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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
Sri Krithika Finance Rep. by its Partner P. Kaliannan
Versus
R. Elangovan & Others
C.R.P. NPD No.276 of 2009
Decided On : 30-09-2009
(B)Code of Civil Procedure, 1908 (5 of 1908)-Sec.37, 39-Execution-Jurisdiction-Transfer of decree-District-Bifurcation of district-Transmission-When a territorial jurisdiction is transferred from one Court to another because of bifurcation, a decree passed by the original Court can be executed by the later Court only on its transfer by the original Court.
Without transfer of decree from the Court in which the suit was originally filed, to the Court to which subsequently the territorial jurisdiction was transferred, the execution could not be proceeded with in the latter court and that the transmission of decree to the latter court is sine-qua-non for execution of the same. But if in case, the judgment debtors have waived to raise objection as to the jurisdiction of the executing court to execute the decree at the earliest point of time, thereafter they cannot project such contention on a later point of time, which would disentitle them to get the benefits which accrued to them by virtue of absence of transfer of decree. Para 14
(C)Interpretation of statutes-Explanation-Scope-Explanation to a provision would not expand the meaning of the main provision.
The explanation has to be treated to have explained the terms and language contained in the substantial provision which does not introduce a new procedure to be adopted in deviation to the one contemplated in the said provision. A careful reading of the language of the explanation would not show that there was no need to transfer the decree from the original Court to executing Court for execution. Para 15
The petitioner is decree holder. He filed the suit in O.S.No.386 of 1991 on the file of the Sub-Court, Sankari against the defendants for recovery of money on 3. 1991. The said Court passed decree in favour of this petitioner. Afterwards Sankari Sub-Court was bifurcated and a part of territorial jurisdiction was vested with Sub-Court, Namakkal. In the said Court, this petitioner filed R.E.P.No.241 of 2004 for sale of the properties belonging to the respondents. Subsequently, the territorial jurisdiction came under the Sub-Court, Tiruchengode, where the said Execution Petition was transmitted and is pending in the said Court in R.E.P.No.21 of 2008.
2. Before the Executing Court viz., the Sub-Court, Tiruchengode, the respondents took a plea that without the decree being transferred or transmitted by the original Court viz., the Sub-Court, Sankari, which passed the decree, no execution proceedings could be taken in Tiruchengode Sub-Court. After hearing both sides, learned Sub-Judge, Tiruchengode, has dismissed the execution petition accepting the contentions of these respondents. Hence this petition.
3. Learned counsel for the petitioner Mr. P. Valliappan would submit that even though the earlier position was that without the decree being transmitted to the Executing Court, it cannot execute the decree in spite of the territorial jurisdiction vested with the original Court got bifurcated and presently by introduction of Explanation to section 37 of C.P.C., there is no necessity to get the decree transferred from the original Court to the latter court and even without such transfer the decree could be executed.
4. Conversely, Mrs. P.T. Asha, the learned counsel for the respondents would contend that as per the provisions in Section 37 and 39 of C.P.C., the decree should have been transferred from Sankari Sub-Court to Tiruchengode Sub-Court for execution and in the absence of such transfer the execution petition could not be maintained and that the impugned Order need not be interfered with.
5. In this context it is advantageous to extract Section 37 of C.P.C. with explanation:
"37. Definition of Court which passed a decree.
The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,—
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
Explanation:—The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit."
6. The learned counsel for the petitioner in support of his contention placed reliance upon a decision of the Karnataka High Court in AIR 1988 Karnataka 44 [Smt. Laxmi Nagappa Hgde v. The Karnataka Bank Ltd.,] in which it is held as under:
"In view of the Explanation to S.37 there would be two Courts which would come within the meaning of the words "the Court which passed the decree" in S.37. One would be the Court that actually passed the decree and the second would be the Court which has been established newly having jurisdiction over a part of the territory over which also the Court which actually passed decree had originally the jurisdiction. The new Court thus
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