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P. Madhavan Unni Vs. M. Jayapandia Nadar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberLetter Patent Appeal No. 94 of 1968
Judge
Reported inAIR1973Mad2
ActsCode of Civil Procedure (CPC), 1908 - Sections 24, 37, 39, 39(1), 42 and 47 - Order 21, Rules 3 to 9
AppellantP. Madhavan Unni
RespondentM. Jayapandia Nadar
Cases ReferredIn Karuppiah Ambalam v. Ayya Nadar Ramachandra Iyer
Excerpt:
.....to deal with such execution application. the power of transfer under section 24 of a suit, appeal or other proceedings, by a high court or a district court to a court within their respective jurisdiction is a very effective remedy and no fetters should be placed upon it on grounds of want of territorial jurisdiction of the transferee court. ;in the present case, the transfer, made by the district judge under section 24, of the execution proceedings to the subordinate judge of tirunelveli entitled the said subordinate judge to proceed against even those properties which are outside his jurisdiction, but within the judicial district of tirunelveli. the principle under section 39 dealing with transfer of decrees cannot be applied to cases of transfer falling under section 24. there..........the properties were sold in e.p.99 of 1960 by the sub-court, trinelveli to which the district judge transferred the execution proceedings. the said transfer made by the learned district judge was under section 24 of the code.11. we, are therefore, of opinion that the transfer, made by the district judge under section 24 of the code, of the execution proceedings to the subordinate judge of trinelveli entitles the subordinate judge to proceed against even those properties which are outside his jurisdiction, but within the judicial district of trinelveli. there is no question of pecuniary jurisdiction in this case, as the subordinate judge having unlimited jurisdiction is seeking to execute the decree. the judgment of venkatadri, j. is erroneous in so far as the learned judge applied.....
Judgment:
1. This Letters Patent Appeal filed with the leave of Venkatadri, J., in the first instance came up for hearing before my Lord, the Chief Justice and myself, and we felt that the judgment of Venkatadri, J. who reversed the judgments and decrees of the Courts below failed to appreciate the distinction between two lines of cases dealing with the power of transfer of a proceeding under Sections 24 and 39, Civil P. C. and the entire case was placed before the Full Bench. The facts of the case are as follows.

2. The appellant obtained a money decree against the respondent in O.S. 73 of 1949 on the file of the District Munsif's Court, Ottapalam. The respondent (judgment-debtor) owned properties in Tirunelveli Dt. On the application of the decree-holder the decree was transferred to the District Court, Tirunelveli, for execution. In the District Court, Triunelveli, he filed E. P. 14 of 1952 and attached certain properties lying within the territorial jurisdiction of the Triunelveli Judicial District, Subsequent to the attachment the execution petition was transferred to the Sub-Court, Trinelveli, for further execution and the said petition was numbered as E. P. 12 of 1953 on the file of the Sub-Court, Trinelveli, Plots 2,3 and 4 were sold on 13-11-1953. But the sale, was, however, not confirmed and the properties were proclaimed for sale again on 25-6-1954. But no sale was held under this execution petition and finally the application was dismissed as not pressed on 30-6-1955, keeping alive the attachment for a period of 3 months. Within the period of three months the appellant filed E. P. 145 of 1955 and brought to sale and sold some of the properties already attached, including some of the items lying beyond the territorial jurisdiction of the Sub-Court. For realising the balance due under the decree, the appellant again filed E. P. 99 of 1960 on the file of the Sub-Court, Trinelveli, and sought the sale of the items lying beyond the territorial jurisdiction of the Sub-Court, Trinelveli. The present suit out of which the above Letters Patent Appeal has arisen is filed for a declaration that the execution proceedings in E. P. 99 of 1960 in regard to the sale of the properties outside the jurisdiction of the Sub-Court, Trinelveli is void.

3. The decree to the suit is (1) that the Sub-Court, Trinelveli being the transferee Court, the order of transfer having been made by the District Judge, Trinelveli under Section 24 of the Code, has ample jurisdiction to proceed with the execution and to sell the properties lying within the judicial District of Tirunelveli, though beyond the territorial jurisdiction of the Sub-Court, Tirunelveli, and (2) that the plaintiff is estopped from questioning the jurisdiction of the Sub-Court of Tuticorin, he having never raised the objection in the execution proceedings and that he is incompetent to raise the objections and that the remedy of the plaintiff, if it all was to have objected to the execution proceedings before the executing Court and that Section 47 precludes the plaintiff from maintaining the suit.

