Govind Narain Mathur v. Swaroop Narain — 1969 DIGILAW 98 (RAJ)

BHARGAVA, J.—These two appeals between the same parties raise a common question of law and are, therefore, being dealt with together. 2. The decree-holder appellants instituted a suit in the court of the Sub-Judge, Ajmer for possession of immovable property valued at Rs; 6000/-and for mesne profits amounting to Rs. 770/-on 5th February, 1945. The defendants objected that the suit was under valued and the value of the disputed property was near about Rs. 15000/-. The learned Sub Judge by his order dated 10th July, 1945 held that the valuation of the suit property excluding the amount of mesne profits was Rs. 8500/-. A revision application was taken to the court of the Judicial Commissioner, Ajmer Merwara who by his order dated 29th August, 1945 directed the Nazir of the District Court to enquire into the valuation of the house and the land on which it stood and certify the result to that court. The District Nazirs report was received by that court and objections were filed against it. The learned Judicial Commissioner by his order dated 24th October, 1945 remitted the case to the trial court with a direction to fix the valuation of the site and the buildings in the light of the remarks made in the earlier judgment i.e., 29th August, 1945 and after examination and cross-examination of the district Nazir, However, before the correct value of the suit property was determined by the sub Judge the case was transferred by the District Judge to the court of Sub Judge, First Class, Ajmer whose jurisdiction extended upto Rs. 50,000/-. In view of the jurisdiction of the Sub-Judge First Class extending upto Rs. 50,000/-the objection regarding jurisdiction and the valuation of the property was not pressed by the defendants and thus the case came to be tried in that court without correct valuation of the property having been determined. Eventually after trial the suit was dismissed on 17-12-1953. This decree was however, reversed by the High Court on 19-4-1960 and the suit was decreed. Govind Narain Mathur vs. Smt. Mohinidevi (1-a). The decree holders on 5-4-1953 filed an application for execution in the court of the Senior Civil Judge, Ajmer and also got it transferred with a certificate to the court of the District Judge, Jaipur where an execution application was presented for realisation of mesne profits. Govind Narain Mathur vs. Smt. Mohinidevi (1-a). The decree holders on 5-4-1953 filed an application for execution in the court of the Senior Civil Judge, Ajmer and also got it transferred with a certificate to the court of the District Judge, Jaipur where an execution application was presented for realisation of mesne profits. Thus the execution application for recovery of possession remained on the record of the Senior Civil Judge, Ajmer while the decree for recovery of mesne profits was transferred to the court of the District Judge, Jaipur who further transferred it to the court of the Senior Civil Judge, No. 1 Jaipur City. Before both these courts the judgment debtors raised an objection that the Senior Civil Judge, Ajmer had neither the jurisdiction to entertain the execution application nor to transfer it for execution to the court of the District Judge, Jaipur City. 3. It was contended that the court of the Senior Civil Judge, Ajmer was neither the court which passed the decree nor the court to which it was sent for execution. According to the judgment debtors, Senior Civil Judges court was also not the court of first instance competent to execute the decree passed by the High Court in its appellate jurisdiction. It was also contended that after the abolition of the court of Sub Judge First Class Ajmer, a new court after the integration of Ajmer state into Rajasthan, of Civil Judge was established and it was the latter court which alone was competent to execute the decree as at the time of the application for execution of the decree it had jurisdiction to try the suit. 4. This objection prevailed in the court of the Senior Civil Judge, Ajmer who in his order dated 8th March, 1965 opined that Civil Judges court was the proper court to execute the decree, but simultaneously on the same date he made a request to the District Judge Ajmer to transfer the execution file to the Civil Judges Court and accordingly the District Judge, Ajmer transferred the execution case to the court of Civil Judge Ajmer. The judgment debtors again pressed their objection before the Civil Judge that the order of transfer of the execution case was not valid as in the eye of law no case was pending in the court of Senior Civil Judge, The learned Civil Judge accepted the judgment debtors objection and dismissed the execution application by this order dated 7-5-1966. The decree holders first appeal before the District Judge, Ajmer also failed and hence Civil Execution second Appeal No. 43 of l967 has been filed in this court. 