P.J. ABRAHAM KATHANAR Vs. P.G. YOHANNAN

JUDGEMENT

(1.) This execution petition has been filed seeking to execute the decree in O.S. No. 172/1977 of the First Additional District & Sessions (Special) Court, Ernakulam. In fact, the appeal against the aforesaid judgment was considered by this Court as A.S. No. 31/1978 along with a batch of appeals as well as original proceedings. The matter was carried in appeal before the Apex Court in Civil Appeal Nos.6070 and 6071 to 6074 of 1995 and certain modification has been made by the Apex Court. When an execution petition was filed before the District Court, based on the judgment in Philip vs. Fr.Zacharia 2009 (1) KLT 375 it was held that the said Court has no jurisdiction in the matter. There is no dispute about the fact that even if a decree is passed by the Supreme Court, forum of execution is the trial court which has passed the original decree. In this case, the decree was passed by the District Court and therefore under the normal circumstances, the decree has to be executed by the District Court itself.

(2.) But, it appears that in Philip (supra), the learned Single Judge considered the matter and observed that when a decree had been passed by the High Court, the execution petition will have to be filed before the High Court itself since there is a merger of the decree of the Supreme Court. But, it appears that in Philip (supra), O.S. No. 1/1999 was disposed of by the learned Single Judge of this Court as per judgment dated 06/06/1980 and an appeal was filed before the Division Bench as A.S. No. 359/1980 and thereafter the matter was carried in appeal before the Supreme Court. The facts in Philip (supra) is totally different from the facts involved in the present case. In Philip (supra), the decree was passed by the High Court exercising original jurisdiction and therefore execution petition ought to be filed only before the High Court. Philip (supra) has no application to the case on hand, when the decree has been passed by the District Court.

(3.) Learned senior counsel appearing for the petitioner submits that the execution petition may be transmitted to the District Court for further execution. Taking into account the fact that the matter is pending for quite a long time, it is appropriate that records in the execution petition is transmitted to the 1st Additional District Court, Ernakulam where it can be taken on file and further execution proceedings can be taken.