Skip to content


Karuppiah Ambalam Vs. Ayya Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1266 of 1963
Judge
Reported inAIR1965Mad435; (1965)1MLJ75
ActsCode of Civil Procedure (CPC), 1908 - Sections 24, 24(1), 39, 39(1), 41 and 42 - Order 21, Rules 3 to 9
AppellantKaruppiah Ambalam
RespondentAyya Nadar
Cases ReferredIn Dasrath Prasad v. Baijnath Prasad.
Excerpt:
.....court had no jurisdiction to transfer to another court and even if under section 24 it had power to transfer execution proceedings, the transfer could be made only to a court which had jurisdiction over the property or the person against whom execution was sought.;held, section 24 of civil procedure code confers a very wide power to the high court or the district court to withdraw any suit, appeal or other proceeding pending in any court subordinate to it and either try or dispose of the same, or transfer the same for trial or disposal to any court, subordinate to it and competent to try or dispose of the same. the subject-matter of the transfer referred in section 24, civil procedure code as suit appeal or other proceeding is of the widest kind; and there is no reason why..........after transfer to it under s. 39 c.p.c. secondly, it was urged that even if under s. 24 it had power to transfer execution proceedings, the transfer would be made only to a court which had jurisdiction over the property or the person against whom execution was sought.(4) we will briefly refer to the relevant provisions of the civil procedure code which deal with this matter. under s. 39 c.p.c. the court which passed the decree, may, so the application of the decree-holder, sent it for execution to another court if the person against whom the decree is passed is a resident therein or carries on business therein, or if he has property within the local limits of the jurisdiction of such transferee court, s. 39(1)(d) gives power to the court which passed the decree to transfer the decree.....
Judgment:
(1) This civil revision petition raises a question of law regarding the scope of S. 24 C.P.C. in its application to proceedings in execution.

(2) A decree was passed in O. S. 1 of 1962 by the Sub Court, Dindigul in the Madurai Dt. The execution proceedings were initiated in that court, and since the property to be proceeded against was situated within the jurisdiction of the Sub Court, Savaging, in the Ramanathapuram Dt., the decree was transferred to the Sub Court, Sivaganga, in following the procedure indicated in S. 39 C.P.C., read with O. XXI Rules 5 and 8 C.P.C. Thereafter some allegations were made about the propriety of the execution being continued in the Sub Court, Sivaganga, because of the manner in which adjournments were being granted by the Subordinate Judge, while dealing with the execution petition. The decree-holder filed a petition before the District Judge, Ramanathapuram, under S. 24 C.P.C. for transfer and after hearing both the parties, the learned District Judge transferred the execution petition to the Sub Court, Ramanathapuram at Madurai, for further execution and disposal. It is not in dispute that the property sought to be proceeded against is situated within the jurisdiction of the Sub Court, Sivaganga, and no part of it is situated within the jurisdiction of the Sub Court, Ramanathapuram.

(3) Against this decision this civil revision petition is filed by the judgment-debtor-respondent in the Court below, Sri. P. Balasubramaniam, learned counsel appearing for the petition therein, urged that under S. 24 C.P.C., the District Court had no jurisdiction to transfer to another Court execution proceedings pending in one Subordinate Court after transfer to it under S. 39 C.P.C. Secondly, it was urged that even if under S. 24 it had power to transfer execution proceedings, the transfer would be made only to a Court which had jurisdiction over the property or the person against whom execution was sought.

(4) We will briefly refer to the relevant provisions of the Civil Procedure Code which deal with this matter. Under S. 39 C.P.C. the Court which passed the decree, may, so the application of the decree-holder, sent it for execution to another Court if the person against whom the decree is passed is a resident therein or carries on business therein, or if he has property within the local limits of the jurisdiction of such transferee Court, S. 39(1)(d) gives power to the Court which passed the decree to transfer the decree to another Court even for other reasons, which should be recorded in writing. S. 42 enables the Court to which a decree is so sent for execution to execute it as if it had itself passed the decree. After execution is over, it has to certify the result of the execution to the Court which passed the decree as provided in S. 41 C.P.C. These are the substantial provisions relating to the transfer of execution proceedings. They have to be supplemented by O.XXI Rules 3 to 9 C.P.C., which give the details of the procedure. Under O. XXI Rule 5, if the decree is to be sent for execution to a Court in a different district, it shall be sent first to the District Court, and that Court under O.XXI Rule 8, may transfer the decree to a Court subordinate to it, of competent jurisdiction. This Court of competent jurisdiction will be the Court in whose jurisdiction the property is situate or the judgment-debtor resides or carries on a business.

Section 24 C.P.C., gives power to two superior courts, viz., the High Court or the District Court to withdraw any suit, appeal or other proceedings pending in any court subordinate to it and either try and dispose of the same, or transfer the same for trial or disposal to any Court, subordinate to it and competent to try or dispose of the same. In terms S. 24 confers a very wide power, and it is intended to enable the two superior courts mentioned in it, in their general power of superintendent over subordinate courts, or in the interest of justice to redistribute all civil work of whatever nature pending in subordinate courts for the purpose of disposal. It has also to be used where the interests of justice require, that a particular case should be transferred from one Subordinate Court. The subject matter of the transfer referred in S. 24 C.P.C., as suit, appeal or other proceeding, is of the widest kind, and there is no reason why execution proceedings should be excluded form the scope of other proceeding mentioned in this section. Considering also the general purpose of superintendent, and furthering the interests of justice for which this section is enacted, there is no reason why execution proceedings should be excluded form its scope. If any other view prevent the parties from getting adequate relief or way of transfer in the case of execution proceedings, where they would have a genuine grievance, if a particular court had to dispose of it.

