SYNDICATE BANK v. VITTALBHAT — 1992 DIGILAW 2 (KAR)

M. RAMAKRISHNA, J. ( 1 ) THIS Revision Petition is directed against the order made by the learned Civil Judge, Udupi, on 31-5-1989 in case No. Ex. 73/87 (O. S. No. 34/85) transferring the said execution case to the Court of the munsiff, Udupi, in view of the amendment to the Karnataka Civil courts Act, 1964, by the Karnataka Civil Courts Laws (Amendment) act, 1989 (Karnataka Act No. 1. 3 of 1989)which provided pecuniary jurisdiction up to fifty thousand to the Court of the Munsiff. Hence this petition. ( 2 ) THE Revision Petitioner, Syndicate Bank, was the plaintiff in O. S. No. 34 of 1985 on the file of the Court of the Civil Judge, Udupi. The suit was decreed and the decree was sought to be executed in ex. No. 73 of 1987. During the pendency of the execution proceedings, the amendment in question has come into force altering the pecuniary jurisdiction of the Civil Courts. The relevant provision for the purpose of this case is Section 4 (1) (b) of the amending Act of 1989. It reads:"4. Transfer of Suits and Appeals notwithstanding anything contained in the Karnataka Act 1. 1 of 1964 and Karnataka Act 21 of 1964 or in any other law or provisions having the force of law, - (b) original suits and proceedings of a civil nature the amount or value of the subject matter of which does not exceed fifty thousand rupees pending before the Court of a Civil Judge, shall on the date of the commencement of this Act, stand transferred to the Court of the Munsiff and shall be disposed of by such court in accordance with law as if such suits or proceedings concerned had been instituted or commenced in such Court. "the amendment has come into force with effect from 17-4-1989. So the order under, revision is in pursuance of the above provisions. That order has been questioned in this revision petition as illegal and untenable. ( 3 ) SRI B. R. Aswatharam, learned Counsel appearing for the petitioner, mainly urged the following points in support of the revision petition. (i) The learned Civil Judge committed an error in holding that the proceedings in the instant case was covered by clause (b) of sub-section (1) of Section 4 of the amending Act. ( 3 ) SRI B. R. Aswatharam, learned Counsel appearing for the petitioner, mainly urged the following points in support of the revision petition. (i) The learned Civil Judge committed an error in holding that the proceedings in the instant case was covered by clause (b) of sub-section (1) of Section 4 of the amending Act. (ii) He should have seen that by virtue of Section 141 of the Code of Civil Procedure, the execution proceedings arising out of the decree did not come within the purview of Section 4 (1) (b) of the amending Act and therefore he should have retained the execution proceedings on his file and disposed of the same in accordance with law. (iii) By virtue of Section 38 C. P. C. , the decree can be executed either in the Court which passed it or the Court to which it is sent for execution on an application as required by Section 39 C. P. C. , and in the absence of such an application having been presented, there was no need for the learned Civil Judge to transfer the proceedings to the court of the Munsiff, (iv) In view of the law laid down by this Court in PERIYAKKAL N. and OTHERS vs CO-OPERATIVE TOURIST and TRANSPORT SOCIETY and ANOTHER, the proceedings arising out of the decree are saved and therefore they are not liable to be transferred to'the Court of the munsiff under Section 4 (1 ) (b) of the amending Act. ( 4 ) THE learned Counsel relied upon the Decisions reported in: (i) AIR1956 S. C. 87; (ii) AIR 1960 Allahabad, 730; (iii) AIR 1968 Madras 99; (iv) AIR 1971 Rajasthan 234. ( 5 ) AT the outset, it is needless to point put that the legislature intended to change the pecuniary jurisdiction of the Courts relating to suits or proceedings for the convenience of the litigant public as well as for easy disposal of cases. With that end in view, the amendment has been brought in. ( 5 ) AT the outset, it is needless to point put that the legislature intended to change the pecuniary jurisdiction of the Courts relating to suits or proceedings for the convenience of the litigant public as well as for easy disposal of cases. With that end in view, the amendment has been brought in. It is not in dispute that by virtue of clause (b) of sub-section (1) of Section 4 of the amending Act, all original suits and proceedings of a civil nature the amount or value of the subject matter of which does not exceed fifty thousand rupees pending before the court of the Civil Judge shall, on the date of the commencement of that Act, stand transferred to the Court of the Munsiff and that therefore such matters shall be disposed of by the said Court in accordance with law as if such suits or proceedings had been instituted or commenced in such Court. ( 6 ) THEREFORE, there is no difficulty to understand the object of the amending Act It is also not in dispute that the amount or value of the subject matter of the proceedings in question is Rs. 