RAMCHANDRA Vs. KANAKMAL

JUDGEMENT

(1.) THIS is an Execution Second Appeal by Ramchandra, Chhogalal and Ranglal against an appellate order of the District Judge, Partabgarh setting aside an order of the Civil Judge, Chittorgarh. The appeal has been contested by Kanakmal Respondent No. 1. Smt. Jadav Bai Respondent No. 2 executed a sale deed Ex. A/2 of a shop on 3-2-1954 in favour of Ramchandra and Chhogalal appellants. On 25-9-1954 she sold a house to Ranglal appellant by means of sale-deed Ex. A/1. Kanakmal and Nandlal brought a suit against Smt. Jadav Bai in the court of the Munsiff, Chittorgarh in 1934 in respect of the immovable properties originally belonging to one Kesrimal. That suit was finally decided by this Court on 10th August 1965. Amongst the properties in suit were the shop and the house sold by Smt. Jadav Bai by means of the above two sale deeds.

(2.) AFTER the suit was finally decreed in favour of Kanakmal plaintiff (Nand Lal having died before the decision of the suit, leaving Kanakmal as his only heir), he applied for execution of the decree. A warrant of possession was issued in his favour in respect of the shop and the house. Delivery of possession was resisted by Ramchandra and Chhogalal over the shop and by Ranglal over the house. The decree holder or then filed an application under Order 21, Rule 97 C. P. C. The appellants resisted the application on the ground that they had purchased the respective properties when there was no suit pending about them. On 15-3-67 the executing court upheld the objection. On 19-9-67 the District Judge set aside the order of the executing court on appeal and held that sec. 52 of the Transfer of Property Act was applicable to the two transfers in favour of the present appellants, and the decree-holder was consequently entitled to get possession over the shop and the house in dispute.

(3.) THE first contention on behalf of the appellant is that on 3-2-54 when the sale deed Ex. 2 was executed, the file of the case was lying in the record room of the District Judge, Bhilwara and it cannot be said that the suit was pending in any court competent to try it. Further it is argued that on 25-9-54 when the sale-deed Ex. 1 was executed the file was pending in the court of the Munsiff, Chittorgarh who had no authority to dispose of the suit as the valuation of the properties in suit was Rs. 2,800/- which was beyond the pecuniary limits of his jurisdiction. I am unable to accept these arguments in view of the Explanation to sec. 52 of the Transfer of Property Act which was added in 1929. THE present suit was instituted in the year 1934 in the court of the Munsiff, Chittorgarh whose jurisdiction at that time extended to Rs, 5,000/- and the valuation of the properties in suit being Rs. 2800/-he was competent to try it. THE properties in dispute in the suit all lay within the territorial jurisdiction of that court. THE suit was finally decided by the judgment of the High Court in the second appeal in 1965. By virtue of the Explanation, the suit will be deemed to be pending in a court having authority to decide it during the whole of this period.