Govinda Menon, J.-In these appeals, a question of some importance regarding the forum of appeal in certain cases, has been raised and though on innumerable occasions such appeals had been entertained by the lower appellate Courts (District Courts) there has, so far been no reported decision of this Court that has been brought to our notice, which justifies such a practice. The learned District Judge himself was of opinion that before proceeding with the merits and deciding the rights of the parties, it would be desirable to have an authoritative pronouncement regarding the jurisdiction of his Court to entertain the appeals.

In C.S. No. 100 of 1945 on the file of the Original Side of this Court, a decree for a large sum of money was passed against the defendants therein. It is unnecessary to recount the various proceedings that had taken place in the execution of that decree in this Court. Suffice it to say that after certain properties charged under the decree were sold there was a balance of Rs. 741-7-0 due as costs of the sale taxed in favour of the appellant. The High Court, on 7th April, 1949, transmitted for execution to the Court of the District Munsif, Ranipet, the decree of this Court relating to the sum of Rs. 741-7-0. In E.P. No. 177 of 1949, the District Munsif of Ranipet attached and brought to sale certain properties belonging to the judgment-debtors, the attachment having been ordered on 21st April, 1949, and effected on 23rd April, 1949 by E.A. No. 240 of 1950, defendants 2 and 3 applied to the District Munsif to dismiss E.P. No. 177 of 1949 on the ground that as the amount sought to be recovered by attachment and sale of the properties related to costs taxed against the defendants, execution could be taken only against the properties charged and not against the other properties of the judgment-debtors. The decree-holder petitioner contended that as the order was in the nature of a decree, the executing Court cannot question the validity or the executability of such an order and since costs are always treated as a personal liability of the judgment-debtor there is no bar to attaching the properties for recovering the amount of costs. The learned District Munsif upheld the contention of the judgment-debtors in E.A. No. 240 of 1950 and dismissed E.P. No. 177 of 1949. Against the dismissal of E.P. No. 177 of 1949 and the allowance of E.A. No. 240 of 1950 appeals were filed before the District Judge, North Arcot at Vellore and when the appeals came on for hearing objection was taken by the judgment-debtors that the Court was not competent to entertain appeals for the reason that since the suit was for over Rs. 5000, the appeal lay directly to the High Court and not the District Court. The learned District Judge after considering the decision in Muthuswami Pillai v. Chidambaram Chetti1, and section 13 of the Madras Civil Courts Act (III of 1873) upheld the objection not without hesitation and directed the return of the memoranda of appeal for presentation to proper Court. C.M.A. No. 80 of 1952 is against the order in the appeal preferred against the order in E.A. No. 240 of 1950 and C.M.A. No. 219 of 1952 is against the order in the connected appeal.

The question for consideration is whether the appeals lie to the High Court or to the District Court. There can be, no doubt, whatever, that the transmission of the decree of this Court to the District Munsif’s Court, Ranipet, was under Order 19, rule 2 of the Original Side Rules, Madras. Rule 2 runs thus:

“An application under section 39 of the Code of Civil Procedure to transmit a decree or order to another Court for execution shall be by verified application in Form 29 with such variations as circumstances may require and shall be supported by affidavit clearly stating the particulars mentioned in clauses (a),(b),(c) or (d) of the section; and shall be accompanied by a certified copy of the decree or order.”

Cause title in Form No. 29 (Order 29, rule 2) is as follows: App

Click Here to Read the rest of this document