23,656-30, less than fifty thousand rupees. In that view, there is no doubt that Clause (b) of sub-section (1) of Section 4 of the amending Act clearly covers the proceedings of this kind. But the legal contention urged is that though that was the intendment of the legislation in amending the karnataka Civil Courts Act, the proceedings arising out of a decree do not come within the purview of clause (b) of Section 4 (1) of the amending Act. The argument is that in view of Section 141 C. P. C. ,the execution proceedings arising out of a decree are not affected by the above provisions and therefore there was no need for the learned civil Judge to transfer the proceedings to the Court of the Munsiff. To support this argument, the learned Counsel referred to the provisions of Section 38 and 39 C. P. C. This revision petition is based upon the above grounds. I carefully went through clause (b) of Section 4 (1) of the amending Act, Section 38, 39 and 141 C. P. C. I also perused the rulings relied upon by the learned Counsel. But, I do not see any force in the submissions of Sri Aswatharam. I carefully went through clause (b) of Section 4 (1) of the amending Act, Section 38, 39 and 141 C. P. C. I also perused the rulings relied upon by the learned Counsel. But, I do not see any force in the submissions of Sri Aswatharam. ( 7 ) FIRSTLY, in a case of this nature, the invoking of Sections 38 and 39 C. P. C. would not arise. It is nobody's case that any application seeking to transfer the proceedings pending before the Civil Judge to the Court of the Munsiff was presented under Section 39 C. P. C. indeed, the provisions of Section 4 (1) (b) are not automatic for giving effect to the transfer coming within the purview of that Section. Secondly, the ratio of the Decision rendered by the Division Bench of this Court in Periyakkaps case is of no assistance to the revision petitioner because the Ruling in that case is against him. I will presently refer to the Ruling in Periyakkal's case. That was a case where the Court of the Munsiff granted decree for eviction arising under the Karnataka Rent Control Act and during the pendency of the execution proceedings, the Karnataka Rent Control (Amendment) act, 1975 (Karnataka Act No. 31 of 1975) was passed the effect of which was that the Court having jurisdiction under the Act was the court of the Civil Judge and not the Munsiff and the Act also provided for transferring all pending proceedings. The execution proceedings pending before the Munsiff did not stand statutorily transferred to the court of the Civil Judge. But the learned Munsiff on an erroneous understanding of the legal position transferred the execution proceedings to the Court of the Civil Judge. ( 8 ) THE question that arose for consideration before the Division Bench in Periyakkal's case was whether or not the Court of the Civil judge had jurisdiction to. execute the decree which had been transferred to that Court. The second question was whether the transferee Court (Court of Civil Judge) had jurisdiction to continue the execution proceedings exercising jurisdiction under the Act. execute the decree which had been transferred to that Court. The second question was whether the transferee Court (Court of Civil Judge) had jurisdiction to continue the execution proceedings exercising jurisdiction under the Act. The Court answering the questions held that the Court of the Civil Judge was the court of competent jurisdiction as it had, after the amendment Act, jurisdiction to try eviction applications, that if the Munsiff who had passed the decree sent it to the Court of the Civil Judge for execution on an application by the decree holder made under Section 38 c. P. C. , the Court of the Civil Judge would have jurisdiction to execute the decree and that, without any such application, when the Munsiff transferred the execution proceedings, there was at the highest, irregular assumption of jurisdiction by the Court of the Civil Judge, and not the lack of inherent jurisdiction; hence, the exercise of jurisdiction by the Civil Judge in such circumstances would not vitiate. Thus, the ruling in Periyakkal's case is not helpful to the petitioner ( 9 ) THE ratio of the Decision of the Supreme Court in Merla Ramanna vs Nallaparaju and Others relied upon by Srj Aswatharam does not support the case of the petitioner and on the other hand the ruling therein is against him. The Supreme Court while considering the territorial jurisdiction of the transferee Court with reference to sections 38, 37 and 39 C. P. C. , held in paragraphs 12 and 13 as follows:-"it is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court. But the Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the samwe by reason of such transfer, and if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings. "this was the view taken in Periyakkal's case. "this was the view taken in Periyakkal's case. ( 10 ) THEREFORE, by virtue of the amending Act, the territorial jurisdiction of the learned Civil Judge having taken away and conferred on the learned Munsiffin respect of