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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.HARILAL, ANNIE JOHN, JJ.
Sandhya M.N., D/o. Muraleedharan Nair – Appellant
Versus
Binu G.Pillai, S/o.Gopalakrishna Pillai – Respondent
MA (EXE.).No.5 of 2015
Decided on : 20-08-2019
Code of Civil Procedure-Section 37, Section 39 (4) -The explanation to Section 37 is an exception to the bar that the execution court cannot proceed against the property, situated outside the local limits of its jurisdiction. The explanation to Section 37 of the CPC is not hit by Section 39 (4) of CPC, as the latter is not operative against the explanation-When the competency of the court to execute the decree is challenged, in view of the formation of a new court and transferring of territories from the former court to the newly established court, the definition of “the court which passed the decree”, contemplated under Section 37 of the CPC, would come into consideration.
Statement of facts:
(1). Whether the court, which passed the decree, has ceased to have jurisdiction to execute a decree, if the territory, within which the property is situated, is transferred from the jurisdiction of that court to the jurisdiction of another court, by the establishment of the latter court.
(2). Whether the court, which passed decree, can proceed with sale of the property attached before judgment, where the territory, within which the said property is situated, is transferred to another court by the establishment of that court, notwithstanding the bar that the court, which passed the decree, cannot proceed with execution against the property outside the local limits of its jurisdiction, under Section 39(4)of the CPC.
Finding of the court:
Even after the formation of the Family Court, Pathanamthitta, the Family Court, Thiruvalla has jurisdiction to execute the decree, which was passed by that court, notwithstanding the fact that the property is situated, at present, within the territorial jurisdiction of the newly established Family Court at Pathanamthitta. It is true that the Family Court, Pathanamthitta also has jurisdiction to execute the decree, according to the said provision. Since both the courts havejurisdiction and at present EP is pending before the Family Court, Thiruvalla, there is no need to transfer the EP to the Family Court, Pathanamthitta.
- EA.No.107/2014 filed by respondents 1 to 3 is hit by sub-rule 3 of rule 90 of order 21 of CPC, as this objection could have been taken before the date on which the proclamation of sale was drawn and no such objection was taken.
Result: Allowed.
JUDGMENT :
K.Harilal, J.
The questions that arise for consideration in this Mat. Appeal are as follows :
(1). Whether the court, which passed the decree, has ceased to have jurisdiction to execute a decree, if the territory, within which the property is situated, is transferred from the jurisdiction of that court to the jurisdiction of another court, by the establishment of the latter court.
(2). Whether the court, which passed decree, can proceed with sale of the property attached before judgment, where the territory, within which the said property is situated, is transferred to another court by the establishment of that court, notwithstanding the bar that the court, which passed the decree, cannot proceed with execution against the property outside the local limits of its jurisdiction, under Section 39(4)of the CPC.
2. The appellant herein is the decree holder in EP.No.8/2013 in OP.No.415/2010 of the Family Court, Thiruvalla and the aforesaid EP was filed, in execution of the decree, passed by the said court against the respondents 1 to 3 herein in the said OP. The property, which is sought to be sold in execution of the decree, was attached before judgment under Order 38 Rule 5 of the CPC. Subsequently the attachment was made absolute and after the decree at the execution stage, the property was sold in public auction, after complying all the legal formalities. While so, the respondents 1 to 3 filed EA.No.107/2014 in the EP challenging the jurisdiction of the Family Court, Thiruvalla to execute the decree. According to the respondents 1 to 3, after the institution of the aforesaid EP before the Family Court, Thiruvalla, the property which was soldin execution of the decree was transferred to the Family Court, Pathanamthitta by the establishment of that court on 03.08.2013. According to them, by the establishment of the Family Court at Pathanamthitta, the Family Court, Thiruvalla has lost its jurisdiction over the territory within which the property sold in execution is situated. So, after the bifurcation of jurisdiction of the Family Court, Thiruvalla by the establishment of the Family Court, Pathanamthitta, the Family Court, Thiruvalla has no jurisdiction to execute the decree.
3. The appellant herein filed objection challenging the maintainability of EA.No.107/2014. According to the appellant herein, the application was highly belated. Now the sale is over and stands confirmed. The objection, challenging the maintainability of the EP, should have been raised at the earliest, immediately after the filing of the EP. But, no objection was raised challenging the territorial jurisdiction and power of the court in executing the decree till the confirmation of sale.
4. After considering the rival pleas, the court below allowed the said application, on a finding that the Family Court, Thiruvalla has no jurisdiction over the territory, within which the property sold in execution is situated and thereby the Family Court, Thiruvalla is not competent to execute the decree. Further it is held that after the insertion of Sub section 41 to Section 39 of the CPC, the court which passed the decree has no jurisdiction to execute the decree against any personal property outside the local limits of its jurisdiction. The legality and correctness of the aforesaid findings are challenged in this Mat.Appeal.
5. Heard Sri.K.N.Radhakrishnan, the learned counsel appearing for the appellant and Sri.C.B.Sreekumar, the learned counsel appearing for the respondent.
6. Admittedly, the decree was passed by the Family Court, Thiruvalla on 31.10.2012 and the execution petition was filed before that court in February, 2013. Notice was issued to respondents 1 to 3. The scheduled property was sold in execution of the decree and the sale was confirmed on 27.10.2014. Thereafter, the respondents 1 to 3 filed the aforesaid EA, challenging the territorial jurisdiction of the Family Court, Thiruvalla, to execute the decree on the reason that on 03.08.2013, the Family Court,
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