MADHAVAN NAIR Vs. KALIAPPA NAIDU

JUDGEMENT

(1.) THIS Second Appeal is by the decree-holder in O. S. No. 577 of 1952 on the file of the Munsiff, Trichur. The matter arises in execution.

(2.) THE decree is in ejectment from a piece of immovable property situate within the jurisdiction of the Munsiff, Wadakanchery. THE suit was originally instituted in the court of the Munsiff, Wadakkanchery, as O. S. No. 643 of 1950, but was subsequently transferred under S. 24 of the Code of civil Procedure to the Munsiff, Trichur, for trial and disposal. Accordingly the decree came to be passed by the Munsiff, Trichur. Execution was moved by the decree-holder in the latter Court which on 2-4-1957 ordered delivery of possession of the property. THE warrant was issued to an Amin attached to the Munsiff 's Court, wadakkanchery, and executed by him, who effected delivery on 3-4-1957 and submitted his report to the Munsiff, Trichur. THE court having closed for mid-summer recess on 8-4-1957, an application was moved by the judgment-debtor, defendant, on 20-5-1957, the day of reopening, for cancellation of the delivery proceedings and for redelivery of the property to him on the ground that the Munsiff, trichur, had no jurisdiction to execute the decree in respect of a property wholly situate within the jurisdiction of the Munsiff, Wadakkanchery. Both the courts below found that the delivery ordered by the Munsiff, Trichur was without jurisdiction and therefore ordered redelivery of the property to the judgment-debtor. Hence this Second Appeal by the decree-holder.

(3.) COUNSEL for the judgment-debtor contends that S. 38 has to be read subject to S. 39 and therefore if the decree directs delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it, the decree has necessarily to be sent for execution under S. 39 to the Court within whose jurisdiction the concerned property lies and the court which passed the decree has no jurisdiction to execute the same, or to order delivery in particular.