suits or proceedings, the amount or value of the subject matter of which does not exceed fifty thousand rupees, the learned Civil Judge rightly made an order transferring the execution proceedings to the Court of the Munsiff. There is nothing wrong on his part for doing so. ( 11 ) THE ratio of the Decision of the Allahabad High Court in Choudhary Raghunandan Singh vs Narain Das Bal Kishun also is of no assistance to the case of the petitioner because the facts and circumstances arising therein are entirely different from those of this case and moreover there, change of jurisdiction by virtue of the amendment of the Civil Courts Act did not arise. Similar is the case of rajasthan in Jagjivansingh vs Ahmed Bux And Others. The Ruling of the Madras High Court in Gowrammal vs Lingappa Gowder relied upon by Sri Aswatharam is against the petitioner and on the other hand it fully supports the order made by the learned Civil Judge. In that case, the Division Bench following the ratio of the Decision in ramanna vs Nallappa Raju of the Supreme Court, held as follows:- "when the subject-matter of a suit is transferred due to a change in the territorial jurisdiction of a Court, the transferee court acquires an inherent jurisdiction over the subject-matter. The transferee Court can, therefore, entertain execution application relating thereto and execute decree, even though the decree is not transferred to it by the decreeing Court. However, this principle cannot be applied to money decrees. In case of money decrees, if the executing Court is not the decreeing Court, the decree must be transferred to it by a proper transmission of the decreeing Court before it can be executed. For, so long as the decreeing Court continues to exist, it has jurisdiction over the decree it has passed and hence a transfer of the decree is necessary before it can be executed by the executing Court. " ( 12 ) THE Ruling of the Madras High Court based on the ratio of the Decision of the Supreme Court in Ramanna's case is what is exactly followed by the learned Civil Judge in the instant case. " ( 12 ) THE Ruling of the Madras High Court based on the ratio of the Decision of the Supreme Court in Ramanna's case is what is exactly followed by the learned Civil Judge in the instant case. To reiterate, the transfer is not automatic. Therefore, in view of Clause (b) of sub-section (1) of Section 4 of the amendment Act, the learned Civil judge had passed a proper order transferring the execution proceedings to the Court of the Munsiff who, thereafter, exercjsed jurisdiction to continue the proceedings in accordance with law. Therefore, the Decision rendered by the Madras High Court fully spupports the order made by the learned Civil Judge in the instant ( 13 ) INDEED, there is one more aspect which I have got to notice. Section 11 of the Karnataka Rent Control (Amendment) Act, 1975 which came to be referred to in Periyakkal's case, provides as follows:-"11. Repeal of Ordinance No. 3 of 1975 the Karnataka Rent Control (Amendment) Ordinance, 1975 (Karnataka Ordinance No. 3 of 1975) is hereby repealed: provided that anything done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the Principal Act as amended by this Act. "such a repealing clause is not to be found in the amending Act in question. Therefore, we will have to see whether anything done or any action taken under the Principal Act is or has been saved. In the absence of express provision to that effect, we will have to take for granted the intendment of the Legislation. In other words, in the absence of any repealing Clause, it is not proper to imply that anything done or any action taken under the amended provision is saved. ( 14 ) MAXWELL on Interpretation of Statutes, 11th Edition, at page 216, states as follows:-"np person has a vested right in any course of procedure. He. has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Pariliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. He. has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Pariliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort it takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without, or with only, a defective remdey. . . . . " ( 15 ) THE Supreme Court also is of the same view in ANANT GOPAL SHEOREY vs. STATE OF BOMBAY wherein it has held in paragraph-4 as follows:-"no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. In other words, a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. " ( 16 ) THEREFORE, in the absence of any repealing clause saving any right accrued to the petitioner-decree-holder, there is no option for the court but to follow the altered circumstances as to territorial jurisdiction. In that view of the matter, the learned Civil Judge has rightly followed the procedure as provided under clause (b) of sub-section (1) of Section 4 of the amending Act, in transferring the execution proceedings to the Court of the Munsiff. I do not see any good ground to interfere with the action taken by him. ( 17 ) IN the result, this Revision Petition fails and is dismissed. No cost --- *** --- .