Karnataka High Court
Ramagouda Malagouda Patil And Ors. vs Bhajarang Tukaram Bhojane And Ors. on 23 September, 2002
Equivalent citations: AIR2003KANT154, AIR 2003 KARNATAKA 154, 2003 AIR - KANT. H. C. R. 79
Author: N.K. Patil
Bench: N.K. Patil
ORDER N.K. Patil, J.
1. This civil revision is directed against the order dated 26-9-2001 passed in Execution Petition No. 197/2000 on the file of the Civil Judge (Sr. Dvn.) and Assistant Sessions Judge, Athani.
2. The Execution petition was filed by the decree-holders against the Judgment-debtors to execute the judgment and decree dated 29-6-1998 passed in O. S. No. 71/ 1992 in respect of 6 acres of land to the western strip in Sy. No. 29 of Bommanal village totally measuring 11 acres 16 guntas along with the half share in the well and 5 mango trees. The said Execution Petition had come up for consideration before the trial Court on 26th September 2001. The trial Court after hearing both parties, after taking into consideration both oral and documentary evidence, the material records available on the file and by following the judgment of this court in R.S.A. No. 71 /1992 dated 29-6-1998 has allowed the Execution petition and directed the petitioners to obey the judgment and decree of this Court as stated supra forthwith. Assailing the correctness of the said order passed by the trial Court, the petitioners have presented this revision petition.
3. The principal submission canvassed by the learned counsel for the petitioners is that, the impugned order passed by the Execution Court is one without jurisdiction, and when he has no jurisdiction, he ought not to have proceeded to pass the orders in considering the request of the respondents. In support of his submission, he has placed his reliance on the judgment of this Court in the case of Muthappa Reddy v. M. C. Venkataswamy reported in Mys. LJ Short Notes Item No. 268 Page No. 114, wherein this Court has held that :
"Mysore Civil Courts Act 1964 : Decree by District Court before enforcement of the Act-execution petition was filed after the Act came into force-competent Court to execute the decree.
Further, it is held that:
"Since the execution case was filed before a Court which had ceased to have any jurisdiction, what ought to have been done is to return the Execution petition for presentation to the proper Court."
4. Further, the learned counsel placed his reliance on the another judgment of this Court in the case of Thyampu Shetty v. A Koti Shetty reported in (1974)2 Kant LJ 66, wherein it is held that:
The decree must be deemed to have been transferred from the Court of the Civil Judge Mangalore to the Court of Karkala by virtue of Section 29(2) of the Mysore Civil Courts Act.
In spite of the fact that the territorial jurisdiction over the subject matter had been transferred from Mangalore Court to the Court at Udupi, prior to 1-7-1964, the Court at Mangalore had jurisdiction to entertain the execution petition on the date of the Act coming into force.
Therefore, he contended that, if the ratios of the judgments referred to above are followed, the impugned order passed by the trial court is not at all sustainable as the same is passed without jurisdiction. Hence, he prayed that the impugned order may be set aside.
5. Per contra, the learned counsel for the respondents, inter alia contended and justified the Impugned order passed by the trial court. Further, she vehemently contended that the judgment and decree in R. S. A. No. 71/1992 was passed by this Court on 29-6-1998 and the respondents could not take the fruits of the same. The conduct of the petitioners shows that, just to protract the proceedings on hyper technical ground they are filing application one after another. Further, it is pointed out that, it is not the case of the petitioners that they have resisted the petition filed on the file of the Civil Judge (Sr. Dvn) well in time. If they have not availed the said opportunity immediately and proceeded to participate in the proceedings and now they have come up before this Court on a technical ground alleging that, the impugned order passed by the trial Court is one without jurisdiction. In support of her submission, she has placed reliance on the judgment of the Apex Court in the case of Merla Ramanna v. Nallaparaju reported in AIR 1956 SC 87, wherein, the Supreme Court has held that (Para 12) "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."
Further, it is held that (Para 13) "But the Court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and if it entertains and execution application with reference thereto, it would at the worst be an irregular asumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of proceedings."
