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1985 DIGILAW 76 (KER)

MARATT RUBBER LTD. v. GEORGE THARAKAN

1985-03-18

FATHIMA BEEVI

body1985
Judgment :- 1. The revision petitioner is the defendant in O. S.1. of 1984 in the Sub Court, Sherthallay. The plaintiffs-respondents instituted the suit against the defendant for recovery of money, on 1-10-1984. On the same day I.A.1 of 1984 was filed under 0.38 R.5 and 6 of C.P.C. for attachment, of immovable properties before judgment. The court had made an ex-parte order of attachment on that application. The defendant entered appearance and filed a Counter pointing out that a caveat was filed in Sub Court Alleppey on 23-8-1984 and interim order without notice to the defendant is void. That application was rejected by the Court below by order dated 27-10-1984. The revision is directed against that order. 2. The Sub Court at Sherthallay was established with effect from 24-9-1984. This Court was given part of the territorial jurisdiction of the Sub Court, Alleppey. The short point arising for consideration in this revision is whether the caveat filed before the Alleppey Sub Court before the establishment of the new court at Sherthallay is effective on the date of the suit. 3. S.148-A (3) C. P. C. provides that where after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the caveator. The object of the Section is to provide an opportunity to such opposite parties to be heard before an ex-parte order is made and show cause why it should not be passed. Sub-sec. (1) of S.148-A enables any person claiming a right to appear before the Court on the hearing of such application for interim order to lodge a caveat. Sub-sec. (2) requires such a caveator shall serve a notice of the caveat on the person by whom the application has been, or is expected to be made. Sub-sec. (3) requires that before such an order is made, the Court shall serve a notice of the application on the caveator, and sub-sec. (4) requires that the applicant on whom any caveat has been served shall forthwith furnish the caveator, with a copy of the application together with copies of any paper or document filed or intended to be filed in support of his application. (4) requires that the applicant on whom any caveat has been served shall forthwith furnish the caveator, with a copy of the application together with copies of any paper or document filed or intended to be filed in support of his application. Such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application has been made before the expiry of the said period. 4. Under sub-sec.(1)of S.148-A where an application is expected to be made, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof. The Sub Court Sherthallay was established on 24-9-1984. The revision petitioner in filing the caveat before the Sub Court, Alleppey on 23-8-1984 has served notice of the caveat on the respondent. It is however conceded that the caveator has not specified the place or the limits of the jurisdiction. Even though the business of the court arising from the territorial limits of the Sub Court Alleppey stood transferred by special orders, the caveat proceedings had not been so transferred. The plaintiff did not serve a copy of the application on the defendant nor the court issued any notice before passing the interim order. 5. S.150 of the Civil Procedure Code provides that: "Where the business of any Court is transferred to any other Court, the court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which business was so transferred." The Section, it is argued, is not confined to the transfer of specific business from one court to another but also included cases in which a new court is given part of the territorial jurisdiction of an old court and is empowered to try the business arising within it. Where the court is not abolished but its jurisdiction over the area is transferred by a notification to another court the section has no application, and the old court shall continue its jurisdiction over the matters pending before it for all purposes and the new court has no jurisdiction over those matters unless they are expressly transferred. 6. Where the court is not abolished but its jurisdiction over the area is transferred by a notification to another court the section has no application, and the old court shall continue its jurisdiction over the matters pending before it for all purposes and the new court has no jurisdiction over those matters unless they are expressly transferred. 6. In Marvarul Nadar v. Nanu Pillai (1956 K.L.T 810 F.B.) the Full Bench considered the scope of this Section. In that case the decree holder who had obtained a decree for sale on a hypothecation bond in his favour, from the District Court of Nagercoil applied for execution of the decree in the Subordinate Judge's Court of Padmanabhapuram, established by a notification by the Government subsequent to the decree. The Full Bench held thus: "If by transfer of local jurisdiction the: Court which passed the decree is competent to execute the decree passed by it before the transfer of local jurisdiction, it [must necessarily follow that the execution of such decrees will not form part of the business of the court referred to in S.150, C.P.C. as transferred to any other court. If by the mere transfer of local jurisdiction a transfer of all the business of the court, including execution of decrees already passed, is also effected, the court which passed the decree and from which local jurisdiction is transferred will not have jurisdiction any further to execute the decree The expression "where the business of any