Madras High Court
V.Robert Nirmal Kumar vs Tamil Evangelical Lutheran Church on 11 July, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.07.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No.94 of 2013 and M.P.Nos. 1 and 2 of 2013 V.Nirmal Kumar alias V.Robert Nirmal Kumar .. Petitioner Vs Tamil Evangelical Lutheran Church Represented by Church Counsel Tranquebar House Trichy. .. Respondent Civil Revision Petition filed against the order and dated 8.11.2012 made in E.A.No.290 of 2012 in E.P.No. 301 of 2005 in O.S.No. 377 of 2001 on the file of the Subordinate Judge, Pollachi. For Petitioner : Mr.T.M.Hariharan For Respondent : Dr.FR.A.Xavier Arulraj ORDER
The petitioner is a third party in O.S.No. 377 of 2001 and E.P.No. 301 of 2005 on the file of the Sub Court, Pollachi, in a suit for possession. He claims to be the obstructor.
2. The petitioner filed E.A.No.290 of 2012 and sought for transferring the said execution petition to the District Munsif Court, Pollachi, on the ground that the said Court alone has got pecuniary jurisdiction over the suit property, in pursuant to the amendment made under Act 1 of 2004 to Tamil Nadu Civil Courts Act 1873 and Chennai City Civil Court Act, 1892. The said application was rejected by the Court below. Aggrieved against the same, the present Civil Revision Petition is filed by the petitioner.
3. The short facts for deciding the case are as follows:-
The respondent herein as the plaintiff filed O.S.No.193 of 1999 originally on the file of the Sub Court, Udumalpet which came to be transferred to Sub Court, Pollachi and renumbered as O.S.No. 377 of 2001, against one V.Philiph Truthuvadas seeking for delivery of vacant possession of the suit property and for directing the defendant to pay a sum of Rs. 15,000 per month towards future mesne profits and for payment of Rs. 46,200/- towards arrears of rent. The said defendant remained exparte. Consequently, an exparte decree came to be passed on 10.2. 2003 by decreeing the suit as prayed for. It is seen that the sole defendant died after the decree.
4. The plaintiff/respondent herein filed E.P.No.301 of 2005 on the file of the Sub Court, Pollachi, which passed the decree, against the legal representatives of the defendant. The petitioner herein, as a third party, filed an application in E.A.No. 290 of 2012 and sought for transfer of the execution petition to the District Munsif Court, Pollachi by contending that he is the obstructor and the District Munsif Court, Pollachi, alone got jurisdiction to execute the decree in view of the enhancement of pecuniary jurisdiction on such court in pursuant to the Amendment Act, viz., Tamil Nadu Act 1 of 2004 .
5. The said application was resisted by the respondent herein by contending that the petitioner has got no locus standi to question the jurisdiction as he is only a tenant under the defendant. It is also stated therein that the petitioner himself had already filed a suit in O.S.No. 469 of 2002 to declare the decree as void. It is further contented that the Court, which passed the decree is having every jurisdiction to execute the same.
6. The Court below after hearing both sides, rejected the application by holding that it has got jurisdiction to execute the decree as per Section 38 of CPC and the situations contemplated under Section 37 are not applicable to the facts of the present case.
7. Learned counsel appearing for the petitioner submitted that as per the Amendment Act 1 of 2004, which came into force on 8.1.2004, the pecuniary jurisdiction of the District Munsif Court has been enhanced upto to Rs.One lakh and therefore, when the suit was valued for less than Rs. One lakh, the decree, though granted earlier to 8.1.2004, has to be executed only by the Court which has jurisdiction to try such suits. Hence, he submitted that the District Munsif Court, Pollachi alone has got jurisdiction to execute the decree. In support of his submission he relied on the decision of the learned single Judge of this Court reported in 2012 (2) CTC 89 (Sivabakkiyam Muthusamy Trust Vs. S.Sivasankaran).
