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Abdul Hafiz Saheb Vs. Abdul Sukkur Saheb and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1938Mad27; (1937)2MLJ602
AppellantAbdul Hafiz Saheb
RespondentAbdul Sukkur Saheb and anr.
Cases Referred and Chettiar Firm v. Vanappa Chettiar A.I.R.
Excerpt:
- - ankamma air1933mad110 .the latter case is clearly distinguishable because the application there was made by the assignee decree-holder for the purpose of having himself recognised as the assignee and it is well settled that an application for that purpose can be made only to the original court......upon whether an earlier execution petition dated 7th august, 1933, which was presented to the district munsiff's court, trichinopoly, was an application in accordance with law and presented to the ' proper court '.2. the decree under execution is one passed by the court of small causes at trichinopoly. as one of the defendants had immovable property within the munsiff's jurisdiction, the decree seems to have been transferred to the district munsiff's court and as a result of proceedings taken there, some of the immovable properties were sold and part of the decree amount realised during the year 1930. on 7th august, 1933, an application was made to the district munsiff's court for an order to arrest the second defendant in the suit. it is now common ground that by that date no.....
Judgment:

Vradachariar, J.

1. The only question arising for determination in this Revision Petition is whether the execution petition which has been ordered by the lower Court was in time. This in turn will depend upon whether an earlier execution petition dated 7th August, 1933, which was presented to the District Munsiff's Court, Trichinopoly, was an application in accordance with law and presented to the ' proper Court '.

2. The decree under execution is one passed by the Court of Small Causes at Trichinopoly. As one of the defendants had immovable property within the Munsiff's jurisdiction, the decree seems to have been transferred to the District Munsiff's Court and as a result of proceedings taken there, some of the immovable properties were sold and part of the decree amount realised during the year 1930. On 7th August, 1933, an application was made to the District Munsiff's Court for an order to arrest the second defendant in the suit. It is now common ground that by that date no report had been sent by the District Munsiff's Court to the Court of Small Causes so as to deprive the Munsiff's Court of the power to execute the decree any further. The Munsiff's Court however returned the application on 7th August, 1933, with the following endorsement:

Legal representatives cannot be added in this Court. This application may be made to the Small Cause Court.

3. This endorsement refers to the fact that by that time the first defendant was dead and if the decree-holder wanted to bring his legal representative on record an application for that purpose must be presented only to the Court which passed the decree. In answer to this endorsement it was rightly pointed out on behalf of the decree-holder that execution was at that time sought only against the second defendant and that when he thought fit to take execution proceedings against the legal representatives of the first defendant he would apply to the Court which passed the decree. For some reason not appearing on the record the District Munsiff's Court nevertheless returned the application stating that the petitioner will apply for retransfer of the decree to the Small Cause Court and ask for arrest therein. After re-transfer and re-presentation, that petition was dismissed for non-payment of batta by the Court of Small Causes. Saheb.

4. It has been argued before me that this petition to the Munsiff's Court dated 7th August, 1933, is not one presented to the ' proper Court ' because the transfer to the Munsiff's Court must be taken to have been made only for the purpose of proceeding against the immovable properties situate within that Court's jurisdiction and that as the Small Cause Court was competent to issue a warrant for the arrest of the second defendant, the application for that purpose should have been made to the Small Cause Court and not to the District Munsiff's Court. I am not able to accede to this contention. Section 30 of the Code of Civil Procedure 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; and in Order 21, Rule 10 there is a provision that the holder of a decree who desires to execute it shall apply to the Court which passed the decree or if the decree has been sent to another Court, then to such Court. Section 42 enacts that the Court executing a decree shall have the same powers in executing such decree as if it had been passed by itself. Taking these three provisions together, it seems tome that their natural effect is that unless in the order of transfer there is any express limitation of the purpose for which the transfer is made--assuming that such limitation, if any, can control the provisions of the Code as to jurisdiction,--there is no reason to limit the powers of the Court to which a decree has been transferred for execution. Indeed it is possible to construe the observations of the Judicial Committee in Maharaja of Bobbili v. Narasaraju Bahadur (1916) 31 M.L.J. 300 : L.R. 43 IndAp 238 : I.L.R. 39 Mad. 640 (P.C) as depriving the original Court of jurisdiction to execute its decree once the decree has been sent to another Court for execution till the certificate under Section 41 is received from the transferee Court. A Division Bench in this Court has distinguished that case in the decision reported in Subba Rao v. Ankamma : AIR1933Mad110 . The latter case is clearly distinguishable because the application there was made by the assignee decree-holder for the purpose of having himself recognised as the assignee and it is well settled that an application for that purpose can be made only to the original Court. On the other hand, a Division Bench of the Bombay High Court went so far as to hold that even an application for transfer of the decree to another Court ought not to be made to the original Court before the certificate under Section 41 has been received from the Court to which the decree was first sent for execution. The question I am now concerned with is, however, not whether the original Court retains jurisdiction or not, but what is the extent of the jurisdiction of the Court to which the decree has been transferred for execution.

5. Mr. Anantha Aiyar seeks to impose restrictions upon its powers by reason of the considerations mentioned in els. (a), (b) and (c) of Section 39 as justifying the transfer. He concedes that the present case will not properly fall under Clause (a), (b) or (c). Obviously in a case falling under Clause (d) or in a case falling under Clause (2) of that section, no such limitation can exist at all. I may add that I do not think it right even in a case falling under sub-clause (a), (b) or (c) to limit the powers of the Court to which the decree is sent. Those clauses only deal with the circumstances justify thing a transfer and they need not necessarily define the powersof the Court to which the decree is sent for execution, because that is provided for in other sections of the Code. I admit that there are observations in Chhatra Pat Singh v. Kharaj Ram I.L.R. (1936) Cal. 1210 which lend some support to Mr. Anantha Aiyar's con tention; but, with all respect, I hesitate to follow them. In the present case we do not even have on record the petition on which the original order was made transferring the decree to the District Munsiff's Court nor have we even a copy of the order of transfer. It must merely be a matter of speculation as to what the reasons for the transfer might have been. It is also unnecessary in this case to decide on the conflict between Saradakripa Lala v. The Comilla Union Bank, Ltd. I.L.R. (1933) Cal. 1119 and Chettiar Firm v. Vanappa Chettiar A.I.R. 1936 Rang. 184 because the application of 7th August, 1933, was undoubtedly one for execution of the transferred decree and not for stay of its execution.

6. The Revision Petition fails and is dismissed with costs.


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