MUTTANGI AYYANNA Vs. MUTTANGI ETHIRAJULU

JUDGEMENT

(1.) This miscellaneous appeal is directed against the order of the Subordinate Judge, Rajahmundry, in E.P. No. 80 of 1963 in O.S. No. 52 of 1953 directing restitution of a godown on an application made by the respondents- decree-holders herein. The facts are these : The 1st petitioner and the respondent in the execution petition are brothers. It would appear that they referred their dispute relating to division of properties to arbitration and that after the award was given by the arbitrator, it was also filed into Court and a decre was obtained in terms thereof. Subsequent to the decree, it was the case of the petitioners in the execution petition that there was an agreement between the brothers by which this shop was agreed to be delivered to Muthangi Ethirajulu. Setting up this agreement, an application was filed at the stage when the award was before the Court for passing a decree in terms thereof. The Court of first instance i.e., the Additional District Judge, did not accept the agreement pleaded by the petitioners in the execution petition and rejected the plea to allot this item of property to the petitioners therein. A miscellaneous appeal was preferred against the order and this Court in A.A. O. Nos. 80 and 81 of 1959 modified the decree of the Court below made in terms of the award accepting the agreement pleaded by the decree-holders. In consequence of the decree of this Court, the decree-holders filed the execution proceeding for restitution in the District Court. The District Judge, on administrative grounds, transferred this execution petition to the file of the Subordinate Judge who directed the restitution of the property.

(2.) Mr. Narasimha Sarma, the learned Counsel appearing for the appellant, contended that when an application is made for restitution under section 144, it should be made only in the Court of first instance and in this case the order is not made by the Court of first instance but by another Court viz., Subordinate Judge's Court and, therefore, the order made by the Subordinate Judge is one without jurisdiction.

(3.) I am unable to find any force in the argument for the application for restitution was made in the District Court and the District Judge in exercise of his power under section 24 of the Civil Procedure Code transferred this particular execution, petition along with the some other proceedings to the file of the Subordinate Judg , Rajahmundry for disposal according to law. There is nothing in section 24 of the Civil Procedure Code which limits the powers of the District Judge to withdraw and transfer cases to the file of Courts of competent jurisdiction. In fact section 24 (2) lays down that