8. Per contra, the learned counsel appearing for the respondent submitted that the situations contemplated under Section 37 CPC did not arise in this case and as such the Sub Court, Pollachi which passed the decree has got every jurisdiction to execute the same as per Section 38 of CPC. He further submitted that when the decree came to be passed on 10.2.2003 and the Amendment Act 1/ 2004 came into force only on 8.1.2004, the petitioner is not justified in relying on the decision reported in 2012 (2) CTC 89 (Sivabakkiyam Muthusamy Trust Vs. S.Sivasankaran). He further submitted that the present application filed by a third party to the suit and E.P. is not at all maintainable as it has been filed only to drag on the proceedings. In support of his submissions, the learned counsel relied on the following decisions.
1. AIR 1956 SC 87 ( Merla Ramana Vs. Nallaparaju and Others)
2. AIR 2004 Delhi 126 ( Pearey Lal and Sons (Pv) Ltd, Vs. M/s.Jamuna Properties (P) Ltd., and Others
9. Heard the learned counsels appearing on either side.
10. The points for consideration in this case are as follows:-
i) whether the Sub Court, Pollachi, which passed the decree on 10.2.2003 is having jurisdiction to execute the same even after the Amendment Act 1 /2004 which came into force on 8.1.2004, through which the pecuniary jurisdiction over the suit property was shifted to the District Munsif Court, Pollachi ?
ii) Whether a third party to the suit and execution petition is entitled to maintain an application seeking for transfer of the execution petition to another Court ?
11. In this case, the suit was originally filed before the Sub Court, Udumalpet and thereafter transferred to Sub-Court, Pollachi, by seeking the relief of recovery of possession, for mesne profits and arrears of rent. The suit was valued at Rs. 63960/-. The petitioner herein is not a party in the said suit and the sole defendant remained exparte. Consequently, the sub Court , Pollachi passed an exparte decree on 10.2.2003. Till this stage there is no dispute with regard to the jurisdiction of the trial Court. Thereafter, Tamil Nadu Act 1 of 2004, viz., Tamil Nadu Civil Courts and Chennai City Civil Court (Amendment) Act, 2003 was introduced which came into force on 8.1.2004 .
12. Under Section 4(1) of the Act 1/ 2004, all suits pending in a Sub Court or District Court on the date of the commencement of the said Act were transferred to the Court having jurisdiction over the subject matter. Section 4(1) reads as follows:-
All suits pending in a Subordinate Court or District Court on the date of the commencement of this Act and which would be within the cognizance of the District Munsif Court, Subordinate Court or District Court, under the provisions of the Tamil Nadu Civil Courts Act 1873 (Central Act III of 1873) as amended by this Act, shall stand transferred to the Court having jurisdiction over the subject matter.
13. Section 12 of the Tamil Nadu Tamil Nadu Civil Courts Act 1873 deals with pecuniary jurisdiction of the Civil Courts. Under the said provision , the pecuniary jurisdiction of District Munsif Court was extended to deal with matters which do not exceed Rs. 1 lakh. The relevant portion of Section 12 is extracted as hereunder:-
12.
.... .... ....
Jurisdiction of District Munsif: -
The jurisdiction of a District Munsif extends to all like suits and proceedings, not otherwise exempted from his cognizance, of which the amount of value of the subject matter does not exceed one lakh rupees.
14. A combined reading of Section 12 of the Tamil Nadu Civil Courts Act 1873 and Section 4 of the Tamil Nadu Act 1 of 2004 would show that when the pecuniary jurisdiction dealt with under Section 12 referred to all the original suits and proceedings of a civil nature, the transitory provision under Section 4 of the Tamil Nadu Act 1 of 2004 has dealt with only pending suits in a Subordinate Court or District Court on the date of commencement of the Act. Thus, it only means that the transitory provision under Section 4 is applicable only to suits pending in a Subordinate Court or District Court and not in respect of the suits already disposed of.
