JOSEPH ANNAMMA Vs. PYLO CHACKO

JUDGEMENT

(1.) The question raised in this revision is a simple one. Is the court which is to transmit a decree to another court for the purposes of execution, competent to decide whether the judgment debtor is entitled to the benefits under Act 17 of 1977

(2.) The facts are these:- A decree for money has been passed by the Munsiff's Court, Palai on 28-6-1966 and allowed the judgment debtor to realise the same by sale of the decree schedule properties. During the time when the decree was passed, the properties described in the decree were situated within the local limits of the jurisdiction of the Munsiff's Court, Palai. Subsequently the areas comprising of those properties have been annexed to the jurisdiction of the Munsiff's Court, Ettumannur. On 9-12-1974, the decree holder has filed E.P.No. 153 of 1974 before the Munsiff's Court, Palai with a specific prayer that the decree may be transmitted to the Munsiff's Court, Ettumannur for execution. The judgment debtor contended in that E.P. that he is entitled to the benefits of Act 11 of 1970. After recording some payments made in the said execution proceedings, it is seen that E.P.No. 153/1974 stood dismissed on 10-2-1977 as "no step taken; E.P. dismissed". Subsequently on 17-12-1980, the decree holder has filed the present E.P. before the Munsiff's Court, Palai with two specific prayers. The first is that the decree and certificate may be sent to the Munsiff's Court, Ettumannur for the purpose of execution and the second is that the order dismissing the earlier O.P. dated 10-2-1977 may be treated as a ministerial order. The judgment debtor who opposed that E.P. has contended in his counter, inter alia, that he is a "debtor" and the decree debt is a "debt" coming within the purview of Act 17 of 1977 and hence the entire decree debt should be deemed to have been discharged by virtue of S.3 of the said Act. The second contention is that the execution is barred by limitation. During the pendency of the said E.P. in the Munsiff's Court, Palai, the judgment debtor had filed E A. No. 110 of 1981 for the issue of a Commission to inspect the properties mentioned therein in order to assess the net income derivable from those properties. As no objection was filed by the decree holder, the said E.A. was allowed on 18-6-1981 and the judgment debtor was required to deposit the commission bata of Rs. 150/-. On 19-6-1981, the decree holder has filed an application for review of the earlier order appointing the Commissioner. The learned Munsiff has dismissed the said petition on 16-7-1981. This revision is filed against that order.

(3.) The learned counsel for the petitioner contends that when a petition is filed for transfer of the decree to another court for the purpose of execution, the function of the transferor court is not to embark upon an enquiry into the different contentions or claims raised by the judgment debtor and instead those disputes should be relegated to be gone into by the transferee court. S.39 of the Civil Procedure Code provides for the transfer of decrees by the court which passed the decree to the court where the immovable properties sought to be sold are situated. O.21 R.6 of the Civil Procedure Code deals with the procedure for transferring the decree as aforesaid. That rule is quoted:-