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2011 Supreme(Ker) 947
High Court of Kerala
THOMAS P. JOSEPH
Shrimad Raghavendran Thirtha Swami Sanyasi
Versus
Shrimad Sudheendra Theertha Swami
C.R.P.No.525 of 2011 & O.P(C).No.3837 of 2011
Decided on : 01-12-2011
For the Petitioner:T. Krishnan Unni (Sr.), G. Rajagopal, Advocates.
For the Respondent:R. Lakshmi Narayan, R.D. Shenoy (Sr.), Advocates.
Headnote:
Civil Procedure Code, 1908 - Sections. 41, 42( 1) and 47 - Order . XXI Rule . 6 & Order .XXI Rule. 7 - Result of execution proceedings to be certified - Powers of Court in executing transferred decree - Questions to be determined by the Court executing decree - Whether, it is within the power of the Court to which a decree is sent for execution to entertain and decide a challenge to the executability of the decree on the ground that the Court which passed the decree had no jurisdiction to do so? Assuming that the Transferee Executing Court has the jurisdiction to entertain and decide such a plea, in what circumstance could such Court entertain that plea? Whether the Court which passed the decree in this case had the jurisdiction to pass the decree - Whether the decision of the Transferee Executing Court issuing warrant of arrest to the petitioner/judgment debtor is sustainable? - Held, it is not disputed that by order judgment debtor was directed to produce the articles in Court within 15 days or hand over the same to the decree holder. That was not complied. There was no satisfactory explanation for non compliance of the said order. Nor was the said order challenged by the judgment debtor. That was followed by the order in the present case directing judgment debtor to deliver the articles to the Court or hand over the same to the decree holder within 7 days. The issue of warrant of arrest arises only when the articles are not produced within a period of 7 days - Court which passed the decree, he took the stand that execution petition is not maintainable in that Court since he is stationed at Elamakkara. Before the transferee executing court he took the stand that the execution petition is not maintainable in that Court since he is stationed at Tirupathi. These are circumstances which show that there was no intention on the part of judgment debtor to comply with the decree. I do not find any jurisdictional infirmity in the finding that there is wilful disobedience of the decree. The transferor executing court has granted 7 days' time to the judgment debtor to produce the articles failing which alone, warrant of arrest is to be issued to the petitioner. If judgment debtor is not inclined to comply with the said order, Court to think that he should face the consequence. In the view I have taken, I do not find merit in this Civil Revision and the Original Petition. - Original Petition is dismissed.
Certainly. Based on the provided legal document, here are the key points:
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The transferee executing court's authority is limited to executing the decree and does not extend to adjudicating challenges regarding the original court's jurisdiction to pass the decree. Such objections should be raised either before the court that passed the decree or on appeal (!) (!) .
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A plea that the decree is null and void due to lack of jurisdiction of the original court can be raised at any time, including in collateral proceedings, because a decree passed without jurisdiction is considered a nullity and invalid in law (!) (!) .
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The power of the transferee executing court is confined to executing the decree as it stands. It does not have the authority to review or question the legality or jurisdiction of the original decree, which remains with the court that passed it (!) (!) .
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The statutory provisions and procedural rules have been amended to clarify that the transferee court's role is limited to executing the decree and reporting on its execution, not on the validity or jurisdiction of the original decree (!) (!) .
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Objections to the executability of a decree based on jurisdictional defects are to be raised before the original court or on appeal, not in the transferee court, unless the decree is inherently null and void due to jurisdictional issues such as being against a non-existent entity or passed by a court without proper authority (!) (!) (!) .
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The authority of the transferee court is further limited by the purpose of the transfer, which is solely to execute the decree, and it cannot entertain or decide questions related to the validity of the decree itself (!) (!) .
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Challenges to the validity of a decree on jurisdictional grounds, if raised in the transferee court, are generally not entertained unless the decree is a nullity, such as being against a dead person or passed by a court without proper authority (!) (!) .
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The process of transfer and execution involves certification and reporting functions that do not include re-examining the original court’s jurisdiction, reinforcing that jurisdictional objections should be addressed prior to or during appeal stages (!) (!) .
