ABRAHAM Vs. KAILOOR DESIGA BANK LTD

JUDGEMENT

(1.) The 1st defendant has preferred this appeal against the lower courts order rejecting his plea that the execution petition filed on 18.10.1121 is barred by limitation. The decree holder contended that the present execution petition having been filed within three years of the prior execution petition which had not also been judicially disposed of, is in time. The objection of the 1st defendant is mainly based on the fact that the prior execution petition was filed in the Thiruvalla Munsiffs Court to which court the decree which had been passed by the Changanacherry Munsiffs Court, had not been transferred for execution, by the latter court. Normally a decree can be executed only by the court which passed the decree or by the court to which the decree has been transferred for execution. But no such special transfer is necessary where there has been a territorial transfer of the jurisdiction of the court which passed the decree to another court. This is obvious from the definition given in S.34 of the Travancore Civil Procedure Code to the expression Court which passed the decree. It is clear from Cl. (b) of that section that where the court of first instance has ceased to exist or to have jurisdiction to execute the decree, the court which would have jurisdiction to try the suit can execute the decree. By the transfer of territorial jurisdiction from one court to another, all the powers of the first court are automatically transferred to the transferee court. The provisions of S.114 (Travancore C.P.C.) are mandatory in this respect. It is laid down in that section that where the business of any court is transferred to any other court, the latter court shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under the Code upon the court from which the business is so transferred. When a portion of the territorial jurisdiction of the Changanacherry Munsiffs Court was transferred to the Thiruvella Munsiffs Court the business of the Changanacherry Munsiffs Court, pertaining to such territorial jurisdiction has become transferred to the Thiruvalla Munsiffs Court. The defendant in the case resides within such territorial limits and hence it is the Thiruvella Munsiffs Court which could pass a decree against him or execute the decree which had already been passed against him. It is seen that the execution petition prior to the present one was passed in the Thiruvella Munsiffs Court which had jurisdiction to entertain that execution petition and to execute it. It was filed within time and it was dismissed without notice to the decree holder and for the simple reason that the records had not been received in that Court. It was no judicial disposal. The present E.P. could therefore be treated as a revival and continuation of the prior execution petition. Since the records have now been received in the Thiruvella Munsiffs Court, it can go on with the execution of the decree. There is no bar of limitation.