SREERAMULU Vs. APPANNAMAYURALU

JUDGEMENT

(1.) THE question for my consideration in this appeal is whether the District Judge is competent to hear the appeal from a decree in a suit the value of which is over Rs. 7,500 after the Andhra Pradesh Civil Courts Act I of 1966 came into force. THE appellant herein filed the suit O S. No. 37 of 1972 against the respondent on 13-7-1972. THE value of the suit was Rs. 9300/- THE suit was decreed on 3-7-1973 by the Principal Subordinate judge, Srikakulam for a sum of Rs. 8000/- He disallowed interest and costs. THErefore, the plaintiff preferred the appeal A. S. No. 198/73 in the Court of the Dist. Judge, Srikakulam on 7-12-1974. THE appeal was allowed. THEreupon the plaintiff filed an application for execution of the decree in the court of the Subordina'te Judge, Srikakulam. THE judgment debtor, the respondent herein, filed a counter stating that the decree passed by the Additiona District and Sessions Judge was void and inoperative, since he had no jurisdiction to hear the appeal. It was submitted that the suit against which the appeal was filed was instituted before 1-11-1972, and its valuel was more than Rs. 7.500/- and against the decree in such a suit an appeal lies only to the High Court. THErefore, it was contended that the decree holder could not execute the appellate decree since it was a nullity but that he could execute only the decree in the suit, in O. S. NO. 37 of 1972.