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The court's authority to issue warrants of arrest or take coercive measures in execution proceedings is contingent upon proper compliance with the orders to produce or deliver property or articles, and such measures are only justified when there is willful disobedience with no satisfactory explanation (!) (!) .
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In cases of disobedience, evidence must support a finding of willful non-compliance; mere non-production or non-compliance, without such evidence, does not justify extreme measures like detention or arrest (!) (!) .
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The court has discretion to stay or suspend coercive measures, such as warrants of arrest, if the judgment debtor seeks to challenge the order or if circumstances justify a temporary deferment (!) .
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Overall, the legal framework emphasizes that objections to jurisdiction or nullity of a decree should be raised at the appropriate stage and before the original or appellate courts, not in the executing court, which is primarily tasked with carrying out the decree's execution (!) (!) (!) .
Please let me know if you need further analysis or specific legal advice regarding this matter.
THOMAS P. JOSEPH, J.
1. The following questions are raised for a decision:
(i) Whether, it is within the power of the Court to which a decree is sent for execution (for short, "the Transferee Executing Court") to entertain and decide a challenge to the executability of the decree on the ground that the Court which passed the decree had no jurisdiction to do so?
(ii) Assuming that the Transferee Executing Court has the jurisdiction to entertain and decide such a plea, in what circumstance could such Court entertain that plea?
(iii) Whether the Court which passed the decree in this case (for short, "the Transferor Executing Court") had the jurisdiction to pass the decree?
(iv) Whether the decision of the Transferee Executing Court issuing warrant of arrest to the petitioner/judgment debtor is sustainable?
2. Short facts necessary for a decision of the above questions are:
Petitioner (hereinafter referred as the judgment debtor) instituted the suit in the Court of learned Additional District Judge, Tirupathi praying inter alia, for a declaration that he is the Madathipathi of Kasi Matt Samsthan. Respondent/decree holder (hereinafter referred as the decree holder) filed written statement and counter claim claiming that he is the Madathipathi of Kasi Matt Samsthan, that under certain circumstances the deities, paraphernalias and insignia were entrusted to the judgment debtor for custody, that on demand judgment debtor has not returned the said articles and hence, decree holder is entitled to a mandatory injunction to get those articles returned to him. Learned Additional District Judge dismissed the suit but granted a decree in the counter claim and directed the judgment debtor to return the deities, paraphernalias and insignia to the decree holder. Judgment debtor has challenged that judgment and decree in the suit and counter claim in the High Court of Andra Pradesh, in A.S.Nos.90 and 91 of 2009 and those appeals are pending. In the meantime the decree holder filed petition to execute the decree on the counter claim in the Court of learned Additional District Judge, Tirupathi. Though, judgment debtor had sought a stay of execution of the decree on the counter claim in A.S.Nos.90 and 91 of 2009, the High Court of Andra Pradesh declined to grant stay. That order was confirmed by the Supreme Court. In E.P.No.18 of 2009 filed by the respondent before learned Additional District Judge, Tirupathi (for execution of the decree on the counter claim) notice could not be served on the judgment debtor. The decree holder filed application under Sec.151 of the Code of Civil Procedure (for short, "the Code") in the appeals pending in the High Court of Andra Pradesh seeking a direction to the judgment debtor to return the articles to him. The High Court declined to pass any order in that way but directed that judgment debtor could appear in E.P.No.18 of 2009 pending before learned Additional District Judge, Tirupathi on the date mentioned in the order, prefer objection, if any to the execution petition and that in case judgment debtor did not make any such appearance before learned Additional District Judge, it will be taken that judgment debtor has waived his objection to the execution petition. Judgment debtor appeared through his representative before learned Additional District Judge, Tirupathi and raised a preliminary objection that as he is camping at Elamakkara, in Ernakulam District, learned Additional District Judge, Tirupathi has no jurisdiction to execute the decree on the counter claim. Pursuant to that objection decree holder withdrew E.P.No.18 of 2009 and filed application before learned Additional District Judge, Tirupathi to transmit the decree certificate to the Court of learned District Judge, Ernakulam for execution against judgment debtor. Accordingly the decree certificate was transmitted to the District Court, Ernakulam where decree holder filed E.P.No.77 of 2001. Learned District Judge made over that executi
