THYAMPU SHETTY v. A. KOTI SHETTY — 1974 DIGILAW 9 (KAR)

( 1 ) APPELLANTS are judgment-debtors 1 to 5. Respondents 1 to 5 and 13 are the decree-holders and their legal representatives. Respondents 14 to, 19 are the legal representatives of the deceased first appellant. Respondents 20 to 27 are the legal representatives of the deceased third appellant. The, main question to be decided in this appeal. is whether the Munsiff's Cqurt at Karkala has jurisdiction to deal with the, execution petition No. REP. 13/64, which is pending on its file. If it has no jurisdicion to, entertain the execution petition, then the execution will be barred by limitation. The decree holders obtained a, money decree on 22-11-1956 towards their share of the mesne; profits in a partition suit in the Court of the Subordinate, judge at Mangalore,. The execution pqtition No. REP. 13/64 was filed in the Court which parsed the decree on 14-1-1964. The prayer in the execution petition was for attachment and sale, of immovable properties, i. e, the lands situate in Aikala, village. Aikala, village was within the territorial jurisdiction qf the Subordinate, Judge,s Court, Mangalore. A new subordinate Judge's Court was created in 1961 for Udipi. Aikala, village was transferred to the territorial jurisdiction of the, Sub-Court at Udipi, with effect from 2-1-1964 under a Notification dt. 31-12-1963. The, judgment-debtors raised objection as to the jurisdiction of the, Court to entertain the, execution application. The Subqrdinate Judge's Court, Mangalore, became the Court of the Civil Judge on. 1-7-1964 under the provisions qf the Mysore Civil Courts Act, 1964. The Civil Judge, Mangalore, passed an order on 4-1-1967 holding that he had no jurisdiction to entertain the execution application and directed the decree-holders to take steps to, get the execution petition transferred tq the Court of the Civil Judge, Udipi. The decree-holders filed a review petition on 2-2-1967 against the order of 4-1-1967, but it was dismissed on 11-3-1968. The Civil Judge, Mangalore, addressed a letter to the District Judge; Mangalore seeking directions as to whether he could proceed with the execution petition after the coming into force of the Mysore Civil Courts Act, 1964. The District Judge, Mangalore passed an order on 24-9-1968 withdrawing the execution case from the Court of the Civil Judge, Mangalore and transferred the same to the, court of the Munsiff, Karkala,. The District Judge, Mangalore passed an order on 24-9-1968 withdrawing the execution case from the Court of the Civil Judge, Mangalore and transferred the same to the, court of the Munsiff, Karkala,. Though the provision under which this order was passed was not stated in the order it is presumably because the learned District Judge thought that under S. 29 (2) (a) of the Mysore Civil courts Act, 1964 (hereinafter referred to as the 'act') the execution proceeding stood transferred to the Court of the Munsiff, Karkala,. This order of transfer was passed on 25-9-1968. ( 2 ) IT is contended by Mr. H. G. Hande, learned Counsel appearing on behalf of the appellants, that the order of 4-1-1967 passed by the Civil judge, Mangalore, had the effect qf transferring the execution proceeding to the Court of the Civil Judge, Udipi; that there was nq proceeding pending in the Mangailore Court for being transferred from that Court and that therefore the provisions of S. 29 (2) (a) of the Act do not apply. In ramchandra v. Krishna Lal, ILR. (1) Patna 328. the decree-holder filed an application to the Court which passed the decree for transfer of the decree to another court fqr execution That application was allowed but the copy of the decree was never sent to the transferee Court. The decree-holder did not carry out the order which he had obtained and the, decree was never in fact sent. It was held that the Court which passed the decree had jurisdiction to entertain an execution application filed thereafter. Hence, this contention has to be rejected because the order of 4-1-1967, though it held that the Civil Judge, Mangalore, had no jurisdiction to entertain the execution petition, only directed the decree-holder to take the necessary steps to, get the decree transferred to the Court of the Civil Judge, Udipi and the decree was not in fact transferred. 2a. Mr. Hande relied on the decision in Prasanna. Kumar v. Hajarbee, (1970) 2 An. L. T. 17. in which it has been held that under S. 39 CPC. , It is only the decree, which can be transferred and not an execution proceeding. He also relied on the decision in Gowrammal v. Lingappa Gowder, AIR. 1968 Mad. 99. 