Point of Law : Crux of the dispute revolves around question of jurisdiction of execution court to execute a decree passed by it, when said court was having territorial jurisdiction and subsequently jurisdiction over the said village was conferred to another court.

JUDGMENT :

This is an Original Petition filed under Article 227 of the Constitution of India by the petitioners, who are the judgment debtors in E.P.No.50/2013 in O.S.No.775/1994 on the file of Munsiff Court, Cherthala.

2. The respondents herein are the decree holders in the above suit.

3. Ext.P3 order viz., order in E.A. No.282/2015 in E.P.No.50/2013 in O.S. No.775/1994 dated 27.02.2017 is under challenge in this original petition.

4. Shorn off unnecessary narrations, the facts of the case is that in a suit for partition, a compromise decree was passed by the Munsiff Court, Cherthala when Kanjikuzhi village was within the jurisdiction of the said court. At the time when the Execution Petition was filed, the jurisdiction on Kanjikuzhi village was conferred on Munsiff Court, Alappuzha. At this juncture, the petitioners herein filed Ext.P2 petition in E.P. No.50/2013 contending that the property, which is the subject matter of the decree, is situated within the limit of Kanjikuzhi village, now within the jurisdiction of Munsiff Court, Alappuzha, and, therefore, Munsiff Court, Cherthala, where the Execution Petition has been pending, has no jurisdiction to execute the decree, though it was a decree passed by Munsiff Court, Cherthala at the time when the said court was vested with jurisdiction over Kanjikuzhi village. Section 39(4) of CPC is the trump card on which the said contention was raised. However, as per Ext.P3 order, the learned Munsiff negatived the contention and held that Munsiff Court, Cherthala had jurisdiction to proceed with the Execution Petition.

5. The learned counsel for the petitioner reiterated the said contention before this Court while assailing Ext.P3 order. The sum and substance of the argument advanced by the original petitioners is that as per Section 39(4) of the Code of Civil Procedure, the court which has been vested with jurisdiction on the subject matter alone has the power to execute the decree. In the said circumstances, the court below has no jurisdiction to execute the decree and so the E.P is liable to be dismissed. But the learned Munsiff brushed aside Section 39(4) of the Code of Civil Procedure and dismissed Ext.P2 petition, vide Ext.P3 order after relying on the explanation to Sub-clause (b) to Section 37 of the Code of Civil Procedure.

6. It is urged further that explanation to Sub-clause(b) to Sec.37 of the Code of Civil Procedure was inserted by Act 104 of 1976 w.e.f. 1-2-1977 whereas Sub Clause (4) of Section 39 of the Code of Civil Procedure was inserted by Act 22 of 2002 w.e.f. 1-7- 2002, which are contradictory. Sec 39(4) of the Code of Civil Procedure provides that nothing in this Section shall be deemed to authorize the Court which passed a decree to execute such a decree against any person or property outside the local limit of its jurisdiction. Section 39(4) commences with the expression 'nothing in the Section shall be deemed to authorize the court which passed a decree'. The said expression makes it clear that the said section is applicable to the proceedings in which a decree sought to be executed against a property outside the local limits of its jurisdiction. As a matter of fact, the court below which passed the decree had no jurisdiction over the property in question. Therefore, in view of the statutory mandate of section 39(4) of CPC, Munsiff Court, Cherthala has no jurisdiction to proceed with the Execution Petition since the decree schedule property is situated in Kanjikuzhi Village, admittedly, now not within the jurisdiction of Munsiff Court, Cherthala. Hence, Ext.P3 order is liable to be set aside.

7. The learned counsel for the petitioners placed a decision reported in Srimad Sudhindra Thirtha Swamiji v. Raghavendra Thirtha Swamiji [2013 (2) KHC 554] to contend that under Section 39(4) read with Order 21 of the Code of Civil Procedure, it is not within the power of the executing court to execute the decree in any manner whatsoever beyond its local limits.

8. Per contra, the