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1981 DIGILAW 539 (MAD)

Subramani v. Muthayammal

1981-11-27

BALASUBRAMANYAN

body1981
Judgment :- 1. A mortgage decree for sale was passed by the Sub Court, Vellore, for Rs. 14,258.18. On the application of the decree-holder in E.P.362 of 1969, the Sub-Court transferred the decree for execution. The transferee court was the District Munsif Court, Ranipet. At the time the decree-holder applied for transfer of the decree, the pecuniary jurisdiction of the District Munsifs Court was Rs 8,000. Recently it has been raised to Rs. 15,000, But at that time it was Rs. 5,000. The judgment-debtor took the objection that the transfer of the decree to the District Munsifs Court, Ranipet, for purposes of execution of this decree for Rs. 14.258 was not a valid transfer since it exceeded the transferee courts pecuniary jurisdiction. It was submitted that on the basis of such an invalid transfer, the transferee court was not competent to execute the mortgage decree. This objection was taken by the judgment-debtor in an application filed by him under S. 47 of the Code. By that time, however, the learned District Munsif had already passed various orders in execution to bring the hypotheca for sale. Besides, even at the time of admission of the execution petition filed by the decree-holder, the matter of jurisdiction was raised and considered by the learned District Munsif. I he decision even then was that the court had jurisdiction to get on with execution. 2. In this revision by the judgment-debtor, his learned counsel challenged the order of the learned District Munsif. He relied on S. 39 of the C.P.C. S. 39(1) as it stands amended by Central Act 104 of 1976, empowers the court which passes a decree, to send it for execution to another court of competent jurisdiction on an application to that effect filed by the decree holder. S. 39 (3) defines what ‘a court of competent jurisdiction’ is. According to this interpretation provision, the transferee court shall be deemed to be a court of competent jurisdiction, if at the time of the decree-holders’ application for transfer of the decree, the transferee court possesses jurisdiction to try the very suit whose decree is the subject of transfer. In this case, the decree-holder applied to the Sub Court for transfer of the decree on 17th November, 1979. At that time, the District Munsif Courts in the State had no jurisdiction to try suits of the value in excess of Rs. 5,000. In this case, the decree-holder applied to the Sub Court for transfer of the decree on 17th November, 1979. At that time, the District Munsif Courts in the State had no jurisdiction to try suits of the value in excess of Rs. 5,000. It follows, therefore, that the transf er of the decree to the District Munsifs Court, Ranipet, was incompetent. And all proceedings taken by the District Munsifs Court, for executing the transfereed decree were invalid. 3. Learned counsel for the decree-holder submitted that as on today, the District Munsifs Courts pecuniary jurisdiction extends to suits upto Rs. 15,000 it having been raised with effect from 7th February, 1981. Hence, he said, this Court need not make much of a technicality about S. 3 9 (3) of the Code in this case and declare invalid all the proceedings taken so far by the District Munsifs Court in execution of the mortgage decree. He said that the mortgage suit was of the year 1973, and this objection to the transfer of the decree has been raised at this belated stage of settlement of proclamation of sale. 4. I reject as untenable the contention based on the present increased pecuniary jurisdiction of the District Munsifs Court. The crucial point of time under S. 39(3) of the Code to determine the competence of the transferee court is the date of the application of transfer of the decree. That does not get altered by a subsequent enlargement of the jurisdiction of the transferee court. 5. Learned counsel for the decree-holder then contended that before the Sub Court, Vellore, when the court took up for disposal the application for transfer of its decree, the judgment-debtor should have put forward the plea that the transfer was being made to an incompetent court. I agree it would have been better if the judgment-debtor, at that stage, had drawn the attention of the Court which passed the decree that it could not be transferred to the District Munsifs Court, since it was not a competent court for transfer. This, however, does not mean that the judgment-debtor cannot object to the competency of the execution proceedings in the transferee court, after the transfer. In the Court which passed the decree, the matter of transfer of the decree to one court or another only arises as a matter of exercise of that courts jurisdiction on application by the decree-holder. This, however, does not mean that the judgment-debtor cannot object to the competency of the execution proceedings in the transferee court, after the transfer. In the Court which passed the decree, the matter of transfer of the decree to one court or another only arises as a matter of exercise of that courts jurisdiction on application by the decree-holder. No doubt, that Court must see to it that the application for transfer of the decree is for transfer to a court of competent jurisdiction. But that does not mean that a transfer to an incompetent court will have to be suffered by the judgment-debtor. What S. 39 of the Code lays down is that the transfer of a decree must be made to a court of competent jurisdiction. It is not the other way about. The section does not say that whichever court to which the decree is transferred is a court of competent jurisdiction. In my view, a judgment-debtor is entitled to object to execution by a transferee court on the ground that the transfer to it is incompetent. A judgment-debtors substantive right to property or person gets really affected when the execution court begins to act, not so much at the earlier stage when the decree is merely transmitted for execution. The judgment-debtor can raise a point of jurisdiction even in the execution court. For, any proceeding without jurisdiction is a nullity and even though the Sub Court erred in its transfer order, the objection can well be raised in the transferee court. 6. Learned counsel for the decree-holder then urged that the application by the judgment-debtor under S. 47 was barred by res judicata, since the learned District Munsif had already decided the question of competence of the transfer even at the time of admission of the execution petition. This contention looked plausible on the surface, but, on examination, is floundered. An order in execution would be res judicata under S. 11 of the Code, only if the order is passed by a court of competent jurisdiction. See Explanation VII to S. 11. There is a well known principle that every court has jurisdiction to decide whether it has jurisdiction or not. An order in execution would be res judicata under S. 11 of the Code, only if the order is passed by a court of competent jurisdiction. See Explanation VII to S. 11. There is a well known principle that every court has jurisdiction to decide whether it has jurisdiction or not. But, equally well known is the principle that a court cannot give to itself a jurisdiction which is not there Jurisdiction must be conferred by the law; it cannot be conferred by what may be called ‘judicial say so’. When on examination, it is found that the District Munsif s Court has no jurisdiction, its ruling to the contrary at an earlier stage of the execution cannot be res judicata . S. 11 makes only orders and decrees of a competent court res judicata. This means that in the subsequent proceedings, it would be open to canvass the courts jurisdiction. I therefore, reject the contention of the decree holder to the contrary. 7. The result is that this revision is allowed. The order passed by the learned District Munsif is set aside. All the execution proceedings so far taken by the District Munsif Court, pursuant to the order of the decree made by the Sub-Court, Vellore, in E.P. 362 of 1979 are hereby set aside. I he decree in question is directed to be retransmitted to the Sub Court, Vellore to be dealt with by that Court in accordance with law. There will be no order as to costs in this revision.