2a. Mr. Hande relied on the decision in Prasanna. Kumar v. Hajarbee, (1970) 2 An. L. T. 17. in which it has been held that under S. 39 CPC. , It is only the decree, which can be transferred and not an execution proceeding. He also relied on the decision in Gowrammal v. Lingappa Gowder, AIR. 1968 Mad. 99. wherein it has been held that under S. 39 CPC a money decree requires to be transferred to the Court in which the execution is sought to be proceeded with. He also relied on the decision in Jugal Charan Mondal v. Pankajini Dasi, AIR. 1961 Cal. 183. wherein it has been held that the jurisdiction of the Court which passed the decree is only to entertain the application for execution for purposes of transferring the decree to the Court which has territorial jurisdiction to execute the decree and that it has no power to further execute the decree. Hia contention is that since the properties which are sought to be attached by the decree-holder were outside the territorial jurisdiction of the Court which passed the decree, it had no jurisdiction to proceed with the execution. ( 3 ) ON behalf of the respondents, reliance was placed on the decision in Channabasavaradhya v. Rangamma, (1964) Mys. L. J. Supp. 102, in which it has been held that under S. 15 of the Mysore Civil Courts Act (Amendment Act 23 of 1955), when an execution proceeding stands statutorily transferred to another court, it must be deemed that the decree is also transferred from the Court which passed the decree to the Court tq which the execution proceeding stands so transferred. S. 15 of the Mysore Civil Courts Act (Amendment act 23 of 1955) (old Act), reads as follows : " Every suit, appeal or other civil proceeding instituted or filed prior to. and pending on the date of the commencement of this Act shall by virtue of this Act stand transferred tq and be disposed of by the Court having jurisdiction in respect of such suit, appeal or proceeding under the principal Act as amended by this Act. " the wording of S. 15 of the Mysore Civil Courts Act (Amendment Act 23 of 1955) (old Act) is similar to that qf S. 29 (2) (a) qf the Act. Hence, it must be held in the, present case that the. " the wording of S. 15 of the Mysore Civil Courts Act (Amendment Act 23 of 1955) (old Act) is similar to that qf S. 29 (2) (a) qf the Act. Hence, it must be held in the, present case that the. decree must be deemed, to have been transferred from the, Court of the Civil Judge, Mangalore, to the court of the Munsiff, Karkala, by virtue of the prqvisions of S. 29 (2) (a) of the Act. ( 4 ) MR. H. G. Hande, further, contended that S. 29 (2) of the Act does not apply to the present case. His contention is that in order to attract the provisions of S. 29 (2) (a") of the Act, the proceeding must be pending before a Court which has jurisdiction to dispose of that matter under the previous Act and that jurisdicion must be conferred by the amending act on some other Court and it is only then that the pending proceeding would stand transferred statutorily front the former Court tq the latter. He rlied on the following observations made in Channabasavaradhya v. Rangamma (5):" The meaning of this section is very clear. What it declared is that, if there was a proceeding pending before a Court which had jurisdiction to dispose of that matter under the principal Act, and, that jurisdiction was conferred by the amending Act on some, other Court, the pending proceeding stood transferred statutorily from the one court to the other. "his contention is that before the date on which the Act came into force i. e. , 1-7-1964, the village Aikala had already been transferred to the territorial jurisdiction of the Civil Judge's Court at Udipi on 2-1-1964 even before the date of filing of the execution petition on 14-1-1964 and the execution proceeding was therefore not pending in a Court which had jurisdiction to dispose of the matter under the previous Act. But the Civil judge's Court at Mangalore, being the Court which passed the decree, had jurisdiction to entertain the execution application and to transfer the same to another Court, and in such a case, the relief with respect to immovable properties could be given only by the transferee, Court. But the Civil judge's Court at Mangalore, being the Court which passed the decree, had jurisdiction to entertain the execution application and to transfer the same to another Court, and in such a case, the relief with respect to immovable properties could be given only by the transferee, Court. But if the relief had been one sought against the person of the judgment-debtor and if the judgment-debtor was within the jurisdiction of the Court which passed the decree, nothing would prevent that Court from giving relief to the decree-holder in the execution proceeding under the provisions of S. 38, cpc. in Lakshminarayana Setty v. Rajmall, (1972) 1 Mys. L. J. 652. the Court which passed the decree was abolished and notifications were issued transferring the territorial jurisdiction of the Court which passed the decree to the newly constituted"court. It was held that no certificate was necessary under s. 37 (b) CPC. In that case, no question under S. 29 (2) (a) of the Act arose. In Jayanthi Venkappa Setty v. Sontha Linganna, (1969) 1 Mys. L. J. 298. the territorial jurisdiction had not been transferred by a notification as in the present case. The decree had been transferred from the Court which passed the decree viz. , from the Civil Judge's Court, Bellary, to the Court of the Civil Judge, chitradurga. It was held that S. 29 (2) (a) of the Act does not apply. In that case, the execution proceeding was not pending in the Court in which it could be instituted under the Act. It was held that it could be