VISHWANATH KESHAV JOSHI Vs. B M SUKHADWALLA

JUDGEMENT

(1.) THE matter comes up before me for trial of issue as to the jurisdiction of this Court to entertain proceedings in execution of a decree passed by this Court, the decree being for an amount above Rs. 2,000 and below Rs. 10,000. THE decree was passed in the suit on April 2, 1948, and this application for execution was made by the judgment-creditor on September 22, 1948.

(2.) A point was raised as to whether in view of the passing of the Bombay City Civil Court Act, XL of 1048, this Court had jurisdiction to entertain this application for execution of the decree. The Bombay Act XL of 1948 was enacted by the Legislature and received the assent of the Governor General on May 10, 1948. It came into force by a notification in the official Gazette from August 16, 1948. Section 3 of that Act provided that notwithstanding anything contained in any law, the Bombay City Civil Court was to have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value and arising within the Greater Bombay, except for certain exceptions therein laid down which are not relevant for the determination of the present issue before me. Section 12 of the Act provided that notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court. Section 18 of the Act further provided that all suits and proceedings cognizable by the City Court and pending in the High Court, in which issues had not been settled or evidence had not been recorded on or before the date of the coming into force of this Act shall be transferred to the City Court and shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction thereof as if they had been originally instituted in that Court. These are the relevant provisions of this Act which have got to be borne in mind for the purposes of the determination of this issue.

(3.) MY attention was also drawn to the provisions of Section 37 of the Civil Procedure Code where the expression "court which passed a decree" or words to that effect are in relation to the execution of decrees deemed to include, 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. It was pointed out that in those cases where pecuniary jurisdiction was curtailed subsequent to a decree passed by a Court, the jurisdiction to execute the decree was not lost and that in spite of the curtailment of the pecuniary jurisdiction in that manner the Court would continue to have jurisdiction to execute the decree. There is no question here of the Court having ceased to exist. The only question which arises is whether by reason of the pecuniary jurisdiction of this Court being altered! in the manner provided in the Bombay City Civil Court Act it can be said that this Court has lost the jurisdiction to execute a decree which has already been passed by it. Reliance was placed in support of this contention on a decision reported in. Abdus Sattar v. Mohini Mohan Das (1943) 37 C. W. N. 679 and the note in Mulla's Civil Procedure Code at p. 162. This decision, however, runs counter to a decision of the Calcutta High Court itself which is subsequently reported in Masrab Khanv Deb Nath Mali [1942] 1 Cal. 289, 291. where the effect of Section 37 (6) of the Civil Procedure Code is laid down as substituting the Court in which the jurisdiction was subsequently invested as the only Court which can be considered to be the Court which passed the decree for the purposes of this section. Mr. B. J. Diwan also drew my attention to a decision of our High Court reported in Gaushha v. Abdul Kopkha (1892) I. L. R. 17 Bom. 162 where it is laid down that there is no distinction which can be drawn between the nature of the causes which put an end to jurisdiction, so far as the terms of Section 37 (6) arc concerned. What one has got to have regard to are the plain terms of Section 37 (b) themselves which lay down that where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which passed the decree or words to that effect shall in relation to the execution of decrees be deemed to include the Court which would have jurisdiction to try such suit, if the suit wherein the decree was passed was instituted at the time of making the application for execution. Here by reason of the enactment of the Bombay City Civil Court Act the jurisdiction in respect of suits and proceedings of a civil nature exceeding Rs. 2,000 and not exceeding Rs. 10,000 in value was invested in the Bombay City Civil Court. If the suit had come to be filed after August 15, 1948, which is the relevant date (and the application for execution in this case as I have stated before was made on September 22, 1948), it would have had to be filed in the Bombay City Civil Court. That was the Court which was substituted for the High Court according to the terms of Section 37 (6) of the Civil Procedure Code, and it is that Court which can be said to be "the Court which passed a decree" in relation to the execution of this decree which was passed by the High Court. I am, therefore, of opinion that in respect of these proceedings for execution of the decree "the Court which passes a decree" should be deemed to include the Bombay City Civil Court which would have jurisdiction to try the suit if it had been filed on September 22, 1948, which was the date of the application for execution. There is no cogent reason urged on behalf of the judgment-creditor which can make me hold that this Court has in spite of the provisions of the Bombay City Civil Court Act which I have mentioned above retained the jurisdiction to execute the decrees which have been already passed by it in those cases where the claim was exceeding Rs. 2,000 and not exceeding Rs. 10,000 in value.