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High Court Of Rajasthan
Judgename : C.B.Bhargava
RAM DAYAL - Appellant
Versus
KISTURI - Respondent
Civil Ex. Appeal 7 Of 1965
Decided On : 01/29/1970
CIVIL PROCEDURE CODE - SECTIONS 37, 38, 39 - JURISDICTION TO EXECUTE DECREE - INHERENT JURISDICTION OF COURT WHERE JUDGMENT-DEBTOR RESIDES - WAIVER OF OBJECTION - EXECUTION APPLICATION WITHOUT ORDER OF TRANSFER - IRREGULARITY - RATABLE DISTRIBUTION.
Fact of the Case:
The appellants obtained a money decree against the respondents from the Munsif Court, Kotputli. The decree was transferred for execution to the Munsif Court, Shahpura, where the judgment-debtors resided and had their properties. The judgment-debtors objected to the jurisdiction of the Munsif Court, Shahpura, to execute the decree, arguing that it was not the Court which had passed the decree or to which it had been transferred for execution. The Munsif Court and the District Judge upheld the judgment-debtors' objection and dismissed the execution petition.
Finding of the Court:
The High Court held that the Munsif Court, Shahpura, had inherent jurisdiction to execute the decree because the judgment-debtors resided and had their properties within the local limits of its jurisdiction. The Court further held that the Munsif Court, Shahpura, could entertain the execution application without an order of transfer from the Munsif Court, Kotputli, under Section 39 of the Civil Procedure Code. The Court found that the judgment-debtors had waived their objection to the jurisdiction of the Munsif Court, Shahpura, by not raising it in the first execution application.
Issues: 1. Whether the Munsif Court, Shahpura, had jurisdiction to execute the decree passed by the Munsif Court, Kotputli? 2. Whether the Munsif Court, Shahpura, could entertain the execution application without an order of transfer from the Munsif Court, Kotputli? 3. Whether the judgment-debtors had waived their objection to the jurisdiction of the Munsif Court, Shahpura?
Ratio Decidendi: 1. The Court held that the Munsif Court, Shahpura, had inherent jurisdiction to execute the decree because the judgment-debtors resided and had their properties within the local limits of its jurisdiction. The Court relied on the principle that a Court acquires inherent jurisdiction over the subject-matter when that subject-matter is transferred to it in the sense of a transfer of territorial jurisdiction. 2. The Court held that the Munsif Court, Shahpura, could entertain the execution application without an order of transfer from the Munsif Court, Kotputli, under Section 39 of the Civil Procedure Code. The Court found that this would be at worst an irregularity in the exercise of jurisdiction, but not a case of exercising jurisdiction by a court which had a total absence of it. 3. The Court found that the judgment-debtors had waived their objection to the jurisdiction of the Munsif Court, Shahpura, by not raising it in the first execution application.
Final Decision: The High Court allowed the appeal, set aside the order of the lower Court, and overruled the judgment-debtors' objection. The case was remanded to the Munsif Court, Shahpura, for taking further execution proceedings.
C. B. BHARGAVA, J.
( 1 ) THIS civil execution appeal raises an interesting and a ticklish question. Though sections 37, 38, 39 and 150 of the Code of Civil Procedure have been discussed in so many decisions, learned counsel for the parties have not been able to bring to my notice any decision which is directly applicable to the facts of the present case.
( 2 ) THE appellants-decree-holders, instituted a suit for recovery of money in the court of Munsif, Shahpura, within whose jurisdiction the cause of action arose and the defendants had their residence. It seems that because of the heavy work on the file of the Munsif, Shahpura, this suit was transferred for disposal by Order No. 1528 dated 26-7-1955 (see Order-sheet dated 8-8-1955 --Civil Suit No. 290 of 1954) of the District Judge, Jaipur District to the Court of Munsif at Kotputli where a decree was passed in favour of the appellants on 5th January, 1956. The appellants straightway levied execution in the Court of Munsif, Shahpura, praying for the attachment and sale of judgment-debtors shop and chobara and thereafter for the rateable distribution of the sale proceeds held by the Court in execution of their other decree. Notice of the execution application was issued to both Devi Sahai and Radhey Shyam, the judgment-debtors, which was served upon them by registered post, as will appear from the order-sheet dated 24-81957 and postal acknowledgment receipts Nos. 11a/3, 14a and 16a. The judgment-debtors did not put in appearance and on 12-9-1957 execution file was ordered to be kept for rateable distribution with the other execution case. Finally on 9-9-61 the execution petition was dismissed for non-prosecution. The decree-holders then filed a second execution application No. 553 of 1961 on 14-9-61 and sought recovery of the decretal amount by attachment and sale of the judgment-debtors immovable property. On 27-9-1961 Devi Sahai, judgment-debtor, preferred objection petition under Section 47, Civil Procedure Code, to the effect that the Munsif Court at Shahpura had no jurisdiction to execute the decree, because it was not the Court which had passed the decree or to which the decree had been transferred for execution. The execution court upheld the judgmentdebtors objection holding that without a certificate of transfer from the Munsif court Kotputli, which had passed the decree, it had no jurisdiction to entertain the applica-tion for execution. An appeal was preferred against the said order by the decree-holders in the Court of District Judge, Jaipur District, against Radhey shyam and the legal representatives of Devi Sahai, who in the meantime had died. The learned District Judge maintained the order of the executing Court. It is against this order that the present appeal has been directed.
( 3 ) LEARNED counsel for the appellant contends that though the Munsif Court, shahpura, was not the Court, which had passed the decree or to which it had been sent for execution, it had inherent jurisdiction to execute it, because the judgment-debtors had their residence as well as their movable aud immovable properties within its jurisdiction and it was the only Court which could effectively execute the decree. The Munsif Court at Kotputli might be the Court, which had passed the decree, it could not give any relief to the decree-holders except making an order of transfer of decree under Section 39, Civil Procedure Coda. Reliance was placed on Ramanna v. Nallaparaju, AIR 1956 SC 87, Moher Singh v. Kasturi ram, AIR 1962 Punj 394 (FB) and Balkrishanayya v. Linga Rao, AIR 1943 Mad 449. It is contended that at best the Munsif Court, Shahpura committed an irregularity in exercise of its jurisdiction in entertaining the execution application without an order of transfer from the Munsif Court, Kotputli. But the judgment-debtors have waived that objection, because in the first execution application in spite of service of notice upon them they did not raise such objection and the co
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