P MADHAVAN UNNI Vs. M JAYAPANDIA NADAR

JUDGEMENT

(1.) THIS Letters Patent Appeal filed with the leave of Venkatadri, J. , in the first instance came up for hearing before my Lord, the Chief Justice and myself, and we felt that the judgment of Venkatadri, J. who reversed the judgments and decrees of the Courts below failed to appreciate the distinction between two lines of cases dealing with the power of transfer of a proceeding under Sections 24 and 39, Civil p. C. and the entire case was placed before the Full Bench. The facts of the case are as follows.

(2.) THE appellant obtained a money decree against the respondent in O. S. 73 of 1949 on the file of the District Munsif's Court, Ottapalam. The respondent (judgment-debtor) owned properties in Tirunelveli Dt. On the application of the decree-holder the decree was transferred to the District Court, Tirunelveli, for execution. In the District Court, Triunelveli, he filed E. P. 14 of 1952 and attached certain properties lying within the territorial jurisdiction of the Triunelveli Judicial district, Subsequent to the attachment the execution petition was transferred to the Sub-Court, Trinelveli, for further execution and the said petition was numbered as E. P. 12 of 1953 on the file of the Sub-Court, Trinelveli, Plots 2,3 and 4 were sold on 13-11-1953. But the sale, was, however, not confirmed and the properties were proclaimed for sale again on 25-6-1954. But no sale was held under this execution petition and finally the application was dismissed as not pressed on 306-1955, keeping alive the attachment for a period of 3 months. Within the period of three months the appellant filed E. P. 145 of 1955 and brought to sale and sold some of the properties already attached, including some of the items lying beyond the territorial jurisdiction of the Sub-Court. For realising the balance due under the decree, the appellant again filed E. P. 99 of 1960 on the file of the Sub-Court, trinelveli, and sought the sale of the items lying beyond the territorial jurisdiction of the Sub-Court, Trinelveli. The present suit out of which the above Letters Patent appeal has arisen is filed for a declaration that the execution proceedings in E. P. 99 of 1960 in regard to the sale of the properties outside the jurisdiction of the sub-Court, Trinelveli is void.

(3.) THE decree to the suit is (1) that the Sub-Court, Trinelveli being the transferee court, the order of transfer having been made by the District Judge, Trinelveli under Section 24 of the Code, has ample jurisdiction to proceed with the execution and to sell the properties lying within the judicial District of Tirunelveli, though beyond the territorial jurisdiction of the Sub-Court, Tirunelveli, and (2) that the plaintiff is estopped from questioning the jurisdiction of the Sub-Court of Tuticorin, he having never raised the objection in the execution proceedings and that he is incompetent to raise the objections and that the remedy of the plaintiff, if it all was to have objected to the execution proceedings before the executing Court and that Section 47 precludes the plaintiff from maintaining the suit.