6. Further, the learned counsel for the respondents placed reliance on the another judgment of this Court in the case of Laxmi Bai v. Kamalaksha G. Nayak reported in 1993 (2) Kant LJ 419, wherein this Court held thus (Para 16 of AIR) :
"If it is to be held that because of Section 4(1)(b) the Civil Judge could not have considered and allowed the amendment application, the result would be that the suit which is already old has to be sent to the Munsiff s Court where the amendment application is bound to be allowed, resulting in the plaint being returned for presentation to proper Court and the plaint again being presented before the Civil Judge's Court. This involves unnecessary delay in the proceedings. It could not have been the intention of the Legislature while enacting Section 4 to prevent the Court of Civil Judge permitting such an amendment of the plaint. It can be presumed that the Legislature would never intend to protract proceedings while enacting any procedural rule and that the object of all the procedural laws are to expedite proceedings in Court. Whenever, any procedural law is susceptible to more than one reasonable interpretation, the one which will have the effect of speeding-up proceedings in Court without at the same time defeating the object of the law of causing injustice, should be adopted in preference to the one which may have the effect of delaying the proceedings. As observed in Shri Lakshmi Film's case (1961 (39) Mys LJ 327), the Court should not take a pedantic view of Section 4(1)(b). There is nothing in that provision which prohibits the Court where the suit was pending prior to the Amendment Act from considering any application for amendment of the plaint, which if allowed, would avoid the necessity of transferring the suit to the Court of the Munsiff. Hence, merely because there is a provision of statutory transfer under Section 4 (1) (b) it cannot be said that the principles laid down in Kundan Lal's case (AIR 1958 All 96) and Messrs Shri Lakshmi Film's case (1961 (39) Mys LJ 327) do not apply to the present case. In the circumstances it has to be held that the impugned order cannot be characterised as an order passed by the court without jurisdiction."
7. Further, she contended that, in view of the amendment of the Civil Procedure Code, the reliance placed by the learned counsel for the petitioners has no bearing on the facts and circumstances of this case. Hence, the trial Court is justified in passing the impugned order and there is no error of jurisdiction of illegality in the impugned order. Therefore, she prayed that the revision petition may be rejected.
8. I have heard the learned counsel for both the parties at a considerable length of time. Perused the impugned order, re-evaluated the entire material available on record and by taking into consideration the rival contention of both the parties, I do not find error of law, as such, was committed by the trial Court in the impugned order. As rightly pointed out by the learned counsel for the respondents that, in view of the law laid down by the Apex Court as cited supra, the Court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings.
9. In the instant case, there is no dispute about the judgment and decree passed by this court. The Executing Court after considering the rival contentions of both the parties has allowed the execution petition filed by the respondents and directed the petitioners to obey the judgment and decree passed by this Court. Therefore, I do not find any justification to interfere with the impugned order passed by the trial Court. Further, it is significant to note that this court had an occasion to consider with regard to the power of transfer, inhibition to exercise found in section itself, not from other sources. Only inhibition is court to which suit transferred must be competent to try. Superior Court presumed to have jurisdiction to try suit even though different jurisdiction based on pecuniary value provided as held by this court in the case of Channaveerappa v. Channabasappa , wherein this Court had held thus :
"a superior Court is presumued to have jurisdiction to try a suit even though the Karnataka Civil Courts Act may provide different jurisdiction based on pecuniary value of the claim on a lower grade Court. If the Munsiff cannot try the suit filed by the respondent, then the only course left open to the District Judge, for convenience of disposal of both the suits, is to transfer the suit filed by the petitioner herein to be tried by the Civil Judge to avoid duplication of proceedings.
Further, this court has held in Laxmi Bai's case as cited supra that:
"On the other hand, by passing this order, the learned Civil Judge has avoided unnecessary delay in the suit being sent to the Munsiff Court where the amendment application had again to be considered and when allowed the suit had to again to be represented to the Civil Judge's Court. This suit is already more than 8 years old and it is said that it is also part heard. The impugned order has enable the Civil Judge to continue the suit and to dispose it of early.
10. In the circumstances, even if it could be said that the order is illegal this is not a fit case where this Court should exercise its discretion under S. 115 C.P.C. and interfere with the same. If the principles laid down by the Apex Court and this Court as stated supra are applied to the present case, I do not find any error of jurisdiction or material illegality or irregularity in the impugned order passed by the trial Court.
11. Therefore, by following the well settled law laid down in the host of judgments as stated above by the Apex Court and this court, and this Court, and also having regard to the factual and legal position on facts and law, I do not find any justification to interfere with the impugned order passed by the trial Court or the petitioners have not made out any case to interfere with the same. Hence, the revision petition is liable to be dismissed.
Accordingly, the revision petition is dismissed.