(5) Next, to restrict the meaning of the words competent to try or dispose of the same seed in S. 24(1)(b)(ii) C.P.C. to territorial jurisdiction over the property of the judgment-debtor or the residence qualification of the judgment-debtor would lead to grave anomalies and failure of justice. Thus, if the presiding officer of the executing occur happens to be the judgment debtor himself and owns the property in his jurisdiction which is being proceeded against, or if he has taken a prejudicial attitude to one party, and that is urged as a ground for transfer of the execution proceeding, it will be impossible to transfer the execution proceeding to any other subordinate court, if the restricted meaning above sought to be given to the word competency, is to be accepted. It appears to us that the word competency used in the above section cannot be used to restrict in the above section cannot be used to restrict the power of the District Court or the High Court under S. 24 C.P.C. to transfer the execution proceeding only to a court which has territorial competency, or jurisdiction over the place where the judgment debtor resides or works for gain. It has to be given sufficiently wide interpretation to include each and every court within the jurisdiction of the superior court, empowered to deal with such execution application.

(6) Further, there is no reason to draw any distinction between an execution petition pending in a subordinate court where the decree sought to be executed is the decree passed by that court, and an execution proceeding which is pending after it had been transferred to that court under S. 39 C.P.C. from the court which passed that decree. The power under S. 24 C.P.C. is sufficiently general, to apply to both types of proceedings in execution.

(7) The authorities cited before us can be distinguished between those which deal with the power of the court to which an execution proceeding has been transferred under S. 39 C.P.C. for disposal, and those which deal with the power of the superior court under S. 24 C.P.C. Veerappa Chetti v. Ramaswami Chetti, ILR 43 Mad 135: (AIR 1920 Mad 505); Vasireddi Srimanthu v. Venkatappayya, ILR 1948 Mad 18: (AIR 1947 Mad 347) (FB) and Kasi Viswanatham Chetti v. Muragappa Chetti, 33 Mad LJ 750: (AIR 1918 Mad 17) refer to cases where execution petitions were transferred under S. 39 C.P.C., read with Order XXI Rule 8 by the court passing the decree to the court where the judgment debtor's properties were situated at the time of the transfer. At a subsequent stage the properties, owing to redistribution of jurisdiction, were transferred to some other Court's jurisdiction. These decisions have held that in such cases, the court to which the execution petitions were transferred in the first instance, would no longer have the powers to sell the properties concerned. The sale of such properties would be illegal.

On the other hand, what is more directly relevant for the present purpose is the view laid down by Venkatasubba Rao J., in Rajagopala Pandarathar v. Tirupathia Pillai, ILR 49 Mad 746: (AIR 1926 Mad 421) which had been followed by other decisions of this court and also by some other courts. In that case there was a final decree in a suit for sale on a mortgage which was passed by the Sub Court, Tanjore. An application for execution was filed in that Court. The mortgaged property was transferred from the jurisdiction of that Court to that of the District Court. The judgment debtor did not raise any objection to the jurisdiction. Subsequently, on the application of the decree-holder the District Court withdrew the execution application to its own file and retransferred it to the same court which subsequently effected the sale of the property again without objection to the jurisdiction. Thereafter, the judgment-debtor applied to the Sub Court to set aside the sale on the ground of want of jurisdiction in the Sub Court to sell the property. Both Venkatasubba Rao and Madhavan Nair, H., held that under the principles underlying S. 21 C.P.C. the objection to jurisdiction could not be taken at a later stage according to the rule in Ledgard v. Bull, 13 Ind App 134 (PC). Venkatasubba Rao J. in the judgment also dealt with the scope of S. 24 C.P.C. He observed that if S. 24 were held not to apply to execution proceedings, it would render that section almost useless. Secondly, he held that the competency of the court in S. 24 was not to be restricted to territorial or local competency to court. So far as execution applications were concerned, he was inclined to hold that even pecuniary competency need not exist, but we are not now called upon to decide this aspect of the matter.

It is necessary to observe that the view of Venkatasubba Rao J. has been followed by Horwill J., inSeetharamayya v. Sivarama Krishna Rao, AIR 1944 Mad 145 and in the recent judgment of this court in Kochadai Naidu v. Nagayasami Naidu, to which one of us was a party. The last mentioned case dealt with a dispute over possession of property which came up before a magistrate under S. 145 Cr.P.C. and which was thereafter referred to a civil court under S. 146 Cr.P.C. for the purpose of obtaining a finding. Thereafter, the District Court transferred the enquiry pending in the civil court to another court, within its jurisdiction, where a connected suit was pending. An objection was raised that such a transfer was not competent under S. 24 C.P.C. but this court held that S. 24 was not in terms restricted to civil proceedings alone, but it was wide enough to include all proceedings that may be pending in a subordinate civil court.

Similar view has been followed in other High Court, Sulaiman C. J. in Kishore Lal v. Balkishan ILR (1932) 54 ALL 824: (AIR 1932 ALL 660), dealt with the power of the superior Court under S. 24 C.P.C. and observed that the word competent in that section must be taken to refer to pecuniary jurisdiction only, and should not be restricted to territorial jurisdiction. In re Balaji Ranchhoddas ILR 5 Bom 680, it was held that S. 25 C.P.C. (Act X of 1877) (which corresponds to S. 24 of the present Code) would apply to execution proceedings also. In Dasrath Prasad v. Baijnath Prasad. the power under S. 24 C.P.C. has been held to include the power to transfer execution proceedings.

(8) Therefore, we overrule the objections of the petitioner and dismiss this revision petition with costs.

(9) Revision dismissed.


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