Thomas P. Joseph

1. A question relating to the jurisdiction of the District Court, Ernakulam to execute a decree for prohibitory/mandatory injunction on a counter claim made in the Court of learned Additional District Judge, Thirupathi in a suit brought by the petitioner/plaintiff arises for a decision in this proceeding.

2. Short facts necessary for a decision of the question are:

Petitioner filed a suit in the Court of learned Additional District Judge, Thirupathi praying inter alia for a declaration that he is the Matadhipathi of Kashi Matt Samsthan. Apart from resisting the suit contending that respondent/decree holder/defendant is the real Matadhipathi, he also laid a counterclaim for prohibitory/mandatory injunction, inter alia asking for a direction to the petitioner to return the deities, valuable ornaments etc. in his custody to the respondent. Learned Additional District Judge, Thirupathi after trial, dismissed the suit and decreed the counter claim. Petitioner challenged the judgment and decree in the suit and counter claim before the High Court of Andhra Pradesh and applied for a stay of execution of the decree (on the counter claim). The High Court refused to grant stay. That order was challenged in the Supreme Court. The Supreme Court refused to interfere with the order of the High Court. The appeal preferred by the petitioner against judgment and decree in the suit and counter claim are pending consideration in the High Court of Andhra Pradesh. In the meantime, respondent filed E.P.No.18 of 2009 in the Court of learned Additional District Judge, Thirupathi for execution of the decree on the counter claim. Whatever be the reason thereof, notice of that execution petition could not be served on petitioner. Respondent filed application under S.151 of the Code of Civil Procedure (for short, “the Code”) in the appeal pending in the High Court of Andhra Pradesh requesting for a direction to the petitioner to return the deity/ornaments to the respondent. The High Court declined to pass any order on that application but directed in its order that since petitioner, having been served with notice on the application under S.151 of the Code has got knowledge about pendency of the execution petition could appear before learned Additional District Judge, Thirupathi (where E.P.No.18 of 2009 was pending) on the date mentioned in the order and prefer objection if any and that in case there is no such appearance it will be taken that petitioner has waived his objection to the execution petition. Petitioner, I am told appeared through his representative in the executing court (Court of learned Additional District Judge, Thirupathi) and raised a preliminary objection that since the last 2-3 years he is camping at Elamakara, in Ernakulam District, learned Additional District Judge, Thirupathi could not execute the decree. Pursuant to that objection, respondent withdrew E.P.No.18 of 2009 and filed application before learned Additional District Judge, Thirupathi to transmit the decree certificate to the Court of learned District Judge, Ernakulam for execution against petitioner. Accordingly the decree certificate was transmitted to the District Court, Ernakulam where respondent filed E.P.No.167 of 2011. That execution petition was made over to the Court of learned Additional District Judge, Ernakulam. Petitioner appeared in the said Court and preferred objection contending that the additional District Court, Ernakulam has no jurisdiction to execute the decree and that at any rate, since he is camping at Thirupathi only the Court at Thirupathi could execute the decree. Those objections were overruled by the learned Additional District Judge as per order dated August 19, 2011 which is under challenge in this proceeding.

3. Learned Senior Advocate appearing for petitioner has contended that in view of the amendment to S.39 of the Code in the year 1976, the decree could be transmitted for execution only to a Court of competent