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S.R. Nanjunda Chettiar Vs. Nallakaruppan Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1928)55MLJ120
AppellantS.R. Nanjunda Chettiar
RespondentNallakaruppan Chettiar
Excerpt:
- .....judge was ordered on 12th october, 1925. on 14th october, 1925, the respondent filed his execution application. on 15th october, 1925, the records were received from the district munsif. the question for determination is whether the respondent's application of 14th october, 1925 was an application to the court for the execution of decree for the payment of money as contemplated by section 73, civil procedure code.4. there is no doubt that such application must be to the court which passed the decree or if the decree has been sent to another court, then that court, vide order 21, rule 10, civil procedure code. that is to say, an application cannot be made to a court in anticipation that it may subsequently receive the decree by way of transfer. then the question resolves itself.....
Judgment:

Jackson, J.

1. Petitioner seeks to revise the order of the Subordinate Judge of Coimbatore in E.A. No. 834 of 1925.

2. The petitioner obtained a money-decree against one M.S. Pandaram, and in execution sold on 14th October, 1925, three mortgage debts, drawing the money on 15th October, 1925.

3. The respondent had obtained a decree against the same person in the Court of the District Munsif of Coimbatore. Its transfer for execution to the Court of the Subordinate Judge was ordered on 12th October, 1925. On 14th October, 1925, the respondent filed his execution application. On 15th October, 1925, the records were received from the District Munsif. The question for determination is whether the respondent's application of 14th October, 1925 was an application to the Court for the execution of decree for the payment of money as contemplated by Section 73, Civil Procedure Code.

4. There is no doubt that such application must be to the Court which passed the decree or if the decree has been sent to another Court, then that Court, vide Order 21, Rule 10, Civil Procedure Code. That is to say, an application cannot be made to a Court in anticipation that it may subsequently receive the decree by way of transfer. Then the question resolves itself into this, whether the District Munsif's order of transfer, dated 12th October, 1925, vested the Subordinate Judge with jurisdiction to receive the execution application of the 14th October. The learned Subordinate Judge thought that it did; 'the decree having been ordered to be transferred on 12th October, 1925, it matters very little as to the date on which it was received.' But such an operative order of transfer does not seem to be contemplated by the Code. The mode of transfer in Order 21, Rule 5, Civil Procedure Code is by dispatch of the decree, and a Court is presumably only seised with authority to execute when it has received the decree. The learned Subordinate Judge seems to agree that this is the sense in which the relevant sections of the Code should be read, but gets over them by observing that they are directory and not mandatory.

5. But that formula hardly helps in the present case. A Court must obtain jurisdiction by some definite act. If the receipt of the decree from the Court which passed it is not the essential act, what is? It is not enough to say that the receipt is discretionary, or that the mere dispatch is enough; and a Court cannot arrogate jurisdiction to itself. It must be held, therefore, that until a Court has received the decree it has no jurisdiction to entertain an application for execution, and the application of 14th October, 1925, cannot help the respondent. There is no equity in these cases; within certain defined limits the statute allows rateable distribution and otherwise parties are left to their own devices.

6. The petition is allowed with costs and the order of the lower Court is cancelled.


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