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A.P. Jambulinga Mudaliar Vs. A.S. Vadivelachari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1956Mad390; (1956)1MLJ72
AppellantA.P. Jambulinga Mudaliar
RespondentA.S. Vadivelachari and ors.
Cases ReferredRustomjee Sorabji v. Mahadev Chintaman I.L.R.
Excerpt:
- - an application under section 39 of the code of civil procedure to transmit a decree or order to another court for execution shall be by verified application in form 29 with such variations as circumstances may require and shall be supported by affidavit clearly stating the particulars mentioned in clauses (a), (b), (c) or (d) of the section; under the circumstances of the present case an appeal lay only to the district judge and he is perfectly competent to entertain the appeal......the suit had been filed in the high court and whichever might be the court that executes the decree passed by the high court an appeal against any order in the execution proceedings shall lie only to the high court and not to any other lower appellate court. it seems to us that section 13 of the madras civil courts act (iii of 1873) lays down a general provision regarding appeals from various courts and that it is applicable ordinarily to decrees or orders passed by certain courts. section 42 of the code of civil procedure should be considered to be a special provision and applying the maxim expressio unius est exclusio alterius it seems to us that when a general provision is accompanied by a special provision it is the special provision that should govern a case. under these.....
Judgment:
ORDER

Govinda Menon, J.

1. In these appeals, a question of some importance regarding the forum of appeal in certain cases, has been raised and though on innumerable occasions such appeals had been entertained by the lower appellate Courts (District Courts) there has, so far been no reported decision of this Court that has been brought to our notice, which justifies such a practice. The learned District Judge himself was of opinion that before proceeding with the merits and deciding the rights of the parties, it would be desirable to have an authoritative pronouncement regarding the jurisdiction of his Court to entertain the appeals.

2. In C.S. No. 100 of 1945 on the file of the Original Side of this Court, a decree for a large sum of money was passed against the defendants therein. It is unnecessary to recount the various proceedings that had taken place in the execution of that decree in this Court. Suffice it to say that after certain properties charged under the decree were sold there was a balance of Rs. 741-7-0 due as costs of the sale taxed in favour of the appellant. The High Court, on 7th April, 1949, transmitted for execution to the Court of the District Munsif, Ranipet, the decree of this Court relating to the sum of Rs. 741-7-0. In E.P. No. 177 of 1949, the District Munsif of Ranipet attached and brought to sale certain properties belonging to the judgment-debtors, the attachment having been ordered on 21st April, 1949, and effected on 23rd April, 1949 by E.A. No. 240 of 1950, defendants 2 and 3 applied to the District Munsif to dismiss E.P. No. 177 of 1949 on the ground that as the amount sought to be recovered by attachment and sale of the properties related to costs taxed against the defendants, execution could be taken only against the properties charged and not against the other properties of the judgment-debtors. The decree-holder petitioner contended that as the order was in the nature of a decree, the executing Court cannot question the validity or the executability of such an order and since costs are always treated as a personal liability of the judgment-debtor there is no bar to attaching the properties for recovering the amount of costs. The learned District Munsif upheld the contention of the judgment-debtors in E.A. No. 240 of 1950 and dismissed E.P. No. 177 of 1949. Against the dismissal of E.P. No. 177 of 1949 and the allowance of E.A. No. 240 of 1950 appeals were filed before the District Judge, North Arcot at Vellore and when the appeals came on for hearing objection was taken by the judgment-debtors that the Court was not competent to entertain appeals for the reason that since the suit was for over Rs. 5000, the appeal lay directly to the High Court and not the District Court. The learned District Judge after considering the decision in Muthuswami Pillai v. Chidambaram Chetti (1874) 7 M.H.C.R. 356, and Section 13 of the Madras Civil Courts Act (III of 1873) upheld the objection not without hesitation and directed the return of the memoranda of appeal for presentation to proper Court. C.M.A. No. 80 of 1952 is against the order in the appeal preferred against the order in E.A. No. 240 of 1950 and C.M.A. No. 219 of 1952 is against the order in the connected appeal.

3. The question for consideration is whether the appeals lie to the High Court or to the District Court. There can be, no doubt, whatever, that the transmission of the decree of this Court to the District Munsif's Court, Ranipet, was under Order 19, Rule 2 of the Original Side Rules, Madras. Rule 2 runs thus:

An application under Section 39 of the Code of Civil Procedure to transmit a decree or order to another Court for execution shall be by verified application in Form 29 with such variations as circumstances may require and shall be supported by affidavit clearly stating the particulars mentioned in Clauses (a), (b), (c) or (d) of the section; and shall be accompanied by a certified copy of the decree or order.

Cause title in Form No. 29 (Order 29, Rule 2) is as follows: Application for transmission of a decree or order under Section 39 of the Code. Then in the body of the (form various details are given to the effect that particulars required by Order 21, Rule 11(2), Civil Procedure Code (c), (d), (e), (f) and (i) should be furnished. From these provisions there can be no doubt whatever might be the rule of procedure applicable to execution proceedings on the Original Side of this Court when a decree on the file of the Original Side is transferred to another Court in the City of Madras or to any other Court in the mofussil, the rules governing the transmission are those contained in the Code of Civil Procedure, especially Section 39. Section 42, Civil Procedure Code, relates to the powers of a Court to which a decree is transferred for execution. It runs thus:

The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.

