Andhra HC (Pre-Telangana)
C.H.S.S.P. Sarma vs Om Prakash Agrwal on 19 July, 1969
Equivalent citations: AIR 1970 ANDHRA PRADESH 307
ORDER
1. This revision petition is by a judgment-debtor in a small cause suit, whose objection to the proceeding was overruled by the Court below. The decree was made by the Judge, Small Cause Court at Meerut in Uttar Pradesh. The Judgment-debtor is a resident of Vijayawada. As the decree was not satisfied, the decree-holder was granted a certificate on non-satisfaction and he made the present application to the subordinate Judge, Vijayawada, for the execution of the decree. the maintainability of the petition was called in question by the judgment-debtor, who has come up in revision, because the lower court rejected his contention.
2. A question of limitation was raised in the lower court, but no argument on that aspect was addressed to me.
3. The only contention urged by Mr. Surya Rao for the petitioner is that under the provisions of Rule 5 of O. 21, Civil Procedure Code, a mode of transfer of a decree for execution is prescribed and that the transmission of the decree in the instant case was not made in conformity with requirements of that rule. Where the Court to which a decree is to be sent for execution is not situate in the same District as the Court that passed the decree, the rule makes it obligatory to send the decree to the District Court of the district in which the decree is to be executed. In the instant case, the Court at Meerut acted pursuant to Rule 6 of Order 21 to which a local amendment was made by the Allahabad High Court. Under Rule 6 as amended by that High Court, copies of the decree and certificate of non-satisfaction could at the request of the decree-holder be taken to the Court to which they were to be sent.
4. The decree-holder was given the copy of the decree and certificate of non-satisfaction and he presented the Execution petition not to the District, Court Krishna, but to the Subordinate Judge.
5. The short question is, whether the execution petition was duly presented and the Court has jurisdiction to levy execution, on foot of the petition thus presented.
6. The argument is that Rule 5 is mandatory in its requirement and that the decree shall be sent to the District Court. The transmission of the decree was not done as ordained by the rule. The subordinate Judge cannot entertain the petition because the foundation for the jurisdiction of the transferee court is a valid act of transfer and that is lacking.
7. Councel relied on some decisions which may now be examined in the chronolgical order.
8. The dicta of Ramesam, J., in Subramanya Ayyar v. Swaminatha Chettiar, AIR 1928 Mad, 746 found at p. 751 were strongly relied upon by the Counsel for the petitioner. That was a case where a decree was made on foot of a mortgage by the Subordinate Judge, Nagapatnam. The territorial jurisdiction over the area in which the hupotheca or part thereof was situate was made over to another Court. There was no order of transfer made by the Court that passed the decree. An application was made to the Subordinate Judge, Tanager, for execution and he passed an order, the effect of which came to be considered at a later stage and the argument was that the earlier order was conclusive in its effect. In the context, Ramesam. J., observed:
".......... but, where, as in this case the transfer cannot be made directly to the second Court, and it should only be made first to the District Court of Tanjore and the District Court may either execute the decree it self or may send it to the Sub-Court (Vide Order 21, Rule 5), the irregularity cannot be overlooked as a mere irregularity. It seems to me that the irregularity amounts to a want of jurisdiction.........."
The dicta cited above are to be considered in the light of the question formulated at page 747. The point raised before the Division Bench was stated to be "whether execution of a decree of Nagapatnam Sub-Court cannot be ordered by the Sub-Court, Tanjore, on a petition filed before it and that it can be only ordered if the execution is transferred by the Sub-Court at Nagapatnam". It will be noticed that in that case, there was no act of transfer by the Court that passed the decree. In the last paragraph at page 747, it was stated:
"The Tanjore Sub-Court is not a Court to which it is sent for execution."
The facts of that case, therefore, did not give rise to the question whether it was not competent for a Court that passed the decree to send it direct to another Court in an outside district instead of routing the transmission through the District Court. It cannot be gainsaid that the jurisdiction of the transferee Court is derived by the act of transfer of the Court that passed the decree. In the case dealt with by the Division Bench in AIR 1928 Mad 746 (Supra) there was no act of transfer. The execution petition was straightway presented to the Tanjore Court, because the decree-holder acted on the basis that the change in the territorial jurisdiction endowed the Tanjore Court with the competence to levy execution, even without a transfer. No question can be said to have arisen for decision in that case, whether a transfer is made by the Court that passed the decree but not made through a District Court, did not serve as an adequate foundation for the jurisdiction of the transferee Court. The dicta of Ramesam, J., (no observations of the other Judge in the Division Bench relevant to this context are brought to my notice) were, therefore, made with reference to a situation that did not call for decision in that case. They can hardly be construed as laying down a precedent applicable to the present case.
9. In a subsequent Division Bench ruling of the Madras High Court, in Venkataratnam, v. Chennayya, AIR 1940 Mad 214, the dicta of Ramesam, J., were apparently not cited or relied upon. It was pointed out that Section 39 of the Civil Procedure Code enables the Court that passed the decree to send it for execution "to another Court". Adverting to Rule 5 the Division Bench observed:
"The decree under Rule 5, of Order 21 had to be sent to the District Court, Vizagapatnam, for mere transmission to the Sub-Court, Vizagapatnam".
