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1970 DIGILAW 219 (KER)

R. N. SREENIVASA SHENOI v. BANK OF MADURA LTD.

1970-10-20

P.UNNIKRISHNA KURUP, T.S.KRISHNAMOORTHY IYER

body1970
Judgment :- 1. This appeal arises in execution, the appellant being the 2nd defendant in O. S. No. 245 of 1951 on the file of the District Court of Trivandrum. The decree was passed on 20121952 and the present E. P. (E. P. No. 61 of 1965) was filed by the decree holder on 10 31965. The appellant contended inter alia before the executing Court that the execution petition was barred by limitation in as much as it had been filed more than 12 years after the date of the decree. The lower Court held that the execution is not barred and it is the correctness of this decision that is canvassed in the appeal. 2. The plea of limitation was rejected by the lower Court on grounds which appear to us are not sustainable. But the conclusion appears to us to be correct though for different reasons. The records indicate that E. P. No. 176 of 1963 was filed in the Sub Court of Alleppey within 12 years of the date of the decree. The prayer in that execution petition was for proclaiming and selling the properties belonging to the appellant and situate within the jurisdiction of that Court. During the pendency of that E. P. the decree holder filed C. M. P. No. 841 of 1963 for appointment of a receiver for one of the attached items. That petition was dismissed on 18 31963, the Court directing the decree-holder to proceed against the properties of defendants 1 and 3 in the original instance and then only against the properties of the appellant. The decree-holder filed another petition for review of this order as C. M. P. No. 26a8 of 1963. The Court then passed an order in E, P. No. 176 of 1963 that the said E. P. will be taken up after the disposal of C. M. P. No. 2688 of 1963. Although thereafter the. C. M. P. was dismissed, the E. P. was kept on file and it is still pending. The present E. P. has therefore to be taken as a continuation of that E. P. and in that view is within time. The objection regarding limitation is therefore overruled. 3. Although thereafter the. C. M. P. was dismissed, the E. P. was kept on file and it is still pending. The present E. P. has therefore to be taken as a continuation of that E. P. and in that view is within time. The objection regarding limitation is therefore overruled. 3. The appellant has filed C. M. P. No. 13956/1970 praying for allowing him to raise an additional ground that the lower Court had no jurisdiction to execute the decree in as much as the Trivandrum District Court transferred the decree for execution to the Court of Subordinate Judge of Alleppey contravening the provisions of Order XXI R.5 and therefore the lower Court had no jurisdiction to execute the decree. This ground had not been taken in the memorandum of appeal nor was it raised before the lower Court at any time. On behalf of the respondent-decree-holder it is contended that this point having not been raised earlier must be taken as waived and that the transmission of the decree by the District Court of Trivandrum to the Sub Court of Alleppey was, if at all, only an irregularity which does not go to the root of the matter and there is no inherent lack of jurisdiction in the Sub. Court. 4. Order XXI R.5 runs as follows: "Where the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. Bat, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed." The contention of the learned counsel for the appellant is that the District Court of Trivandrum should have transferred the decree only to the District Court of Alleppey and not to the the Sub-Court, Alleppy, as it has done, and the transfer is therefore illegal and without jurisdiction. According to him, the objection regarding the non-compliance with the provisions of Order XXI R.5 C. P. C. went to the root of the matter and there was a fundamental defect in the exercise of jurisdiction by the Sub Court of Alleppey. According to him, the objection regarding the non-compliance with the provisions of Order XXI R.5 C. P. C. went to the root of the matter and there was a fundamental defect in the exercise of jurisdiction by the Sub Court of Alleppey. His contention is that this defect cannot be waived and the execution before the Sub Court was entirely without jurisdiction. The question whether non-compliance with R.5 of Order XXI is only an irregularity or goes to the root of the matter is not free from doubt and there is a sharp cleavage of opinion among the various High Courts on this point. The High Courts of Lahore, Patna, Rajasthan and Madhya Pradesh have taken the view that it is only a mere irregularity, while the High Court of Calcutta has taken a different view. A decision of the Madras High Court has also been brought to our notice which takes the same view as the Calcutta High Court, but in a different context. 