4. The trial Court upheld the jurisdiction of the Sub-Court, Tirunelveli, to proceed against the properties within the judicial district of Tirunelveli, although beyond the territorial jurisdiction of the Sub-Court, Tirunelveli. The trial Court dismissed the suit. That decision was confirmed in appeal by the Subordinate Judge of Tuticorin in A. S. 94 of 1962, Second App.No. 1420 of 1963 was preferred against the said judgement and the learned Judge allowed the appeal and decreed the suit. The present Letters Patent Appeal is preferred against the said Judgment.

5. The learned counsel for the appellant contends that by reason of the transfer made by the District Judge under Section 24, Civil P. C., the Sub-court. Tirunelveli is competent to bring to sale the properties lying even beyond its territorial jurisdiction, through they are within the jurisdiction of the Judicial District of Tirunelveli.

6. At this stage, if is convenient to refer to the relevant provisions of the Code. Section 24 deals with general powers of transfer of the High Court or the District Court at any stage of a suit or other proceedings. Section 37 of the code defines the expression "Court which passes the decree" and Sections 38 to 46 deal with the powers of the Courts by which decrees may be executed, Section 39 deals with the powers of the Court which passed the decree, to transfer the decree on the application of the decree-holder to another court for execution and the circumstances when such transfer could be ordered and Section 42 deals with the power of the executing Court in executing the transferred decree. The relevant rules are contained in order XXI, Rules 3 to 9. Civil P. C. A close scrutiny of the decisions cited before us reveal the distinction between the powers of the Court to which an execution proceeding has been transferred under Section 39 of the Code for disposal and those which deal with the power of the superior Court under Section 24. Civil P. C. to transfer the suit or other proceedings to any Court. The cases cited before us which fall under Section 39 are the Follows:-Kasi Viswanathan Chetti v. Murugappa Chetti 33 Mad LJ 750 = (AIR 1918 Mad 17). The facts therein are as follows:--

"A decree of the Chief Court of Lower Burma was transmitted for execution to the District Court Ramnad and was by that court transferred for execution to the Subordinate Court of Ramnad. In execution of that decree the subordinate court of Ramnad sold immovable property of the judgment-debtor which at the time of the said sale, was admittedly situated in the territorial jurisdiction of the Subordinate Court of Ramnad to sell the property the learned Judge Abdur Rahim and Oldfield held that though the transfer of the decree to the subordinate Court of Ramnad might be valid on the ground that the property was on the date of such transfer situated in its territorial jurisdiction. Yet the sale by that court was invalid because on the date of the sale it ceased to have territorial jurisdiction over the property". The next case is the one reported inVeerappa Chetti v. Ramaswami Chetti, ILR 43 Mad 135-37 Mad LJ 442 = (AIR 1920 Mad 505). The facts therein are as follows:--

"A obtained a decree against B in the Temporary Sub Judge's Court of Ramnad and it was transferred for execution to the permanent. Sub-Court of Ramnad and an application for attachment was made to the latter Court on 18-4-1913 and on 21-9-1913, the taluk in which the property sought to be attached was situate was transferred from the jurisdiction of the Ramnad Sub-court to that of the Sivaganga Sub-Court. Even after this transfer the Ramnad Sub-Court ordered attachment of the property and the property was sold in execution and purchased on 10-11-1913 by A. Meanwhile C obtained a decree against B in the Sivaganga Sub-court in December, 1912, and bought the same Property in an execution sale by that Court on 30-6-1914. In a suit for the property by C against A the learned Judge held that C was entitled to succeed. That was on the ground that the attachment and sale in favour of A and its confirmation by a Court not having jurisdiction over the property is invalid and will not confer any title on the purchaser".

The next decision cited is the one reported in Vasi Reddi Srimanthu v. Devabhaktuni Venkatapayya, 1947-1 Mad LJ 306=ILR (1948) Mad 18 = AIR 1947 Mad 347)(FB). There the question which arose for consideration was, whether Veerappa Chetti v. Ramaswami Chetti, ILR43 Mad 135 = 37 Mad LJ 442 = (AIR 1920 Mad 505) was rightly decided in view of the observations of the Full Bench decision in Ramier v. Muthukrishna Iyer,62 Mad LJ 687 =ILR 55 Mad 801 = (AIR 1932 Mad 418)(FB). The questions which arose for consideration were that when the Court which passes a money decree transmits the decree to another Court for execution and when an execution petition a pending attachment and sale of immoveable property belonging to the judgment-debtor situate within the territory of the transferee Court and after an order for attachment has been made by that Court, the property is removed from the territory of the transferee Court to another Court, whether the transferee Court could make an order for sale of the property by Court auction so as to give a valid title to the purchaser. The learned Judge approved the decision in 33 Mad LJ 750 = (AIR 1918 Mad 17) and distinguished the decision of the Full Bench in 62 Mad LJ 687 = ILR 55 Mad 801 =(AIR 1932 Mad 418)(FB).

