Maintainability of application for execution.

This Civil Miscellaneous Second Appeal comes before us at re instance of our brother, Venkatadri, J. The respondent-decree-holder obtained a money decree on 22nd June 1953, against the appellant in O.S. No. 208 of 1952 on the file of the District Munsiff’s Court, Krishnagiri. It is common ground that in 1959, a certain area was carve out of the territorial jurisdiction of the Krishnagin Munsif’s Court and a separate Court of District Munsif with jurisdiction over that area was established at Hosur The decree-holder sought to proceed in execution of the decree by attachment an amount lying to the credit of the judgment-debtor in the Estates Abolition Tribunal Court, Salem. This petition was rejected on the ground that the Court which passed the decree, District Munsif’s Court, Krishnagin, had not transmitted the decree to the Court of the District Munsif of Hosur, wherein it was sought to be executed. The decree-holder appealed. The learned Additional District Judge, relying upon the decision of the Supreme Court in Ramanna v. Nallappa Raju1 , thought that the District Munsif’s Court, Hosur, should be considered to be the Court which passed the decree, and in that view set aside the order of the lower Court and held the execution petition filed by the decree-holder in the District Munsif’s Court, Hosur, to be maintainable and directed its disposal on merits It may be mentioned here that on behalf of the decree-holder, it was also urged before the lower appellate Court that on a prior occasion, an execution petition had been filed in the District Munsif’s Court, Hosur, to the maintainability of which no objection was taken by the judgment-debtor, and that the judgment-debtor should be deemed to have waived the objection to jurisdiction. But this point was not specifically dealt with by the lower Court.

This Second Appeal by the judgment-debtor challenges the correctness of the view taken by the lower appellate Court.

When the matter was heard by Venkatadri, J., a decision of the Full Bench of this Court in Rama Iyer v. Muthukrishna2 , was brought to his notice and it was urged that was weighty authority for the view that the execution petition was not maintainable, in the District Munsif’s Court of Hosur without there being an order of the decreeing Court, the District Munsif’s Court, Krishnagiri, transmitting the decree to the former Court, for execution. As against this, the decision of the Supreme Court already referred to was relied upon, wherein the correctness of the Full Bench view of this Court was not subjected to examination. But it was pointed out there that where a Court which has jurisdiction over the subject-matter, when the execution application is presented entertains it without an order of transfer from the decreeing Court, it would at the worst be only an irregular assumption of jurisdiction and not a total absence of jurisdiction and that if objection was not taken at the earliest stage, it should be deemed to have been waived. After considering these and a few other cases, Venkatadri, J., thought that there was a conflict of decision which required the matter to be heard by a Bench.

The short question is whether in the circumstances of the case, the execution petition could be directly filed in the Court of the District Munsif of Hosur without an order transmitting the decree by the executing Court, that is, the District Munsif’s Court of Krishnagiri.

We may at this stage refer to the provisions of the Code relating to execution Section 38, Civil Procedure Code, provides that the decree may be executed by one of two Courts, the Court which passed the decree or the Court to which it is sent for execution. Obviously, a Court which does not possess either character cannot execute the decree. Section 39 provides that the Court which passed thedecree may send it to another Court for execution in certain cases. The normal venue for the execution of the decree is the Court which passed the decree, and th