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Venkatasami Naik and anr. Vs. Sivanu Mudali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported in51Ind.Cas.102; (1919)36MLJ199
AppellantVenkatasami Naik and anr.
RespondentSivanu Mudali and anr.
Excerpt:
- - in fact this portion of section 37 of the civil procedure code clearly has reference to transfers of territorial jurisdiction from one court to another......to entertain a petition (e.p. no. 193 of 1916) presented to him for execution of a mortgage decree passed by the additional district munsif of tinnevelly in o.s. no. 280 of 1906 on his file. territorial jurisdiction over the hypotheca sought to be brought to sale in execution of the mortgage decree admittedly lay with the koilpatti court while the tinnevelly court had no local jurisdiction at all, but was established simply to aid the other courts of the district, by disposing of suits transferred from their file. there had been a transfer of territorial jurisdiction to the koilpatti court from that of srivilliputtur in which the suit had originally been filed; but it is agreed that this circumstance makes no difference to the question for disposal, and we may consider the latter.....
Judgment:

1. The appeal turns solely on the question of whether the District Munsif of Koilpatti had jurisdiction to entertain a petition (E.P. No. 193 of 1916) presented to him for execution of a mortgage decree passed by the Additional District Munsif of Tinnevelly in O.S. No. 280 of 1906 on his file. Territorial Jurisdiction over the hypotheca sought to be brought to sale in execution of the mortgage decree admittedly lay with the Koilpatti court while the Tinnevelly Court had no local jurisdiction at all, but was established simply to aid the other courts of the district, by disposing of suits transferred from their file. There had been a transfer of territorial jurisdiction to the Koilpatti court from that of Srivilliputtur in which the suit had originally been filed; but it is agreed that this circumstance makes no difference to the question for disposal, and we may consider the latter as if territorial jurisdiction had always been with the Koilpatti court. No order had been passed transferring the decree under Section 24 or Section 39 of the Civil Procedure Code; and the question is whether in these circumstances the Koilpatti court had jurisdiction to execute it under Section 38 of the Civil Procedure Code as the court which passed it.

2. In our opinion the answer must be in the negative. Section 37 of the Code of Civil Procedure gives an extended significance to the term ' court which passed a decree' but contains nothing applicable to the present case. The Tinnevelly court has certainly not ceased to exist and it cannot be said to have ceased to have jurisdiction to execute its own decree. Whatever jurisdiction as regards execution it possessed at the time of passing the decree, it still possesses. In fact this portion of Section 37 of the Civil Procedure Code clearly has reference to transfers of territorial jurisdiction from one court to another.

3. We must therefore hold that the Koilpatti court had no jurisdiction to execute the decree, unless and until the decree-holder got the decree transferred to it for execution. The order of the Koilpatti District Munsif rejecting the execution petition was therefore right.

4. In the concluding portion of his judgment, the District Judge directs that his order allowing execution should operate as a transfer of the decree to the Koilpatti court's file; but in so doing he appears to have overlooked the fact that at the date of his order an application for execution would apparently have been time-barred unless petitioner could claim the benefit of Section 14 of the Indian Limitation Act, a point which has not been considered. No transfer order should be made so as to evade the provisions of the Limitation Act or to validate an invalid application.

5. The District Judge's order must be set aside, and that of the District Munsif restored with costs to the Appellant throughout.


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