Kerala High Court
Chithraru Jathavedan Nambooripad vs Gopala Pillai Chandrasekharan Nair on 4 August, 1964
Equivalent citations: AIR 1967 KERALA 81, 1964 KER LT 690 ILR (1964) 2 KER 648, ILR (1964) 2 KER 648
JUDGMENT S. Velu Pillai, J.
1. The appellant obtained a decree in the Court of the Munsiff at Trivandrum charged on Immovable properties. On a readjustment of territorial Jurisdiction of Court after the passing of the decree, item 12 of the properties under the decree, to which alone this appeal relates, came within the jurisdiction of the Court of the Munsiff at Nedumangad. The decree was therefore transferred for execution to that Court. Subsequently, on another such readjustment, the property was restored to the jurisdiction of the munsif at Trivandrum. This notwithstanding, the proceedings in execution continued in the Nedumangad Court and culminated in a sale of the property on the 27th August, 1955, which was duly confirmed on the 9th February, 1957.
The execution proceedings were then are transferred to the Trivandrum court, where- an application was made by the appellant for delivery of possession. This was resisted by the respondent, who is a transferee. of the property pendente life, on the ground that the sale was void as the Nedumangad court had no territorial jurisdiction over the property at the time. This contention though repelled by the Munsiff was accepted by the Additional District Judge on appeal. The question for consideration in second appeal is whether the sale in execution was devoid of jurisdiction.
2. It is a fundamental rule, that "no court can execute a decree in which the subject-matter of the suit or of the application for execution is property situate 'entirely' outside the local limits of its jurisdiction". See Mulla on Civil Procedure Code, 12th Edition, Page 164. To this rule, there is a well recognised exception in the case of mortgage decree or decrees charged upon property. One of the early cases in which it found recognition is Maseyk v. Steel and Co., ILR 14 Cal 661 at pp. 668 and 669 in which Patheram, C.J. stated the principle thus:
"In this particular case the decree which is sought to be executed, is a mortgage decree, which finds that a certain sum of money is due from the mortgagor to the mortgagee and directs that the property included in the mortgage shall be sold and the proceeds applied in the payment of the mortgage debt, and, if there is any residue, it shall be paid to the mortgagor.
It is under the provisions of that decree, which is practically a decree for specific performance of the contract between the mortgagor and mortgagee, that this sale has been ordered and has been carried out, and it seems to me that the authority given by Section 19 of the Code of Civil Procedure (corresponding to Section 17 of the present Code) must include the authority to make an order of this kind, that the property shall be sold, and to direct the mode in which the sale shall take place . . . . .But where the sale takes place in execution of a money decree under which property is attached, and is sold to satisfy a money decree, the procedure is totally different.......
If it is a money decree the officer of the court has to attach the property in accordance with the provisions of the law, and has to proceed to sell the property and to give possession of it in his capacity of officer of the court...... and in doing that his powers would be limited by the territorial jurisdiction of the court of which he is an officer. But when it comes to selling property which is ordered to be sold in pursuance of a contract between the parties, file court may by its decree order that that contract shall be specifically performed, because the parties could not sell the property or lay down the mode in which it should be sold. The court in its decree directs the mode and appoints the person who is to carry out the sale.
This principle was followed and applied by the same court in later cases, particularly in Sakti Nath Roy Choudhury v. Tessore United Bank Ltd., AIR 1939 Cal 403 and in Begg Dunlop and Co. v. Jagannath Marwari, ILR 39 Cal 104. Shaikh Abdul Hadi v. Mt. Kabultunnissa, AIR 1928 Pat 139 and Girdhari Lal v. Paras Ram, AIR 1938 Lahore 687 are cases of the Patna and Lahore High Courts in point.
3. The rule of jurisdiction for institution of suits is enacted in Section 17, C. P. C., the relevant part reading, where a suit is to obtain relief respecting, ...... ........ immovable property situate within the jurisdiction of different courts, the lull may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate"
and the rule of execution in the event of readjustment of territorial jurisdiction, is stated thus by the Supreme Court in Merla Ramanna v. Nallaparaju, AIR 1956 SC 87:
"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."
