RAM DAYAL Vs. KISTURI

JUDGEMENT

(1.) THIS civil execution appeal raises an interesting and a ticklish question. Though sections 37, 38, 39 and 150 of the Code of Civil Procedure have been discussed in so many decisions, learned counsel for the parties have not been able to bring to my notice any decision which is directly applicable to the facts of the present case.

(2.) THE appellants-decree-holders, instituted a suit for recovery of money in the court of Munsif, Shahpura, within whose jurisdiction the cause of action arose and the defendants had their residence. It seems that because of the heavy work on the file of the Munsif, Shahpura, this suit was transferred for disposal by Order No. 1528 dated 26-7-1955 (see Order-sheet dated 8-8-1955 --Civil Suit No. 290 of 1954) of the District Judge, Jaipur District to the Court of Munsif at Kotputli where a decree was passed in favour of the appellants on 5th January, 1956. The appellants straightway levied execution in the Court of Munsif, Shahpura, praying for the attachment and sale of judgment-debtors' shop and 'chobara' and thereafter for the rateable distribution of the sale proceeds held by the Court in execution of their other decree. Notice of the execution application was issued to both Devi Sahai and Radhey Shyam, the judgment-debtors, which was served upon them by registered post, as will appear from the order-sheet dated 24-81957 and postal acknowledgment receipts Nos. 11a/3, 14a and 16a. The judgment-debtors did not put in appearance and on 12-9-1957 execution file was ordered to be kept for rateable distribution with the other execution case. Finally on 9-9-61 the execution petition was dismissed for non-prosecution. The decree-holders then filed a second execution application No. 553 of 1961 on 14-9-61 and sought recovery of the decretal amount by attachment and sale of the judgment-debtors' immovable property. On 27-9-1961 Devi Sahai, judgment-debtor, preferred objection petition under Section 47, Civil Procedure Code, to the effect that the Munsif Court at Shahpura had no jurisdiction to execute the decree, because it was not the Court which had passed the decree or to which the decree had been transferred for execution. The execution court upheld the judgmentdebtor's objection holding that without a certificate of transfer from the Munsif court Kotputli, which had passed the decree, it had no jurisdiction to entertain the applica-tion for execution. An appeal was preferred against the said order by the decree-holders in the Court of District Judge, Jaipur District, against Radhey shyam and the legal representatives of Devi Sahai, who in the meantime had died. The learned District Judge maintained the order of the executing Court. It is against this order that the present appeal has been directed.

(3.) LEARNED counsel for the appellant contends that though the Munsif Court, shahpura, was not the Court, which had passed the decree or to which it had been sent for execution, it had inherent jurisdiction to execute it, because the judgment-debtors had their residence as well as their movable aud immovable properties within its jurisdiction and it was the only Court which could effectively execute the decree. The Munsif Court at Kotputli might be the Court, which had passed the decree, it could not give any relief to the decree-holders except making an order of transfer of decree under Section 39, Civil Procedure Coda. Reliance was placed on Ramanna v. Nallaparaju, AIR 1956 SC 87, Moher Singh v. Kasturi ram, AIR 1962 Punj 394 (FB) and Balkrishanayya v. Linga Rao, AIR 1943 Mad 449. It is contended that at best the Munsif Court, Shahpura committed an irregularity in exercise of its jurisdiction in entertaining the execution application without an order of transfer from the Munsif Court, Kotputli. But the judgment-debtors have waived that objection, because in the first execution application in spite of service of notice upon them they did not raise such objection and the court proceeded to pass an order for rateable distribution from the assets realised by the Court in execution of another decree. It was, therefore, not open to the judgment-debtors to challenge the jurisdiction of the Munsif Court, Shahpura to execute the decree in the present execution application.