MUTHUKUMARA PILLAI Vs. THIRUNARAYANA PILLAI

JUDGEMENT

(1.) This petition raises an interesting and uncommon question. When a suit for money is transferred from the Court where it is instituted to another Court beyond that jurisdiction and a decree is obtained in that Court and then the second Court is abolished and the whole business of that Court is sent by administrative order to a third Court, has that (third) Court jurisdiction to entertain a petition for sending the decree for execution to the first Court or must the petition for execution be presented in the first instance to the first Court?

(2.) The facts are as follows: The suit, O.S. No. 179 of 1922. which was for money on a promissory note, was filed in the Vriddachalam Munsif's Court by two minor plaintiffs represented by their mother as next friend and was transferred for disposal to the Mannargudi Munsif's Court and there numbered as O.S. No. 633 of 1923 and a decree was passed against the petitioner-defendant. Subsequent to the decree the Munsif's Court of Mannargudi was abolished and its territorial jurisdiction and business were added to that of the Chidambaram Munsif's Court. After the 1 plaintiff became a major after decree, he and his mother quarrelled and separate petitions for execution one by the 1 plaintiff for himself and purporting to act as next friend of 2nd plaintiff and another by his mother as next friend of the 2nd plaintiff were filed in the Chidambaram Court. In the course of these disputes as to who was entitled to execute the decree, the 1 plaintiff stated that the whole decree was dischared by payment to himself. This was disbelieved by the Court as collusive and the 1 plaintiff was removed from the office of next friend of 2nd plaintiff and the mother appointed instead. At this stage the judgment-debtor raised the objection that the Chidambaram Court had no jurisdiction to entertain the mother's petition which was to transmit the decree for execution to the Vriddachalam Court. The objection was based on the ground that the Mannargudi Munsif's Court having been abolished and ceased to exist, the only Court which could execute the decree is, according to Section 37 (b) of the Civil Procedure Code, the Court where the suit would have to be brought if the suit were brought at the date of the application which is admittedly the Vriddachalam Court as the defendant lives and the cause of action arose in that jurisdiction. The objection was overruled by the District Munsif on the ground, as I understand it, that Section 37 (b) is not applicable to the case and that the Chidambaram Court having succeeded to the business of the Mannargudi Court, the former Court is entitled under Section 150 to do what the Mannargudi Court, if not abolished, might have done, i.e., to transmit the decree for execution and decide all things necessary to be decided before it is transmitted.

(3.) The Secs.37, 38 and 150 of the Civil Procedure Code on which this question depends have been the occasion of so many decisions that it is curious that the learned Advocates have not been able to bring to my notice any case like the present where the suit or the decree is one for a simple money debt without the security of immoveable property. The questions which have hitherto been the subject of decision arise where after suit and before execution, the territorial jurisdiction over the immoveable property concerned has been changed either because the Trial Court being abolished its territorial jurisdiction has been merged in other Courts, or because such Court being still in existence its territorial jurisdiction over the property has been wholly or partially conferred on other Courts. In such cases it is now held that where the Trial Court still exists, it has jurisdiction at least to entertain applications for transmitting the decree to the Court to which jurisdiction over the property concerned has been transferred. In Sivaskanda Raju V/s. Raja of Jeypore (1927) I.L.R. 50 M. 882 : 52 M.L.J. 605 the decision of the Full Bench in Seeni Nadan V/s. Muthuswami Pillai (1919) I.L.R. 42 M. 821 : 37 M.L.J. 284 (F.B.) was construed as recognising the powers of the Trial Court only to the extent of receiving and transmitting execution applications to the proper Court; and it was held that Subbiah Naicker V/s. Ramanathan Chettiar (1914) I.L.R. 37 M. 462 : 26 M.L.J. 189 still remains good law except to the extent it was modified by the Full Bench decision. But this limitation in the effect of the Full Bench decision was dissertted from in Submmania Aiyar V/s. Swaminatha Chettiar (1928) 28 L.W. 885 where the authorities were re-examined at great length and it was held that where the Trial Court still exists it alone has the power to execute a mortgage decree passed by it even where all the property covered by the mortgage has been subsequently withdrawn from its jurisdiction and that Section 150 has not the effect of conferring jurisdiction to execute such decrees on the Courts to which territorial jurisdiction is transferred unless the execution proceedings are by judicial order transferred thereto. The conflict between the decisions of these two Benches on the effect of the Full Bench decision on the powers of the Trial Court which has passed a mortgage decree to execute that decree after the property has been withdrawn from its jurisdiction is fundamental and can be settled only by a Full Bench. That question does not arise in this case.