5. The appellant's counsel has relied on the decisions of the Calcutta High Court in Debi Dial Sahu v. Moharaj Singh I. L. R. (1895) 22 Calcutta 764 and Sachindra Kumar v. Usha Prova De A. I. R.1949 Calcutta 690. In Debi Dial Sahu v. Moharaj Singh I. L. R. (1895) 22 Calcutta 764 there is very little discussion on the point. The Court observed that the point is not free from difficulty and then proceeds to state: "After much consideration however we have come to the conclusion that the Munsiff of Aurangabad had no jurisdiction without an express order of the District Judge passed under S.226 " (S. 226 of the Code of Civil Procedure, 1882)" The reasoning given is that "the intention of the Legislature as expressed in S.226 seems to have been to give the Court of the District in which it was desired to execute a decree which was passed by the Court of another District supreme authority in regard to the execution of that decree, and to provide that it is only by an order passed by the District Court that any subordinate Court in that district is empowered to proceed in such a matter". The same question came up for consideration again in Sachindra Kumar v. Usha Prova De A. I. R.1949 Calcutta 690. There also, the earlier view was affirmed. The same question came up for consideration again in Sachindra Kumar v. Usha Prova De A. I. R.1949 Calcutta 690. There also, the earlier view was affirmed. In Subramanya Ayyar v. Swaminatha Chettiar, A. I. R.1928 Madras 746, the Court expressed the view that the irregularity in not complying with Order XXI R.5 amounts to a want of jurisdiction and that an attempt by the Sub Court to execute the decree without having been transferred to it by the District Court within whose jurisdiction the Sub Court is situate amounts to trenching upon the powers of the superior Court. 6. The Rajasthan High Court in Radheysham v Firm Sawai Mod. A.I. R.1953 Rajasthan 204 had occasion to consider the question in great detail After considering various conflicting decisions of different High Courts the. Full Bench took the view that non-compliance with the provisions of Order XXI R.5 amounted only to an irregularity and did not deprive the transferee court of jurisdiction to execute the decree. We find ourselves, with respect, in agreement with the view expressed by the Rajasthan High Court. The same view has been taken by the Lahore High Court in Bhagwan Sigh v. Barkat Ram A I. R.1943 Lahore 129. It has pointed out that the Subordinate Judge's Court has both territorial as well as pecuniary jurisdiction so far as execution is concerned and the only defect is that the execution petition has not been transferred through the District Court as required by Order XXI R.5. There is, therefore, no lack of inherent jurisdiction and the irregularity does not go to the root of the matter. 7. The Patna High Court has also taken the same view in Inderdeo Prasad Rai v. Deonarayan, A. I. R.1946 Patna 301. There is another decision of the Patna High Court in Maharaj Kishore v. Raja Ram, A. I. R.1954 Patna 164 which affirmed the view taken in the earlier decision. 8. In our view, non-compliance with the provisions of Order XXI R.5 is only an irregularity and does not deprive the Court of its inherent jurisdiction to execute the decree. A distinction must be made between inherent lack of jurisdiction and irregular exercise of jurisdiction. The jurisdiction to transfer a case for execution from one Court to another arises not under Order XXI R.5 but under S.39 of the Code of Civil Procedure. A distinction must be made between inherent lack of jurisdiction and irregular exercise of jurisdiction. The jurisdiction to transfer a case for execution from one Court to another arises not under Order XXI R.5 but under S.39 of the Code of Civil Procedure. While the power to transfer a decree is conferred by S.39, Order XXI R.5 and 8 merely indicate the procedure by which the transfer has to be carried out. The transferee Court, so long as the conditions prescribed by S.39 C P. C. are fulfilled, acquires its jurisdiction by transfer under that section. As already indicated by us, the transferee Court in this instance has the necessary territorial and pecuniary jurisdiction to execute the decree. It would follow that once the decree has been sent by the District Court of Trivandrum and has been received by the Subordinate Judge's Court of Alleppey, the latter has obtained jurisdiction and the contravention of Order XXI R.5 merely amounts to an irregularity. We therefore dismiss the C. M. P. and hold that the executing Court has jurisdiction. In the result, the appeal fails and is dismissed with the costs of the decree-holder-respondent.