Madhavan Nair v. Kaliappa Naidu — 1962 DIGILAW 152 (KER)

Judgment :- 1. This Second Appeal is by the decree-holder in O.S. No. 577 of 1952 on the file of the Munsiff, Trichur. The matter arises in execution. 2. The decree is in ejectment from a piece of immovable property situate within the jurisdiction of the Munsiff, Wadakanchery. The suit was originally instituted in the court of the Munsiff, Wadakkanchery, as O.S. No. 643 of 1950, but was subsequently transferred under S.24 of the Code of Civil Procedure to the Munsiff, Trichur, for trial and disposal. Accordingly the decree came to be passed by the Munsiff, Trichur. Execution was moved by the decree-holder in the latter Court which on 2-4-1957 ordered delivery of possession of the property. The warrant was issued to an Amin attached to the Munsiff 's Court, Wadakkanchery, and executed by him, who effected delivery on 3-4-1957 and submitted his report to the Munsiff, Trichur. The court having closed for mid-summer recess on 8-4-1957, an application was moved by the judgment-debtor, defendant, on 20-5-1957, the day of reopening, for cancellation of the delivery proceedings and for redelivery of the property to him on the ground that the Munsiff, Trichur, had no jurisdiction to execute the decree in respect of a property wholly situate within the jurisdiction of the Munsiff, Wadakkanchery. Both the courts below found that the delivery ordered by the Munsiff, Trichur was without jurisdiction and therefore ordered redelivery of the property to the judgment-debtor. Hence this Second Appeal by the decree-holder. 3. The forum for executing a decree is defined in S.38 of the Code of Civil Procedure. "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." The expression 'Court which passed the decree' is defined in S.37, and the provisions for sending a decree for execution to another court are in S.39 of the Code of Civil Procedure which read thus: 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." "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 the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction." Thus, the court to execute a decree is the court which passed it, or the court to which it is sent for execution. It is obvious that the only court which can send the decree for execution by another court is the court which passed the decree, as there is no other court which can do so. Hence, the primary court which is empowered to execute the decree is the court which passed the decree, and that court may either execute it or send it for execution to another court. The cases in which a decree can be sent for execution are detailed in S.39. "39. Hence, the primary court which is empowered to execute the decree is the court which passed the decree, and that court may either execute it or send it for execution to another court. The cases in which a decree can be sent for execution are detailed in S.39. "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) (b) ... (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)... (2) 4. It is agreed between counsel that there is no difficulty in ascertaining the court which passed the decree in this case as that of the Munsiff, Trichur, only. 5. Counsel for the judgment-debtor contends that S.38 has to be read subject to S.39 and therefore if the decree directs delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it, the decree has necessarily to be sent for execution under S.39 to the Court within whose jurisdiction the concerned property lies and the court which passed the decree has no jurisdiction to execute the same, or to order delivery in particular. 6. The primary rule of construction of a statutory provision is, unless special meanings are attached to words used by the legislature, to read it in the literal sense. The expression in the Code is, the court by which decree may be executed is the court which passed the decree, or one to which it is sent for execution. The two courts are put on a par in the section. The indication is that the powers of the two courts, viz., that which passed the decree and that to which the decree is sent for execution, are equal in the matter of execution of the decree. S.42 also indicates that the court to which a decree is sent for execution shall have the same powers in executing such decree as if it had been passed by itself; that is to say, the powers of the transferee court are the powers of the court which passed the decree in executing the same. It is nowhere provided in the Code of Civil Procedure that the court which passed the decree cannot execute its decree in any case. It is nowhere provided in the Code of Civil Procedure that the court which passed the decree cannot execute its decree in any case. It then follows that the primary jurisdiction to execute the decree rests with the court which passed the decree and any other court would get jurisdiction to execute the same only by virtue of the special appointment involved in the order of transfer to that court. 