Lower, the learned Judge said:
"If the decree is not sent for execution to the District Courtcannot execute it but must merely transmit it to the Court specified in the order of the Court which passed the decree".
10. The point emerging from the above dicta is unequivocal. When a Court, which passed a decree, transmits it for execution to another Court, the choice of the forum is one exclusively within the domain of the transferring Court. It is not open to the District Court to act contrary to the terms of the specific direction if any is given, by the t transferring Court. All that the District Court can do then is to transmit the decree in conformity with the positive directions of the transferor Court. The Principle appears to be that the power to execute the decree is delegated though the delegation is made on foot of a statutory provision. Consequently, it is the delegation of the power to execute the decree that confers jurisdiction on the Court and not the mere act of transmission which alone the district Court is empowered to make, when the Court that is to execute the decree is specified by the transferor Court. The language of Section 39 does not impose any limitation on the power of the transferor Court to send the decree for execution to another Court specified it. The provisions of Rule 5 of Order 21, cannot be read so as to curtail the power of the transferor Court, expressed in wide or unambigous terms of sending the decree for execution to "another Court". In construing the provisions of Sections 38 and 39 as also of Rule 5 of Order 21, Civil Procedure Code, it is necessary to have regard to the essential and underlying concept on which all these provisions are based. There can be no doubt that the intention of the Code is to allow a decree to be executed by a Court other than the one that passed it. In order to give effect to this objective, a machinery has to be provided, for delegating the function of execution to a Court to which it is to be transferred for execution. The essence of the matter is that the power of execution, which is inherent in the Court that made the decree, is allowed to be delegated to another Court. It follows that the power to execute a decree of the transferee Court is based on the delegation that is made by the Court in which the power is inherent or implicit. The jurisdictional basis is, therefore, attributable to the delegation effected by the Court that made the decree. The provisions of Rule 5, no doubt, say that the decree shall be sent to a District court of the District in which it is to be executed. But the use of the imperative' shall' in this context can only be regarded as directory and not mandatory.
11. It is necessary in this context to notice another decision of the Madras High Court in Ademma v. Venkata Subbayya, ILR 56 Mad 692 = (AIR 1933 Mad p627) which is illustrative of the principle of delegation. It was laid down in that decision thatwhen once the order is made sending a decree to another Court for execution that, by itself, is sufficient to entitle the decree-holder to apply to the Court to which the decree is directed to be sent for execution. It is not necessary for the decree-holder to await the receipt by the transferee Court of the copy of the decree. The principle on which this decision is based, is that the jurisdiction to execute he decree springs into existence by the decision to transfer the decree. The receipt of the copy of the decree is not the essential factor. Even before it is received, a petition for execution can be entertained. This clearly shows that the transmission of the copy of the decree through the District Court is immaterial for taking out execution. Beasley, C. J., delivering the judgment in this case, expressed his opinion that the order making the transfer is a judicial order and dates form the time when it is made. It follows that the operative and essential part of the transmission of the decree, is the judicial order made by the transferor Court and not the administrative order that a District Court and not the administrative order that a District Court may make under Rule 5 of Order 21.
12. The two decisions of the Madras High Court adverted to above necessarily lead to the conclusion that the transferee Court has the competence to execute a decree made, over to it by the Court that passed the decree, though such transmision is not made in conformity with the provisions of Rule 5 of Order 21. I am inclined to think that the ratio of the decision in AIR 1940 Mad 214 (Supra) constitutes a clear precedent that has to be applied in the instant case. It is, therefore, unnecessary for me to consider the decisions of the other High Courts to which reference was made by the learned Counsel for the petitioner. In Barkat Ram v. Bhagwan Singh, AIR 1940 Lah 394, some observations at page 396 had been relied upon. The view expressed therein is that the provisions of R. 5 are mandatory and that the transferee Court had no jurisdiction to execute the decree. The single Judge of the Lahore High Court followed the decision in Debi Dayal Sahu v. Maharaj Singh, (1895) ILR 22 Cal 764 which was expressly dissented from by the Division Bench of the Madras High Court in AIR 1940 Mad 214 (Supra). The view taken by the Lahore High Court is based on inadequate appreciation of the provisions of Sections 38 and 39. No attention seems to have been paid to the principle that it is the act of the transferor Court that confers jurisdiction. Two other decisions were brought to my notice, and they are Durga Prasad v. Harishankar, AIR 1950 Assam 163 and Ghanshyamdas v. Durga Devi, . I do not think these decisions can be accepted as construing the relevant provisions correctly.
13. There is only another aspect to which reference need be made. Under the local amendment which is operative in the area which is subject to the Allahabad High Court, it is open to a court to entrust to the custody of the decree-holder a copy of the decree and certificate of non-satisfaction so as to enable him to make an application direct to the transferee Court. In the instant case, this procedure had been availed of. It cannot, therefore, be said that the t transferor Court acted in an irregular manner or contrary to the provisions of the Code. As already noticed by me, the essential requirement is that there should be a valid act of transfer; and when that requirement is satisfied and there cannot be any doubt that it was in this case, the jurisdiction of the transferee Court to proceed with the execution of the decree must be held to be beyond question. For the reasons mentioned above, the revision petition must be dismissed.
14. The respondent will have his costs.
15. Revision dismissed.