Kerala High Court
Padmakshi vs Nalini on 31 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
OP(C) NO. 1055 OF 2017
AGAINST THE ORDER/JUDGMENT OS 775/1994 OF PRINCIPAL MUNSIFF COURT,
CHERTHALA
PETITIONERS:
1 PADMAKSHI, W/O.CHELLAPPAN, ARACKKAL PARAMBIL HOUSE,
S.L.PURAM P.O., KANJIKUZHI VILLAGE, CHERTHALA.
2 SHIBU S, S/O.CHELLAPPAN, OF -DO- -DO-
BY ADV. SRI.K.K.SATHISH
RESPONDENTS:
1 NALINI, D/O.PAPPI, KIZHAKKETHAYIL, PERUMTHURUTH MURI,
S.L.PURAM P.O., PIN-688 523, KANJIKUZHI VILLAGE,
CHERTHALA TALUK.
2 K.GOPIDAS,
S/O.BHAIMI, OF -DO- -DO-
3 LEELA,
D/O.BHAIMI, OF -DO- -DO-
BY ADVS.
SRI.AJIT G ANJARLEKAR
SRI.GOVIND PADMANAABHAN
SRI.G.P.SHINOD
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2022, THE
COURT ON 31.08.2022, DELIVERED THE FOLLOWING:
OP(C).No.1055 OF 2017
2
'CR'
JUDGMENT
This is an Original Petition filed under Article 227 of the Constitution of India by the petitioners, who are the judgment debtors in E.P.No.50/2013 in O.S.No.775/1994 on the file of Munsiff Court, Cherthala.
2. The respondents herein are the decree holders in the above suit.
3. Ext.P3 order viz., order in E.A. No.282/2015 in E.P.No.50/2013 in O.S. No.775/1994 dated 27.02.2017 is under challenge in this original petition.
4. Shorn off unnecessary narrations, the facts of the case is that in a suit for partition, a compromise decree was passed by the Munsiff Court, Cherthala when Kanjikuzhi village was within the jurisdiction of the said court. At the time when the Execution OP(C).No.1055 OF 2017 3 Petition was filed, the jurisdiction on Kanjikuzhi village was conferred on Munsiff Court, Alappuzha. At this juncture, the petitioners herein filed Ext.P2 petition in E.P. No.50/2013 contending that the property, which is the subject matter of the decree, is situated within the limit of Kanjikuzhi village, now within the jurisdiction of Munsiff Court, Alappuzha, and, therefore, Munsiff Court, Cherthala, where the Execution Petition has been pending, has no jurisdiction to execute the decree, though it was a decree passed by Munsiff Court, Cherthala at the time when the said court was vested with jurisdiction over Kanjikuzhi village. Section 39(4) of CPC is the trump card on which the said contention was raised. However, as per Ext.P3 order, the learned Munsiff negatived the contention and held that Munsiff Court, Cherthala had OP(C).No.1055 OF 2017 4 jurisdiction to proceed with the Execution Petition.
5. The learned counsel for the petitioner reiterated the said contention before this Court while assailing Ext.P3 order. The sum and substance of the argument advanced by the original petitioners is that as per Section 39(4) of the Code of Civil Procedure, the court which has been vested with jurisdiction on the subject matter alone has the power to execute the decree. In the said circumstances, the court below has no jurisdiction to execute the decree and so the E.P is liable to be dismissed. But the learned Munsiff brushed aside Section 39(4) of the Code of Civil Procedure and dismissed Ext.P2 petition, vide Ext.P3 order after relying on the explanation to Sub-clause(b) to Section 37 of the Code of Civil Procedure.
6. It is urged further that explanation OP(C).No.1055 OF 2017 5 to Sub-clause(b) to Sec.37 of the Code of Civil Procedure was inserted by Act 104 of 1976 w.e.f. 1-2-1977 whereas Sub Clause (4) of Section 39 of the Code of Civil Procedure was inserted by Act 22 of 2002 w.e.f. 1-7- 2002, which are contradictory. Sec 39(4) of the Code of Civil Procedure provides that nothing in this Section shall be deemed to authorize the Court which passed a decree to execute such a decree against any person or property outside the local limit of its jurisdiction. Section 39(4) commences with the expression 'nothing in the Section shall be deemed to authorize the court which passed a decree'. The said expression makes it clear that the said section is applicable to the proceedings in which a decree sought to be executed against a property outside the local limits of its jurisdiction. As a matter of fact, the court below which passed the decree OP(C).No.1055 OF 2017 6 had no jurisdiction over the property in question. Therefore, in view of the statutory mandate of section 39(4) of CPC, Munsiff Court, Cherthala has no jurisdiction to proceed with the Execution Petition since the decree schedule property is situated in Kanjikuzhi Village, admittedly, now not within the jurisdiction of Munsiff Court, Cherthala. Hence, Ext.P3 order is liable to be set aside.
