SHANTI LAL Vs. MTJAMNI KUER

JUDGEMENT

(1.) This is an execution first appeal by a judgment-debtor Shanti Lal who has made an objection which has been disallowed by the Court below. The facts are that Shanti Lal brought a suit No. 128 of 1926 and his suit was dismissed by the Subordinate Judge of Budaun on 26 February 1927 and a decree was granted against him for costs in favour of defendant 2 Sheo Debi and defendant 3 Mt. Jamni Kunwar. Shanti Lal appealed to the High Court and the High Court dismissed his appeal with costs on 11 December 1930. On 4 December 1933 the holder of the decree for costs applied to the Subordinate Judge of Budaun to transfer the decree to the Munsif of Khurja for execution. This was granted. It is this application which it is claimed saves limitation. On 8 January 1934 an application was made to the Munsif of Khurja for execution. On 1 February 1934 that application was struck off, and it was infructuous. On 8 January 1936 Mt. Jamni Kunwar, one of the holders of the decree for costs, made the present application for execution to the Subordinate Judge of Budaun. The point raised by Shanti Lal is that this application for execution is time-barred and that the application for transfer by the decree-holder on 4 December 1933 does not save limitation because he alleges that the application did not comply with the requirements of Section 39(1), Civil P.C. The allegation is that the Section requires that the Court to which the decree is to be transferred is a Court which should have pecuniary jurisdiction to try the suit in which the decree is passed, and that because the suit was one in the Court of a Subordinate Judge the decree cannot be sent to the Court of a Munsif for execution. It is to be noted that the decree for costs which is now to be executed amounted to Rs. 869-2-0 and that this sum is within the pecuniary jurisdiction of the Munsif of Khurja. As regards the application of Section 39 it may be pointed out that the objector gives his address as a resident of Khurja and therefore he came within the provisions of Section 39(1)(a) which provides that the decree may be sent for execution to another Court if the person against whom the decree is passed actually and voluntarily resides... within the local limits of the jurisdiction of such other Court.

(2.) There are four conditions in S, 39(1) and if any of these conditions is satisfied the transfer of the decree may be made. In the present case therefore there is no doubt that the residence of Shanti Lal, the judgment-debtor, in Khurja was a condition which entitled the Subordinate Judge to make the order of transfer on the application of the decree-holder. Now as regards the capacity of the Court to which the transfer is made Section 39(1) states: The Court which passed a decree may, on the application of the decree- holder, send it for execution to another Court,.

(3.) There is nothing stated in this sub-section as regards the pecuniary jurisdiction of the Court to which the decree is to be sent for execution. Reliance has been placed on Section 6, Civil P.C., which provides as follows: Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.