JAGANNATH RAMANUJ RAJ DEB Vs. LAKSHMI NARAYAN TRIPATHY

JUDGEMENT

(1.) THIS is an appeal by a judgment-debtor against the decision of the Subordinate Judge of Berhampur dated 17th September, 1954, over-ruling his objections under Sec. 47 of the Civil Procedure Code, to the execution of a compromise decree in original Suit No. 51 of 1933. That suit was brought before the Court of the Subordinate Judge of Berhampur by one Ghanashyam Deb claiming the Estate of Mandasa from one Jagannath Ramanuj Raj Deb who was alleged to be the adopted son of the previous Zamindar. The Estate was then included in the sub-division of Berhampur and was within the territorial jurisdiction of the Subordinate Judge of Berhampur (which was then a part of the Madras Presidency). When the Province of Orissa was formed with effect from 1st April 1936 Mandasa estate was separated from the Sub-division of Berhampur and included in the Sub-division of Chicacole in the Madras Presidency. As regards pending suits paragraph 20 of the Govt. of India (Constitution of Orissa) Order 1934, authorised the Governor-General in Council to issue appropriate directions. It reads as follows :

(2.) ANY appeal or application for revision in respect of any proceeding so pending or of any decision made before the appointed day in any such Court in or in respect of any such area shall lie in the court which has appellate or revisional jurisdiction as the case may be, over the Court which would have jurisdiction to try such proceeding if the proceeding were instituted after the appointed day; Provided that where the proceeding relates to any property situate partly within and partly without any area so transferred by the said Order to Orissa, any appeal or application for revision shall lie as it the said order had not been made." In pursuance of these directions the Subordinate Judge, Berhampur disposed of the suit on the 24th December 1936. An appeal against his decision was taken up before the High Court of Judicature at Madras (Appeal No. 355/37) but there, the parties entered into a compromise and a compromise decree was passed on the 14th February, 1941. The material terms of the compromise for the purpose of this litigation are contained in paragraph 4 of the decree which directed the respondent to pay to the appellant Rs. 75000/- in four instalments. The third instalment of Rs. 20,000/was payable on or before the 3rd April 1942. The appellant-decree-holder assigned his rights to receive this instalment from the judgment-debtor to one Harihar Tripathy, predecessor in interest of the respondents in this appeal. Harihar Tripathy filed an execution case (E. P. No. 111 of 1942) in the Court of the Subordinate Judge, Berhampur, on the 18th July 1942 (See Ext. 2). That application was dismissed by the learned Subordinate Judge on the 27th January, 1943 (Ext. 3) on the ground that as the Estate of Mandasa was transferred to Chicacole Sub-division of the Madras Presidency, the Berhampur Court had no jurisdiction to execute the decree notwithstanding the fact that the suit was heard and disposed of by that court. Neither party challenged the decision of the Subordinate Judge by way of appeal. In the meantime Harihar Tripathy died leaving the respondents as his legal representatives. They tiled a second execution petition sometime in 1945 (Ext. 5) before the Subordinate Judge of Berhampur. That petition was dismissed for default by the learned Subordinate Judge on the 8th December 1945 (Ext. 6) - A third petition was then filed by the transferee-decree-holders before the same Subordinate Judge on the same way (Ext. 7) in which it was prayed that the compromise decree may be transferred to the Court of the Subordinate Judge of Chicacole under Order 21, Rule 6 of the Civil Procedure Code for execution. The learned Subordinate Judge, Berhampur, by his order dated the 15th December 1945 (Ext. 8) directed the transmission of the decree to the Court of the Subordinate Judge, Chikacole for execution. Before the latter court it was numbered as E. P. No. 12 of 1946 (Ext. 9). Thereafter on the 29th July 1946, the judgment-debtor filed an objection (Ext. 10) to the execution of the decree. The learned Subordinate Judge, Chicacole, by his order dated the 21st October 1946 (Ext. 11) over-ruled the objection and directed that execution should proceed. Against this order the judgment-debtor went up on appeal to the Madras High Court in A. A. O. 547 of 1947 (Ext. 12). One of the important points taken up in this appeal was that as the Berhampur Court had lost territorial jurisdiction over the property, consequent on the transfer of Mandasa estate from Berhampur Sub-division to Chicacole Sub-division, the Berhampur court had no jurisdiction to entertain the execution petition and transmit the same to the Court of the Subordinate Judge Chicacole under order 21 Rule 6 of the Civil Procedure Code. The learned Judges of the Madras High Court rejected this contention in the following terms :