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1985 DIGILAW 368 (KER)

RAMANKUTTY v. KALI NANI

1985-11-20

PAREED PILLAY

body1985
Judgment :- 1. C.R.P. 2068/85 is against the order in E.A. 162/85 and C.R.P. 2071/85 is against the order in E. A. 161/85 in O. S.69/81 of the Munsiff Court, Kayamkulam. E.A 162/85 was filed to review the order dated 21-2-85 in E. P. 81/83 in O.S. 69/81 of the Munsiff Court, Haripad. E.A. 161/85 has been filed under S.5 of the Limitation Act to condone the delay in filing E.A. 162/85. Both the petitions were dismissed by the Munsiff, Kayamkulam. 2. In E.P. 81/83, Munsiff Court, Haripad held that violation of injunction has been proved by the evidence of P.Ws.1 and 2 and exhibits marked in the case and the judgment debtor (revision petitioner) was ordered to be detained in the civil prison for not exceeding 15 days for the purpose of enforcing the decree. As the revision petitioner is residing within the jurisdiction of Kayamkulam Munsiff Court, the E.P. was transferred to that court for execution. It is in that court that the revision petitioner filed E.A. 161/85 E.A. 162/85. 3. The suit was decreed on 5-7-83. E.P. 81/83 was filed by the decree holder for taking action against the judgment debtor for violation of injunction. Notice was issued and the judgment debtor entered appearance on 16-2-84 and applied for time. The case was adjourned to 16-3-84 and thereafter to 4-4-84. Again, it was adjourned to 28-5-84 with no further time order. On 28-5-84 no objection was filed. There was no representation for the judgment debtor on that date. A commission was issued by the court below to ascertain the verity of the allegations made by the decree holder. Commissioner filed his report. P.Ws.1 and 2 were examined on 12-6-84 and the court passed the order in E. P. 81/83 to detain the judgment debtor in civil prison. When the matter was pending before the transferee court (Munsiff Court, Kayamkulam) revision petitioner filed E.A. 161/85 and E.A. 162/85. 4. Learned counsel for the decree holder contended that the execution application filed before the transferee court is not maintainable, and the only course open to the judgment debtor is to have filed the petitions before the transferor court (Munsiff Court, Haripad). Counsel for the revision petitioner contended that under S.42 C.P.C. transferee court has the same powers as the transferor court as if the decree had been passed by itself. 5. Counsel for the revision petitioner contended that under S.42 C.P.C. transferee court has the same powers as the transferor court as if the decree had been passed by itself. 5. It has to be considered as to whether the transferee court can review the order passed by the transferor court. In the present case, it is the transferor court (Munsiff Court, Haripad) which passed the order in E.P. 81/83 to detain the judgment debtor in civil prison. For the purpose of executing the order it was sent to the Munsiff Court, Kayamkulam. Contention of the revision petitioner is that under S.42 of the C.P.C. the court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself and therefore the transferee court is vested with ample jurisdiction to review the order passed by the transferor court. 6. S.42 of the C.P.C. makes it clear that the transferee court has all the powers in executing a decree sent to it from another court. But, that does not mean that the transferee court can go behind the decree or any direction contained in it. Undoubtedly, the transferee court has the same powers in executing the decree as if it had been passed by itself. But, the power is confined only to the execution of the decree. It is difficult to read into the section that the transferee court can unsettle things settled by the transferor court. Though S.42 C.P.C. states that the court executing the decree sent to it has the same powers of the transferor court in executing the decree as if it had been passed by the transferee court, it is difficult to hold that it would be open to the transferee court to question the legality of the decree or order passed by the transferor court. For example, the transferee court cannot decide the question whether the decree is barred by limitation. Such questions can be dealt with only by the court which passed the decree. For example, the transferee court cannot decide the question whether the decree is barred by limitation. Such questions can be dealt with only by the court which passed the decree. In a case where judgment debtor wants to establish that the decree is not executable on account of limitation or such other grounds he can at best apply for a stay in the transferee court as provided under 0.21 R.26 of the C.P.C. 0.21 R.26 enables the transferee court upon sufficient cause being shown to stay the execution of the decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such court of first instance or Appellate Court if execution had been issued thereby