5. The execution application presented in the court of Senior Civil Judge, Jaipur for recovery of mesne profits was also dismissed on the ground that the Senior Civil Judge, Ajmer had no jurisdiction to transfer the decree and against that order Civil First Appeal No. 26 of 1965 had been filed by the decree holders. 6. In order to appreciate the contentions raised in this Court it is necessary to narrate briefly how the courts of Senior Civil Judge and Civil Judge, Ajmer came to be established. 7. Before the Constitution of India came into force the area was known as Chief Commissioners Province of Ajmer-Merwara and for the administration of civil Justice Ajmer was a single District and had the following Civil courts of five grades: (a) The Courts of the Judicial Commissioner; (b) the Courts of the District Judge and the Additional District Judge; (c) the Courts of Subordinate Judges of the first class; (d) the Courts of Subordinate Judges of the second class; and (e) the Courts of Munsifs. (vide sec. 2 of Regulation IX of 192 6 ) sec. 9(1) of the Regulation gives the extent of jurisdiction of the court of subordinate Judge First Class to all original suits in which the amount or value of the subject matter does not exceed ten thousand rupees. 8. However under the proviso to the above the State Government could by order in writing extend the jurisdiction of any Subordinate Judge to all such suits without limit of amount or value. 9. It was in the exercise of the above power that by Notifications dated 14-2-59 and 4-11-50 Sub-Judge First Class, Ajmer jurisdiction was extended to suits upto the amount or value of Rs, 50,000/-. 10. 9. It was in the exercise of the above power that by Notifications dated 14-2-59 and 4-11-50 Sub-Judge First Class, Ajmer jurisdiction was extended to suits upto the amount or value of Rs, 50,000/-. 10. Under the Constitution Ajmer Merwara become the Part C State which merged in the new State of Rajasthan which was formed as result of the 1ist of November, 1956. 11. By the Rajasthan Civil Courts Laws (Extension) Act, 1956 (Act. No.2 of 1957) Rajasthan Civil Courts Ordinance, 1950 (Rajasthan Ordinance No.VII of 1950) and the Rajasthan Small Cause Courts Ordinance, 1950 (Rajasthan Ordinance No.VIII of 1950) as in force in the pre-organization State of Rajasthan was extended to Ajmer area also and sec. 5 of this Act repealed all laws corresponding to the Rajasthan Ordinances in force in Ajmer area immediately before the appointed day i.e., the first day of December, 1956. The second proviso to that section, is as under— "(a) all courts constituted, appointments and orders made and jurisdiction and powers conferred under any law so repealed shall be deemed to have respectively been constituted, made conferred under such relevant Rajasthan Ordinance, and (b) any person holding office as a subordinate judge immediately before the appointed day, shall on and from that day, be deemed to have been designated as a civil Judge, notwithstanding the fact that in official records his designation may not have been so altered. 12. The effect of Act. No. 2 of 1967 thus was that the subordinate Judge working in Ajmer area was deemed to have been redesignated as a Civil Judge from 1st December, 1966 although in official records his designation may not have been so mentioned. Then by Notification No. 4217/F. 1 (99) LJ/B/57-(l) dated October 12, 1957, published in the Rajasthan Rajpatra dated November 7, 1957 Part IV(c) at page 617, the Government of Rajasthan in exercise of the powers conferred by sub-sec. (1) of sec. 7, and sub-sec. (1) of sec. 12 and sec. 19 of the Rajasthan Civil Ordinance 1950 (No. VII of 1950) established an additional court of Civil Judge to be designated as court of Senior Civil Judge, Ajmer District with head quarters at Ajmer with effect from 15th October, 1957. (1) of sec. 7, and sub-sec. (1) of sec. 12 and sec. 19 of the Rajasthan Civil Ordinance 1950 (No. VII of 1950) established an additional court of Civil Judge