Skip to content


Kasi Viswanathan Chetty Vs. Murugappa Chetty and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in43Ind.Cas.79; (1917)33MLJ750
AppellantKasi Viswanathan Chetty
RespondentMurugappa Chetty and anr.
Cases ReferredSubbiah Naicker v. Ramanatha Chettiar I.L.R.
Excerpt:
- - otherwise as regards order xxi, rule 8 of the code of civil procedure and execution, since, apart from the special and exceptional procedure by precept, a court cannot act through its officers except within its territorial jurisdiction. the decision cited dealt, like the present proceedings, with execution. but such support, we have satisfied ourselves, is in no degree forthcoming......order xxi, rule 8 of the code of civil procedure. the transfer to it by the district court of the decree for execution was accordingly such as the rule contemplates and conferred on it the jurisdiction necessary to support its proceedings, notwithstanding that territorial jurisdiction over the property to be sold was wanting. but this has been justified only by the assumption that the expression 'court of competent jurisdiction' in the rule should be interpreted as it must be, when it occurs in section 24, with reference to territorial jurisdiction. the assumption is unsustainable, because it is negatived by the object of the last mentioned provision. for the competence of a court to try a suit does not depend on its possession of any power connected with territorial competence, since.....
Judgment:

1. The order before us is one passed under Order XXI, Rule 90 of the Code of Civil Procedure, refusing to set aside a sale in execution. As regards the objections to it argued on the evidence relating to inadequacy of price and substantial loss we accept the Lower Court's observations and concur in its conclusions. The remaining objection that the sale was held without jurisdiction calls for more lengthy discussion. It arises as between appellant, the Judgment debtor, and 1st respondent, the decree-holder, and is that the lower court, the Subordinate Court of Ramnad, had no jurisdiction, to sell property, which, it is admitted, is situated in the territorial jurisdiction of the Subordinate Court of Sivaganga. The decree under execution was passed by the Chief Court of Lower Burma and was transmitted by it for execution to the District Court of Ramnad, that court transferring it for execution to the lower court.

2. The objection has been met first by the argument that the lower court is of unlimited pecuniary jurisdiction and therefore of competent jurisdiction within the meaning of Order XXI, Rule 8 of the Code of Civil Procedure. The transfer to it by the District Court of the decree for execution was accordingly such as the rule contemplates and conferred on it the jurisdiction necessary to support its proceedings, notwithstanding that territorial jurisdiction over the property to be sold was wanting. But this has been justified only by the assumption that the expression 'court of competent jurisdiction' in the Rule should be interpreted as it must be, when it occurs in Section 24, with reference to territorial jurisdiction. The assumption is unsustainable, because it is negatived by the object of the last mentioned provision. For the competence of a court to try a suit does not depend on its possession of any power connected with territorial competence, since it has independently of it machinery far issuing process, obtaining the presence of parties and securing evidence throughout India. Otherwise as regards Order XXI, Rule 8 of the Code of Civil Procedure and execution, since, apart from the special and exceptional procedure by precept, a court cannot act through its officers except within its territorial jurisdiction.

3. This follows from Section 39(1)(b) and Section 42 of the Code of Civil Procedure. Section 38 is no doubt general in its terms. But the reference in it to 'the court to which the decree is sent' must be read with reference to a sending authorised by law that is subject to Section 39. And the, reference to competence in Order XXI, Rule 8 must be interpreted in the same way. It may be added that this reference was first made in Order XXI, Rule 8 of the present Code, the wording of Section 226 of the old Code of Civil Procedure corresponding with it having been modified, and it is therefore useless to refer to the only decisions on the point, those reached under the former law. The conclusion must in the circumstances be against the contention of the decree holder, the 1st respondent.

4. He has however argued in the alternative that the transfer of the decree to the Lower Court by the District Court was or must be presumed to have been to a court competent, when the transfer was made, and that its competence has not been affected by any subsequent transfer to the Sivaganga Court of jurisdiction over the village, where the property sold is situated. The transfer of jurisdiction to the Sivaganga Court took place, we have ascertained from the District Judge, on the 15th April 1918. Regarding the date of the transfer of the decree by the District Court there is nothing on the record before us. But, if it be presumed that it was before the transfer of jurisdiction and that the transfer of the decree was valid,that cannot avail the 1st respondent. For the material point is that the sale under consideration was held after 15th April 1913 in 1915,...when the lower court had no territorial jurisdiction and it is the law, as laid down in Subbiah Naicker v. Ramanatha Chettiar I.L.R. (1914) M. 462 a decision by which we are bound, that pending proceedings are transferred by operation of law on the occurrence of any change in territorial jurisdiction over the property, with which they are concerned. Therefore, if the lower court was at any time competent to execute the decree in virtue of any transfer to it prior to 15th April 1913, it forfeited its competence to keep the suit property under attachment or to sell it from that date. The decision cited dealt, like the present proceedings, with execution. The only ground of distinction from it suggested, that the notification transferring jurisdiction in question in it may have withdrawn, whilst that in question here did not withdraw, jurisdiction over the transferred area, would require clear support from the terms of the notifications, since such concurrent jurisdiction in the case of courts of equal grade is rare, if not unprecedented. But such support, we have satisfied ourselves, is in no degree forthcoming. This argument also must therefore be rejected.

5. As the sale was held without jurisdiction, it must be set aside, the appeal being allowed and the lower court's order being reversed with costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //