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1963 DIGILAW 364 (MAD)

Karuppiah Ambalam v. Ayya Nadar

1963-10-17

P.RAMAKRISHNAN, S.RAMACHANDRA.IYER

body1963
Ramakrishnan, J.- This Civil Revision Petition raises a question of law regarding the scope of section 24 of the Civil Procedure Code in its application to proceedings in execution. A decree was passed in Original Suit No. 1 of 1962 by the Sub Court, Dindigul in the Madurai district. The execution proceedings were initiated in that Court, and since the property to be proceeded against was situated within the jurisdiction of the Sub Court, Sivaganga, in the Ramanathapuram district the decree was transferred to the Sub-Court, Sivaganga, following the procedure indicated in section 39, Civil Procedure Code, read with Order XXI. rules 5 and 8, Civil Procedure Code. Thereafter some allegations were made about the propriety of the execution being continued in the Sub-Court, Sivaganga because of the manner in which adjournments were being granted by the Subordinate Judge while dealing with the execution petition. The decree-holder filed a petition before the District Judge, Ramanathapuram under section 24, Civil Procedure Code for transfer and after hearing both the parties, the learned District Judge transferred the execution petition to the Sub-Court, Ramanathapuram at Madurai for further execution and disposal. It is not in dispute that the property sought to be proceeded against is situated within the jurisdiction of the Sub-Court, Sivaganga and no part of it is situated within the jurisdiction of the Sub-Court, Ramanathapuram. Against this decision this Civil Revision Petition is filed by the judgment-debtor-respondent in the Court below. Sri P. Balasubrahmanyam, learned Counsel appearing for the petitioner herein, urged that under section 24, Civil Procedure Code, the District Court, had no jurisdiction to transfer to another Court execution proceedings pending in one Subordinate Court after transfer to it under section 39, Civil Procedure Code. Secondly, it was urged that even if under section 24 it had power to transfer execution proceedings, the transfer could be made only to a Court which had jurisdiction over the property or the person against whom execution was sought. We will briefly refer to the relevant provisions of the Civil Procedure Code which deal with this matter. Secondly, it was urged that even if under section 24 it had power to transfer execution proceedings, the transfer could be made only to a Court which had jurisdiction over the property or the person against whom execution was sought. We will briefly refer to the relevant provisions of the Civil Procedure Code which deal with this matter. Under section 39, Civil Procedure Code, the Court which passed the decree, may, on the application of the decree-holder, send it for execution to another Court if the person against whom the decree is passed is a resident therein or carries on business therein, or if he has property within the local limits of the jurisdiction of such transferee Court. Section 39 (1) (d) gives power to the Court which passed the decree to transfer the decree to another Court even for other reasons, which should be recorded in writing. Section 42 enables the Court to which a decree is so sent for execution, to execute it as if it had itself passed the decree. After execution is over, it has to certify the result of the execution to the Court which passed the decree as provided in section 41. Civil Procedure Code. These are the substantial provisions relating to the transfer of execution proceedings. They have to be supplemented by Order XXI, rules 3 to 9, Civil Procedure Code, which give the details of the procedure. Under Order XXI, rule 5 if the decree is to be sent for execution to a Court in a different district, it shall be sent first to the District Court, and that Court under Order XXI, rule 8, may transfer the decree to a Court subordinate to it, of competent jurisdiction. This Court of competent jurisdiction will be the Court in whose jurisdiction the property is situate or the judgment-debtor resides or carries on a business. Section 24 of the Civil Procedure Code gives power to two superior Courts, viz., the High Court or the District Court to withdraw any suit, appeal or other proceedings pending in any Court subordinate to it and either try and dispose of the same, or transfer the same for trial or disposal to any Court, subordinate to it and competent to try or dispose of the same. In terms, section 24 confers a very wide power, and it is intended to enable the two superior Courts mentioned in it, in their general power of superintendence over subordinate Courts, or in the interest of justice to redistribute all civil work of whatever nature pending in subordinate Courts for the purpose of disposal. It has also to be used where the interests of justice require, that a particular case should be transferred from one Subordinate Court. The subject-matter of the transfer referred in section 24, Civil Procedure Code as suit, appeal or other proceeding, is of the widest kind, and there is no reason why execution proceedings should be excluded from the scope of other proceeding mentioned in this section. Considering also the general purpose of superintendence, and furthering the interests of justice for which this section is enacted, there is no reason why execution proceedings should be excluded from its scope. If any other view is held, it will certainly lead to a deadlock and prevent the parties from getting adequate relief by way of transfer in the case of execution proceedings, where they would have a genuine grievance, if a particular Court had to dispose of it. Next, to restrict the meaning of the words competent to try or dispose of the same used in section 24(1) (b) (ii) of the Civil Procedure Code to territorial jurisdiction over the property of the judgment-debtor or the residence qualification of the judgment-debtor would lead to grave anomalies and failure of justice. Thus. if the presiding officer of the executing Court happens to be the judgment-debtor himself and owns the property in his jurisdiction which is being proceeded against, or if he has taken a prejudicial attitude to one party, and that is urged as a ground for transfer of the execution proceeding, it will be impossible to transfer the execution proceeding to any other Subordinate Court, if the restricted meaning above sought to be given to the word competency, is to be accepted. It appears to us that the word competency used in the above section, cannot be used to restrict the power of the District Court or the High Court under section 24 of the Civil Procedure Code to transfer the execution proceeding only to a Court which has territorial competency, or jurisdiction over the place where the judgment-debtor resides or works for gain. It has to be given a sufficiently wide interpretation to include each and every Court within the jurisdiction of the superior Court, empowered to deal with such execution application. Further, there is no reason to draw any distinction between an execution petition pending in a Subordinate Court where the decree sought to be executed is the decree passed by that Court, and an execution proceeding which is pending after it had been transferred to that Court under section 39, Civil Procedure Code from the Court which passed that decree. The power under section 24, Civil Procedure Code, is sufficiently general, to apply to both types of proceedings in execution. The authorities cited before us can be distinguished between those which deal with the power of the Court to which an execution proceeding has been transferred under section 39 of the Civil Procedure Code for disposal, and those which deal with the power of the superior Court under section 24 of the Civil Procedure Code. Veerappa Chetty v. Ramasami Chetty1, Srimanthu v. Venkatappayya2and Viswanathan Chetty v. Murugappa Chetty3refer to cases where execution petitions were transferred under section 39 of the Civil Procedure Code read with Order XXI, rule 8 by the Court passing the decree to the Court where the judgment-debtor’s properties were situated at the time of the transfer. At a subsequent stage the properties, owing to redistribution of jurisdiction, were transferred to some other Court’s jurisdiction. These decisions have held that in such cases, the Court to which the execution petitions were transferred in the first instance, would no longer have the powers to sell the properties concerned. The sale of such properties would be illegal. On the other hand what is more directly relevant for the present purpose is the view laid down by Venkatasubba Rao, J., in Rqjagopala Pandaratthiar v. Tirupathia Pillai4which had been followed by other decisions of this Court and also by some other Courts. In that case there was a final decree in a suit for sale on a mortgage which was passed by the Sub-Court of Thanjavur. An application for execution was filed in that Court. The mortgaged property was transferred from the jurisdiction of that Court to that of the District Court. The judgment-debtor did not raise any objection to the jurisdiction. In that case there was a final decree in a suit for sale on a mortgage which was passed by the Sub-Court of Thanjavur. An application for execution was filed in that Court. The mortgaged property was transferred from the jurisdiction of that Court to that of the District Court. The judgment-debtor did not raise any objection to the jurisdiction. Subsequently, on the application of the decree-holder the District Court withdrew the execution application to its own file and re-transferred it to the same Court which subsequently effected the sale of the property again without objection to the jurisdiction. Thereafter," the judgment-debtor applied to the Sub-Court to set aside the sale on the ground of want of jurisdiction in the Sub-Court to sell the property. Both Venkatasubba Rao and Madhavan Nayar, JJ., held that under the principles underlying section 21, Civil Procedure Code the objection to jurisdiction could not be taken at a later stage according to the rule in Ledgard v. Bull5 . Venkatasubba Rao, J., in the judgment also dealt with the scope of section 24, Civil Procedure Code. He observed that if section 24 were held not to apply to execution proceedings, it would render that section almost useless. Secondly, he held that the competency of the Court in section 24 was not to be restricted to territorial or local competency of the Court. So far as execution applications were concerned, he was inclined to hold that even pecuniary competency need not exist, but we are not now called upon to decide this aspect of the matter. It is necessary to observe that the view of Venkatasubba Rao, J., has been followed by Horwill, J., in Seetharammayya v. Sivaramakrishna Rao6and in the recent judgment of this Court in Kochadai v. Nagayasami7to which one of us was a party. The last mentioned case dealt with a dispute over possession of property which came up before a Magistrate under section 145, Criminal Procedure Code and which was thereafter referred to a Civil Court under section 146, Criminal Procedure Code, for the purpose of obtaining a finding. Thereafter, the District Court transferred the enquiry pending in the Civil Court to another Court, within its jurisdiction, where a connected suit was pending. Thereafter, the District Court transferred the enquiry pending in the Civil Court to another Court, within its jurisdiction, where a connected suit was pending. An objection was raised that such a transfer was not competent under section 24, Civil Procedure Code, but this Court held that section 24 was not in terms restricted to civil proceedings alone, but it was wide enough to include all proceedings that may be pending in a Subordinate Civil Court. A similar view has been followed in other High Courts. Sulaiman, C. J., in Krishoi Lal v. Balkishan1dealt with the power of the superior Court under section 24, Civil Procedure Code and observed that the word competent in that section must be taken to refer to pecuniary jurisdiction only, and should not be restricted to territorial jurisdiction. In Balaji Ranchoddas2it was held that section 25 of the Civil Procedure Code (Act X of 1877) (which corresponds to section 24 of the present Code) would apply to execution proceedings also. In Dasrath Prasad v. Baijnath Prasad3the power under section 24, Civil Procedure Code, has been held to include the power to transfer execution proceedings. Therefore, we overrule the objections of the petitioner and dismiss this Revision Petition with costs. P.R.N. ------------ Petition dismissed.