7. The learned counsel for the petitioners placed a decision reported in Srimad Sudhindra Thirtha Swamiji v. Raghavendra Thirtha Swamiji [2013 (2) KHC 554] to contend that under Section 39(4) read with Order 21 of the Code of Civil Procedure, it is not within the power of the executing court to execute the decree in any manner whatsoever beyond its local limits.
8. Per contra, the learned counsel for OP(C).No.1055 OF 2017 7 the respondents zealously supported Ext.P3 and a Division Bench ruling of this Court reported in Sandhya M.N. v. Binu G.Pillai and Others [2019 (5) KHC 287 : 2019 (4) KLT SN 74] is placed to contend that going by the explanation of Section 37 of Code of Civil Procedure, the court at the first instance does not cease to have jurisdiction to execute a decree, merely on the ground that after the institution of the suit or after the passing of the decree, any territory has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court. But, the latter Court shall also have jurisdiction to execute the decree, if that Court would have jurisdiction to try the said suit, at the time of making the execution petition.
9. While allaying the dispute to find the legality of Ext.P3 order whereby, the OP(C).No.1055 OF 2017 8 learned Munsiff held that in the light of explanation of Sub clause (b) to Section 37 and in the light of the ratio of the decision reported in Mela Ramanna v. Mallapparaju [AIR 1956 SC 87], that the executing court has jurisdiction to execute the present decree passed in a suit filed in the year 1994. The crux of the dispute revolves around the question of jurisdiction of the execution court to execute a decree passed by it, when the said court was having territorial jurisdiction and subsequently the jurisdiction over the said village was conferred to another court. To be more explicit, originally when the suit was filed and it was decreed, Munsiff Court, Cherthala, was having territorial jurisdiction over Kanjikuzhi Village and subsequently, jurisdiction over the said village was conferred to Munsiff Court, Alappuzha and OP(C).No.1055 OF 2017 9 now, Munsiff Court, Cherthala is the jurisdictional court in so far as Kanjikuzhi village is concerned.
10. According to the petitioners, following the statutory mandate in Section 39(4) of Code of Civil Procedure, the court, which passed a decree cannot execute such decree against any person or property outside the local limits of its jurisdiction. In this connection, it is relevant to refer Section 39(1)(2) and (4) of Code of Civil Procedure and the same are extracted hereunder:
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 of competent jurisdiction,-
(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 OP(C).No.1055 OF 2017 10 Court, or
(b) if such person has no 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 the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction. (3) xxxx (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.
OP(C).No.1055 OF 2017 11
11. Similarly, it is necessary to refer explanation to Section 37 of Code of Civil Procedure as well. The same is extracted hereunder:
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.
12. It is true that Section 39(4) of CPC was incorporated by way of amendment w.e.f 01.07.2002 and prior to that as per Section 39(1) and (2) of CPC, the court, which passed a decree may, either on the application of the decree holder, or its own motion send it for execution to another court of competent OP(C).No.1055 OF 2017 12 jurisdiction. Section 39 deals with transfer of decree. Whereas, Section 37 deals with the definition of court which passed a decree and explanation to Section 37 was incorporated by amendment brought into a fact from 01.02.1977 and the explanation provides that the court of the 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.
13. Now, the crucial question is whether any repugnancy in between explanation to Section 37 of CPC and Section 39(4) of CPC?
14. In the decision Sandhya M.N's case (supra), the Division Bench of this Court considered Section 37 of Code of Civil Procedure along with Section 39(4) of Code of OP(C).No.1055 OF 2017 13 Civil Procedure and the Division Bench given emphasis to explanation forming part of Section 37 of Code of Civil Procedure and held that going by the said explanation to S.37 of the Code of Civil Procedure, we find that 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 or after the passing of the decree, any territory has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court. But, the latter Court shall also have jurisdiction to execute the decree, if that Court would have jurisdiction to try the said suit, at the time of making the execution petition.
15. Similarly, the Division Bench held that on a bare reading of S.39(4) of the CPC, it is well discernible that the operation of OP(C).No.1055 OF 2017 14 the said provision is confined to S.39 only. S.39 deals with the transfer of a decree from the Court, which passed the decree to the other Court, for execution against the property situated within the jurisdiction of the transferee court; whereas the explanation to S.37 of the Code of Civil Procedure deals with the transfer of an area, within which the property is situated, from the jurisdiction of the Court, which passed the decree to another Court and the bar under S.39(4) is limited to S.39 only. It is not operative against explanation to S.37 of the CPC. The legal fiction under the explanation to S.37 of the CPC is that, in relation to the execution of decrees, the Court, which passed the decree, is deemed to have jurisdiction over the area, which is transferred to the jurisdiction of any other Court, notwithstanding the actual legal OP(C).No.1055 OF 2017 15 effect and impact of such transfer. If that be so, in a pending EP, the Court which passed the decree can proceed with the execution, by the sale of the property actually situated in the area, which is transferred to the jurisdiction of the other Court, by the invocation of explanation to S.37 of the CPC, notwithstanding S.39(4) of the CPC, which is operative in the case only where decree is transferred to another Court. In other words, the explanation to S.37 is an exception to the bar that the execution Court cannot proceed against the property, situated outside the local limits of its jurisdiction. The explanation to S.37 of the CPC is not hit by S.39(4) of CPC, as the latter is not operative against the explanation.
16. It is true that in the decision reported in Srimad Sudhindra Thirtha Swamiji's case (supra), the learned Single OP(C).No.1055 OF 2017 16 Judge of this Court while considering the question as to whether inherent power under Section 151 of Code of Civil Procedure can be invoked to direct the police to arrest and produce the default judgment debtor, it has been observed adverting to sub-section (4) of Section 39 of Code of Civil Procedure that it is not within the power of the executing court to execute the decree in any manner whatsoever beyond its local limits.
17. However, the issue has been directly dealt by the Division Bench of this Court and the ratio of the Division Bench decision in Sandhya M.N's case (supra) would govern the case on hand and the issue involved herein. Thus the judgment rendered by the learned Single Judge in Srimad Sudhindra Thirtha Swamiji's case (supra), has no binding effect. It has to be held that there is no repugnancy in between explanation to Section OP(C).No.1055 OF 2017 17 37 of CPC and Section 39(4) of CPC. The rationale is that Section 39 has application only when the question of transfer of a decree covered by Sub Section (1) of Section 39, in regard to the situations dealt in (a) to (d) of Section 39(1) and Section 39 has no application when considering the definition of court which passed a decree dealt under Section 37 read with the explanation which safe guarded the power of the court to execute a decree passed by it, which had jurisdiction over the subject matter while passing the decree and after passing the decree, the territorial jurisdiction of that court was transferred to the jurisdiction of another court. This is the context in which the legislature in its wisdom also not struck down explanation to Section 37 while amending and incorporating Section 39(4) of CPC w.e.f 01.07.2002.
OP(C).No.1055 OF 2017 18 Therefore, Ext.P3 order impugned, holding the view that Principal Munsiff Court, Cherthala has jurisdiction to execute the decree in O.S. No.775/1994, requires no interference.
In the result, this Original Petition fails and is accordingly dismissed.
Sd/-
A. BADHARUDEEN, JUDGE WW OP(C).No.1055 OF 2017 19 APPENDIX OF OP(C) 1055/2017 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE E.P.NO.50/2013 IN O.S. NO.775/1994 FILED BY THE RESPONDENTS BEFORE THE HON'BLE MUNSIFF'S COURT, CHERTHALA.
EXHIBIT P2 TRUE COPY OF THE E.A.NO.282/2015 IN E.P. NO.50/2013 FILED BY THE PETITIONERS BEFORE THE HON'BLE MUNSIFF'S COURT, CHERTHALA.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27.2.2017 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA IN E.A.NO.282/2015 IN E.P. NO.50/2013 IN O.S.NO.775/1994.