(2.) THE learned Subordinate Judge held that the appellate decree in AS. No. 198/73 was a nullty and cannot be executed. THErefore he dismissed the execution petition. Questioning that order, the decree-hoider has filed this appeal. Before I discuss the question raised in this appeal, I have to state that the respondent herein did not raise any objection before the District Judge, when the appeal was pending, that he had no jurisdiction to hear the appeal He. raised the objection only in the execution petition. Under the Andhra Pradesh Civil Courts Act, 1873, as amended by the AP. Act I of 1966, an appeal was provided to the District Court against a decree of the court of the Subordinate Judge if the value of the suit did not exceed Rs. 10000/-or such amount as was fixed by the State Government not exceding Rs. 10000/- Under G.O. Ms. No. 571 Home (Coart-I dated 7-3-1966 the State Government fixed that the amount or the value of the subject-matter of the suit should not be more then Rs. 7500/-for the purpose of appeal to the District Court from the decrees and orders of the Subordinate Judges and the District Munsiffs. Subsequently the Andhra Pradesh Civil Courts Act, 1972 was enacted and it came into force on 1-11-1972 Under S. 34 of that Act the Andhra Pradesh Civil Courts Act 1873 was repealed. Under S. 17 of that Act an appeal lies to the District Court against a decree of the Court of the Subordinate Judge, where the amount or the value of the subject-matter of the suit or proceeding is not more than Rs. 15000/- Whea O.S No. 37 of If 72 was filed on 13-7-1972 the Andhra Pradesh Civil Courts Act 1873 was in force. During the pendency of that suit, the Civil Courts Act. 1972 came into force on 1-11-1972. O.S.No. 37/72 was disposed of on 3-7-1973 by which date the Andhra Pradesh Civil Courts Act 1972 came into force, giving jurisdiction to the District Judge to hear appeals from decrees of the Subordinate Judges if the amount or the value of the subject-matter of the suit was not more than Rs. 15000/- THErefore on that date, the District Judge had jurisdiction to hear an appeal against the decree In O. S. No. 37/1972 whose value was only Rs. 9300. Relying upon I. Venkata Reddy Vs I. Ayodhyamma (I) and Kameswa- ramma v. M/s Radha Krishnam & Co, (2) it is submitted by the learned counsel for the respondents that the right of appeal is a vested right that it is governed by the law prevailing at the time of the commencement of the suit or proeeding, and that it is not lost by alteration in the law unless provision is made expressly in that behalfor arises by necessary implication It is therefore submitted that the Andhra Pradesh Civil Courts Act 1972 is only prospective and not retrospective in operation and an appeal against decisions in suits, the value of which exceeds Rs. 7500/- lies only to the High Court, but not to the District Court. THEre can be no dispute with the propositions of laid down in these two decisions. But the question for my consideration; in this appeal is altogether different. In this case, the plaintiff-appellant could have certainly preferred an appeal in the High Court against the decree in O.S. No. 37/72 since the suit was filed on 13-7-1972. when the old Civil Courts Act 1873 was in operation. instead, if he had chosen to file an appeal in the District Court, since by then the Andbra Pradesh Civil Courts Act of 1972 came into force. Can it be (aid that he cannot file such an appeal in the District Court much less the District Court has no jurisdiction to hear such an appeal. I am of the opinion that the jurisdiction of the Court to hear ap appeal is one thing and the choosing of the appellate froum by the litigant is another. If the appellant in this csse hag chosen to file an appeal in the District Court it does not mean that the District Court bad no juris diction to hear the appeal on that date for, by that it was invested with jurisdiction to hear the appeals against decrees in suits cf the value of not more than Rs. 15000/ THErefore it is net a case of lack of inherent jurisdiction in that court to hear the appeal. If so, the decree passed by the District Court is not a nullity. THE next question for consideration is whether the jurisdiction of the District Judge to hear appeals against decrees in suits of the value of Rs. 15000/- is affected by virtue of sub-section (2) of section 34 of the Civil Courts Act 1972. Under sub-section (I) of section 34, the Andhra Pradesh Civil Courts Act 1873, stands repealed. Sub-section (?) says that the provisions of sections 8 and 18 of the Andhra Pradesh general Clause Act 1891 shall apply upon such repeal. Section 8,of the Andhra Pradesh General Clauses Act speaks of the effect of repealing ap Act. When an Act is repealed, then the repeal shall not affect the previous Operation of any enactment so repealed or anything duly done or sufferred under any enactment so repealed or affect any right, privilege or liability acquired or incurred under any enactment so repealed. We are not concerned with section 18 in this case. By making section 8 of the General Clauses Act applicable it is evident that the Andhra Pradesh Civil Courts Act 1972 does not effect the .previous operation of the Andhra Pradesh Civil Courts Act 1873 or anything duly done or sufferred under that enactment or affect any right or previlege acquired or accrued under that enactment. THErefore the appellant herein could certainly have preferred an appeal in the High Court against the decree in O.S 37 of 1972. But that is diffrent from saying that the jurisdiction of the District Court to hear an appeal under the pew Act, is affepted or taken away by virtue of section of the Andhra Pradesh General Clauses Act, when adrnittedly it was invetted with that jurisdiction on that date. I, therefore, hold that the District Judge has jurisdiction to hear the appeal in the present case. A number of decisions kave been cited before me for the proposition that an executing court cannot go behind a decree, that con refuse to excute a decree only if it is a nulluity, but it must it must appear on the face of the record not by probing into the record- Decisions have also been cited to the effect that objection regarding terri to rial jurisdiction or pecuniary jurisdiction should be taken at the earliest stage but not in execution proceedings. It is unnecessary for me to refer to all of them exept a few. La Kiran Singh v, Chaman Paswan (1), it has been held that a decree passed by a court without jurisdiction is a nullity. It was further held that the policy underlying sections 21 and 99 C.P.C. and section II of the Suita valuation Act it the same, namely, that when a case had been tried by a Court on the merits and judgement rendered, it should not be reversed purely on technical grounds, unless it bad resulted in failure of Justice, andthe policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary, as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. In Hira Lal v, Kali Nath (2) it has been held that the validity of a decree can be challenged in execution proceedings only on the ground that the court which pasted the decree was lacking in inherent jurisdiction in the sense thet it could not have seisin of the case because the subjectmatter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other grounds which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. In F D Modi v, R.A. Rehman (3) it has been held that where a decree is made by a court that has no inherent jurisdiction to make it, objection as to its validity may be raised in execution proceedings if the objeetion appears on the face of the record. But, where the objection as to jurisdiction of the court to pass a decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even en the ground of absence of jurisdiction. In M. Venkata Ramana v. Sri Rama Mandiram (4) it has been held by a Division Bench of this Court that an objection to jurisdiction must be raised at the earlist stage. In view of my conclusion that on the date when the appeal was filed in this case before the District Court, the District Court bad jurisdiction to hear the appeal, I hold that the decree passed by it is not a nullity. Consequently that decree cannot be challenged i the execution proceedings. I therefore, let aside the learned Subordinate Judge, stating that the appellate decree in A.S.No. 198 of 1973 on the file of the District Court, Srikakulam is a nullity and cannot be executed. I hold that the said decree is valid and is executable. In the result, the appeal is allowed and the learned Subordinate Judge is directed to restore EP. No. 93 of 1974 to his file and proceed with the execution of the decree. In the circumstances ot the case. I direct each party to bear his costs. Appeal Allowed