or if application for execution has been made thereto. Under the above provision the transferee court may order stay of execution to enable judgment debtor to get the decree amended or to establish that the decree has been satisfied or get the decree passed ex-parte against him set aside on the ground that it was obtained by fraud or that the decree is barred by limitation. The transferee court is not vested with any jurisdiction under S.42 C.P.C. to review the order of the transferor court or reconsider it on any grounds. If the judgment debtor wants to review it he should approach the court which passed the decree. S.42 of the C.P.C. itself makes it clear that the transferee court is empowered to execute the decree sent to it by the transferor court and as 0.21 R.26 gives power to the transferee court to stay the execution of such decree for a reasonable time to enable the judgment debtor to apply to the court which passed the decree for an order of stay the position admits of no doubt that the transferee court is not vested with full powers as if the transferor court has lost its seisin over the matter. 7. It has to be noted that when the transferee court is unable to execute the decree, it has to send back the decree to the transferor court. 7. It has to be noted that when the transferee court is unable to execute the decree, it has to send back the decree to the transferor court. Thus, it can be seen that at no point of time the transferor court has lost its jurisdiction merely because the decree has been sent for execution to the transferee court. The power of the transferee court is not coterminous with that of the court which passed the decree and the essential function of the transferee court is only to execute the decree. 8. It is for the revision petitioner to establish that the order has been passed without hearing him. That he can do only before the transferor court. Under 0.21 R.106, it is open to a party against whom an order is passed ex-parte to apply to the court to set aside the order. As the order in the execution petition has been passed by the transferor court the only course open to the revision petitioner is to approach that court for appropriate reliefs. 9. S.39 of the C.P.C. enables a court which passed a decree to send it for execution before another court of competent jurisdiction. S.39 makes it abundantly clear that the decree is sent to another court only for execution. In A.I.R. 1931 Rangoon 252 (Nathan v. Samson) it is held as follows: "A Court to which a decree has been transferred must take the decree as it stands and is not entitled to question the validity of the decree upon the ground that the decretal court had no jurisdiction, territorial, personal or pecuniary to pass it". In A.I.R. 1937 Rangoon 477 (Kannappa v. Ishar Singh) it is held as follows: "S. 42 and 0.21 R.26 C.P.C. should not be read as giving the court which passed the decree and the court to which decree is sent for execution concurrent jurisdiction to determine the questions affecting the validity of a proceeding in the former court". 10. Merely because a court which passed the decree has sent it for execution before another court it cannot be said that the transferee court gets full powers with regard to every aspect of the matter in total disregard of the court which passed the decree. It is open to the transferor court to withdraw the execution by calling back the decree to be sent to another court. It is open to the transferor court to withdraw the execution by calling back the decree to be sent to another court. It may make an order for simultaneous execution by another court. It may make an order for rateable distribution. Even after the decree has been transferred the transferor court can decide an objection as to limitation if referred to it by the transferee court. If the decree is assigned after transfer the assignee has to apply for execution in the original court. Under S.50 of the C.P.C. where a judgment debtor dies before the decree has been fully satisfied the holder of the decree has to apply to the court which passed it to execute the same against the legal representatives of the deceased. The above instances are sufficient to illustrate that the transferor court retains its powers even though the decree made by it has been transferred to another court. By the transfer what the transferee court gets is only the authority to execute the decree. It cannot alter or vary the decree in any manner. Nor it can entertain any challenge against the legality of the decree. As the order against which the review petition has been filed was passed by the transferor court, the transferee court does not get any jurisdiction to review it. Transferee court, is only bound to execute it. E.A. 161/85 and E.A. 162/85 filed before the transferee court are not maintainable and therefore no interference is called for. The revision petitions are dismissed with no order as to costs.