THYAMPU SHETTY Vs. A KOTI SHETTY

JUDGEMENT

(1.) Appellants are judgment-debtors 1 to 5. Respondents 1 to 5 and 13 are the decree-holders and their legal representatives. Respondents 14 to, 19 are the legal representatives of the deceased first appellant. Respondents 20 to 27 are the legal representatives of the deceased third appellant. The, main question to be decided in this appeal. is whether the Munsiff's Cqurt at Karkala has jurisdiction to deal with the, execution petition No.REP.13/64, which is pending on its file. If it has no jurisdicion to, entertain the execution petition, then the execution will be barred by limitation. The decree holders obtained a, money decree on 22-11-1956 towards their share of the mesne; profits in a partition suit in the Court of the Subordinate, Judge at Mangalore,. The execution pqtition No.REP.13/64 was filed in the Court which parsed the decree on 14-1-1964. The prayer in the execution petition was for attachment and sale, of immovable properties, i.e, the lands situate in Aikala, village. Aikala, village was within the territorial jurisdiction qf the Subordinate, Judge,s Court, Mangalore. A new Subordinate Judge's Court was created in 1961 for Udipi. Aikala, village was transferred to the territorial jurisdiction of the, Sub-Court at Udipi, with effect from 2-1-1964 under a Notification dt.31-12-1963. The, judgment-debtors raised objection as to the jurisdiction of the, Court to entertain the, execution application. The Subqrdinate Judge's Court, Mangalore, became the Court of the Civil Judge on. 1-7-1964 under the provisions qf the Mysore Civil Courts Act, 1964. The Civil Judge, Mangalore, passed an order on 4-1-1967 holding that he had no jurisdiction to entertain the execution application and directed the decree-holders to take steps to, get the execution petition transferred tq the Court of the Civil Judge, Udipi. The decree-holders filed a review petition on 2-2-1967 against the order of 4-1-1967, but it was dismissed on 11-3-1968. The Civil Judge, Mangalore, addressed a letter to the District Judge; Mangalore seeking directions as to whether he could proceed with the execution petition after the coming into force of the Mysore Civil Courts Act, 1964. The District Judge, Mangalore passed an order on 24-9-1968 withdrawing the execution case from the Court of the Civil Judge, Mangalore and transferred the same to the, Court of the Munsiff, Karkala,. Though the provision under which this order was passed was not stated in the order it is presumably because the learned District Judge thought that under S.29(2) (a) of the Mysore Civil Courts Act, 1964 (hereinafter referred to as the 'Act') the execution proceeding stood transferred to the Court of the Munsiff, Karkala,. This order of transfer was passed on 25-9-1968.

(2.) It is contended by Mr. H. G. Hande, learned Counsel appearing on behalf of the appellants, that the order of 4-1-1967 passed by the Civil Judge, Mangalore, had the effect qf transferring the execution proceeding to the Court of the Civil Judge, Udipi; that there was nq proceeding pending in the Mangailore Court for being transferred from that Court and that therefore the provisions of S.29 (2) (a) of the Act do not apply. In Ramchandra v. Krishna Lal, ILR.(1) Patna 328. the decree-holder filed an application to the Court which passed the decree for transfer of the decree to another Court fqr execution That application was allowed but the copy of the decree was never sent to the transferee Court. The decree-holder did not carry out the order which he had obtained and the, decree was never in fact sent. It was held that the Court which passed the decree had jurisdiction to entertain an execution application filed thereafter. Hence, this contention has to be rejected because the order of 4-1-1967, though it held that the Civil Judge, Mangalore, had no jurisdiction to entertain the execution petition, only directed the decree-holder to take the necessary steps to, get the decree transferred to the Court of the Civil Judge, Udipi and the decree was not in fact transferred. 2A. Mr. Hande relied on the decision in Prasanna. Kumar v. Hajarbee, (1970) 2 An.L.T. 17. in which it has been held that under S.39 CPC., It is only the decree, which can be transferred and not an execution proceeding. He also relied on the decision in Gowrammal v. Lingappa Gowder, AIR. 1968 Mad. 99. wherein it has been held that under S.39 CPC a money decree requires to be transferred to the Court in which the execution is sought to be proceeded with. He also relied on the decision in Jugal Charan Mondal v. Pankajini Dasi, AIR. 1961 Cal. 183. wherein it has been held that the jurisdiction of the Court which passed the decree is only to entertain the application for execution for purposes of transferring the decree to the Court which has territorial jurisdiction to execute the decree and that it has no power to further execute the decree. Hia contention is that since the properties which are sought to be attached by the decree-holder were outside the territorial jurisdiction of the Court which passed the decree, it had no jurisdiction to proceed with the execution.

(3.) On behalf of the respondents, reliance was placed on the decision in Channabasavaradhya v. Rangamma, (1964) Mys.L.J. Supp. 102, in which it has been held that under S.15 of the Mysore Civil Courts Act (Amendment Act 23 of 1955), when an execution proceeding stands statutorily transferred to another Court, it must be deemed that the decree is also transferred from the Court which passed the decree to the Court tq which the execution proceeding stands so transferred. S.15 of the Mysore Civil Courts Act (Amendment Act 23 of 1955) (old Act), reads as follows : " Every suit, appeal or other civil proceeding instituted or filed prior to. and pending on the date of the commencement of this Act shall by virtue of this Act stand transferred tq and be disposed of by the Court having jurisdiction in respect of such suit, appeal or proceeding under the principal Act as amended by this Act." The wording of S.15 of the Mysore Civil Courts Act (Amendment Act 23 of 1955) (old Act) is similar to that qf S.29(2) (a) qf the Act. Hence, it must be held in the, present case that the. decree must be deemed, to have been transferred from the, Court of the Civil Judge, Mangalore, to the Court of the Munsiff, Karkala, by virtue of the prqvisions of S.29(2) (a) of the Act.