M. PERUMAL CHETTIAR Vs. AVULA KOTAYYA AND ORS.

JUDGEMENT

(1.) THE order of the learned Subordinate Judge against which this appeal has been filed proceeds upon the view that the District Munsiff, Narasaraopet, had no jurisdiction at all to entertain the execution petition that was filed in his Court on 6th January, 1942 either on the date of the filing of the execution petition or on 9th February, 1942 when the* same was rejected. In the course of the Judgment the learned Subordinate Judge while referring to the application made in the Small Cause Court on 10th December, 1941 for transmission of the decree states that that alone would not confer jurisdiction on the District Munsiff's Court Narasaraopet to execute the decree. He further states that the appellant had no right at all to present the application to the District Munsiff, Narasaraopet, before the order of the transmission of the decree (meaning presumably before the receipt of the order directing transmission) and that the lower Court rightly returned the application on 10th January, 1942 on the ground that the decree copy had not been received from the Small Cause Court, Madras. This view is opposed to the decision of a Division Bench of this Court in Ademma v. : AIR1933Mad627 There it was held that the transfer of a decree to another Court for execution comes into effect from the date when the order of transfer was made and when once the order of transfer is made the Court to which the decree is transferred has jurisdiction to entertain the application for execution, even though a copy of the decree has not been received by it. This decision has been followed in Venkatratnam v. Chennayya : (1939) 50 L.W. 764

(2.) WHAT happened in the present case was that when the application for execution was filed in the Madras Small Cause Court on 6th January, 1942, that Court made the following order : " Transmit. Prepare extract and hand over to party to -day." (It is not ' hand over to post to -day' as would appear from the certified copy of that order furnished by that Court to the appellant). The decree extract and certificate appear to have been handed over to the advocate for the plaintiff on the same day. It is not known how it happened that neither the decree extract nor the certificate was produced or filed before the transferee Court. On the same date, namely 6th January, 1942, an application was made to the District, Munsiff of Narasaraopet for the execution of the decree. That application was rejected on 9th February, 1942, because the order of transmission and the decree extract and certificate were not filed although time was given for that purpose. The circumstances in which those papers could not be produced would be a matter which might call for investigation; but having regard to the principle laid down in the two decisions referred to above, namely, that an order of transmission takes effect from its date and that an execution petition can be filed in the transferee Court after that date even though the necessary papers were not received in that Court, it is clear that the view upon which the learned Subordinate Judge has acted is erroneous. It is not a case where no order had in fact been passed transferring the decree to the other Court. The order of transmission was, as stated already passed on 6th January, 1942, and this application was made on the same date presumably after the passing of the order. Therefore, the execution petition itself which was filed in the District Munsiff's Court, Narasaraopet, should have been registered and proceeded with. It should not have been rejected without even registering it. It was open to the Court thereafter to give time to the party for furnishing the necessary papers and it was open if those papers were not produced as per directions to deal with the execution petition accordingly. But on the ground that no order for transmission was produced in Court the petition cannot be rejected without being registered, when as a matter of fact we find that such an order was actually passed and does exist. The order of the learned Subordinate Judge is therefore set aside, the execution petition shall be restored to the file of the District Munsiff, of Narasaraopet, and registered and disposed of according to law.

(3.) LEAVE to appeal is refused.