instituted under the Act only in the Munsiffs Court, Bellary, and that S. 29 (2), (a) would not apply. Mr. Padubidri Raghavendra Rao, the learned Counsel appearing for the repondents, a,lso relied on the decision in Merla Ramanna v. Nallapparaju , AIR. 1958 SC. 87. in which it has been held that the Court which passed the decree does nqt lose its jurisdiction to entertain the execution application merely because the subject matter of the execution application is transferred from the territorial jurisdiction of that Cqurt to another Court. This decision was followed in Vandse Gopalakrishna v. Trasi Givisandraya Laxman, AIR. 1964 Mys. 34. where there was transfer of territorial jurisdiction from the Court at Mangalore to the Court at Udipi. It was a case of a money decree. This decision was followed in Vandse Gopalakrishna v. Trasi Givisandraya Laxman, AIR. 1964 Mys. 34. where there was transfer of territorial jurisdiction from the Court at Mangalore to the Court at Udipi. It was a case of a money decree. It was held that the Court at Udipi had no jurisdiction to execute the decree unless the decree was got transferred from the Court at Mangalore to the Court at Udipi. It was further held that the Court which passed the decree, the Court at Mangalore, has not ceased to have jurisdiction to entertain the execution application merely because the subject matter of the execution application was transferred from the terrtorial. jurisdiction of the Court which passed the decree to another Court. In Lalithamba v. Mangamma, AIR. 1958 AP. 763, also it has been held that the mere fact that the jurisdiction over certain properties is transferred from one Cqurl; which passed the decree to another Court does not divest the former Court of its jurisdiction to take action under S. 39 CPC. In Gowrammal v. Lingappa Gowder, (1967) 1 Mad. L. J. 281. the decree-holder obtained a money decree from the munsiff's Court, Krishnagiri. A certain area was carved out of the territorial jurisdiction of the Krishnagiri Munsiff's Court and a separate Court of the district Munsift with jurisdiction over that area was established at Hosur. The decree-holder sought to, proceed in execution of the decree in the hosur Court. It was held that where the Court which passed the decree continues to eixist, an order transferring the decree should be obtained from that Court before it was put into execution in a Court which subsequently came to have jurisdiction over the properties in the suit. Hence, in the present case, inspite of the fact that the territorial jurisdiction over the subject-matter had been transferred from the Mangalore Co,urt to the court at Udipi prior to the appointed date the Court at Mangalore had jurisdiction to entertain the execution petition on the date of the Act coming into force. The, execution proceeding was therefore pending in the court which had jurisdiction on the relevant date for purposes of S. 29 (2), (a) of the Act. ( 5 ) IT was next contended by Mr. The, execution proceeding was therefore pending in the court which had jurisdiction on the relevant date for purposes of S. 29 (2), (a) of the Act. ( 5 ) IT was next contended by Mr. Hande, that the expression ' under this Act in S. 29 (2) (a) refers to proceedings instituted, which have to be instituted, or commenced under the Mysore Civil Courts Act, 1964 and that it excludes the consideration of a notification transferring the, territorial jurisdiction under the repealed Act, the Madras Civil Courts Act, 1873. His contention is that while construing this expression what is to be considered is the provisions of this Act only and not the notification issued under the repealed Act. Under the proviso to clause (1) of S. 29 of the act, it is provided that jurisdiction defined or vested and notifications or notices issued by or under the provisions of an enactment repealed by the act shall be deemed to have been done or taken under the corresponding provisions of the, Act and that they shall continue in force unless and until superseded by any action taken under the Act. Hence, the notification issued under the repealed Act must be deemed to be a notification under s. 13 of the Act. Hence, this contention has to be rejected. ( 6 ) THE execution proceeding was therefore pending in the Court which had jurisdiction t0 entertain it on the date of the corning into force of the Act. Since the decree had not been transferred from the, Cqurt of the Civil Judge, Mangalore, to, any other Court on the date of the, coming into force of the Act, the execution proceeding would have to, be instituted under the Act' as contemplated under S. 29 (2) (a) of the Act, in the court of the Munsiff, Karkala,, only. Hence, under S. 29 (2) (a,) of the; Act, the execution proceeding would stand statutorily transferred to the Court of the Munsiff, Karkala,. The order of the District Judge must be regarded as an administrative order giving effect to the statutory transfer effected under the Act. Hence, the Court of the Munsiff, Karkala, has jurisdiction to proceed with the execution case and there is no bar of limitation. ( 7 ) THIS appeal, therefore, fails and is dismissed with costs. --- *** --- .