to be designated as court of Senior Civil Judge, Ajmer District with head quarters at Ajmer with effect from 15th October, 1957. The said court was to have territorial jurisdiction over Ajmer District excluding Kishan garh Sub-Division; and its pecuniary jurisdiction was to extend to all suits and original proceedings without restriction as regards value. Then by Notification No.F.1 (57) LJ/B/56 dated December 30, 1957, published in the Rajasthan Rajpatra dated December 30, 1957, Part IV (c) at page 120 (ch), the State Government in exercise of the powers conferred by sub-sec. (1) of sec. 7 and sub-sec. (1) of sec. 12 of the Rajasthan Civil Courts Ordinance, 1960 (No. 7 of 1950) and sec. 5 of the Rajasthan Small Cause Courts Ordinance, 1950 (No. 8 of 1950), with effect from 1st January, 1958, abolished all the courts of Subordinate Judges in the Ajmer area and in lieu thereof established the following permanent civil courts; 1. Civil Judge, Ajmer. Upto Rs. 10,000 Ajmer Sub-Division 2. Judge, Small Cause Court, Ajmer and Additional Civil Judge Upto Rs. 500 as Judge, Small Cause Court and upto Rs. 10,000 as Additional Civil Judge. Ajmer Sub-Division including Nasirabad Cantonment. Thus when the decree holders presented the execution application the following civil courts were functioning at Ajmer. 1. District & Sessions Judge. 2. Senior Civil Judge with unlimited pecuniary jurisdiction. 3. Civil Judge, Ajmer. 4. Judge Small Cause Court, and 5. Additional Civil Judge, Ajmer besides the court of Munsifs. At this stage I may mention the statutory provisions of the Code which are relevant for the purposes of these appeals. 14. Sec. 38 of the Code says a decree may be executed either by the court which passed it, or by the Court to which it is sent for execution. Sec. 37 defines the expression Court which passed a decree, and says that it shall be deemed to include. 14. Sec. 38 of the Code says a decree may be executed either by the court which passed it, or by the Court to which it is sent for execution. Sec. 37 defines the expression Court which passed a decree, and says that it shall 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." 15. In the present case the decree to be executed was passed by the High Court in exercise of appellate jurisdiction and, therefore, according to cl. (a) of S. 37 of the Code, the court competent to execute the decree was the court of first instance, which was the court of Sub Judge First Class, Ajmer. Before the District Judge, Ajmer, in first appeal against the judgment of the Civil Judge, Ajmer, it seems to have been admitted by the judgment debtors that the court of Sub. Judge First Class had ceased to exist and, therefore, clause (b) of sec. 37 of the Code was applicable and that being as it was urged before that court that the valuation of suit being Rs. 8500/- it was the Civil Judge, Ajmer who had jurisdiction to try such suits on the date the application for execution was made. But in this Court the contention of Mr. Agrawal learned counsel for the judgment debtors is that the court of the Sub Judge First Class did not cease to exist and the case is governed by clause (a) of sec. 37. Mr. Agrawal contends that by mere change of designation or reduction of its pecuniary limits, a court does not cease to exist for the purposes of sec. 37. It is pointed out that if by some administrative order, pecuniary limits of the jurisdiction of a Sub Judge First Glass Ajmer was reduced to Rs. 37. Mr. Agrawal contends that by mere change of designation or reduction of its pecuniary limits, a court does not cease to exist for the purposes of sec. 37. It is pointed out that if by some administrative order, pecuniary limits of the jurisdiction of a Sub Judge First Glass Ajmer was reduced to Rs. 10,000/- only or by Act No. 2 of 1957, his designation was changed to that of Civil Judge and even subsequently, when that court was abolished by Notification dated December 30, 1957 and re established as court of Civil Judge, Ajmer, the court did not cease to exist for the purposes of sec. 37. Reliance is placed on Lyallpur Bank Ltd vs. Jai Gopal (1) Raza Hussain vs. Gaya Prasad, (2) Abdus Sattar vs. Mohini Mohandas (3) and Suryan-arayan Agrawalla vs. Maheswar Keot (4). 