GOVIND NARAIN MATHUR Vs. SWAROOP NARAIN

JUDGEMENT

(1.) THESE two appeals between the same parties raise a common question of law and are, therefore, being dealt with together.

(2.) THE decree-holder appellants instituted a suit in the court of the Sub-Judge, Ajmer for possession of immovable property valued at Rs; 6000/-and for mesne profits amounting to Rs. 770/-on 5th February, 1945. THE defendants objected that the suit was under valued and the value of the disputed property was near about Rs. 15000/ -. THE learned Sub Judge by his order dated 10th July, 1945 held that the valuation of the suit property excluding the amount of mesne profits was Rs. 8500/ -. A revision application was taken to the court of the Judicial Commissioner, Ajmer Merwara who by his order dated 29th August, 1945 directed the Nazir of the District Court to enquire into the valuation of the house and the land on which it stood and certify the result to that court. THE District Nazir's report was received by that court and objections were filed against it. THE learned Judicial Commissioner by his order dated 24th October, 1945 remitted the case to the trial court with a direction to fix the valuation of the site and the buildings in the light of the remarks made in the earlier judgment i. e. , 29th August, 1945 and after examination and cross-examination of the district Nazir, However, before the correct value of the suit property was determined by the sub Judge the case was transferred by the District Judge to the court of Sub Judge, First Class, Ajmer whose jurisdiction extended upto Rs. 50,000/ -. In view of the jurisdiction of the Sub-Judge First Class extending upto Rs. 50,000/-the objection regarding jurisdiction and the valuation of the property was not pressed by the defendants and thus the case came to be tried in that court without correct valuation of the property having been determined. Eventually after trial the suit was dismissed on 17-12-1953. This decree was however, reversed by the High Court on 19-4-1960 and the suit was decreed. Govind Narain Mathur vs. Smt. Mohinidevi (1-a ). THE decree holders on 5-4-1953 filed an application for execution in the court of the Senior Civil Judge, Ajmer and also got it transferred with a certificate to the court of the District Judge, Jaipur where an execution application was presented for realisation of mesne profits. Thus the execution application for recovery of possession remained on the record of the Senior Civil Judge, Ajmer while the decree for recovery of mesne profits was transferred to the court of the District Judge, Jaipur who further transferred it to the court of the Senior Civil Judge, No. 1 Jaipur City. Before both these courts the judgment debtors raised an objection that the Senior Civil Judge, Ajmer had neither the jurisdiction to entertain the execution application nor to transfer it for execution to the court of the District Judge, Jaipur City.

(3.) IN the present case the decree to be executed was passed by the High Court in exercise of appellate jurisdiction and, therefore, according to cl. (a) of S. 37 of the Code, the court competent to execute the decree was the court of first instance, which was the court of Sub Judge First Class, Ajmer. Before the District Judge, Ajmer, in first appeal against the judgment of the Civil Judge, Ajmer, it seems to have been admitted by the judgment debtors that the court of Sub. Judge First Class had ceased to exist and, therefore, clause (b) of sec. 37 of the Code was applicable and that being as it was urged before that court that the valuation of suit being Rs. 8500/- it was the Civil Judge, Ajmer who had jurisdiction to try such suits on the date the application for execution was made. But in this Court the contention of Mr. Agrawal learned counsel for the judgment debtors is that the court of the Sub Judge First Class did not cease to exist and the case is governed by clause (a) of sec. 37. Mr. Agrawal contends that by mere change of designation or reduction of its pecuniary limits, a court does not cease to exist for the purposes of sec. 37. It is pointed out that if by some administrative order, pecuniary limits of the jurisdiction of a Sub Judge First Glass Ajmer was reduced to Rs. 10,000/- only or by Act No. 2 of 1957, his designation was changed to that of Civil Judge and even subsequently, when that court was abolished by Notification dated December 30, 1957 and re established as court of Civil Judge, Ajmer, the court did not cease to exist for the purposes of sec. 37. Reliance is placed on Lyallpur Bank Ltd vs. Jai Gopal (1) Raza Hussain vs. Gaya Prasad, (2) Abdus Sattar vs. Mohini Mohandas (3) and Suryan-arayan Agrawalla vs. Maheswar Keot (4 ).