15. Considering the scope of Section 4 of Tamil Nadu Act 1/2004 as discussed above as well as Section 12 of the Tamil Nadu Civil Courts Act, 1873 and applying the same to the facts of the present case, we need to examine the issue raised in the 1st question. Admittedly, in this case, the decree came to be passed on 10.2.2003 even before the date of commencement of Act 1 of 2004. When the decree has already been passed, the applicability of Section 4 of Tamil Nadu Act 1 of 2004 does not arise to contend that only the District Munsif Court has got jurisdiction to execute the decree.
16. In my considered view, such provision cannot be made applicable to suits which came to be disposed of earlier to the commencement of the said Act 1 of 2004, when the transitory provision under Section 4 deals only with suits pending in a Subordinate Court or District Court. When the suit itself is not pending as on 8.1.2004 and not liable to be transferred to the District Munsif Court, Pollachi, then the question of applying Section 4 of Tamil Nadu Act 1 of 2004 to the execution proceedings does not arise in this case, especially when the Court which passed the decree viz., Sub Court, Pollachi, is having jurisdiction to execute the same as provided under Section 38 of the Civil Procedure Code which reads as follows:
38. Court by which decree may be executed A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
17. A perusal of Section 38 makes it clear that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Under what circumstances a decree may be sent to another Court for execution is dealt with under Section 39, which reads as follows:-
39. Transfer of decree.-
(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court,-
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) 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, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction.
(3) For the purposes of this section, a Court shall be deemed to be a Court of Competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.
18. A perusal of the said Section 39 would show that a decree may be sent to other Court for execution either for the reasons contemplated under sub-clauses (a) to (d) of sub-section (1) of Section 39 or by the Court, which passed the decree, on its own motion. Thus, an execution of the decree has to be done only as per Sections 38 and 39 of CPC.
19. The definition of Court, which passed the decree, is provided under Section 37 CPC. Sub-clause (a) of Section 37 defines the Court of first instance as the Court which passed the decree , where the decree has been passed by the appellate Court. Sub-clause (b) defines that the Court which would have jurisdiction to try such suits at the time of making the application for execution of the decree, if the Court of first instance has ceased to exist or to have jurisdiction to execute the decree. Thus, the Court of first instance should have either ceased to exist or ceased to have jurisdiction to execute the decree.
20. In this case, the Court of first instance viz., the Sub-Court, Pollachi does not cease to exist. Therefore, the only question is as to whether it has ceased to have its jurisdiction to execute the decree. In order to answer the said question, it is better to look into the explanation to Section 37 . For the purpose of convenience, Section 37 is extracted hereunder:-
37. Definition of Court which passed a decree.-
The expression "Court which passed a decree, " or words to that effect, shall, in relation to the execution of decrees unless there is anything repugnant in the subject or context be deemed to include.
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it the Court which if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree would have jurisdiction to try such suit.
Explanation The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.
21. A perusal of the explanation to Section 37 shows that the Court does not cease to have jurisdiction to execute a decree merely on the ground that any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court either after institution of the suit or passing of the decree. As per the explanation, apart from the Court of first instance, such other Court shall also have jurisdiction to execute the decree. That means both the Court of first instance as well as the Court to which the area has been transferred have got jurisdiction to entertain the execution application and execute the decree . In this case, it is seen that only the pecuniary jurisdiction has been extended to the District Munsif Court, Pollachi and the subject matter has not been totally ousted from the jurisdiction of the Sub-Court, Pollachi. In other words, the territorial jurisdiction of the the subject matter of property has not been taken away from the Sub- Court, Pollachi.