7. Thus it is seen that the above cases relate to transfer under Section 39 of the Code Read with order XXI. Rule8, Civil P. C by the Court passing the decree to the Court where the judgment-debtor's properties were situate at the time of the transfer. They also deal with the situation where subsequent to the order of transfer for execution owing to re-distribution of jurisdiction the properties are transferred to some other Court's jurisdiction. The above decisions held that in such cases the Court to which the execution petitions were transferred in the first instance would no longer have powers to sell the properties concerned once the said properties are transferred to the jurisdiction of another Court and if such properties which are outside the territorial jurisdiction of the executing Court at the time of execution, are sold, the above decisions hold that such sales are illegal and invalid.

8. We have next to consider the power of transfer of suits, appeals and other proceedings under Section 24 of the code. The language of Section 24(1)(A) is very general. It gives powers to the High Court and, the District court to transfer any suit, appeal or other proceedings pending before it at any stage for trial or disposal to any court subordinate to it and competent to try and disposal of the same. A proceeding in execution would, undoubtedly. fall under the expression 'other proceeding' occurring in Section 24(1)(a) of the Code. That Section 24 applies to execution proceeding is not disputed.

9. We have next to consider the scope of the words " competent to try" occurring in Section 24(1)(a) of the Code. Whether the competency contemplated thereunder is pecuniary competency or territorial competency. In Rajagopala Pandarathiar v. Thirupathia Pillai, ILR 49 Mad 746 = (AIR 1926 Mad 421) a Division Bench of this Court consisting of Venkatasubba Rao and Madhavan, JJ. had to consider the question. Venkatasubba Rao. J. held that Section 24 applies to transfer of execution proceedings also and the learned Judge repelled the contention that the power to transfer execution petitions under Section 24 could only be to Courts competent under Section 39 of the Code to dispose of them and that Section 24 does not give a higher power than the one that is contemplated under Sec. 39. Madhavan Nair, J. the other learned Judge while agreeing with the conclusion did not express any opinion on this question. In Kishorelal v. Balkishan, AIR 1932 All 660 Sulaiman, C. J. delivering the judgment on behalf of the Bench traced the history of Section 24 of the Code and observed as follows:--

"Under Section 25 Act 14 of 1882, the High Court and the District Court were given power to transfer a suit pending in a subordinate Court to any other subordinate Court;

"Competent to try the same in respect of its nature and the amount or value of its subject-matter".

These words have been slightly altered, and in their place we now have in Section 24 the words ' competent to try or dispose of the same'. Under the old section there could be no doubt that all that was required of the subordinate Court to which the case was to be transferred was that it should have pecuniary jurisdiction to try the suit. The deletion of those words under the new Section may prima facie suggest that the competence of the court now required may be either pecuniary or territorial. If the words were to be taken literally, it might be open to argument that the word 'competency' includes both pecuniary and territorial jurisdiction. Although the change in the words, in the Section was not emphasised, this view was certainly expressed by the learned Chief Justice of the Patna High Court in the case of Jannat Hussain v. Ghulam Kutubuddin Ahmed. AIR1920 Pat 29= 57 IC 522. He was of opinion that the word 'competent' was very wide and included both kinds of jurisdiction. The headnote of the case did not show that the other learned Judge had expressed some doubt as regards this view and had reserved his opinion. The unfortunate omission of the words which appeared in the old Section have made the new Section some what ambiguous, but on reconsideration I am satisfied that the words have been deleted because they were considered redundant or necessary by the Legislature. To hold that it is necessary that the Court to which the case is transferred must have territorial jurisdiction would make it impossible for a High Court to transfer a case pending in the Court of a District Judge to that of the District Judge of another district, for these District Judges would not have concurrent territorial jurisdiction. The Section would therefore be nullified, if the interpretation put upon it in the case of Ramdas v. Habibullah,136 IC 384,(ALL) were to be accepted. In order not to render the Section useless, I am constrained to hold that the word 'competent' must be taken to refer to pecuniary jurisdiction only".

