SHAH SHIVLAL BHOGILAL Vs. SHAH VADILAL DIPCHAND

JUDGEMENT

(1.) This appeal Is filed by the original decree-holder against the decision of the Court of the District Judge, Mehsana, given in Regular Civil Appeal No. III of 1962 of his Court, thereby upholding the decision of the Court of the Civil Judge (Junior Division), Harij, Mehsana District, given in Civil Execution Application No. 10 of 1961 of his Court By the said order, the learned Civil Judge at Harij had dismissed the execution application on the ground that it was only the Court passing the decree, viz., the Court of the Civil Judge (Junior Division), Chanasma, which had the Jurisdiction to entertain and try the execution application and that the Harij Court had no such Jurisdiction.

(2.) The appellant-decree-holder had obtained a money decree against the present respondent (judgment-debtor) in Civil Suit No. 40 of 1952, which was modified by the learned District Judge, Mehsana, in Civil Appeal No. 47 of 1954 by a decree passed on July 15, 1958. The decree passed in favour of the present appellant was for recovering a sum of Rs. 6,124-6-0 with costs and Interest from the present respondent During the pendency of the appeal before the District Court, a new Civil Court, viz., the Court of the Civil Judge (Junior Division) at Harij was constituted and this was by a notification Ex. 22 of the State Government, bearing No. CRC 2154/39/154/III published in the Government Gazette. Part IV-A, on April 2, 1957. By the said notification, it was provided that there shall be a Civil Court subordinate to the District Court, Mehsana, at Harij, and that the said Court shall be presided over by a Civil Judge (Junior Division) who shall hold his Court at Harij. It was provided that the local limits of the ordinary Jurisdiction of the Civil Judge (Junior Division), Harij, shall comprise the areas within the limits of Sami and Harij Mahals. It was further provided that the whole of the Harij Mahal heretofore included within the local limits of the ordinary jurisdiction of the Civil Judge (Junior Division), Chanasma, shall be excluded therefrom. By Office Order No. 56 of 1957, produced at Ex. 23, dated March 18, 1957, the learned District Judge had ordered that all civil suits, darkhasts, miscellaneous applications, B.A.D.R. applications and other proceedings of civil nature pending for hearing on March 31, 1957, after office hours in the Court of the Civil Judge (Junior Division), Chanasma, arising from area within the limits of Harij Mahal stand transferred to the Court of Civil Judge (Junior Division), Harij, with effect from the 1st April 1957. This latter order was made for transfer of business. It is not in dispute that the parties to the suit resided within the limits of Harij and that the cause of action had also arisen within the said limits. It was after the territorial Jurisdiction in respect of the Harij area was transferred to the newly constituted Civil Court of the learned Civil Judge at Harij that the appellant (decree-holder) had filed Civil Execution Application No. 10 of 1981 in the Harij Court. At the date of the decree passed in Civil Appeal No. 47 of 1954 by the Court of the District Judge at Mehsana, thereby modifying the original decree passed by the Chanasma Court, in Civil Suit No. 40 of 1952. the Jurisdiction in respect of the area situate within the limits of Harij Mahal was vested in the newly constituted Court at Harij. The execution application was filed on July 14, 1961, and it was indisputably filed within the prescribed period of limitation. However, In the Harij Court, an objection was raised on behalf of the respondent (judgment-debtor) that it was the Chanasma Court, the Court passing the decree, that had jurisdiction in the matter and that the Harij Court had no jurisdiction. The learned Civil Judge at Harij upheld the objection and dismissed the execution application by his order dated June 18, 1962, and the order was upheld by the learned District Judge in Appeal No. III of 1962, against which order, this second appeal is filed.

(3.) I may here say that on the very day on which the Harij Court had dismissed the execution application, the decree-holder had, by way of abundant caution, rushed to the Court of the Civil Judge at Chanasma, the original Court passing the decree, and filed the execution application No. 38 of 1962 wherein the appellant had prayed that the time taken in Rood-faith in prosecuting the execution application in the Harij Court be excluded for the purpose of computing the period of limitation. The learned Civil Judge at Chanasma had accepted the appellant's case and found that the earlier execution application was prosecuted with reasonable diligence and in good faith and, therefore, the appellant was entitled to the exclusion of such tune as provided under Section 14 of the Limitation Act. The order was upheld by the Court of the learned District Judge at Mehsana and the second appeal filed against that order in this Court has been dismissed by me this day by a judgment delivered separately.