THOMAS ABRAHAM Vs. MURALEEDHARAN NAIR

JUDGEMENT

(1.) Defendant in O.S. No. 458/90 before the Court of the Prl. Sub-Judge, Kottayam and the petitioner in I.A. 2906/92 is the appellant. The suit was filed by the respondent herein for money due under a promissory note. The appellant after entering appearance in the suit filed his written statement denying the execution of the promissory note. When the suit came up for trial in the special list on 8.7.1992, the defendant was not present and the suit was decreed ex parte on 14.7.1992. I.A. No. 2906/92 was filed under Order IX Rule 13 of the Code of Civil Procedure by the defendant for setting aside the ex parte decree. It was posted to 2.9.1994. It was then adjourned to 30.2.1992, 5.12.1992 and 6.2.1993. Thereafter on 16.9.1993 objection was filed. It was adjourned to 6.11.1993 and then to 5.1.1994 for evidence. The petition was being adjourned from time to time and it was posted to 2.9.1994. On that day, the petitioner was not present. The Court below dismissed the petition recording that the petitioner is not present and no evidence was adduced. The above order is under challenge in this appeal.

(2.) The main contention taken by the appellant is that I.A. No. 2906/92 should not have been taken up by the Kottayam Sub Court for final disposal, since Palai Sub Court had come into existence on 19.2.1994 and the jurisdiction to try the suit was with Palai Sub Court. The cause of action arises within the territorial limit of that Court. The learned Counsel for the appellant submitted that when the Palai Sub Court came into existence then the case before the Kottayam Sub Court which would come within the territorial jurisdiction of Palai Sub Court should go to the Palai Sub Court. This is the effect of Section 150 of the Code of Civil Procedure. The only requirement is an amendment to the Civil Court Act. No further orders are necessary for transferring the cases to the new Court. In support of his contention reliance was placed by him on a decision of this Court in Achuthan & Ors. v. Karthiyayani Amma. In the above case the suit was originally in the District Court of Ernakulam and an order appointing a Receiver was made during the trial of the suit by the same Court. Subsequently, with the establishment of a Court of Subordinate Judge at Cochin, whose jurisdiction covered the property involved in the suit, the entire cases was transferred to that Court. The plaintiff had filed CM.P. No. 1911/50 to call upon the Receiver and his surety to make a deposit of Rs. 600/- as the income of the property under his management. This petition was also transferred to the Subordinate Judge of Cochin along with the case. The contention was that the Court of the Subordinate Judge of Cochin has no jurisdiction to pass order in the above mentioned CMP. The above contention raised by the Receiver was rejected by this Court holding that the transfer of the case from the District Court at Ernakulam to the newly established Court of Subordinate Judge at Cochin amounts to a "transfer of business ; of the Court within the meaning of Section 150 of the CPC and therefore, the tranferee Court got all the powers of transferrer Court, inclusive of the power to enforce the obligations of the receiver appointed in the case. The objection as to jurisdiction of the Subordinate Judge was rejected.

(3.) We find it difficult to accept the above contention raised by the learned Counsel for the appellant. The facts of the case in the decision in AIR 1962 Ker 105 are entirely different. A Full Bench of this Court had occasion to consider the scope of Section 150 of the CPC in Packianathan Nadar Maryarul Nadar v. Mathevan Pillai Nanu Pillai. It was observed that the expression 'where the business of any court is transferred to any other Court' occurring in Section 150, CPC does not refer to the transfer of work brought about by the mere change of local jurisdiction but to the transfer of work brought about by other causes. Such transfer of work may be effected by specific or general orders of competent authorities or by legislation. There may also be specific directions for transfer of all or particular classes of business in the notification effecting the change of local jurisdiction. Section 150 of the CPC cannot be invoked for the purpose of enabling transferee Court to get jurisdiction in respect of the pending and past business without express or implied transfer. In Kunhalan Kutty v. Pathumma & Ors3, it was observed by learned single Judge of this Court that a mere transfer of jurisdiction over certain properties of a court to another court will not be a transfer of business within the meaning of Section 150 CPC. On the other hand, if a particular Court is abolished and the territorial jurisdiction of that court is transferred to either one Court or to different courts there will be a transfer of business of that court within the meaning of Section 150 CPC. In Merla Rarnanna v. Nallaparaju & Ors., it was held that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another court. The above decision was followed by this Court in Jathauedan Namboodiripad v. Chandrasekharan Nair. In the light of the above legal position we have no hesitation to hold that Sub Court, Kottayam continued to have jurisdiction to proceed with the I. A., even if subject matter of the suit comes within the jurisdiction of the new court at Palai. Provisions of Section 150 of C.P.C. have no application here.