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

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1972)2MLJ309
AppellantP. Madhavan Unni
RespondentM. Jayapandia Nadar
Cases ReferredIn Karuppiah Ambalam v. Ayya Nadar
Excerpt:
- .....properties were sold in e.p. no. 99 of 1960, by the sub-court, tirunelveli 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.14. 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 tirunelveli, entitles the said subordinate judge to proceed against even those properties which are outside his jurisdiction, but within the judicial district of tirunelveli. 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.....
Judgment:

V.V. Raghavan, J.

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 the1 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 of the Code of Civil Procedure, 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. No. 73 of 1949, on the file of the District Munsif's Court, Ottapalam. The respondent (judgment-debtor) owned properties in Tirunelveli District. On the application of the decree-holder the decree was transferred to the District Court, Tirunelveli, for execution. In the District Court, Tirunelveli, he filed E.P. No. 14 of 1952, and attached certain properties lying within the territorial jurisdiction of the Tirunelveli Judicial District. Subsequent to the attachment the execution petition was transferred to the Sub-Court, Trunelveli, for further execution and the said petition was numbered as E.P. No. 12 of 1953, on the file of the Sub-Court, Tirunelveli. Plots 2, 3 and 4 were sold on 13th November, 1953. But the sale was, however, not confirmed and the properties were proclaimed for sale again on 25th June, 1954. But no sale was held under this execution petition and finally the application was dismissed as not pressed on 30th June, 1955, keeping alive the attachment for a period of 3 months. Within the period of 3 months the appellant filed E.P. No. 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 defendant again filed E.P. No. 99 of 1960, on the file of the Sub-Court, Tirunelveli, and sought the sale of the items lying beyond the territorial jurisdiction of the Sub-Court, Tirunelveli. 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. No. 99 of 1960, in regard to the sale of the properties outside the jurisdiction of the Sub-Court, Tirunelveli is void.

3. The defence to the suit is : (1) that the Sub-Court, Tirunelveli being the transferee Court, the order of transfer having been made by the District Judge, Tirunelveli, 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 at 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. No. 94 of 1962. Second Appeal No. 1420 of 1963, was preferred against the said judgment 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 of the Code of Civil Procedure, the Sub-Court, Tirunelveli, is competent to bring to sale, the properties lying even beyond its territorial jurisdiction, though they are within the jurisdiction, of the Judicial District of Tirunelveli.

6. At this stage, it 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 proceeding. 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 21, Rules 3 to 9 of the Civil Procedure Code. 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 of the Civil Procedure Code, to transfer the suit or other proceedings to any Court. The cases cited before us which fall under Section 39 are the following:

7. Kasi Viswahathan Chetty v. Murugappa Chetty and Anr : (1917)33MLJ750 . The facts therein are as follows:

A decree of the Chief Court of Lower Burma was transmitted for execution to the District Court of 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 jurisdict ion of the Subordinate Court of Sivaganga. On objection taken to the jurisdiction of the Subordinate Court of Ramnad to sell the property the learned Judges 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.

8. The next case is the one reported in Veerappa Chetty v. Ramaswamy Chetty and Anr. I.L.R. (1920) Mad. 135 : 37 M.L.J. 442. 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 or. 18th April, 1913 and on 21st September, 1913, the taluk in which the property sought to be attached 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 10th November, 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 30th. June, 1914. In a suit for the property by C against A, the learned Judges 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 Vasireddi Srimantku and Ors. v. Devabhaktuni Venkatappayya and Anr. (1947) 1 M.L.J. 306 : A.I.R. 1947 Mad. 347 : I.L.R. (1948) Mad. 18. There the question which arose for consideration, was, whether Veerappa Chetty v. Ramaswami Chetty I.L.R. (1920) Mad. 135 : 37 M.L.J. 442, was rightly decided in view of the observations of the Full Bench decision in Ramier v. Muthukrishna Aiyar : (1932)62MLJ687 . 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 is pending for attachment and sale of immovable 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 Judges approved the decision in Kasi Viswanathan Chetty v. Murugappa Chetty and Anr : (1917)33MLJ750 , and distinguished the decision of the Full Bench in Ramier v. Muthukrishna Aiyar : (1932)62MLJ687 .

9. Thus it is seen that the above cases relate to transfer under Section 39 of the Code, read with Order 21, Rule 8 of the Civil Procedure Code, 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 transfered 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.

10. 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 dispose 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 proceedings is not disputed.

11. 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 I.L.R. (1926) Mad. 746 : 50 M.L.J. 161 : A.I.R. 1926 Mad. 421, a Division Bench of this Court consisting of Venkatasubba Rao and Madhavan Nair, JJ., had to consider this 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 Section 39. Madhavan Nair, J., the other learned Judge while agreeing with the conclusion did not express any opinion on this question. In Kishore Lal v. Balakrishan : AIR1932All660 , 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 15, 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 competency of the Court now required may fie 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 A.I.R. 1920 Pat. 289 : 57 I.C. 522. He was of opinion that the word 'competent' was very wide and included both kinds of jurisdiction. The head-note 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 somewhat, ambiguous, but on reconsideration I am satisfied that the words have been deleted because they were considered redundant or unnecessary 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 Ram Das v. Habib Ullah (1931) 136 I.C. 384, 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.

In Jonnalagadda Seethnramayya v. Kaza Sivaramakrishna Rao and Ors. : AIR1944Mad145 , 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 the absurdity of any other view being pointed out by Venkatasubba Rao, J., in Rajagopala Pandarathiar v. Thirupathia Pillai I.L.R. (1926) Mad. 746 : 50 M.L.J. 161, above referred to.

In Harihar Pandi and Anr. v. Nambabati Pandini and Ors. : AIR1964Ori167 , Narasimham, 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 word did not take in territorial competence within its meaning in the context.

12. In Karuppiah Ambalam v. Ayya Nadar : AIR1965Mad435 Ramachandra Iyer, C.J. and Ramakrishnan, J., had to deal with a similar question. At page 76 Ramakrishnan, J., who delivered the judgment on behalf of the Bench observed as follows:

Under Section 39, Civil Procedure Code, 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 transferee Court. Section 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. Section 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 Section 41, Civil Procedure Code. These are the substantial provisions relating to the transfer of execution proceedings. They have to be supplemented by Order 21, Rules 3 to 9, Civil Procedure Code, which give the details of the procedure. Under Order 21, 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 the Court under Order 21, 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 of the Civil Procedure Code 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 Procedure Code, 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 interest 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)(6)(2) of the Civil Procedure Code 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 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 the power of the District Court or the High Court under Section 24 of the Civil Procedure Code, 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 and 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.

13. In the present case what has happened is that a decree of the District Munsif, Ottapalam, in O.S. No. 73 of 1949, was transferred to the District Court, Tirunelveli, for execution as the properties sought to be proceeded against lay within the judicial District of Tirunelveli, and it was the District Court at Tirunelveli which attached the suit properties in E.P. No. 14 of 1952. The said attachment was continued until the properties were sold in E.P. No. 99 of 1960, by the Sub-Court, Tirunelveli 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.

14. 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 Tirunelveli, entitles the said Subordinate Judge to proceed against even those properties which are outside his jurisdiction, but within the judicial District of Tirunelveli. 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, Tirunelveli, attached the suit properties and subsequently transmitted the decree to the Sub-Court, Tirunelveli, 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, Tirunelveli, to the Subordinate Judge, Tirunelveli.

15. 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.


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