JATHAVEDAN NAMBOODIRIPAD Vs. CHANDRASEKHARAN NAIR

JUDGEMENT

(1.) The appellant obtained a decree in the court of the Munsiff at Trivandrum charged on immovable properties. On a readjustment of territorial jurisdiction of courts after the passing of the decree, item 12 of the properties under the decree, to which alone this appeal relates, came within the jurisdiction of the court of the Munsiff at Nedumangad. The decree was therefore transferred for execution to that court. Subsequently, on another such readjustment, the property was restored to the jurisdiction of the Munsiff at Trivandrum. This notwithstanding, the proceedings in execution continued in the Nedumanged court and culminated in a sale of the property on the 27th August, 1955, which was duly confirmed on the 9th February, 1957. The execution proceedings were then retransferred to the Trivandrum court, where an application was made by the appellant for delivery of possession. This was resisted by the respondent, who is a transferee of the property pendente lite, on the ground that the sale was void as the Nedumangad court had no territorial jurisdiction over the property at the time. This contention though repelled by the Munsiff at Trivandrum, was accepted by the Additional District Judge on appeal. The question for consideration in second appeal is whether the sale in execution was held without jurisdiction.

(2.) It is a fundamental rule, that "no court can execute a decree in which the subject matter of the suit or of the application for execution is property situate 'entirely' outside the local limits of its jurisdiction". See Mulla on Civil Procedure Code, 12th edition, page 164. To this rule, there is a well recognised exception in the case of mortgage decrees or decrees charged upon property. One of the early cases in which it found recognition is Maseyk v. Steel and Co. ILR 14 Calcutta 661 at pp. 668, & 669, in which Patheram, C. J. stated the principle thus:

(3.) The rule of jurisdiction for institution of suits is enacted in S.17, CPC., the relevant part reading,