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1982 DIGILAW 14 (KER)

MATHEW v. BANK OF COCHIN LID.

1982-01-13

G.VISWANATHA.IYER

body1982
Judgment :- 1. The fourth defendant-judgment-debtor is the revision petitioner and this petition is filed against an order passed by the executing court rejecting his objection to the proposed sale of the property The decree is one passed by the Ernakulam Sub-Court for realisation of money charged on the decree schedule properties and from the defendants. It was one passed not ex parte but after the defendants entered appearance in the suit and put forward their contention. In execution of the decree the defendants raised various contentions against the sale of the property and at the same time began to neglect the preservation of the decree schedule properties and so the decree-holder moved for appointing a Receiver. That was allowed by the executing court and on revision to this Court as C R P. 861 of 1979 the same was confirmed with a direction to the decree-holder to take early steps to sell the property. In the meanwhile this execution case was transferred to Thodupuzha Sub-Court along with other cases as per orders of the High Court. The High Court order was due to the fact that as a Sub-Court was located at Thodupuzha on the formation of Idukki District, cases triable or executable by that Court and pending in the Ernakulam Sub-Court should be transferred under S.24 CPC. Some of the decree schedule properties in this case are in the area within the jurisdiction of the Thodupuzha Sub-Court and some are within the jurisdiction of the Kottayam Sub-Court. Subsequently the decree-holder moved the Thodupuzha Court to nominate a person as Receiver; Advocate Shri. P. T. Jose was appointed as Receiver and he took possession of the properties. As the amount due to the decree-holder exceeded Rs. 2,50,000/- they were anxious to realise the amount and they renewed their prayer to proclaim and sell the properties. The same was allowed after notice. The petitioner's properties were put up for sale on 23-2-1980. On 15-2-1980 the petitioner filed an application stating that the decree is a nullity and in any event the execution proceedings taken in the Thodupuzha Sub-Court are without jurisdiction. The decree-holder took notice of it and the court by the order sought to be revised dismissed the application stating that there is no merit in the same. This is challenged in this revision petition. 2. The decree-holder took notice of it and the court by the order sought to be revised dismissed the application stating that there is no merit in the same. This is challenged in this revision petition. 2. It is true that the order of the lower court is very brief but that does not vitiate the conclusion in the background of the various earlier steps taken in execution in this case. 3. The petitioner's counsel's contention that the decree is a nullity proceeds on the premise that the suit itself was not maintainable for the reason it is in violation of the provisions of 0.2, R.2 C.P.C. According to the counsel for a portion of the amount due to the decree-holder 5 another suit O. S.57 of 1972 has been filed against the first defendant and decree obtained, and so for the balance amount another suit is not maintainable. There is no substance in the plea on facts and even if such a plea is assumed to be available to the petitioner, he being a party to the suit and decree, he is not entitled to urge this as a ground to contend that the decree is invalid. The court which passed the decree has no want of inherent jurisdiction to pass the decree and the plea is not one affecting the jurisdiction of. the court. So this ground of attack of the decree is without any substance. 4. Another ground of attack of the decree is equally untenable. The petitioner contends that the decree was obtained on fraud as it was passed on inadmissible evidence. This plea is also without any foundation and the petitioner being a party to the suit and decree, he having no case that he had no knowledge of the suit and decree cannot be heard in execution on this contention. So this ground of attack is equally untenable. 5. Still another attack on the decree is that the suit being one for realisation of amount due under a mortgage the trial court acted without jurisdiction in passing a decree for realisation of the amount in violation of Order XXXIV C.P.C. In 1973, Order XXX1V C.P.C. as it amended by the Kerala High Court permitted a single decree for sale without first passing a preliminary decree and then a final decree. The argument is that this amendment being a delegated legislation under S.122 CPC is invalid for the reason that the legislature was not competent to delegate this power to the High Court. There is no substance in this plea as well. In respect of practice and procedure to be followed in the trial of suits the High Court is the competent body to judge the local requirements, and the procedure the High Court has to follow to make necessary changes are all provided for by the legislature itself. These are enough to show that the delegation is unassailable. Even assuming the amendment is invalid, the failure of the trial court to pass a preliminary decree and a final decree does not make the decree passed a nullity. There is no want of inherent jurisdiction in the court to pass such a decree. If the petitioner was aggrieved he should have taken the decree in appeal and got it vacated. He cannot contend in execution that the decree is a nullity. 6. There remains the contention of the petitioner that the execution proceeding taken in the Thodupuzha Sub-Court is invalid in that the decree has not been transferred for execution to that court and the court which passed the decree has not ceased to have jurisdiction. What was done in the case was the High Court transferred this case as well as other cases from Ernakulam Sub-Court to Thodupuzha Sub-Court with the establishment of the latter court and defining its jurisdiction. The trial and execution cases that can be heard by that court were transferred to that court. Some of the decree schedule properties are situate within the local jurisdiction of that court and under Explanation to S.37 CPC. as amended the Thodupuzha court has jurisdiction to execute the decree. Further the execution case was transferred to that court in 1979 under S.24 CPC. and that court had been seized of this case and number of proceedings were carried on with notice to the petitioner. He never objected to the execution case being proceeded with by that court and sale has now taken place, It is not open to the petitioner to contend that the Thodupuzha Court has no jurisdiction to proceed with the execution. A similar contention raised by another defendant in a connected case was rejected by this Court in CRP. Nos. He never objected to the execution case being proceeded with by that court and sale has now taken place, It is not open to the petitioner to contend that the Thodupuzha Court has no jurisdiction to proceed with the execution. A similar contention raised by another defendant in a connected case was rejected by this Court in CRP. Nos. 2605 and 2606 of 1981 (reported in 1982 KLT. 274) and I respectfully agree with the principle mentioned therein by Justice M. P. Menon. From the above it is clear that there is no substance in any of the contentions raised in the revision petition. The desperate attempt of the petitioner is only to delay the execution of the decree and the lower court rightly dismissed the application E. A. 34 (a) of 1980 as without any merit. The Civil Revision Petition is dismissed with costs. Dismissed.