KRITHIKA FINANCE Vs. R ELANGOVAN

JUDGEMENT

(1.) THE petitioner is decree holder. He filed the suit in O. S.No.386 of 1991 on the file of the Sub-Court, Sankari against the defendants for recovery of money on 5.3.1991. THE said Court passed decree in favour of this petitioner. Afterwards Sankari Sub-Court was bifurcated and a part of territorial jurisdiction was vested with Sub-Court, Namakkal. In the said Court, this petitioner filed R.E.P.No.241 of 2004 for sale of the properties belonging to the respondents. Subsequently, the territorial jurisdiction came under the Sub-Court, Tiruchengode, where the said Execution Petition was transmitted and is pending in the said Court in R.E.P.No.21 of 2008.

(2.) BEFORE the Executing Court viz., the Sub-Court, Tiruchengode, the respondents took a plea that without the decree being transferred or transmitted by the original Court viz., the Sub-Court, Sankari, which passed the decree, no execution proceedings could be taken in Tiruchengode Sub-Court. After hearing both sides, learned Sub-Judge, Tiruchengode, has dismissed the execution petition accepting the contentions of these respondents. Hence this petition.

(3.) IN this context it is advantageous to extract Section 37 of C.P.C. with explanation:".37. Definition of Court which passed a decree.The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.Explanation:-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit."