeal raises an interesting and a ticklish question. Though Sections 37, 38, 39 and 150 of the Code of Civil Procedure have been discussed in so many decisions, learned counsel for the parties have not been able to bring to my notice any decision which is directly applicable to the facts of the present case.

2. The appellants-decree-holders, instituted a suit for recovery of money in the Court of Munsif, Shahpura, within whose jurisdiction the cause of action arose and the defendants had their residence. It seems that because of the heavy work on the file of the Munsif, Shahpura, this suit was transferred for disposal by Order No. 1528 dated 26-7-1955 (see Order-sheet dated 8-8-1955 --Civil Suit No. 290 of 1954) of the District Judge, Jaipur District to the Court of Munsif at Kotputli where a decree was passed in favour of the appellants on 5th January, 1956. The appellants straightway levied execution in the Court of Munsif, Shahpura, praying for the attachment and sale of judgment-debtors' shop and 'Chobara' and thereafter for the rateable distribution of the sale proceeds held by the Court in execution of their other decree. Notice of the execution application was issued to both Devi Sahai and Radhey Shyam, the judgment-debtors, which was served upon them by registered post, as will appear from the order-sheet dated 24-8-1957 and postal acknowledgment receipts Nos. 11A/3, 14A and 16A. The judgment-debtors did not put in appearance and on 12-9-1957 execution file was ordered to be kept for rateable distribution with the other execution case. Finally on 9-9-61 the execution petition was dismissed for non-prosecution. The decree-holders then filed a second execution application No. 553 of 1961 on 14-9-61 and sought recovery of the decretal amount by attachment and sale of the judgment-debtors' immovable property. On 27-9-1961 Devi Sahai, judgment-debtor, preferred objection petition under Section 47, Civil Procedure Code, to the effect that the Munsif Court at Shahpura had no jurisdiction to execute the decree, because it was not the Court which had passed the decree or to which the decree had been transferred for execution. The execution court upheld the judgment-debtor's objection holding that without a certificate of transfer from the Munsif Court Kotputli, which had passed the decree, it had no jurisdiction to entertain the applica-tion for execution. An appeal was preferred against the said order by the decree-holders in the Court of District Judge, Jaipur District, against Radhey Shyam and the legal representatives of Devi Sahai, who in the meantime had died. The learned District Judge maintained the order of the executing Court. It is against this order that the present appeal has been directed.

3. Learned counsel for the appellant contends that though the Munsif Court, Shahpura, was not the Court, which had passed the decree or to which it had been sent for execution, it had inherent jurisdiction to execute it, because the judgment-debtors had their residence as well as their movable aud immovable properties within its jurisdiction and it was the only Court which could effectively execute the decree. The Munsif Court at Kotputli might be the Court, which had passed the decree, it could not give any relief to the decree-holders except making an order of transfer of decree under Section 39, Civil Procedure Coda. Reliance was placed on Ramanna v. Nallaparaju, AIR 1956 SC 87, Moher Singh v. Kasturi Ram, AIR 1962 Punj 394 (FB) and Balkrishanayya v. Linga Rao, AIR 1943 Mad 449. It is contended that at best the Munsif Court, Shahpura committed an irregularity in exercise of its jurisdiction in entertaining the execution application without an order of transfer from the Munsif Court, Kotputli. But the judgment-debtors have waived that objection, because in the first execution application in spite of service of notice upon them they did not raise such objection and the Court proceeded to pass an order for rateable distribution from the assets realised by the Court in execution of another decree. It was, therefore, not open to the judgment-debtors to challenge the jurisdiction of the Munsif Court, Shahpura to execute the decree in the present execution application.

4. On the other hand learned counsel for the judgment-debtors strongly relies upou Sections 37 and 38 of the Civil Procedure Code. He urges that the only Court competent to execute the deeree is one which either passed the decree or to which it is sent for execution. That being so the decree could only be executed by the Munsif Court, Kotputli, which had passed the decree and not by the Munsif Court, Shahpura, which was not such Court and to which the decree was not transferred for execution. It is further pointed out that the Munsif Court, Kotputli, did not cease to have jurisdiction to execute the decree merely because the judgment-debtors had their residence and property within the local limits of the jurisdiction of Munsif, Shahpura within the meaning of Clause (b) of Section 37, Civil Procedure Code. Learned Counsel further urges that the two decisions relied upon by the appellant did not apply to money decrees and related to those cases where subject-matter of the decree was immovable property and which was transferred from the jurisdiction of the Court, which had passed the decree to another Court and it is in such cases that it was held by the Supreme Court that the latter Court acquired inherent jurisdiction to execute the decree and if objection is not taken by the judgment-debtors at the first instance then it will amount to waiver on their part if such objection is raised at a subsequent stage. Reliance is placed on Gowrammal v. Lingappa, AIR 1968 Mad 99, G, S. Pathak v. S. S. Nisal, AIR 1955 Bom 93, Lalithamba v. Mangamma, AIR 1958 Andh Pra 763 and Mohd. Mchdi v. Zainuddin Has-san, AIR 1957 Pat 654.

5. In order to appreciate the rival contentions of the parties it is necessary to state as to how aud when the Munsif Court was established at Shahpura and Kotputli. By Notification No. F.l(50)Jud./50 dated June 2, 1950, published in Rajasthan Gazette Extraordinary Part I, dated June 14, 1950, the Government of Rajasthan in exercise of the powers conferred by Sub-section (1) of Section 7 and Sub-section. (1) of Section 12 of the Rajasthan Civil Courts Ordinance, 1950, directed that with effect from the 1st day of July, 1950, (there shall be?) established the Munsif Court with headquarters at Shahpura (Jaipur District) having jurisdiction over Shahpura sub-division (Kotputli and Bairath tehsils). Subsequently, by another Notification No. F-l(53)Jud./50 dated June 27, 1950, published in Rajasthan Gazette Extraordinary -. Part I dated July I, 1950, tbe headquarters of the Court of Munsif for Shahpura Subdivision was changed from Shahpura to Kotputli. By another Notification No. F.1(58)Jud./ 63(1) dated September 15, 1953, published in Rajasthan Gazette dated 15th September, 1953, the Government of Rajas than in exercise of the powers conferred by Sub-section (1) of Section 7 and Sub-section (1) of Section 12 of the Rajasthan Civil Courts Ordinance, 7950 (No. VII of 1950) and in further modification of Judicial Department Notification No. F. I (50)/Jud./50, dated the 2nd June, 1950 (published in the Rajasthan Gazette Extraordinary, Part I, dated the 14th June, 1950) the Government of Rajasthan was pleased to establish' with effect from the 18th day of September, 1953, a Court of Munsiff at Shahpura with jurisdictioon over Bairath tehsil. It may be mentioned here that the judgment-debtors had their residence and property at a place named Bhabru within the jurisdiction to tehsil Bairath. Thug as a result of notification dated loth September, 1953 a new court of Munsif of Shahpura having jurisdiction over tehsil Bairath came into existence from 18th September, 1953, and the Munsif Court at Kotputli ceased to have jurisdiction over tehsil Bairath, The suit in which the decree under execution was passed was, therefore, rightly instituted in the Court of Munsif, Shahpura, in the year 1954 and had the case not transferred to the Court at Kotputli the Munsif Court, Shahpura, Was the only Court competent to pass a decree and to execute it.

6. It may also be mentioned here that the appellants-decree-holders had also obtained a money decree against the same judgment-debtors from the Court of Munsif, Kotputli, on 22nd April, 1952, when it had jurisdiction over tehsil Bairath. This decree was put under execution by the decree-holders on 5-10-53 being 382 of 1953 in the Court of Munsif Shahpura on 5-11-53 (Sic) after the jurisdiction over tehsil Bairath was transferred to the Munsif Court, Shahpura, and it is in the execution of this decree that the judgment-debtors' property was attached and sold and to which the execution file No. 450 of 1956 was attached for rateable distribution. In this execution petition the judgment-debtors had also raised the objection about the jurisdiction in the Munsif Court, Shahpura, to execute the decree, but this objection was rejected by the executing Court although it set aside the sale on the ground that the notice of proclamation of sale was not served upon the judgment-debtors. However, on appeal by the decree-holders the order of the lower Court setting aside the sale, was also set aside and the appellate Court held that the notice of proclamation of sale was properly served upon the judgment-debtors and the Munsif Court, Shahpura, because of the transfer of jurisdiction over tehsil Bairath to it had jurisdiction to execute the decree even though it had been passed by Munsif, Kotputli.

7. It is no doubt true that the Court, which can execute the decree is either the Court which passed it or to which it is sent for execution (Section 38, Civil Procedure Code). The expression 'Court which passed a decree' has been defined in Section 37, which provides (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 the suit. In the present case it cannot be said that the Munsif Court, Kotputli, had either ceased to exist or to have jurisdiction to execute the decree, merely because it has ceased to have jurisdiction over Bairath tehsil. In Tarachand v. Misrimal, D. B. Special Case No, 18 of 1964 D/- 1-4-1969 = (reported in AIR 1970 Raj 53) a Division Bench of this Court consisting of the Hon'ble the Chief Justice and Hon'ble Tyagi, J., after discussing the law on the subject held that the Court which passed the decree still retains jurisdiction to execute the decree in spite of the fact that after the passing of the decree, the properties of which delivery was to be given under the decree had gone out of his jurisdiction and had been transferred to the jurisdiction of another Court.

To the same effect is the decision of the Supreme Court in AIR 1956 SC 87 (supra). It is also true that the Munsif Court, Kotputli, on the application of the decree-holder could have sent the decree for execution to the Court of Munsif, Shahpura, because the Judgment-debtors voluntarily resided and carried on business and had also their properties within the local limits of the jurisdiction of the latter Court. But the question for consideration is whether Munsif Court, Shahpura, could entertain the execution application, without any order of transfer by the Munsif, Kotputli under Section 39 of the Civil Procedure Code. There can be no doubt that the Munsif Court, Sahpura, had inherent jurisdiction to execute the decree because the judgment-debtors resided and had their properties within the local limits of its jurisdiction. Section 39, Civil Procedure Code recognizes this principle, but that jurisdiction is to be invoked in the manner provided by that sec-tion that is by an order of transfer of the decree for execution to that Court. The prin-ciple that the Court to which the judgment-debtors' properties had been transferred after the passing of the decree acquires inherent jurisdiction to execute the decre'e was recognized in AIR 1943 Mad 449 (supra). There the learned Judges observed,--

'We consider that the true effect of Section 39 is to recognise the transferee Court as having inherent jurisdiction, to sell or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. From this it follows that the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Tenali Sub-Court when proceedings were commenced in it, but that objection not having been taken in the first instance, the judgment-debtor (the appellant) must be held to have waived it.'

The principle laid down in the above case was approved by the Supreme Court in AIR 1956 SC 87 (supra). The Supreme Court held,--

'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.

But 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 ab-sence 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.' In AIR 1962 Punj 394 (FB) (Supra) it was held,--

'The object and purpose of Sections 37 to 39 along with other provisions occurring in 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. Therefore, 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'. I do not see any reason why the principle laid down in the above decisions should not be extended to the peculiar circumstances of this case. Here the Munsif Court, Shah-pura, was both on the date of the suit as well as on the date of the execution competent to entertain the suit, pass a decree and execute it. The Munsif Court, Kotputli acquired jurisdiction to dispose of the suit because of the order of the District Judge passed under Section 24, Civil Procedure Code. Otherwise it had no jurisdiction to hear and determine that suit. Though it might be true that because of the provisions of Sections 37, 38 and 39 of the Civil P. C., the Munsif Court, Shahpura could execute the decree only upon its transfer by the Munsif Court, Kotputli, but as already stated it had inherent jurisdiction to execute the decree, because of the residence of the judgment-debtors and their properties being situated within the local limits of its jurisdiction. At the worst that would be an irregularity in the exercise of jurisdiction, because without receiving any order of transfer of decree from the Munsif Court, Kotputli, it entertained the execution application, but it would not be a case of exercising jurisdiction by a Court which had a total absence of it. In AIR 1968 Mad 99 (supra) the principle of law enunciated in the abovementioned decision was also recognized and it was observed.-