Note the words 'as if it had been passed by itself'. The last sentence is to the following effect.:

And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

It is, therefore, evident from this section that the provision of law laying down the procedure for the execution of transferred decrees is contained in Section 42, Civil Procedure Code. Order 21 provides for execution of decrees in general and so far as execution of transferred decrees are concerned unless there is a special provision for it, a Court which has not passed the decree cannot execute it. In our opinion Section 42, Civil Procedure Code, is a special provision empowering the Court which did not pass a decree to execute it when it is sent to it for execution and by a precept or otherwise has been requested by the Court which passed the decree to assist it in executing the decree. If the Court to which a decree is transferred for execution has not all the powers of a Court which passes a decree, then it will become difficult, and in very many instances it will be impossible to realise the amount decreed by execution proceedings. That being the case, we are of opinion that when the Legislature conferred all the powers of a Court which passed a decree on a Court to which a decree is transferred for execution, it stands to reason that the transferee Court has all the powers of a Court which passes the decree this special provision is intended for execution of transferred decrees and, therefore, any order passed in execution of a transferred decree by the District Munsif even though the Court which passed the decree might be the District Court or the High Court is appealable to the District Court as if the decree had been passed by the District Munsif himself. Our attention was invited to Section 13 of the Madras Civil Courts Act (III of 1873) paragraph 2 of which lays down that appeals from the decrees and orders of Subordinate Judges and District Munsifs shall, when such appeals are allowed by law lie to the District Court, except when the amount or value of the subject-matter of the suit exceeds rupees five thousand in which case the appeal shall lie to the High Court. The argument put forward on behalf of the respondents which found favour with the learned District Judge is that in the present case the subject-matter of the suit exceeded rupees five thousand because the suit had been filed in the High Court and whichever might be the Court that executes the decree passed by the High Court an appeal against any order in the execution proceedings shall lie only to the High Court and not to any other lower appellate Court. It seems to us that Section 13 of the Madras Civil Courts Act (III of 1873) lays down a general provision regarding appeals from various Courts and that it is applicable ordinarily to decrees or orders passed by certain Courts. Section 42 of the Code of Civil Procedure should be considered to be a special provision and applying the maxim expressio unius est exclusio alterius it seems to us that when a general provision is accompanied by a special provision it is the special provision that should govern a case. Under these circumstances it seems clear to us that the forum to which an appeal would lie from a decision of a District Munsif's Court when a decree has been transferred to it for execution is the District Court.

4. The learned District Judge has referred to certain observations contained in Muthuswami Pillai v. Chidambaram Chetti (1874) 7 M.H.C.R. 356 but in our opinion they are of no assistance. That decision lays down that the forum of the appeal is determined by the value of the suit. Some guidance in this matter can be had from the Judgment of Kania, J., as he then was in Rustomjee Sorabji v. Mahadev Chintaman I.L.R. (1940) Bom. 633. Though the first of the points decided by the learned Judge is, in our opinion, somewhat doubtful with regard to the second point we are in agreement with him. What happened in that case was that a suit in the Bombay High Court was filed in which the subject-matter exceeded Rs. 5000. That suit was dismissed with costs which were awarded to the defendants. The decree for costs was transferred for execution to the Court of the second-class Subordinate Judge at Vadgaon and the decree-holder filed an application praying for the sale of the respondent's property situated within the jurisdiction of that Court. The property was duly advertised for sale and knocked down to one of the parties. Within thirty days of sale, the judgment-debtors filed an application to set aside the sale under Order 21, Rule 90, Civil Procedure Code, in the Court of the second-class Subordinate Judge, Vadgaon, on the ground that the second-class Subordinate Judge, Vadgaon, had no jurisdiction to sell the property and also on the ground of material irregularities. That application was allowed by the Subordinate Judge and when an appeal was preferred against that decision to the District Judge he confirmed the view of the Subordinate Judge as regards material irregularity and also that the purchaser was a benamidar of the degree-holder. When a second appeal was taken to the High Court, Kania, J., was of the opinion that the second-class Subordinate Judge at Vadgaon had no jurisdiction to try the suit filed in the High Court as the subject-matter was valued at over Rs. 5001 and accordingly the Judge had no jurisdiction to execute the decree in that suit and therefore the sale must be set aside on that ground. As regards the second point whether an appeal lay to the High Court and not to the District Court the learned Judge observed as follows:

The last contention that the appeal should have been made to the High Court and not to the District Court is unsound. The second-class Subordinate Judge purported to exercise jurisdiction over the matter. The validity of the order made by the Judge is disputed. The appeal under the circumstances would lie to the District Judge. It is no argument that because the District Judge holds that the second-class Subordinate Judge has no jurisdiction (as the subject-matter of the suit filed in the High Court was beyond his jurisdiction), the appeal should lie to the High Court. In my opinion the conclusion of the lower Court is correct.

We are in agreement with the observations made by the learned Judge. Under the circumstances of the present case an appeal lay only to the District Judge and he is perfectly competent to entertain the appeal. The orders returning the memoranda of appeals are, therefore, set aside, and the District Judge is directed to receive the memoranda of appeals and dispose of them according to law. There will be no order as to costs. No orders are necessary in C.M.A. Nos. 739 of 1952 and 84 of 1954, in view of the fact that we have held in the other two C.M.A's. that an appeal against the order of the District Munsif lies only to the District Court and not to this Court.


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