court is transferred to any other court" occurring in S.150, C.P.C. does not refer to the transfer of work brought about by the mere change of local jurisdiction but to the transfer of work brought about by other causes. Such transfer of work may be effected by specific or general orders of competent authorities or by legislation. Such transfer of work may be effected by specific or general orders of competent authorities or by legislation. There may also be specific directions for transfer of all or particular classes of business in the notification effecting the change of local jurisdiction S.150 C. P. C cannot be invoked for the purpose of enabling transferee court to get jurisdiction in respect of the pending and past business without express or implied transfer." It is also pointed out that a mere change of local jurisdiction does not automatically transfer pending cases from the old Court to the new Court and that even after the change of local jurisdiction the old Court is competent to proceed with the trial of suits which were pending before it and which had arisen from the transferred area. In this view even the judicial work pending before a Court at the time of the change of local jurisdiction would not form part of the transferred business contemplated in S.150. 7. In Kunhalan Kutty v. Pathumma & Others (1970 K.L.J. 903) Krishnamoorthy Iyer J., said: "A mere transfer of jurisdiction over certain properties of a court to another court will no be a transfer of the business within the meaning of S.150 C.P.C. On the other hand if a particular court is abolished and the territorial jurisdiction of that court is transferred to either one court or to different courts there will be a transfer of business of that court within the meaning of S.150 C.P.C." The question that arose for decision in that ease was whether the Munsiff's Court, Manjeri had power to pass a final decree in a suit instituted in the Parappanangadi Munsiff's Court, and only a preliminary decree was passed before the jurisdiction of the Parappanangadi Munsiff's court was transferred by Government notification to the Munisiff's court Manjeri. The court held that so long as there is no order transferring the original suit from the Munsiff's Court, Parappanangadi to that of Munsiff's court, Manjeri, the former court had the power to pass the final decree. The view consistently held is that if an area is taken out of the jurisdiction of one existing court and placed under that of another, the business in the pending cases is not automatically placed under the jurisdiction of the latter court, and there should be specific transfer of the pending business to the new Court. The view consistently held is that if an area is taken out of the jurisdiction of one existing court and placed under that of another, the business in the pending cases is not automatically placed under the jurisdiction of the latter court, and there should be specific transfer of the pending business to the new Court. The result of the alteration of the territorial jurisdiction of the one court and placing the same within the jurisdiction of the other court will not be a transfer of the business of the former court to the latter court. The effect of the notification is only that all original suits or proceedings relating to the area within the territorial jurisdiction of the new Court have to be instituted in that court. Unless the language of the notification effecting the change is plain, a notification effecting a change of jurisdiction for the future cannot be interpreted as effecting a transfer of past business. 8. The position is therefore that the proceedings pending before the Sub Court. Alleppey on 24-9-1984 unless transferred by general or special order to the Sub Court, Sherthallay could be proceeded with only by the Sub Court, Alleppey. It cannot be disputed that the caveat filed by the defendant was proceedings pending before the Sub Court, Alleppey. It is not the case of the defendant that the proceeding had been transferred to the new Court. When the caveat was filed the nature of the proceedings contemplated could be one arising from the entire territorial jurisdiction of the Sub Court, Alleppey which included not only the territorial jurisdiction of the Sub Court, Sherthallay but also the remaining area. Unless the area was also specified in the caveat there was no scope for a transfer of the caveat proceedings to the new Court. In the circumstances, it cannot be said that the caveat filed by the defendant at Sub Court, Alleppey stood transferred to the Sub Court, Sherthallay or that the Court had the obligation to serve a notice on the defendant before passing any interim order. Since the area was not specified and the suit was not instituted before Sub Court at Alleppey, it was also not incumbent upon the plaintiff to serve a copy of the notice on the defendant as required under sub-sec. (4). Since the area was not specified and the suit was not instituted before Sub Court at Alleppey, it was also not incumbent upon the plaintiff to serve a copy of the notice on the defendant as required under sub-sec. (4). The caveat filed before the Sub Court, Alleppey was therefore ineffective in the suit instituted by the respondent before the Sub Court, Sherthallay. It that be so, the interim order passed without notice to the caveator is not defective and it does not suffer from any infirmity. The learned Subordinate Judge has rightly rejected the contention advanced by the revision petitioner. For the foregoing reasons the revision petition is dismissed, in the circumstances without costs. Dismissed.