KUNHAVULLA MUSSALIAR Vs. MOHAMED MUSSALIAR

JUDGEMENT

(1.) The respondent obtained a decree for partition of certain properties with mesne profits as per O.S. No. 1205 of 1959 of the Payyoil Munsiff's Court After the passing of the final decree E.A. No. 545 of 1969 was filed by the respondent for transmission of the decree to the Munsiff's Court, Nadapuram for the purpose of execution. Thereafter the respondent filed E.P. No. 41 of 1970 which was stayed under Act 11 of 1970 and was finally disposed of as closed as 2-9-1970. E.P.No. 33 of 1971 which was filed thereafter was dismissed on 21-1-1972. After the dismissal E.P. No. 107 of 1973 was filed for realisation of the profits of the property due to the respondent from the appellant The amount claimed under the execution petition was Rs. 5046.44 towards profits and Rs. 101/- towards execution costs, making a total of Rs. 5147/-. When notice was issued to the appellant on draft proclamation, objection was raised on the ground that the amount shown in the execution petition was incorrect The objection was overruled and the petition was posted for settlement of sale proclamation to 15-10-1973. The appellant took the matter in appeal In the appellate court objection was raised on the ground that the transmission of decree by the Payyoli Court to the Nadapuram Court was irregular and that the Nadapuram Court had no jurisdiction to entertain the execution petition. The contention was that the amount sought to be realised in the execution petition was above the pecuniary jurisdiction of the Nadapuram Munsiff's Court and as such that court was incompetent to execute the decree. The objection however, was overruled by the appellate court and the appeal was dismissed.

(2.) In the second appeal the only point raised is with regard to the jurisdiction of the Nadapuram Munsiff's Court to execute the decree. The argument is that the amount sought to he realised in the execution petition being above the pecuniary jurisdiction of the Munsiff's Court, the decree should not have been transferred to the Nadapuram Munsiff's Court. The court competent to execute the decree was the Munsiff's Court, Payyoli which passed the decree and the courts superior thereto.

(3.) S.38 of the Civil Procedure Code states that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. S.39(1) provides that the court which passed a decree may, on the application by the decree holder send it for execution to another court if the person or property sought to be proceeded against is within the jurisdiction of the latter court or for other appropriate reasons. Sub-section (2) of S.39 states that the court which passed a decree may, of its own motion send it for execution to any subordinate court of competent jurisdiction. There is difference of opinion among the High Courts as to the competency of the transferee court to execute a decree when the amount sought to be realised is above its pecuniary jurisdiction. The Madras High Court has taken the view that a decree can be transferred under S.39(1) to another court for execution even though the amount or value of the decree exceeds the pecuniary jurisdiction of such court. Some of the other High Courts have expressed the view that S.39(1) is controlled by S.6 and a decree cannot be transferred under sub-section (1) if the amount or value of the decree exceeds its pecuniary jurisdiction. The High Courts of Calcutta and Patna bold that the value of the suit in which the decree is passed should be within the pecuniary limits of the jurisdiction of the court to which the decree is proposed to be sent. In the case Chandravathy Amma v. Erumullan ( 1966 KLT 600 ) the Kerala High Court followed the decision in Jagannatha v. Appalaswamy ( AIR 1914 Mad. 206 (1)) and held that in the case of the transfer of a decree on the application of the decree holder the court which passed it may transfer it to any other court irrespective of its pecuniary jurisdiction. The appellant would say that the above decision requires reconsideration. It is also contended that equality in the pecuniary jurisdiction of the transferee court is not sufficient to confer jurisdiction on that court to execute a decree where the amount sought to be executed is beyond its pecuniary limits.