'One point that emerges from this decision is the reiteration of the general principle of law that a Court acquires inherent jurisdiction over the subject-matter when that subject-matter is transferred to it in the sense of a transfer of territorial jurisdiction.' But in the opinion of the learned Judges this principle could not be extended to money decrees, as it would lead to certain anomalous situation and it would be open to the decree-holder to take out simultaneous execution proceedings against the person and property of the judgment-debtors in two different Courts and if the transfer of the decree is not to be insisted upon, neither Court would be aware of this act on the part of the decree-holder. But with utmost respect it may be pointed out that such anomalous situation can seldom arise because in the application for execution the decree-holder is required to state whether any prior execution application has been moved Or not and if so with what result. The decree-holder has a right to proceed simultaneously against the person and property of the judgment-debtors. Under Order 21, Rule 21 the Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor. It would rarely be the case where the decree-holder would omit to state that he is simultaneously taking proceedings against the judgment-debtor in another Court. It is, however, significant that though the learned Judges did not extend the principle of law laid down in the decision relied upon by the appellants to that case, yet remitted the matter to the District Munsif's Court, Hosur, in disposing of the execution petition after giving a finding on the question of waiver of the , jurisdiction. The question of waiver could only be considered in the case of irregular assumption of jurisdiction and not in total absence of it.

In AIR 1955 Bom 93 (supra) the point in issue was quite different. The main point there was whether the application for execution of a decree passed ex parte which had been subsequently set aside could be taken as step-in-aid so as to save limitation. In that case the execution application was presented to the transferee Court after it had received an order of the transfer from the Court, which had passed the decree. But on behalf of the appellant it was urged that the transferee Court had inherent jurisdiction to execute the decree without a certificate from the Court, which had passed the decree. This argument was repelled and the Court held that the Court executing decree not being the Court which passed the decree would not be the proper Court, a Court with jurisdiction, when the condition precedent to its having jurisdiction has not been complied with, viz., a judicial order passed by the Court which passed the decree ordering the transfer of the decree. It may be mentioned that the execution application was presented by the decree-holder in the Poona Court though the decree was passed by Ahmadnagar Court. The following observations of the learned Chief Justice are, however, significant,--

'The facts here are that the decree which has been passed is a money decree and the only Court which could have passed that decree was the Court at Ahmednagar. The Poona Court had no jurisdiction as far as the suit was concerned, nor had it jurisdiction topass the decree. Its jurisdiction only arises by reason of a decree being transferred to it and if the decree is not transferred, it is dif-ficult to see how the Poona Court can have jurisdiction to execute the decree which it did not pass and which it could not have passed and which was passed by another Court.' In the present case, however, the Munsif Court, Shahpura, as already stated, had jurisdiction to pass -the decree and to execute it on the date the execution application was presented and as in the Bombay case its jurisdiction to execute the degree did uot arise only by reason of decree being transferred to it. The above observations, if I may say so with respect, in a way sup-port the appellants' contention. AIR 1957 Pat 854 (supra) and AIR 1958 Andh Pra 763 (supra) lay down the general principle underlying Sections 38 and 39, C. P. C., that unless a decree is transferred to a Court which had not passed it, it has no jurisdiction to execute it.

8. Although in the present case the objection regarding waiver was not raised in the lower Court, the material for deciding that question is available in this Court. The record of the previous execution application is here and it is clear from -it that the judgment-debtors did not object to the jurisdiction iof Munsif Court at Shahpura to execute the decree in the first instance when notice of the application was served on them. It is only during the course of the second execu-tion application that this objection has been raised, but since they have failed to raise this objection in the first instance it will be taken tbat they have waived it and, therefore, it is not open to them to raise it in the second execution application. Accordingly, this appeal is allowed, the order of the lower Court is set aside and the objection of the Judgment-debtors is overruled. The case will go back to the Munsif Court, Shahpura, for taking further execution proceedings. In the circumstances of the case the parties shall bear their own costs throughout.

9. Learned counsel for the respondents prays for leave to appeal to a Division Bench, which is granted.


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