16. In the first case a decree was passed by the court of the District Judge, Dera Ismil Khan on the basis of an award. After the passing of the decree the Frontier Courts Regulation came into force and the court of the District Judge became the court of the Senior Sub Judge. The first application for execution was made to the court of the Senior Subordinate Judge. This application was dismissed as unsatisfied. Later on the decree holder applied to the District Judge (new style) for transfer of certificate for execution of the decree. The transfer was granted and on the basis thereof an execution was presented to the Senior Subordinate Judge, Lyallpur. It was held that "the transfer certificate was issued by a court which was not the representative of the court which passed the decree." 17. It would be clear that it was a case where merely designation of the court was changed i.e., to say that the court of the District Judge, Dera Ismail Khan came to be designated as the court of Senior Subordinate Judge after the passing of the Frontier Courts Regulation. This was, therefore, not a case where one court was abolished and then another court with a different Designation was established. In Raza Hussains case (2) a decree was passed by the Subordinate Judge, Lucknow in a suit of a valuation between Rs.1,000/- and Rs.2,000/-. At that time the court of the Subordinate Judge was the lowest court in which a suit between Rs. 1000/- and Rs. 2000/- could be instituted. In Raza Hussains case (2) a decree was passed by the Subordinate Judge, Lucknow in a suit of a valuation between Rs.1,000/- and Rs.2,000/-. At that time the court of the Subordinate Judge was the lowest court in which a suit between Rs. 1000/- and Rs. 2000/- could be instituted. Subsequently a Munsif was posted to Lucknow who had authority to try suits upto Rs. 20,000/-. The decree holder filed his first three applications for execution in the court of the Subordinate Judge and the fourth application was made in the court of the Munsif and it was held that in such a case as this, the authority which was previously held by the Subordinate Judge passed automatically to the Munsif and that the Munsifs court must be considered for the purposes of execution, as the court which passed previous decrees in suits of that nature, although such decrees, as a matter of fact, were passed by the Subordinate Judge. Though this is true that merely by the alteration of the pecuniary limits of the court it does not cease to exist, as has been held in Abdul Sattar vs. Mohini Mohan Das{3), Suryanarayan Agrawalla vs. Maheshwar Keot ,(4) and Choudhary Raghunandan Singh vs. Narain Das Bal Kishun Das,(5), but the above case does not support that contention. 18. Mr. Agrawal has also urged 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. See Dasrath Prasad Singh vs. Baijnath Prasad Singh (6), Gowrammal vs. Lingappa Gowder (7). 19. On the further question whether the other court to whose jurisdiction a subject matter had been subsequently transferred, has jurisdiction to entertain the execution application in respect of the decree passed by the former court, there is a controversy as noticed by the Supreme Court in Merla Ramanna vs. Nallaparaju (8). The Calcutta High Court in a series of decisions took the view that when the jurisdiction over the subject matter is transferred to another court that court is also competent to entertain the application for execution of the decree. But the Madras High Court in Ramier vs. Muthukrishan Ayyar (9) took a different view. The Calcutta High Court in a series of decisions took the view that when the jurisdiction over the subject matter is transferred to another court that court is also competent to entertain the application for execution of the decree. But the Madras High Court in Ramier vs. Muthukrishan Ayyar (9) took a different view. The Supreme Court however, did not resolve the conflict in that case and held that:— "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." 20. Recently a Full Bench of the Punjab High Court in Mehar Singh vs. Kasturiram (10) in a case where after a decree for possession of property and mesne profits had been passed, the local area, in which the property was situated, was transferred to a different court, held that : "It was open to the decree holder to apply for execution of the decree in the latter court, to which the local area had been transferred, and the court can directly entertain an application for execution without an order of transfer by the court which had in fact passed the decree.