NARAYANAMOORTHY KONAR Vs. VISWANATHAN

JUDGEMENT

(1.) WHEN this civil revision petition was heard by one of us, it was referred to a Division Bench as it involved a question of interpretation of S. 106, Code of Civil Procedure, and S. 13 of the Kerala Civil courts Act.

(2.) THE facts necessary for the decision of the petition may be stated: In execution of the decree in O. S. No. 163 of 1120 of the district Court of Trivandrum, the property of the judgment-debtor was sold for rs. 12,000 on 24th Karkatakom 1121. THE judgment-debtor applied for setting aside the sale under O. XXI, R. 87, Code of Civil Procedure (Travancore)corresponding to O. XXI, R. 90 of the Indian Code. THE application was dismissed by the execution court, but on appeal, the order was set aside by the High court and the matter was remanded for fresh disposal. After remand, the district Court passed an order allowing the application. This was set aside by the High Court on the ground that the second plaintiff's legal representatives were not impleaded. THE application was again remanded to the District Court. THE application was thereafter transferred by the District Judge to the subordinate Judge of Trivandrum who allowed the application. An appeal was preferred by the decree-holders to the District Court. A preliminary objection was raised before the Additional District Judge, who heard the case, that he had no jurisdiction to hear it and that an appeal would lie only to the High Court, as the decree in the suit was one passed by the District Court. This was overruled, and on the merits it was held that the sale was not liable to be set aside. THE legal representatives of the second defendant have therefore preferred this civil revision petition.

(3.) WE may in this connection refer to a decision of madhavan Nair, J. , in M. R. M. Sons v. Union of India 1960 KLT. 1327 That was a case in which the suit was originally instituted in the District Court but was transferred to the Munsiff's Court when the Munsiffs became competent to try such suits. The decree in the suit was passed by the Munsiff and an appeal was preferred in the District Court which returned the same for presentation to this Court. The question as to whether the District Court or the High Court should entertain the appeal came up for decision, and Madhavan Nair, J. , held that the forum for appeal was to be decided with reference to the court which decided the suit or proceeding, notwithstanding the fact that the suit or proceeding was originally instituted in a court of higher jurisdiction. The word "instituted" in S. 13 (2) of the Kerala Civil Courts Act was held to mean either instituted originally or by transfer. The incongruity of holding otherwise has also been pointed out in the decision. WE are in complete agreement with this view. The word "original" which qualifies "decrees and orders" in S. 13 (2) means decrees and orders passed in the exercise of original jurisdiction as distinguished from those passed in appeal. The order by the Subordinate Judge in this case falls under the former category and as a result of the amending Act, 12 of 1959, the appeal was rightly filed in the District Court. The objection raised by the petitioners is therefore not sustainable.