22. Further, in a recent decision reported in 2013 (1) MWN (Civil) 1 (Kamatchi and another Vs. Muthammal and Others), a learned single Judge of this Court, while considering the scope of Explanation to Section 37 and the Statement of Objects and Reasons for introducing the said Explanation to Section 37 has observed at paragraphs 6 and 7 as follows:-
6... Prior to the introduction of explanation to section 37 of the Code of Civil Procedure, there was a conflict of opinion whether a decree can be executed by a Transferee Court in the absence of any transmission made by the court which passed the decree. There was also a doubt whether the court which passed the decree loses its jurisdiction to execute it by reason of certain matters being transferred to any other court. This doubt was clarified by the introduction of explanation to section 37 and in the amendment Act 104 of 1976, in the statement of objects and reasons for introducing the explanation to section 37, it is stated as follows:-
"There is a conflict of decisions on the point as to whether in cases where jurisdiction over the subject-matter of a decree is transferred to another Court that Court is also competent to entertain an application for execution of the decree. The Calcutta High Court has held that both the Courts would be competent to entertain an application for execution of the decree but the Madras High Court has held that in the absence of an order by the Court which passed the decree that Court can alone entertain an application for execution and not the Court to whose jurisdiction the subject-matter has been transferred. The Supreme Court has left the point open. Proposed Explanation to Section 37 seeks to give effect to the Calcutta view. "
` var _gaq = _gaq || [];
_gaq.push(['_setAccount', 'UA-87326-4']);
_gaq.push(['_trackPageview']);
(function() {
var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true;
ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js';
var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s);
})();
7. Therefore, it is made clear by the objects and reasons that the explanation was introduced only to clarify and clear the doubt that the Transferee Court also gets jurisdiction to entertain the application for execution of the decree
23. From the reading of the above decision and also by going through the Objects and Reasons for introducing Explanation to Section 37, it is undoubtedly made clear that the Court which passed the decree does not lose its jurisdiction to execute it by reason of transfer of the jurisdiction over the subject matter to any other court. On the other hand, the Court which passed the decree as well as the Court to which the jurisdiction is transferred are having jurisdiction to entertain the application for execution of the decree. In other words, the Court which passed the decree can either execute the same by entertaining an application or it can transmit the decree to the other Court which is conferred with the jurisdiction by virtue of the amendment. At any event, when the Court which passed the decree does not lose its jurisdiction to execute the decree, it is not for the judgment debtor much less the petitioner like third parties to question the jurisdiction of such Court which passed the decree and seek for transfer of the execution petition to the other Court.
24. At this juncture, it is useful to refer to the decision relied on by the learned counsel for the respondent reported in AIR 1956 SC 87 ( Merla Ramanna Vs. Nallaparaju and Others). The Apex Court at paragraph 12 has observed as follows:-
"12... And it is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it , by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another Court."
25. The other decision relied on by the learned counsel for the respondent is reported in AIR 2004 Delhi 126 (Pearey Lal and Sons (Pv) Ltd, Vs. M/s.Jamuna Properties (P) Ltd., and Others) wherein it has been observed at paragraph 8 as follows:-
" var _gaq = _gaq || [];
_gaq.push(['_setAccount', 'UA-87326-4']);
_gaq.push(['_trackPageview']);
(function() {
var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true;
ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js';
var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s);
})();
8. The Court considering the effect of Section 37(a), CPC, held that the expression "where the Court of first instance has ceased to exist" without doubt envisages "the abolition or total extinguishment of the Court which passed the decree". Further, to attract first part of Clause (b) of Section 37, what is required is the complete abolition of the Court which passed the decree and not mere alteration in its pecuniary or territorial jurisdiction. The expression "where the Court of first Instance has ceased to have jurisdiction to execute the decree" as envisaged by second part of Clause (b) of Section 37, obviously refers to such a decree where the Court loses jurisdiction to execute the decree according to its tenor. Mr. Valmiki Mehta, learned senior counsel for decree holder submits that in view of the above dictum of the Division Bench, there can be no doubt that the Court which passed the decree, in this case being the High Court, does not lose the jurisdiction to execute the same because of the increase in pecuniary jurisdiction.
var _gaq = _gaq || [];
_gaq.push(['_setAccount', 'UA-87326-4']);
_gaq.push(['_trackPageview']);
(function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true;
ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js';
var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s);
})();
In view of the judgment in the case of Gulab Chand Sharma, (supra) it cannot be said that this Court has lost its pecuniary jurisdiction to execute the decree and all pending executions are automatically liable to be transferred to the District Courts. The first question is accordingly answered in the negative.