* It was further held that:— "Secs 37 and 38 when construed according to the language used therein empower the decree holder to file an execution application either to the Court that can effectively execute it and in the latter case it is not necessary to comply with the provisions of sec. 39 of the Code." 21. Thus the Punjab High Court followed the Calcutta view. 22. The contention of Mr. Agrawal in the present case can hold good to this extent that the court of Subordinate Judge first Glass Ajmer did not cease to exist merely because its pecuniary jurisdiction was limited to Rs. 39 of the Code." 21. Thus the Punjab High Court followed the Calcutta view. 22. The contention of Mr. Agrawal in the present case can hold good to this extent that the court of Subordinate Judge first Glass Ajmer did not cease to exist merely because its pecuniary jurisdiction was limited to Rs. 10,000/- only by some administrative order precise date of which is not known when Shri R. N. Kaul became its presiding officer or subsequently when by Act No. 2 of 1957 the designation of the Sub Judge Ajmer was deemed to have been changed to that of Civil Judge. But when by the notification dated 30th December, 1957, the court of the Sub Judge First Class was abolished and a new court of Civil Judge was established it cannot be said that the court of the Subordinate Judge First Class did not cease to exist. As already stated in the case relied upon by the learned counsel in Lyallpur Bank Ltd vs. Jai Gopal(i), the position was not the same. There the same court continued and only its designation was changed. But here the former court is abolished and with different designation a new court is established. It is also not a case of the kind where a court is abolished and is again revived as was the case in (Bibi) Khodaijatul Kobra vs. Harihar Missar (11). I am therefore, of the view that on the date the execution application was made by the decree holders the court of the Subordinate Judge First class who had passed the decree, had ceased to exist and the present case would be governed by clause (b) of sec. 37. 23. The next question therefore, which arises is as to which court had jurisdiction to try the suit in which the decree was passed on the date when the application was made. It has already been stated that the correct valuation of the suit was never determined. The suit was instituted in a court whose jurisdiction extended upto Rs. 10,000/- only and on the defendants objection that the valuation of the property was near about Rs. 15000/- an enquiry was ordered by the Judicial Commissioner, Ajmer and during the pendency of that enquiry, the suit was transferred to a court whose pecuniary jurisdiction extended to Rs.50000/- upon which the defendants gave up their objection. 10,000/- only and on the defendants objection that the valuation of the property was near about Rs. 15000/- an enquiry was ordered by the Judicial Commissioner, Ajmer and during the pendency of that enquiry, the suit was transferred to a court whose pecuniary jurisdiction extended to Rs.50000/- upon which the defendants gave up their objection. In these circumstances when the case was decided by a court whose jurisdiction extended upto Rs. 50000 I am of the view that the only court which could try such suit on the day the execution application was made, was the court of the Senior Civil Judge, Ajmer whose pecuniary jurisdiction was unli-mitted and not the court of Civil Judge Ajmer whose jurisdiction extended to Rs. 10000 only. The courts below on the basis of the valuation determined by the Sub Judge in his order dated 10th July, 1945, against which revision was preferred but was not decided, have held that on the date of the execution application the Civil Judge, Ajmer had jurisdiction to try the suit. No doubt in certain classes of suits which are not capable of satisfactory valuation for purposes of jurisdiction the plaintiffs valuation determines jurisdiction, but here the subject matter of the suit was immovable property having market value and dispute was raised about the correctness of the valuation fixed by the plaintiff and pending inquiry into that question the case was transferred to a superior court. In such circumstances the principle that valuation given in the plaint will determine jurisdiction will not be applicable. 