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Penugonda Rattam and anr. Vs. Korasika Thatha and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in35Ind.Cas.237; (1916)31MLJ90
AppellantPenugonda Rattam and anr.
RespondentKorasika Thatha and anr.
Cases ReferredIn Subbiah Naicker v. Ramanatham Chettiar I.L.R.
Excerpt:
- - 800 of 1913) in respect of the unsatisfied portion of the decree for mesne profits and costs to the rajamundry munsif's court on 20-9-12 and 1-8-1913 respectively......court. on 4th may 1912 the jurisdiction was again transferred from the tanuku court to the kovvur munsif's court. 'the original decree holder presented the application (e.p. no. of 1912) and his heirs presented the application (e.p. no. 800 of 1913) in respect of the unsatisfied portion of the decree for mesne profits and costs to the rajamundry munsif's court on 20-9-12 and 1-8-1913 respectively. in the first petition, the decree holder merely asked for transmission of the decree to kovvur munsif's court. in the second petition, the prayer was for transmission of the decree to kovvur and for recognising the petitioners 2 and 3 (appellants) as legal representatives of the deceased decree holder. the last preceding application e.p. 1335 of 1909, which was presented in the tanuku.....
Judgment:

1. The question for decision in this appeal is whether the execution applications E.P. No. 776 of 1912 and 800 of 1913 were made to the proper Court so as to save limitation. The decree in the suit was passed by the District Munsif's Court of Rajamundry on September 22nd 1903. In 1905 the jurisdiction over the village Tadimella where the plaint property was situated was transferred to the Tanuku Munsif's Court. The decree so far as the delivery of the property was concerned was executed in 1908 in the Tanuku Munsif's Court. On 4th May 1912 the jurisdiction was again transferred from the Tanuku Court to the Kovvur Munsif's Court. 'The original decree holder presented the application (E.P. No. of 1912) and his heirs presented the application (E.P. No. 800 of 1913) in respect of the unsatisfied portion of the decree for mesne profits and costs to the Rajamundry Munsif's Court on 20-9-12 and 1-8-1913 respectively. In the first petition, the decree holder merely asked for transmission of the decree to Kovvur Munsif's Court. In the second petition, the prayer was for transmission of the decree to Kovvur and for recognising the petitioners 2 and 3 (appellants) as legal representatives of the deceased decree holder. The last preceding application E.P. 1335 of 1909, which was presented in the Tanuku Munsif's Court, was dismissed on 4th January 1910. The present execution petition E.P. No. 1522 of 1913 was presented on the 13th Nov. 1913.

2. It follows therefore that unless E.P. 776 of 1912 and 800 of 1913 were presented to the 'proper Court ' E.P. No. 1522 of of 1913 is barred. (See Clause 5 of Article 182 of the Limitation Act). It cannot be doubted that a petition although it is a step in aid of execution will not save limitation unless it is presented to the proper Court. Maharaja of Bobbili v. Sree Raja Narasaraju Peda Baliar Simhulu Bahadur I.L.R. (1912) M. 231.

3. Section 38 Civil Procedure Code provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 37 Civil Procedure Code defines the expression ' Court which passed the decree ' as including ' (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 the making the application for execution of the decree would have jurisdiction to try such suit.'

4. In Subbiah Naicker v. Ramanatham Chettiar I.L.R. (1911) M. 462, 26 M.L.J. 189 it was held that where owing to a change of venue a court has lost jurisdiction to continue pending proceedings affecting property so transferred to another jurisdiction, such proceedings are also ipso facto transferred by the change of venue to the new Court. This principle is also applicable to proceedings at their institution. Parthasarathi Appa Row v. V enkakatadri Appa Row (1914) M.W.N. 896.

5. We think it is clear that where the Court which passed the decree has ceased to have jurisdiction to execute it, the only Court which can execute the decree is the Court which at the time of making the application for execution would have jurisdiction to try the suit in which the decree sought to be executed was passed.

6. The portion of the decree which remained to be executed was that relating to ' mesne profits ' and costs. ' Mesne profits ' are claimed ' in respect of' immoveable property. (S.Order 2, Rule 4(a) Civil Procedure Code) and the village in which the property is situated was within the jurisdiction of the Kovvur and not the Rajamundry Munsif's Court when the applications of 1912 and 1913 were made and a suit for such profits would, on the dates of the presentation of the applications have lain only in the Kovvur Court, unless the defendants resided within the Rajamundry Munsif's jurisdiction, which seems not to have been the case. As regards costs the judgmentdebtor was residing on the dates with which we are concerned within the jurisdiction of the Kovvur Munsif's Court and it was apparently for that reason that the decreeholder applied for transmission of the decree to the Kovvur Court. It is also legally impossible to institute a suit solely for recovery of the costs already incurred or to be incurred in conducting a suit without asking for some other relief in that suit and without praying for the recovery of the costs merely as appurtenant to such other relief or reliefs. In our opinion the application in question ought undoubtedly to have been presented to the Kovvur Court and not having been made to the 'proper Court' cannot save limitation.

7. We think the decision of the Subordinate Judge is right. The appeal is dismissed with costs.


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