I do not think, that there is anything in this pronouncement which admits of the interpretation contended for by respondent's counsel, that in the event of a transfer of the subject-matter of the decree, the Jurisdiction of the court which passed the decree is limited to entertaining an application for execution, though for what purpose, it is not clear. I am clear that the Supreme Court has, in this passage, declared in unmistakable terms the power of the court which passed a decree charged on property, to execute the decree to its logical termination, notwithstanding the transfer of the property to the jurisdiction of another court, for it is hardly open to doubt, that in a mortgage decree the property charged is the subject-matter of the decree, though it is equally clear that in a decree for money the property which may be proceeded against by way of attachment and sale is in no sense the subject-matter of the decree. The exception to the rule quoted from Mulla's Civil Procedure Code has been stated in the following terms by the same author:
"The court which passed a decree for the enforcement of a mortgage of immovable property has power in execution of its decree to order the sale of such property, though it may be situate 'beyond' the local limits of its jurisdiction".
So the jurisdiction of the Trivandrum Munsiffs Court which passed the decree, to execute the decree against the property now in question, notwithstanding the original territorial readjustment of jurisdiction, is established.
4. The jurisdiction of the Nedumangad court to which the decree was transferred for execution, after the property had been reallotted to the jurisdiction of the Trivandrum court, has to be answered on the terms of Section 42 of the Civil Procedure Code, the relevant part of which is:
"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."
Incidentally it may be observed, that learned counsel contended for the extreme position, that Section 39, C. P. C. providing for the transfer of decrees for execution, is not a mere enabling provision but is mandatory and that the word may' occurring in it has to be construed to mean 'shall'. The contention if accepted implies, that under Clause (c) of Section 39, where "the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it", it cannot be executed by the Court which passed the decree and is plainly opposed to AIR 1956 SC 87.
In my opinion Section 39 enables the court which passed the decee to send it for execution to another court; its object is not to deprive the jurisdiction of the court which passed the decree in the several situations envisaged by Clauses (a), (b) and (c), which has to be determined on the general principle stated above and the exceptions to it. The argument based on Section 39 is wide of the mark. Coming to Section 42, the language of which is comprehensive, Horwill, J. in Seetharamayya v. Sivaramakrishna Rao, AIR 1944 Mad 145 interpreted it to mean, that "once a decree has been transferred, whatever the reasons for the transfer might be, the transferee court may treat that decree as its own.... if the transferee court may treat a mortgage decree as if it had been passed by itself, it can execute it against all the property which is the subject of the decree, even though none of it might lie within its territorial jurisdiction"; this was affirmed in letters patent appeal. It seems to me, both on the language of Section 42 and on the interpretation put upon it, that the power of the court to which a mortgage decree is transferred for execution, has to be equated with that of the court which passed the decree.
5. The Judge in appeal relied in support of his view that the sale held by the Nedumangad court was void, on the decision of the Full Bench of the Madras High Court in Vasireddi Srimanthu v. Venkatappayya, AIR 1947 Mad 347 (FB). In that case, the court to which a money decree was sent for execution had jurisdiction to attach a certain property, but it had lost jurisdiction when it sold the property pursuant to the attachment. The property attached was not the subject-matter of the decree and the court which passed the decree had no jurisdiction to proceed against that property. The case came within the scope of the general rule, that a court in order to execute the decree against a property must have jurisdiction over it and not within the scope of the exception to it. But the decision is authority for the distinction to be maintained with respect to decrees in suits instituted under Section 17, C. P. C. The Judge was in error in applying AIR 1947 Mad 347 (FB) to a wholly different situation.
6. It follows from the above discussion, that the Nedumangad Court had jurisdiction to sell the property in execution on the 27th August, 1955, notwithstanding the reallotment of that property to the jurisdiction of the Trivandrum Court; the sale was therefore valid. The judgment under appeal is set aside, the judgment of the Munsiffs hereby restored, and this second appeal is allowed with costs in this court and in the lower appellate court.