7. In this case, the decree was passed by the Munsiff, Trichur. Hence the Munsiff, Trichur, has the inherent jurisdiction to execute the same, even though on account of the fact that the process of a court does not run beyond the territorial limits of its jurisdiction, he may incur practical difficulties in effecting delivery of a property situate outside his territorial jurisdiction. But in this case that difficulty did not arise and the warrant issued by him was executed and the property actually delivered by an Amin attached to the court within whose jurisdiction the concerned property lies. The question here is not of practicality but of jurisdiction the want of which is pleaded as a ground to cancel the delivery effected in accordance with the decree by the order of the court which passed the decree. S.39 (2) CPC. provides: "The court which passed the decree ...may send it for execution to another court" in cases specified in the section, one of which is where the decree directs delivery of immovable property situate outside its local limits. In the instant case the decree directed delivery of a property situate outside the territorial limits of the court which passed the decree. As such it was open to that court either to execute it or to send it for execution to the court within whose jurisdiction the property lies. The question is whether the court which passed the decree was bound to have sent it for execution to the Munsiff, Wadakkanchery. S.39 does not compel a court which passed the decree for delivery of a property outside its territorial limits to send it for execution by the court in whose jurisdiction the property is. 8. Counsel for the judgment-debtor contends that the power to execute the decree goes with the territorial jurisdiction in respect of the property involved and the property being admittedly within the jurisdiction of the Munsiff, Wadakkanchery, the latter court alone has jurisdiction to execute the decree. 8. Counsel for the judgment-debtor contends that the power to execute the decree goes with the territorial jurisdiction in respect of the property involved and the property being admittedly within the jurisdiction of the Munsiff, Wadakkanchery, the latter court alone has jurisdiction to execute the decree. S.21 of the Code of Civil Procedure indicates that territorial limits do not affect the inherent jurisdiction of a civil court. It is provided therein that unless objection to territorial jurisdiction is taken before the issues are settled it cannot be raised in a subsequent stage of the suit. It then follows that the provisions of territorial jurisdiction are provisions not affecting the inherent jurisdiction of a civil court but affecting only the exercise of its jurisdiction. The court which passed the decree, by virtue of its inherent jurisdiction under the general law and under S.38 CPC., is the court to execute the same. The presumption of law always is that when once the court properly seized jurisdiction over a cause the power inheres in it until the matter is finally closed. It is on this principle that a long string of decisions have held that the court of institution would not lose its jurisdiction to try the suit merely because of the removal of its subject matter to another jurisdiction pendente lite. It then follows that the decree having been validly passed by one court the power to execute the same and thereby to continue the proceedings in the suit to a final finish inheres in that court; and that is what is exactly provided for literally in S.38 of the Code. The contention that S.38 must be read subject to S.39 and that S.39 is imperative even though the expression used therein is "may" cannot be accepted. 9. Counsel for the judgment-debtor relied on Sreenath Chakravarti v. Priyanath Randonadhvay (AIR. 1931 Calcutta 312), Vasireddi Srimanthu v. Venktappayya (AIR. 1947 Madras 347 (FB) and Maharaj Kizhore Khanna v. Rajaram Singh (AIR. 1954 Patna 164), to contend that a court cannot make a valid order for sale or delivery in execution unless, at the time the order is made, the property is within its territory. It is not now necessary to refer to those rulings in view of the observation of the Supreme Court in Merla Hamanna v. Nallapparaju (AIR. 1956 SC. 1954 Patna 164), to contend that a court cannot make a valid order for sale or delivery in execution unless, at the time the order is made, the property is within its territory. It is not now necessary to refer to those rulings in view of the observation of the Supreme Court in Merla Hamanna v. Nallapparaju (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." 10. In the result, the delivery ordered by the Munsiff, Trichur, who passed the decree, cannot be assailed as wanting in jurisdiction. At the worst, it may be irregular and cannot therefore be set at naught after it has been fully carried out and is not shown to have worked out any miscarriage of justice. The orders of the courts below are therefore discharged and the application of the judgment-debtor for redelivery dismissed with costs throughout. Leave granted. Allowed.