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Kaza Sivaramakrishna Rao Vs. Jonnalagadda Seetharamayya and ors. - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai
Decided On
Reported inAIR1944Mad446
AppellantKaza Sivaramakrishna Rao
RespondentJonnalagadda Seetharamayya and ors.
Cases ReferredAbdul Hafiz v. Abdul Sukkur A.I.R.
Excerpt:
- - respondent 3 failed to repay to the building society the moneys advanced by it to him and on 20th december 1933 the building society obtained an award against him. it is now well settled law in this province that a court which passes a mortgage decree in respect of properties lying within and without its jurisdiction has the power to sell in execution all the properties covered by the decree. this means that when a mortgage decree has been transferred to a court for execution it can sell the properties lying outside the boundaries of its jurisdiction as well as those lying within them......of the jurisdiction of the court which passed it. section 42 provides that the court executing a decree transferred to it for execution shall have the same powers in executing it as if it had been passed by itself. horwill j. held that as section 42 gives the court to which a decree is transferred for execution the same powers for this purpose as the court which passed if had and as the trial court had the power to sell in execution the bezwada property notwithstanding that it was outside its jurisdiction the district court also had the power to sell this property.7. we agree with this opinion. it is now well settled law in this province that a court which passes a mortgage decree in respect of properties lying within and without its jurisdiction has the power to sell in execution all.....
Judgment:

Leach, C.J.

1. This Letters Patent appeal raises a question with regard to the powers conferred by Section 42, Civil P. C, on a Court to which a decree has been transferred for purposes of execution. In order to understand what is involved we must set the facts in this case.

2. On 31st May 1925 respondent 3 mortgaged a house belonging to him in Bezwada to the Cooperative Building Society of Bezwada to secure a sum of Rs. 4000. On 20th September 1926 respondent 3 and his sons (respondents 4 and 5) created a second mortgage on this property in favour of respondent 2 and by the same deed a first mortgage on other properties consisting of agricultural lands. Subsequently the Building Society advanced to respondent 3 a further sum of Rs. 800 in respect of which it obtained a third charge on the house. Respondent 3 failed to repay to the Building Society the moneys advanced by it to him and on 20th December 1933 the Building Society obtained an award against him. This was executed on 16th December 1934 and at the auction the property was purchased by the appellant. In the meantime respondent 2 instituted a suit in the District Court of Kistna to enforce the mortgage which respondent 3 and his sons had created in his favour on 20th September 1926. The District Court had jurisdiction by reason of the fact that the lands in respect of which respondent 2 had obtained a first mortgage were situate within the territorial limits of the District Court's jurisdiction. The suit remained on the file of the District Court until 16th November 1936, when it was transferred to the Court of the Subordinate Judge of Masulipatam. By that time respondent 2 had assigned the mortgage to respondent 1, who became plaintiff 2 in the suit.

3. On 16th August 1938, respondent 1 obtained from the Subordinate Judge a preliminary decree and on 13th December 1940, a final decree. On 19th March 1941, the decree of the Subordinate Court was transferred to the District Court of Kistna for execution. As the decree-holder had not obtained an encumbrance certificate in' respect of the agricultural lands and as the Court refused to grant him further time for its production, the application for execution was proceeded with only in respect of the house in Bezwada, the sale of which was fixed for 2nd February 1942. The appellant became aware of the course of events in January and on 26th of that month he filed a petition asking for an order directing the decree-holder to proceed first in execution against the lands in the Kistna district. This application was, however, not pressed and was formally dismissed on the day fixed for the sale of the house in Bezwada. Respondent 1 purchased the property at the auction.

4. On 4th March 1942 the appellant filed an application under Order 21, Rule 90, for an order setting aside the sale. He advanced two grounds. The first was that the District Court had no jurisdiction to execute the decree so far as the Bezwada property was concerned. The second ground was that the proclamation of sale had not disclosed the earlier mortgage in favour of the Building Society. Respondent 1 contended that the application did not lie because the appellant by filing the application of 26th January 1942 had submitted to the jurisdiction of the District Court. All these questions were answered in favour of the appellant. Respondent 1 appealed to this Court. The appeal was heard by Horwill J., who. was of the opinion that the District Court had jurisdiction to sell the Bezwada property and that the irregularity in not mentioning in the sale proclamation the earlier mortgage in favour of the Building Society had not resulted in substantial loss to the appellant. He agreed, however, with the District Judge that the petition of 26th January 1942 did not imply any waiver of the objection to jurisdiction. As the learned Judge was of the opinion that the District Court had jurisdiction to sell the Bezwada property and that the appellant had not suffered any real loss as the result of the omission in the sale proclamation, he allowed the appeal. The present appeal is from this decision.

5. As we agree with Horwill J. that the District Court had jurisdiction to sell the house in Bezwada and that the appellant suffered no loss as the result of the irregularity in the publication of the sale proclamation it is unnecessary for us to discuss the question of waiver. We may mention in passing that no argument has been addressed to us on the question of material irregularity. The only substantial question is whether the learned Judge was right in holding that the District Court had all the powers of the trial Court in the matter of execution.

6. Section 38, Civil P. C, states 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 39 contains provisions with regard to the transfer of decrees for purposes of execution. Sub-section (1)(c) says that the Court which has passed a decree may, on the application of the decree-holder, send it for execution to another Court, if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it. Section 42 provides that the Court executing a decree transferred to it for execution shall have the same powers in executing it as if it had been passed by itself. Horwill J. held that as Section 42 gives the Court to which a decree is transferred for execution the same powers for this purpose as the Court which passed if had and as the trial Court had the power to sell in execution the Bezwada property notwithstanding that it was outside its jurisdiction the District Court also had the power to sell this property.

7. We agree with this opinion. It is now well settled law in this Province that a Court which passes a mortgage decree in respect of properties lying within and without its jurisdiction has the power to sell in execution all the properties covered by the decree. That being the law, the District Court by reason of Section 42, had the same power as the Subordinate Court of Masulipatam had of selling the house in Bezwada.

8. In the course of the arguments before Horwill J., several cases were cited, but only one of them has real application. That case is Abdul Hafiz v. Abdul Sukkur A.I.R. 1938 Mad. 27 which was decided by Varadachariar J. who discussed the powers conferred by Section 42 on the Court to which a decree is transferred for execution. The facts there were these. A money decree was passed by the Court of Small Causes at Trichinopoly. It was transferred for execution to the Court of the District Munsif of Trichinopoly as one of the defendants had immovable property within the jurisdiction of that Court. After the transfer, an application was made to the District Munsif to execute the decree by ordering the arrest of defendant 2. It was contended that inasmuch as the object for which the decree had been transferred was the attachment of the immovable properties of defendant 1, the District Munsif could not entertain a petition for the arrest of defendant 2. It was held that the District Munsif had power to execute the decree in this way. Having referred to Section 38, Order 21, Rule 10 and Section 42, Varadachariar J. said that unless in the order of transfer there was express limitation of the purpose for which the decree was transferred-assuming that such limitation could control the provisions of the Code as to jurisdiction-the natural effect of these statutory provisions was to impose no limitation on the Court to which a decree had been transferred for execution. We agree. We can see nothing in Section 42 or in any part of the Code of Civil Procedure which restricts in the mode of execution the power of the Court to which a decree has been transferred for execution. This means that when a mortgage decree has been transferred to a Court for execution it can sell the properties lying outside the boundaries of its jurisdiction as well as those lying within them.

9. The appeal will be dismissed with costs.


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