9-A. In Jonnalagadda Seetharamayya v Kaja Sivaramakrishnayya Rao AIR 1944 Mad 145 Horwill, J. Observed at page 148 as follows:

" It seems clear that Section 24 did not intend to limit the power of the District Court to cases in which it itself had territorial jurisdiction and absurdity of any other view being pointed out by Venkatasubba Rao. J. In ILR 49 Mad 746-(AIR 1926 Mad 421) above referred to".

In Harihar Panda v. Jambabati Pandani , Narasimhan C.J While referring to the above decision held that the words ' competent to try' in Section 24 can refer only to pecuniary competence of the transferee Court and the words do not take in territorial competence within its meaning in the context.

9-B In Karuppiah Ambalam v. Ayya Nadar Ramachandra Iyer, C.J and Ramakrishnan, J had to deal with similar question. At page 76, Ramakrishnan, J who delivered the judgment on behalf of the Bench observed as follows:

" under Section 39 Civil P. C., the Court which passed the decree, may, on the application of the decree-holder, send 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 tranferee court, Section 39(1)(d) gives power to the court which passed the decree to transfer the decree to another Court even for other reason. Which should be recorded in writing, Section 42 enables the Court to which a decree is so sent for execution is over, it has to certify the result of the execution to the court which passed the decree as provided in Sec.41, Civil Procedure Code. These are the substantial provisions relating to the transfer of execution proceedings. They have to be supplemented by order XXI, Rules 3 to 9. Civil P. C. which give the details of the procedure. Under O, XXI, R. 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 the Court under Order 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, Civil 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, Section 24 confers a very wide power, and it is intended to enable the two superior Courts mentioned in it, in their general power of superintendence 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 Section 24, Civil P.C. as suit, appeal or other proceeding, is of the widest kind, and there is no reason why execution proceedings should be excluded from the scope of other proceeding mentioned in this section. Considering also the general purpose of superintendence, and furthering the interests of justice for which this section is enacted, there is no reason why execution proceedings should be excluded from its scope. If any other view is held, it will certainly lead to a deadlock and prevent the parties from getting adequate relief by 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.

Next, to restrict the meaning of the words competent to try or dispose of the same used in Section 24(1)(b)(11). Civil 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 Court happens to 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 the power of the District Court or the High Court under Section 24, Civil 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 a sufficiently wide interpretation to include each every Court within the jurisdiction of the superior Court empowered to deal with such execution application". We respectfully agree with the above observations of the learned Judge, We consider that the power of transfer, under Section 24 of the Code, of a suit, appeal or other proceedings, by a High Court or a District Court to a Court within their respective jurisdiction is a very effective remedy and no fetters should be placed upon it on grounds of want of territorial jurisdiction of the transferee Court.

10. In the present case what has happened is that a decree of the District Court (sic). Ottapalam, in O. S. 73 of 1949 was transferred to the District Court, Trinelveli, for execution as the properties sought to be proceeded against lay within the judicial district of Trinelveli and it was the District Court of Trinelveli which attached the suit properties in E. P. 14 of 1952. The said attachment was continued until the properties were sold in E.P.99 of 1960 by the Sub-Court, Trinelveli to which the District Judge transferred the execution proceedings. The said transfer made by the learned District Judge was under Section 24 of the Code.

11. We, are therefore, of opinion that the transfer, made by the District Judge under Section 24 of the Code, of the execution proceedings to the Subordinate Judge of Trinelveli entitles the Subordinate Judge to proceed against even those properties which are outside his jurisdiction, but within the judicial district of Trinelveli. There is no question of pecuniary jurisdiction in this case, as the subordinate Judge having unlimited jurisdiction is seeking to execute the decree. The judgment of Venkatadri, J. is erroneous in so far as the learned Judge applied the decisions rendered under Section 39 of the Code dealing with transfer of decrees to cases of transfer falling under Section 24 of the Code. The distinction between the cases falling under Section 39 and those falling under Section 24 has not been appreciated by the learned Judge and in our opinion the view of the learned Judge cannot be supported in view of the catena of decisions rendered under Section 24 conferring wide powers on the superior Courts, namely, the District Court and the High Court. The learned Judge erred in holding that too much stress should not be laid upon the circumstances that the District Court, Trinelveli, attached the suit properties and subsequently transmitted the decree to the Sub-Court, Trinelveli, for execution. The stress is not upon the attachment order by the District Judge; but upon the fact of transfer under Section 24 made by the District Judge, Trinelveli, to the Subordinate Judge, Trinelveli.

12. In the result, we allow the appeal and set aside the judgment of the learned Judge and restore the decree of the trial Court. The appellant will be entitled to his costs in this appeal.

13. Appeal allowed.


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