1928 Supreme(Mad) 81

IN THE HIGH COURT OF MADRAS
Ramesam, J.
Subramanya Iyer
Versus
Swaminatha Chettiar And Anr.
Decided On : 17 February, 1928

Headnote:

The Court held that the first Court has not lost its jurisdiction to execute the decree even though it had lost territorial jurisdiction over the property. The Court also held that the second Court did not acquire jurisdiction to execute the decree in addition to the first Court by reason of Section 150 of the Code of Civil Procedure. The Court further held that the appellant is not precluded from raising the point of jurisdiction by reason of the matter being res judicata. The Court also held that Section 21 of the Code of Civil Procedure does not apply to execution proceedings.

Fact of the Case:

The facts of the case are that a suit was filed in the Subordinate Judge's Court of Negapatam for sale of mortgaged properties. The properties were situated in three schedules A, B and C. A and C schedule properties were situated in Pattukottai Taluq which was then within the jurisdiction of the Subordinate Court of Tanjore. B schedule properties were situated in Mannargudi Taluq which was then within the jurisdiction of the Subordinate Court of Negapatam. While the suit was pending, a Notification was issued by which the Districts of Tanjore was divided into two Districts-East Tanjore and West Tanjore. The jurisdictions of the Subordinate Courts were re-arranged and under this re-arrangement the Mannargudi Taluq also came within the jurisdiction of the Subordinate Court of Tanjore. Thus as a result of the Notification, all the properties were within the jurisdiction of the Subordinate Court of Tanjore and none within that of the Sub-Court of Negapatam. In spite of this, on the principle that a Court where a suit was originally rightly instituted continues to have jurisdiction over the suit even if the place where the cause of action arises ceases to be situate within its jurisdiction, the Sub-Court of Negapatam tried the suit and passed a preliminary decree in November, 1922. In the year 1923, there was a further Notification according to which Pattukottai Taluq was removed from the jurisdiction of the Sub-Court of Tanjore and was assigned to that of the District Court of East Tanjore, but Mannargudi continued to be within the jurisdiction of the Sub-Court of Tanjore. On the 6th February, 1924, a final decree was passed by the Sub-Court of Negapatam. The validity of the decree is not questioned before us, nor could it be questioned. The execution petition out of which the present appeal arises is E.P. No. 154 of 1926 filed in the Sub-Court of Tanjore by the Official Receiver of Tanjore representing the estate of Swaminatha Chetty who became an insolvent.

Finding of the Court:

The Court held that the first Court has not lost its jurisdiction to execute the decree even though it had lost territorial jurisdiction over the property. The Court also held that the second Court did not acquire jurisdiction to execute the decree in addition to the first Court by reason of Section 150 of the Code of Civil Procedure. The Court further held that the appellant is not precluded from raising the point of jurisdiction by reason of the matter being res judicata. The Court also held that Section 21 of the Code of Civil Procedure does not apply to execution proceedings.

Issues: 1. Whether the first Court has lost its jurisdiction to execute the decree even though it had lost territorial jurisdiction over the property? 2. Whether the second Court acquired jurisdiction to execute the decree in addition to the first Court by reason of Section 150 of the Code of Civil Procedure? 3. Whether the appellant is precluded from raising the point of jurisdiction by reason of the matter being res judicata? 4. Whether Section 21 of the Code of Civil Procedure applies to execution proceedings?

Ratio Decidendi: 1. The Court held that the first Court has not lost its jurisdiction to execute the decree even though it had lost territorial jurisdiction over the property because the expression "Court which passed the decree" is defined in Section 37 of the Code of Civil Procedure and the Sub-Court of Negapatam is not included in the expression the Court which passed the decree. 2. The Court held that the second Court did not acquire jurisdiction to execute the decree in addition to the first Court by reason of Section 150 of the Code of Civil Procedure because the words of Section 150 refer to cases where certain specified business has been actually transferred by the order of a competent Court and do not apply to any other cases. 3. The Court held that the appellant is not precluded from raising the point of jurisdiction by reason of the matter being res judicata because the irregularity amounts to a want of jurisdiction in the Sub Court of Tanjore and to a trespass upon the powers of the superior Court, namely, the District Court of Tanjore. 4. The Court held that Section 21 of the Code of Civil Procedure does not apply to execution proceedings because the section is not applicable to suits.

Final Decision: The appeal is allowed but in the circumstances without costs both here and in the lower Court.