26. Thus, from the above decisions of the Apex Court and the Hon'ble Delhi High Court it could be seen that the Court which has passed the decree is always having jurisdiction over the same to execute it unless its jurisdiction over the subject matter is totally taken away.
27. The learned counsel appearing for the petitioner relied on the decision of the learned single Judge of this Court reported in 2012 (2) CTC 89 (Sivabakkiyam Muthusamy Trust Vs. S.Sivasankaran). A perusal of the facts of the said case would show that during the pendency of the suit therein before the Additional District Court, the pecuniary jurisdiction of Subordinate Court was enhanced to Rs. 10 lakhs. Therefore, taking note of the said fact , the learned Judge has observed that the Additional District Judge ought not to have heard and decided the suit without transferring the same to the Sub Court. In the case on hand, admittedly the suit was disposed of even prior to the amendment Act which enhanced the pecuniary jurisdiction. Therefore, in my considered view, the above said decision is not only factually distinguishable and also is not supporting the case of the petitioner.
28. While considering the question with regard to the 'locus standi' of the petitioner to maintain such application before the Court below is concerned, it is seen that the petitioner herein is a admittedly a third party to the suit and had filed only the petition seeking transfer of the decree by claiming himself as an obstructor. Whether a third party/obstructor in the execution petition is entitled to seek for transfer of the execution petition to another Court by questioning the jurisdiction of the Court ? In my considered view, the answer should be in negative.
29. First of all, the petitioner is not a party to the suit. The E.P. was filed only against the legal heirs of the sole defendant. The petitioner herein has filed only an application under Section 151 in E.A.No.290 of 2012 seeking to transfer the execution petition from Sub Court, Pollachi to District Munsif Court, Pollachi. In the affidavit filed in support of the said petition, he claimed that his obstruction has to be recorded . Admittedly he has not filed any application under Order 21 Rule 99 CPC. Even such application can be filed only when he is dispossessed of the suit property by the decree holder. It is also seen that the decree holder has not taken out any application under Order 21 Rule 97 CPC seeking for removal of obstruction. As the petitioner is not a party to the proceedings, he cannot maintain an application under Section 47 CPC also raising questions to be determined by the Court executing the decree. Therefore, in the absence of any application either filed under Order 21 Rule 97 or Order 21 Rule 99 or under Section 47 CPC, I wonder as to how the petitioner straight away filed the application in E.A.No. 290 of 2012 under Section 151 of CPC and sought for transfer of the execution petition. In my considered view, the Court below ought not to have numbered the application as not maintainable.
30. In this case, the legal heirs of the defendant against whom the execution petition was filed have also not raised any objection with regard to the jurisdiction of the executing court. Admittedly, when the suit was decreed, the pecuniary jurisdiction was well within its jurisdiction. Once it is decreed, the Court which has passed the decree has got every power to execute it. Accordingly, once an execution petition is filed before such court , a third party much less an obstructor cannot raise question with regard to the jurisdiction of the executing court, which is not within his domain. A litigation ended in passing of a decree and put in for execution cannot be questioned by a third party to the proceedings on the ground of jurisdiction even assuming that he has got some right as an obstructor in the execution petition. Right to obstruct by a third party should flow from the facts and circumstances which are pleaded and established and not by questioning the jurisdiction of the Court. Accordingly, I hold that the petitioner being a third party to the proceedings has no locus standi to question the jurisdiction, more so, when such jurisdiction is not touching upon the subject matter of the suit and only the pecuniary value of the same.
31. Considering all the facts and circumstances and also going by the various provisions of law as discussed supra, I am of the view that the order passed by the Court below in refusing to transfer the execution petition to the District Munsif Court, Pollachi is just and proper and in accordance with law which does not warrant any interference by this court. Accordingly, the Civil Revision Petition is dismissed. Consequently, the connected M.Ps. are closed. No costs.
krr To The Subordinate Judge Pollachi