RAM KALYAN Vs. RAMKISHAN

JUDGEMENT

(1.) THIS is a revision under sec. 26 of the Rajasthan Revenue Courts(Procedure and jurisdiction) Act, 1951 against an appellate decision of the Devisional Commissioner Kotah dated 16-6-1954 in a case relating to execution proceedings.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. Keeping in view the order that we are making in the case we refrain from expressing any opinion about the merits at this stage. Suffice it to observe that the decree which is sought to be executed was passed on 17-1-1948 by Tehsildar Chhabra upon an application presented by Badrilal before him for redemption of mortgage over the land in dispute. Badrilal subsequently died and his son Ram Kalyan presented an application on 3-5-1951 to the Tehsildar Chhabra for execution of that decree alleging there in that the file containing the preliminary decree, which upon deposit of Rs.60/- by the mortgagor culminated in a final decree had been lost. It was also alleged therein that several applications for execution of the decree had been presented previously but they were all untraceable. Execution was ordered upon this application by the Tehsildar, and this order was upheld by the Collector in first appeal. In second appeal the learned Commissioner observed that the Tehsildar had no Jurisdiction to entertain application and hence allowed the appeal and set aside the orders of the lower courts. WE agree with learned Commissioner in holding that the Tehsildar had no jurisdiction to entertain the execution application after the enforcement of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. As provided in item 5 Group 'D' Schedule I of the Act application by mortgagor for redemption of land and for redelivery of possession are triable by a Sub-Divisional officer. It is true that the decree for redemption was passed by the Tehsildar prior to the enforcement of the Act. As laid down in Rule 116 of the Rules framed under sec. 8 of the Act (corresponding to sec. 38 C.P.C." a decree may be executed by the court which passed it" and this term has been defined in Rule 117. Where the court of first instance has cased to have jurisdiction to execute the decree the court which if the suit wherein the decree was passed was instituted at the time of making the application for the execution, would have jurisdiction to try such suits,would be the court of the S.D.O. which passed the decree. Thus the application for execution should have been presented to the S.D.O. which alone was competent to proceed in the matter. The learned Commissioner was, therefore, justified in holding that the Tehsildar should not have proceeded with the application. He, however, did not carry this finding to its logical sequence. He should have directed that as the Tehsildar had no jurisdiction in the matter the application should have been returned to the decree holder for proper presentation to the competent court. WE would therefore allow this revision, set aside the orders of the lower courts and direct that the Tehsildar after making necessary endorsement on the application as required by the law on subject shall return the same to the decree holder for presentation as pointed above.