24. Even if on the ground that the valuation of the subject matter was not determined there is uncertainty as to which court was competent to try the suit the court of Senior Civil Judge, Ajmer being the court of higher grade, notwithstanding section 15 of the Code which lays down a rule of procedure was competent to try the suit. See Dronavajjula Vidyamba vs. Vallabhajoyla Lakshmi Venkayamma (12) and Dakor Temple Committee vs. Shankarlal (13). In this view of the matter the application for execution was rightly made in that court. The decree holders predicament at the time of executing the decree can very well be visualised. See Dronavajjula Vidyamba vs. Vallabhajoyla Lakshmi Venkayamma (12) and Dakor Temple Committee vs. Shankarlal (13). In this view of the matter the application for execution was rightly made in that court. The decree holders predicament at the time of executing the decree can very well be visualised. If they had applied for execution of the decree in the court of the Civil Judge, they would have been met with the objection that the Senior Civil Judge only, being the successor of the Sub Judge Frist Glass was competent to try the suit and therefore to execute the decree also. The decree holders, therefore, chose the safer course and applied for execution in the court of the higher grade and in my opinion from every point of view, that court had jurisdiction to execute the decree. 25. Furthermore even if the argument of the learned counsel for the judgment debtors be accepted that the court of Sub Judge First Glass had not ceased to exist, even then its successor court would be the court of Senior Civil Judge, Ajmer who had jurisdiction to try suits of unlimited valuation. 26. It is accordingly held that the Senior Civil Judge, Ajmer had jurisdiction to execute the decree and also to issue a certificate to the court of the District Judge, Jaipur to execute the decree for mesne profits. 27. The next argument of Mr. Agrawal is that the order dated 8-3-1965 passed by the Senior Civil Judge, Ajmer holding that the Civil Judge, Ajmer had become final and it was not open to the decree holders to re-agitate the same question at a subsequent stage of the execution proceedings on the general principle of res judicata even though the finding might be erroneous. 28. There can be no doubt about the correctness of the proposition of law urged by Mr. Agrawal. 29. As back as 1883 in Ram Kirpal Shukul vs. Mussumat Rup Kuari (14), it was laid down by the Judicial Committee that when a question has been raised and decided in an execution proceedings, the decision, even if erroneous, is binding upon the parties and cannot be re-agitated in subsequent proceedings in execution. The Supreme Court has also reaffirmed this view in Srimati Raj Lakshmi Dasi vs. Banamali Sen (15). The Supreme Court has also reaffirmed this view in Srimati Raj Lakshmi Dasi vs. Banamali Sen (15). But in the present case what the learned Senior Civil Judge did was that after expressing his opinion that the proper court to execute the decree was the court of Civil Judge Ajmer, he neither dismissed the execution application nor returned it for presentation to the proper court but simultaneously made a request to the District Judge Ajmer to transfer the execution file to the court of the Civil Judge, Ajmer. On this the District Judge transferred the execution case to the court of the Civil Judge on 30-3-1965 and the transfer order was not challenged by the judgment debtors. There can be no doubt that under sec. 24 C. P. G. the District Judge could transfer the execution case from one court to another. See (Sheikh) Mohammad Habibullah vs. R.B. Seth Tikamchand (16). 30. Since the final and operative order of the Senior Civil Judge was for a request of the transfer of the case the decree holders could not challenge the finding of the senior Civil Judge either in appeal or revision and hence even on the principle of res judicata they were not debarred from agitating that question when it was raised again in the court of the Civil Judge by the judgment debtors. 31. As a result both these appeals are accepted with costs throughout, the orders passed by the courts below in both these appeals are set aside and execution case No. 52 of 1965 which was pending in the court of the Civil Judge, Ajmer is transferred to the court of the Additional District Judge, Ajmer who has now jurisdiction to execute the decree and execution case No. 17 of 1963 is sent back to the Additional District Judge Jaipur City for taking further execution proceedings in accordance with law. 32. In Civil Execution Second Appeal No. 43 of 1967 Shri Agrawal prays for leave to appeal to a Division Bench which is allowed.