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Thadapalli Pedda Subba Rao Vs. Lavu Ankamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad110; 140Ind.Cas.591; (1932)63MLJ788
AppellantThadapalli Pedda Subba Rao
RespondentLavu Ankamma and anr.
Cases ReferredAyyaru Pillai v. Varadaraja Pillai
Excerpt:
.....i fail to see how that case is in the least relevant to the point we have to decide. ' i am satisfied that mr. the learned subordinate judge has disposed of that contention very neatly and effectively in paragraph 19 of his judgment, in which he says: notice of the assignee-decree-holder's application for recognition of his assignment had to be given to the judgment-debtors, and it was open to them to represent to the subordinate judge of negapatam that the decree had been completely satisfied or partly satisfied, if that was so......court as one that satisfied the requirements of the law. the petition was filed by the assignee-decree-holder. it was in the form prescribed by the code and prayed first, that the petitioner should be recognised as the assignee decree-holder; secondly, that the fact of his being so recognised should be communicated to the kistna district court and the bapatla sub-court where the execution of the decree was being carried on; and thirdly, that concurrent execution, which had already been ordered, should be allowed to be proceeded with.2. mr. venkatachari's contention is that, when once a decree is transmitted under section 39 of the code to another court for texecution, no execution application can be made to the court which passed the decree, until the certificate prescribed by section.....
Judgment:

Venkatasubba Rao, J.

1. Mr. Venkatachari for the appellant contends that the execution petition should not have been treated by the Lower Court as one that satisfied the requirements of the law. The petition was filed by the assignee-decree-holder. It was in the form prescribed by the Code and prayed first, that the petitioner should be recognised as the assignee decree-holder; secondly, that the fact of his being so recognised should be communicated to the Kistna District Court and the Bapatla Sub-Court where the execution of the decree was being carried on; and thirdly, that concurrent execution, which had already been ordered, should be allowed to be proceeded with.

2. Mr. Venkatachari's contention is that, when once a decree is transmitted under Section 39 of the Code to another Court for texecution, no execution application can be made to the Court which passed the decree, until the certificate prescribed by Section 41 has been received by that Court. I am unable to follow this argument, for in principle I find it difficult to understand why the original Court is incompetent to entertain an application in the absence of the certificate under Section 41. Mr. Venkatachari says that without the certificate the Court will not be in a position to find out what the amount due to the petitioner is. He forgets that the execution application gives the necessary information and the Courts usually act on such material as is placed before them. Apart from the reason of the thing, the learned Counsel has not been able to point to any provision, which forbids the Court to entertain such an application. The cases relied upon by him do not support him in the least. I am not concerned with the correctness or otherwise of the decision in Rangaswami v. Sheshappa I.L.R. (1922) 47 Bom. 56. The petitioner before us is not the decree-holder as in that case but the decree-holder's assignee, and under Order 21, Rule 16 the only Court to which he is entitled to apply for execution is the original Court; in other words, the Court which passed the decree. In Maharaja of Bobbili v. Sree Raja Narasaraju Peda Baltar Simhulu Bahadur I.L.R. (1912) 37 Mad. 231 : 23 M.L.J. 236, after the decree had been transmitted to the Parvatipur District Munsif's Court, and certain properties had been attached by that Court, the decree-holder applied to the District Court, without asking for concurrent execution, for the sale of the properties already attached by the other Court. That course was held to be irregular, and I fail to see how the decision has any bearing upon the point we have to decide. From Maharaja of Bobbili v. Sree Raja Narasaraju Peda Baliar Simhulu Bahadur I.L.R. (1912) 37 M. 231 : 23 M.L.J. 236 an appeal was taken to the Privy Council and its judgment is reported in Maharajah of Bobbili v. Narasaraju Bahadur . All that their Lordships held was that, as the property concerned was within the local limits of the jurisdiction of the Munsif's Court and as that property had already been attached by that Court, the District Court was not the proper Court to execute the decree by sale of that property and that the proper Court to which the application should have been made was the Munsif's Court. This case again has nothing to do with the point now raised. The judgment of Devadoss, J., in Ayyaru Pillai v. Varadaraja Pillai (1925) 50 M.L.J. 116 has also no bearing on the question to be decided. That case held that an application to the transferee Court by the assignee-decree-holder, to send back the decree to the original Court, is a step-in-aid of execution. I fail to see how that case is in the least relevant to the point we have to decide. We have here nothing to do with the powers of the transferee Court, the only question being, 'Is the execution application made to the original Court competent or not?' I am satisfied that Mr. Venkatachari's contention is not only opposed to principle but does not receive the slightest support from the provisions of the Code.

3. The appeal is dismissed with costs of the assignee-decree-holder.

Reilly, J.

4. I agree. Mr. Venkatachariar for the judgment-debtor set out in this appeal to satisfy us that the Subordinate Judge of Negapatam, that is the Judge of the Court which made the decree, had no jurisdiction to entertain this application of the assignee-decree-holder. The learned Subordinate Judge has disposed of that contention very neatly and effectively in paragraph 19 of his judgment, in which he says:

In this application the petitioner is not praying for any relief which the Court cannot grant. He is asking for a relief which only this Court can grant.

5. In the end Mr. Venkatachariar, as I understand him, does not deny that the only Court to which the assignee-decree-holder could go for the recognition of his assignment was the Court of the Subordinate Judge of Negapatam. But, being unable eventually to dispute that, he has tried to persuade us that, although the Subordinate Judge of Negapatam could properly entertain the assignee-decree-holder's application, he could not grant the assignee-decree-holder's prayers in that application until the transferee Courts, the District Court of Kistna and the Court of the Subordinate Judge of Bapatla, to which the decree had been previously transferred for execution, had 'reported either that no satisfaction had been obtained in their Courts or that complete satisfaction had not been obtained. His eventual contention appears to be that the Subordinate Judge of Negapatam should have stayed his hand until the records had come back from those Courts--or at any rate until certificates had been received from those Courts that satisfaction had not been completely obtained. There is no provision in the Code to that effect, and, so far as I can see, no reported decision which goes to that length. Even the decision of Mr. Justice Devadoss, in Ayyaru Pillai v. Varadaraja Pillai (1925) 50 M.L.J. 116, to which we have been referred, does not go so far as that; nor was that the point which the learned Judge immediately had to decide. And there appears to be no necessity nor reason why the Subordinate Judge of Negapatam should stay his hand until he got such certificates from the transferee Courts. Notice of the assignee-decree-holder's application for recognition of his assignment had to be given to the judgment-debtors, and it was open to them to represent to the Subordinate Judge of Negapatam that the decree had been completely satisfied or partly satisfied, if that was so. They were quite sufficiently protected by the procedure required by the Code that notice should be given to them. In my opinion Mr. Venkatachariar has not been successful in making out either that the law requires or that there is any necessity that the original Court in such a case should, after entertaining the assignee-decree-holder's application, as it is now admitted must be done, stay its hand until certificates have been received from the transferee Courts or the records have been returned. In my opinion the learned Subordinate Judge's order was right, and I agree that this appeal should be dismissed with costs.


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