TARACHAND Vs. MISRIMAL

JUDGEMENT

(1.) THIS is a special appeal under sec, 18 of the High Court Ordinance from the judgment dated 9th April, 1964 of Jagat Narayan J. in a case arising under sec. 47 of the Code of Civil Procedure.

(2.) THE brief facts of the case are that on 23rd December, 1955 a decree was passed in a suit for specific performative of on agreement to sell two plots of land by the Civil Judge, Pali. THE decree was in favour of Misrimal and Hanwantraj and against Tarachand, Birdichand and Roopchand. This decree was not drawn up in proper form, but the substance of the decree is that the defendants shall deliver possession of two the alas (plots mentioned in para 2 (b) of the plaint to the plaintiffs and that the defendants will execute a sale deed of these plots in favour of the plaintiffs, and that according to the agreement Ex. 1, the total sale-price of the plots in dispute is Rs. 4,000/- out of which Rs. 1,000/- has already been received by the defendants and Rs. 2545/7/* are due to the plaintiffs from the defendants which will be adjusted with interest at the rate of 6% per annum at the time of registration of the sale deed and in case the total amount does not make up of Rs. 4,000/-, the defendants will be entitled to get the balance from the plaintiffs at the time of registration of the sale-deed and the defendants will get the sale deed registered.

(3.) THIS being the position, there is no reason to be unduly oppressed by the doctrine that lack of territorial jurisdiction makes an order or judgment a nullity (doctrine which is no doubt applicable in international law and to hold that under sec. 39 C. P. C. it is incumbent for the Court which passed a decree to send it for execution to another court in cases provided in clauses (a), (b) and (c) of sec. 39 (1) C. P. C. and thus to infer that sec. 38 is dependent of sec. 39 to such an extent that the court which passed a decree cannot proceed to execute it in the circumstances mentioned in clause (a) to (c) of sec. 39 (1) and if it does so, the order passed by the court which passed the decree in taking any action in the matter provided in these clauses are to be struck down as nullity. Sec. 39 (1) purposely used the word "may" and that this word "may" cannot be construed as "shall or "must".