Whether a Court which has jurisdiction to try the suit if instituted at the time of filing the E.P., has jurisdiction to execute the decree passed by other Court having jurisdiction to pass decree, when one area is shifted from territorial jurisdiction of later ourt to former Court

 

Andhra High Court

Pasala Suryachandra Rao vs Vatti Venkata Ranga Pardhasaradhi on 4 August, 1997

Equivalent citations: 1999(2)ALD179, 1999(2)ALT88

Author: V. Bhaskara Rao

Bench: V. Bhaskara Rao

1. An interesting question is raised in this Civil Revision Petition which arises out of an order in E.P. No.45 of 1989 in OS No.27 of 1976 on the file of Subordinate Judge, Tadepalligudem, dated 15-7-1996. The question is "whether the Court of Subordinate Judge at Tadepalligudem which has jurisdiction to try the suit if instituted at the time of filing the E.P., has jurisdiction to execute the decree in OS No.27 of 1976 passed by the Subordinate Judge at Kovvuru".

2. A few facts which are necessary for the disposal of the Civil Revision Petition are;

The revision petitioner filed a suit for specific performance in the Court of Sub-

Judge at Eluru and it was numbered as OS No.16 of 1972. Tadepalligudem Town was within the jurisdiction of Sub-Court Eluru at that time and the said suit was instituted in that Court. Subsequently it was transferred, on administrative grounds, to Sub-Court, Kovvuru, and renumbered as OS No.27 of 1976. The parties entered into a compromise and a compromise decree was accordingly passed on 20-12-1986 by the Sub-Court, Kowuru.

3. The Sub-Court at Tadepalligudem was constituted subsequent to the passing of the compromise decree. Tadepalligudem town which was within the teritorial jurisdiction of Sub-Court, Eluru, now falls within the teritorial jurisdiction of Sub-Court, Tadepatligudem.

4. The revision petitioner filed E.P. in Sub-Court, Kovvuru, but the same was returned to the revision petitioner for presentation in proper Court. Thereupon he presented the E.P. No.49 of 1989 in the Court of Subordinate Judge at Tadepalligudem.

5. The E.P. has been resisted by the respondent-judgment debtor by filing a counter. It is stated that the E.P. is barred by limitation. It is further averred that the execution of the sale-deed is conditional on the decree holder discharging all the debts of the judgment debtor, but the creditors filed suits against the judgment debtor and his firm and obtained decrees and they have not been discharged so far. It is also averred that the Sub-Court at Tadepalligudem has no jurisdiction to entertain the E.P.

6. The learned Subordinate Judge formulated the following question: "whether this Court has got jurisdiction to entertain the execution petition."

7. On a consideration of the rival contentions and perusing Sections 38 and 39 of Code of Civil Procedure (in short 'C.P.C.') it is held that the Court has no jurisdiction to entertain the execution petition. Hence this Civil Revision Petition.

8. A plain reading of the provisions in Part-II, Sections 36 to 42 C.P.C. would disclose that there have been several amendments to the relevant provisions by Amendment Act, 1976. The E.P. was presented on 13-12-1998 before the Court of Sub-Judge at Kowur and it was returned and thereafter it was represented. As on the date of presentation of E.P. the amendment has already come into force. Be it noted that the Amendment Act 1976 came into force on 1-2-1976. Learned Counsel for the revision petitioner contended that the learned Sub Judge has not noticed the amendment to Section 37 of C.P.C. whereunder an explanation has been added and there is no doubt that the learned Sub-Judge at Tadepalligudem has jurisdiction to entertain the E.P.

9. On the other hand learned Counsel for the respondent, Ms. Mamit Vam contended that the decree can be executed either by the original Court or by the Court to which the decree is transferred for execution and since the Sub-Court at Tadepalligudem does not fall under any one of the above category it has rightly rejected the execution petition on the ground of want of jurisdiction.

10. It would be convenient to extract Section 37 C.P.C. together with explanation which is added by the Amendment Act, 1976 for proper appreciation of the above contentions.

"37. 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 ihe 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."

11. The two Courts that fall within the ambit of the explanation are Sub-Judge's Court at Kowuru which is otherwise known as Court of first instance, namely, the Court which passed the decree and the other Court is a Court which has teritorial jurisdiction over the area as on the dale of filing of the execution petition. Smt. Mamu Vani tried to interpret this explanation and referred the Court of first instance as the Subordinate Judge's Court at Eluru which originally had teritorial jurisdiction over Tadepalligudem. 1 am unable to agree with her for the simple reason that it is immaterial that the area has been transferred to the Court of Subordinate Judge at Tadepalligudem. There is no dispute that the property which is the subject matter of OS No.27 of 1976 is situated at Tadepalligudem and it is the Subordinate Judge's Court at Tadepalligudem that has territorial jurisdiction over that area. If the second limb of the explanation commencing from "but in every such case" is construed in the above manner, the criterion for territorial jurisdiction is whether the Sub-Court at Tadepalligudem has jurisdiction at the time of making the execution petition. The stress is on the words "at the time of making the application for execution". In my view the Sub-Court at Eluru is not at all in the picture Tor the purpose of explanation. Only two Courts are contemplated and they are Sub-Court at Kovvuru which passed the decree and the Sub-Court at Tadepalligudem which has territorial jurisdiction over the subject matter of the suit. It is amply clear from the explanation that the execution petition can be filed in either of the two Courts. The revision petitioner has rightly filed E.P. in the Court of Subordinate Judge at Kovvuru in the first instance and when that Court returned it for presentation to the proper Court, he filed before the Sub-Court at Tadepailigudem. A reading of the impugned order shows that the learned Sub-Judge did not notice Section 37 C.P.C. at all. On the contrary he considered the scope of Sections 38 and 39 C.P.C. which are not relevant for the purpose of deciding the above question. Therefore, the learned Subordinate Judge appears to have fallen into error in holding that the Court has no jurisdiction. The case law that is cited before him relates to pre-amended position and not subsequent to the amendment of C.P.C. Viewing from any angle I am satisfied that the order under revision is not sustainable. I am of the considered view that the Sub-Court at Tadepalligudem has jurisdiction to entertain the execution petition in addition to the Sub-Court at Kovvuru, which passed the decree.

12. For these reasons I hold that the Sub-Court at Tadepalligudem has jurisdiction to entertain the E.P. The civil revision petition is therefore allowed and the impugned order is set aside and the learned Subordinate Judge at Tadepalligudem is directed to take up E.P. No.45 of 1989 from the stage where it was dismissed by the impugned order and to dispose of the same in accordance with law. The parties will bear their own costs.